text:
    GALVESTON, H. & S. A. RY. CO. v. MILLER.
    (No. 5754.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1917.
    Rehearing Denied March 7, 1917.)
    1. Trial <S&wkey;252(ll) — Special Issues — CONFORMITY TO EVIDENCE — PARTICULAR WORDS —“Stob”—“Stub.”
    In action for injuries to freight conductor in yards when he stumbled over an object variously described as a stake, stob, or stub, where the testimony referred to it in each of those terms, submission of the issue whether there was a stake or stub without limiting it to a grade stake was not error; the word “stob” being a variation of the word “stub,” which means a small post.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 603.]
    2. Master and Servant <&wkey;276(7) — Injuries to Servant — Proximate Cause — Evidence —Sufficiency.
    Evidence held sufficient to sustain verdict for freight conductor’s injury in the yards on the theory that he had, as alleged, fallen or stumbled over a stake or stob protruding from the ground. ,
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 951, 959.]
    3. Master and Servant <&wkey;278(14)'— Injuries. to Servant — Proximate Cause — Evidence— Sufficiency.
    Evidence held sufficient to show that stake or stob over which freight conductor stumbled in the yards, and was injured, had been in the path for. such a time as to impute to the employer negligence in permitting it to remain.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §. 966.]
    4. Master and Servant <S&wkey;125(l) — Injuries to Servant — Safe Place to Work — Liability.
    A railroad is not negligent in permitting a stob or stake to remain in a path used by its freight employés unless it knew that the same was there prior to the alleged accident, or would, in the exercise of ordinary care, have known that it was there and would have removed it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 243.]
    5. Trial <&wkey;194(19) — Instructions — Invading Province of Jury — Weight of Evidence.
    In .freight conductor’s action for injuries, requested instruction that, if plaintiff stumbled over a stake in the yards while at work, that alone would not warrant affirmative answer to a special interrogatory, was properly refused as invasion of the jury’s province.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 466.]
    6. Trial <&wkey;260(l) — Instructions — Additional Instructions.
    It is not error to refuse additions to an instruction the only effect of which would be to satisfy the party’s preference of an expression.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651.]
    7. Master and Servant- &wkey;>289(I) — Injuries to Servant — Contributory Negligence-Questions for Jury.
    Evidence held to warrant submission to jury of issue whether freight conductor injured by stumbling over a stake in the path was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1089.]
    8. Trial <&wkey;252(ll) — Instruction—Evidence to Support.
    It is not error, in freight conductor's action for injuries when he stumbled over a stake in the yards, where the evidence is overwhelming that he did not know of its presence, to refuse requested instructions on assumption of risk.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 603.]
    9. Master and Servant <&wkey;>217(21) — Injuries to Servant — Assumption -of Bisk.
    Assuming that a freight conductor by walking rapidly in the yards at night assumed the risk of presence of mesquite bushes, grass, or weeds, of whose presence he knew, he did not necessarily assume the risk of a stake concealed by such bushes and of which he did not know.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 589.]
    10. Master and Servant &wkey;>129(7) — Injury to Servant — Proximate Cause.
    Where freight conductor hurrying along a path, in the yards in performance of his duties stumbled over a stake and fell, presence of the stake was the cause of his injuries, and it was immaterial whether he fell upon a rock m the path.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 263.]
    11. Appeal and Error <&wkey;1001(l) — Scope op Review — Matters op Fact.
    Where a cause is properly pleaded and there is evidence to sustain the verdict, it is controlling upon the court upon appeal.
    [Ed. Note. — For other cases, see Appeal_ and Error, Cent. Dig. §§ 3928-3933.]
    12. Trial <&wkey;114^STATEMENT op Counsel— Propriety.
    The statements of counsel in argument that the first four special issues represented plaintiff’s theory, and the last four, defendant’s, was not prejudicial, where the effect of the answers to the questions was apparent and obvious.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 275-278, 296.]
    13. Damages &wkey;132(7) — Excessive Damages.
    Verdict of $17,500 was not excessive where the plaintiff railway freight conductor, 50 years of age, earning an average of $124 a month, received severe injury impairing the strength and usefulness of his leg and severe shock to his back, spinal column and cord, and to his nervous system, impairing his general health and the functions of his heart and causing him to suffer pains in his head and left arm and impairing his hearing, all of which injuries were permanent.
    [Ed. Note — For other cases, see Damages, Cent. Dig. § 378.]
    - Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by H. J. Miller against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston; and Templeton, Brooks, Napier & Ogden and Ed W. Smith, all of San Antonio, for appellant. Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit for damages for personal injuries by appellee, H. J. Miller, against the Galveston, Harrisburg & San Antonio Railway Company, appellant.

It is alleged that appellee was in the employ of appellant as a conductor on one of its freight trains at the time of the injury, which train was being operated westward towards San Antonio, and it became necessary to stop at the station of Seguin, and when the train made the stop it became ap-pellee’s duty to make his way from the caboose to the telegraph office; that while ap-pellee was making his way to said telegraph office he struck a “stob” or stake that was driven into the ground and in his pathway; appellee was thrown violently to the ground and injured. It was further alleged that the “stob” or stake was within the yard limits of the station at Seguin, where it was necessary for the defendant’s train employés to frequently move about in the discharge of their duty, and it was the duty of appellant to use ordinary care to prevent obstructions in the pathway where its employes had to perform their duty, but appellant negligently caused and permitted the said “stob” or stake to be in the ground upon said premises and in such position that appellee came into collision with it and that the appellant’s said negligence directly caused the appel-lee’s injuries; that the “stob” or stake was driven tightly into the earth and stood above the surface some four or five inches, in the way of appellee, not far from the track, and appellee’s collision with said stake occurred at night, and he did not discover the same until after it had caused his fall; that the appellant knew, or by the exercise of ordinary care could have known, of the aforesaid obstruction, and appellee did not know of said obstruction until after he was injured, and he was in the exercise of proper care to prevent injury to himself; that by reason of being thrown, by coming in contact with the obstruction, the appellee received a severe injury to his left knee and leg; that said injury has greatly impaired the strength and usefulness of said knee and leg, and the same is a source of constant suffering; that appellee received a severe shock to his entire back, spinal column and cord, which have been weakened and impaired; that ap-pellee’s nervous system received a great shock; that his general health has been impaired; the functions of his heart have become impaired; that he suffers greatly from pains in his head and left ear; his hearing has become impaired; that all of said injuries are permanent; that prior to his injuries appellee was a strong and healthy man and had been a conductor on appellant’s line for many years and had an earning capacity of about $200 per month, which he had a reasonable expectancy of increasing, but since his injuries he has been unable to perform labor and his earning capacity has been almost entirely destroyed.

The appellant answered by a general demurrer, a general denial, and specially that appellee’s injuries, if any, were not due to injury sustained in the alleged accident, but to disease or other causes for which appellant was not responsible. And further answered that appellee had testified in his depositions that he had noticed a number of grade stakes, mesquite stumps and bushes, and obstructions of that character along there, and, if this is true, then appellee had such knowledge of the presence of obstructions at that place and as to the danger incident to his walking along there as to put him upon notice thereof, and that with such knowledge and notice he voluntarily continued in the service and exposed himself to such danger and assumed the risk; and that he walked there in the nighttime without looking out for obstructions or taking any precautions to avoid accident and injury.

The court submitted special issues to the jury, and, upon the verdict, judgment was rendered against appellant for $17,500.

There was evidence to sustain the finding of the jury upon all the issues, which will be more specifically mentioned in connection with the various assignments hereinafter discussed.

On the trial of this simple personal injury suit, involving only the issues of negligence, injury, contributory negligence, and assumed risk, appellant’s counsel earnestly insist that, with the liberal assistance of appellee’s counsel, the court and jury committed 41 reversible errors, each of which is separately assigned as error.

Appellant’s first assignment complains that the trial court’s first special issue required the jury to find whether or not there was a “stake or stob” at the time and place of the alleged injury. Appellant says this was error, because, while the petition alleges there was a “stake or stob,” yet the evidence limited the obstruction to a grade stake, and the question should have been limited by the evidence. The testimony describes the obstruction as a grade stake or “stob” and also describes the obstruction as a stick. The word “stob” is a variation of the word “stub,” which means ¿ small post. The testimony describes the stake or “stob” as about two inches square and about four or five inches above the ground. The testimony sustained the petition and the special instruction properly conformed to both. The first assignment is overruled.

The second assignment assails the finding of the jury that a “stake or stob” was at the time and place of the injury, because such verdict is “contrary to the evidence and to the overwhelming weight and great preponderance thereof.” The plaintiff testified positively that he fell over an obstruction about two inches square and about four or five inches above the ground which was firmly driven into the ground on the left side of the path customarily used by trainmen in the discharge of their duties; that he examined it after relighting his lantern and tried to pull it up, but could not. An abundance of the testimony further shows that up to the time of striking the obstruction plaintiff was strong and active and able to perform his duties as freight train conductor, but immediately after the fall he began to suffer from the injury to his knee which permanently incapacitated him from performing those duties. This is evidence that appellee had a fall and fell over something, and this fact to an extent is corroborativei An attempt was made to minimize the weight of appellee’s testimony by the testimony of a number of witnesses for appellant, who testified that none Of them ever drove a stake or “stob” at the place, of the injury prior thereto, never saw one there before or after the injury. These witnesses were employed by appellant either as .section foremen or as members of the engineering corps. They testified that they would most probably have seen or known of the presence of the obstruction had one been there as claimed by appellee.

The credibility of the appellee witness was' sought to be impeached by the fact that there were discrepancies in his statements. His age testified to at the trial contradicted the age stated by him in a written application. He testified by deposition that he had,- previous to the accident, seen stakes along near the place of the accident. On the stand he testified that he had never seen stakes near there, and that his statement in the deposition was wrong, and that he wished to correct it, and then on recross testified that he did not wish to correct the deposition statement. To still further minimize appellee’s testimony, the fact of his interest in the suit was mentioned; and it was further argued that it was necessary, in order to recover a judgment, that appellee disavow all knowledge of the presence of stakes near there. The assignment is very persuasive, but the credibility of the appellee- and the weight to be given his testimony were passed upon by the jury in favor of appellee, and in deference thereto we must overrule this second assignment.

That the court asked the jury to find whether the appellant was negligent in permitting the stake to be at the place of the accident is assigned as error, for the reason that there is no evidence by which the jury .could answer the question in the affirmative, hence the affirmative answer must necessarily have been based solely upon conjecture. In support of this, it is contended that the only evidence of the presence of the stake in the path was that of the plaintiff, who testified that he had seen it at the moment of the injury, never before nor since; contradicting which was the evidence that none of the other witnesses ever saw the stake at all. This, appellant urges, limits the evidence concerning the presence of the stake to the one fact that the stake was seen only at the moment of the injury. To this condition of the evidence appellant’s counsel apply the doctrine discussed in Railway v. Jones, 103 Tex. 187, 125 S. W. 309, viz. (to paraphrase á portion of that opinion): That it cannot be presumed, without evidence, that the appellant had, in fact, such complete control of every part of its yards and of every stake of this kind as to make it reasonable to infer that its servants, contrary to their duty, either put this stake at this place, or negligently allowed it to be there when they knew or should have known of its presence, rather than that it may have come to' be there without their fault. Further applying that opinion: In order to constitute negligence, the stake must have been put in the path by some employs, or its presence there firast have been known to some of them before the accident, or must have continued long enough to justify .the .inference that the failure to know it was due to a want of the proper care.

A very careful consideration of the evidence in the case at bar leads us to the conclusion that there are facts in evidence sufficient to warrant a reasonable belief that the stake had been in the path long enough to justify the inference that the failure to know it was due to a want of the proper care. That evidence is that the section crews and the engineering crews in appellant’s employ used stakes of the same size, 1% to 2 inches square and of the approximate length of the stake in question, by driving them firmly into the ground in course of their employment for leveling the surface of the roadbeds, straightening tracks, and similar work; that the company’s stakes were of cypress or pine, as this one appeared to be; that the appellant’s engineering crew had driven stakes in the railroad yards at Seguin about four times during 1914 and about six times during 1913, though witness testified that the work requiring these stakes was west of the depot, whereas the injury occurred east of the depot.

The section foreman at Seguin had been working near Seguin since February, 1914, only, and testified that he did not know of any stakes being driven in the path during the period from February, 1914, to August 19, 1914, the date of the injury, and that if there was a stake in the path as claimed it must have been put there before February, 1914.

The testimony shows that the stake was weather beaten, which bears out the reasonable conclusion that it had been in the path for a long time. And the testimony shows that the stake was so firmly driven into the ground that the appellee could not pull it up, which eliminates the idea of an accidental dropping of an obstruction and is consistent with the conclusion that it was deliberately and intentionally placed in the path for a considered purpose. As the stake was on the right of way of appellant in its yards, between two railroad tracks which were only seven or eight feet apart, over which passenger and freight trains were constantly running night and day bearing traffic between Houston and San Antonio, the deduction can be reasonably drawn that the stake was put in the path by an employé of appellant for leveling or straightening these particular tracks or as a guide for similar work near the place of injury, which was testified to by appellant’s witness Nall. There is evidence that, according to one system of work, stakes were driven in by the engineering crew and left by that crew to be removed by the section crew. Obstructions like stakes in the path were a recognized danger; and it was the rule to look for them and remove them from the path. It was the duty of the foreman and his section crew to keep the grass and weeds and obstructions like this stake cleared from the path. The foreman on duty from February, 1914, up to the time of the injury, had wholly neglected to cut the grass and weeds and bushes along the sides of the path and in the path during his entire service from February, 1914, until. September, 1914, after the injury, though he knew it was probable that there might be obstructions and knew the same would be dangerous to the trainmen whom he knew were required to use the path in their employment day and night.

All of these facts do not constitute direct testimony that the stake had been in the path for any definite length of time, but they are each distinct facts, not conjectures, and together, like any other circumstantial evidence, are sufficient to warrant a reasonable belief of the existence of the fact'that appellant was negligent in permitting the stake to be at the place of injury. We think there is as much or more evidence to support the finding of negligence in this case than there was in the case of Washington v. M., K. & T. Ry., 90 Tex. 315, 38 S. W. 764, of the fact that Washington was on the path when killed and not a trespasser on the track or riding on one of the cars. Washington v. M., K. & T. Ry. Co., 90 Tex. 314, 38 S. W. 764; M., K. & T. Ry. Co. of Tex. v. Keefe, 37 Tex. Civ. App. 5S8, 84 S. W. 679; Texarkana & Ft. Smith Ry. Co. v. Toliver, 37 Tex. Civ. App. 437, 84 S. W. 375.

While this court may not have considered the evidence sufficient to prove the fact by that preponderance required of the plaintiff, upon whom the burden rested, yet it was sufficient to require a submission of the question to the jury and make the jury’s verdict binding upon us. The third, fourth, and fifth assignments are overruled.

The seventh assignment complains that the charge of the court, given in connection with the third special issue, incorrectly stated the law, and that the court should not have given it after objections made and appellant’s instruction requested. The portion of the court’s charge to which objection was made is:

“The defendant would not be negligent in permitting such ‘stob’ or stake to remain there, unless you find that defendant knew that same was there prior to the alleged accident, or would, in the exercise of ordinary care, have known that such ‘stob’ or stake was there and would have removed the same.”

The pertinent portion of the refused requested instruction is:

“The defendant would not be negligent in permitting such stake or ‘stob’ to be there, unless you find that some agent or employé of defendant, whose duty it was to look out for and remove such obstructions, knew that same was there prior to the alleged accident, or would, in the exercise of ordinary care in the performance of their duty, have known that such stake or ‘stob’ was there prior to the alleged accident, and would, in the exercise of ordinary care, have removed the same.”

The court did not commit error in the matter complained of, for its charge correctly stated the law applicable to the issue made in this case. The issue made in this case does not tiring it within the rule of the case of, Railway v. Belcher, 88 Tex. 549, 82 S. W. 518. The seventh assignment is overruled. This also disposes of the sixth assignment.

The special requested charges Nos. 4, 6, 7, T4, and 15, the refusal of which is complained of as error in the eighth, ninth, tenth, eleventh, and twelfth assignments, all imply that appellant could not be negligent unless it employed an agent or- employé whose duty it was to look for and remove the alleged obstructions and who were negligent, and for that reason all of the last-mentioned assignments are overruled.

The thirteenth assignment is that the court erred in refusing requested charge No. 16, as follows:

“In connection with question 3 submitted in the main charge, you are instructed as follows: Even if you find that plaintiff stumbled over a stob or stake between defendant’s main line track and east passing track at Seguin as he claims to have done,- that fact by itself alone is not sufficient evidence to justify you in answering said question in the affirmative.”

This charge is based upon the theory that there is no evidence of negligence which has been disposed of in our discussion of the third assignment. This charge in itself is error because it invades the province of the jury. Railway v. Baker, 58 S. W. 964; Railway v. Michalke, 62 Ark. 585, 37 S. W. 48; Smith v. Railway, 65 S. W. 83; Railway v. Lynch, 40 Tex. Civ. App. 543, 90 S. W. 511. The thirteenth assignment is overruled.

By the fourteenth assignment it is urged that the court should have qualified its' instruction defining negligence and ordinary care and the duty of the master by adding to the charge the further instruction that the defendant (appellant) was not an insurer of the plaintiff’s (appellee’s) safety.

The court’s instruction was complete and correct. 3 Labatt’s Master and Servant (2d Ed.) § 920. The addition requested could not have made it more correct even though as an abstract proposition of law the addition itself was correct. It cannot be reversible error to refuse additions to an instruction, the only effect of which would be to satisfy appellant’s preference of expression. Texas Midland R. R. v. Brown, 58 S. W. 46; Consumers Lignite Co. v. Grant, 181 S. W. 203, 209 (9-12). The fourteenth assignment is overruled.

Eor the fifteenth assignment it is claimed the court erred in submitting to the jury for their decision question 5, which reads:

“Did the plaintiff on the occasion of the alleged accident fail to keep such a lookout and to take such precautions to avoid accident and injury to himself as a person of ordinary prudence would have kept and taken under the same or similar circumstances?”

•Counsel urge the. issue was erroneously submitted because the evidence raises no issue on that point. It would have been contributory negligence on the. part of. appellee if . he had used the path in .such way as no ordinarily prudent person would have used it and under similar circumstances. This was pleaded and testimony thereon solicited. .The evidence was rather extensive as to the condition of the path, time and manner of using it, and appellee’s familiarity therewith prior.to and at the moment of the injury. In answer to counsel’s cross-questioning, appel-lee testified that it was dark at the time of the injury; that he carried a good light on his right side; that, while he did not shine the light ahead of him purposely to locate the path, yet he could tell from his light where he was going. He did not know there was any danger of stumbling over an obstruction in the path.. If he had known there were stakes or other obstructions in the path, he would have held his lantern around and searched for the obstructions to avoid stumbling over them. He was not expecting any such obstructions in the path and walked hurriedly to ascertain his orders with his mind on his. business — getting out. The court very properly and correctly submitted to the jury the issue of contributory negligence. The fifteenth .assignment is overruled.

The finding .of the jury that appellee was not guilty of contributory negligence is assailed in the sixteenth assignment as being “contrary to the evidence and to the overwhelming weight and great preponderance thereof.”

There was testimony showing in what manner appellee used the path and the circumstances under which he used it. In fact, appellant’s assignment admits as much. No claim is made in this assignment that there is no evidence. The jury exercised its prerogative to resolve that evidence in favor of appellee. This sixteenth assignment must therefore be overruled in accordance with the opinion in Texas Midland R. R. v. Brown, 58 S. W. 45, as follows:

“By the laws of this state, the jurors are made the exclusive judges of the credibility of the witnesses, and of the weight to be given to their testimony. Where a question of fact, upon which the testimony is conflicting, is fairly submitted to a jury, the decision of the jury upon it is final, unless it is affirmatively shown that some improper consideration influenced the finding. We are only authorized to set aside the verdict'of a jury on a question of fact where there is no evidence to support it, or where, conceding the truth of the supporting testimony, it is not legally sufficient to establish the fact. Such is not the case here, and the assignment that the evidence is not sufficient to support the verdict is not well taken.”

Question 5, submitted to the jury, correctly and completely presented the Issue of ap-pellee’s care in the use of the path and does not - contain error for reasons assigned in the seventeenth assignment. The question requested in appellant’s special charge was not more correct nor more complete. In fact, the requested charge seems to give, special mention and undue prominence to the evidence bearing upon the fact of. knowledge on the part of appellee and seems to assume that contested fact proven, for all of which reasons the requested instruction was not correct. San Antonio & A. P. Ry. Co. v. Grady, 171 S. W. 1019, and authorities therein cited.

By the assignments numbered from 19 to 32, inclusive, are presented 13 errors concerning the issue of assumed risk committed by the court in giving instructions thereon, or in the form given, and in the refusal of requested instructions, committed by the jury in rendering findings on the issues of assumed risk contrary to the evidence, and committed by appellee’s counsel for failure to properly plead avoidance of assumed risk. We have, with very great care, in deference to distinguished counsel’s earnestness, considered each one of these assignments on the assumed risk issue; but we believe a detailed discussion of each of them is .rendered unnecessary because the court correctly submitted the issue of whether or not appellee knew of the presence of any stake at or about the place where he claims to have been injured. The jury answered that appellee did not know of tile presence of the stake in the path. There was the direct evidence of appellee that he did hot know that any stake was in the path. He had used the path many times for many years and had never seen the path so obstructed. There is the direct testimony of many of appellant’s witnesses that they never saw any such or similar obstruction in the path either before or after the injury. It seems to us that the overwhelming weight of the evidence sustains the finding that appellee did not know of the presence of the stake in the path. In fact, the abundance of the testimony upon this fact was used with most persuasive force upon us by appellant's counsel to destroy the finding by the jury of the other fact, that there was a stake in the path.

Answering the objection to the form of the court’s charge, in that the question should have included mesquite bushes, grass, or weeds, we think that appellee could not recover at all if the obstruction was anything other than the stake pleaded and proven ; but, when it was proven to be a stake, the only escape for appellant from liability by the assumed risk route depended upon appellee’s knowledge of the probable presence of the stake. Had appellee expressly, assumed the risk of injury by falling over mesquite bushes, grass,- and weeds, it would not follow that he also assumed the risk of falling over a stake.

The above conclusions of the facts and law indicate with sufficient clearness that the as-.signménts bearing on the question of assumed risk, numbered from 19 to 32, inclusive, should be overruled.

We do not believe the phraseology of question No.' 2 presents reversible error, as contended in the thirty-third 'assignment. The'question reads:' ■

“Did the plaintiff stumble over such stob or stake and thereby have inflicted upon him any of the injuries alleged in his petition?”

The negligence with which appellee is charged is that of permitting the stake to be in the path. No negligence is claimed because a rock was permitted to be in the path. Since appellant was negligent in permitting the stake to be in the path which caused the injuries to appellee, it is immaterial in this ease whether appellee hit his knee on sand, mud, glass, or a rock. Any variation in the evidence from the version given by appellee might be used to discredit his testimony and thereby enable the jury to determine the credibility of the witness, but the fact of a variation could not be incorporated into a question submitting the material issue, which issue was this: “Was appellee injured by stumbling over a stake in the path?”

The thirty-third, thirty-sixth, and thirty-seventh assignments are overruled.

Because there was evidence to support the jury’s answer to question No. 2, as will appear from previous portions of this opinion, the thirty-fourth assignment must be overruled.

The thirty-fifth assignment must be overruled because there was evidence to sustain the jury’s answer, “Tes,” to the fourth question : “Did such negligence directly cause to plaintiff any of the injuries alleged in this petition?” Appellee’s testimony supports this finding, as well as that of his physicians.

The thirty-ninth and fortieth assignments must be overruled. The thirty-ninth presr ents appellant’s peremptory instruction, and. the fortieth urges that the pleadings, the evidence, and the findings of the jury are not sufficient to warrant the judgment. We believe that pleadings make a case of liability -for the injuries to appellee because of the negligence of appellant in permitting the stake to be in the path furnished by appellant for appellee to use at night in the performance of his duties for appellant; that appellee was injured by falling over it without contributory negligence, and had not assumed the risk. There was evidence to support all the jury’s findings, though we must confess that such a casualty from such commonplace circumstances brings this case near to that class where the improbable is probable; where truth is stranger than fiction. Nevertheless, we are controlled in such matters by the jury and the trial judge.

The forty-first assignment urges error because counsel for appellee stated to the jury that the first four questions submitted by the court’s charge presented the facts upon which plaintiff based his theory of liability, and the-next four of the defendant’s defenses of contributory negligence and assumed risk, and told the jury that, under the facts and evidence they should answer -the first four questions in the affirmative.

The effect of the answers was so apparent and • Obvious to the jury 'in this case that counsel’s remarks could not be reversible error. Southwestern Telegraph & Tel. Co. v. Elsie Phillips Sheppard, 189 S. W. 799.

That the amount of the verdict is excessive is brought before us in the thirty-eighth assignment. A careful consideration of the evidence to determine the question thus presented discloses that unusual and unexpected results from commonplace incidents was by no means confined to the testimony introduced by appellee. Appellant’s answer contained an allegation to the effect that, if appellee had his knee injured, yet his bad physical condition was not caused by the injury to the knee, but by disease or other causes for which appellant was not responsible. In support of this defense, doctors of the very highest standing gave, as their testimony, opinions of the cause so novel and out of the ordinary that it is possible that the 12 ordinary men constituting the jury “failed to grasp the idea.” The general impression intended to be created upon the minds of the jury was that the admitted bruise or blow on the knee did not produce the incurable bony growth under the knee cap, but that it was caused by some germ, “preferably,” a degenerating, syphilitic germ. The evidence relied upon, for this technical opinion, was that while there was no indication or mark of any kind or character upon appellee, or the slightest personal history to show a trace of that disease, and notwithstanding the Wasserrpann test, universally used to detect such germs, showed no trace of it, yet, because a number of years previously appellee’s wife had suffered a first miscarriage immediately after falling down a long flight of stairs, and a second during ■a long, severe attack of typhoid fever, the doctors concluded that appellee’s suffering was caused by that germ and that the jury should so find. Nor was this involved theory rendered any more simple by the railroad surgeon, who instructed the jury that the condition of the knee was due to some germ, name unknown, which may have entered appellee’s body not at the knee, but through his tonsils or teeth, and catapulted the somewhat surprising information that both of appellee’s knees were in the same diseased condition. The jury may have failed to realize why appellee could use one knee without inconvenience or pain while the other knee, in the same condition, was painful and nearly useless. But perhaps the jury, composed, as it probably was, of men of less technical experiences, could not believe because they could not understand. However, the great preponderance of the testimony convinced •the jury that appellee’s suffering was great, progressive and permanent; that his capacity to perform his accustomed labor was wholly destroyed. His age was about 50, and his average earnings approximately $124 a month, and his life expectancy about 20 years. They estimated the fair compensation for such injuries at $17,500 — a very large amount. But we can find no prejudice or' passion, or improper motive or influence in the record before us that may have induced this great verdict, and we believe therefore that we are concluded by the jury’s verdict. Being unable to find any reversible error in the record, we must affirm the judgment.

Judgment affirmed.
      ©soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      dtosFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    SHARP et al. v. MORGAN.
    (No. 1123.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1917.)
    1. Justices of ti-ie Peace <&wkey;-100(l) — Whit-ten Pleadings — Effect.
    When the parties to an action in justice court have filed written pleadings, the issues are confined to those made by such pleadings if no other pleadings are noted upon the docket.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. '§§ 336-340.]
    2. Trial <&wkey;251(2) —r Instruction — Pleading.
    In proceedings on a judgment creditor’s motion against a constable and sureties on his bond to recover against them the amount of plaintiff’s judgment, where there were no pleadings upon which to base a requested instruction, the court did not err in refusing it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 589.]
    3. Trial <&wkey;350(3) — Submission of Issues.
    On judgment creditor’s motion for judgment against constable and sureties for failure to levy execution, the submission of the issues whether either of the executions was delivered to and received by the constable, and whether the judgment debtor had any property in the county subject to execution, was simply a submission of the different theories urged by the respective parties.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 831.]
    4. Sheriffs and Constables &wkey;>159, — Liability of Constable — Proceedings on Bond — Instructions.
    On judgment creditor’s motion for judgment against constable and his sureties for failure to levy execution, first and second paragraphs of charge, submitting issues whether either of executions was delivered to and received by the constable and whether the judgment debtor had any property in the county subject to execution, were not merely interrogatories and misleading and confusing.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 372-382.]
    5. Trial &wkey;>255(2) — Instructions—Requests —Submission of Issues Separately.
    On judgment creditor’s motion for judgment against a constable and his sureties for failure to levy execution, if the constable desired to have the issues with reference to each execution submitted separately, a special charge should have been asked to that effect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 630.]
    6. Appeal and Error &wkey;>742(l) — Assignment of Error — Proposition—Consideration.
    A proposition under an assignment of error not germane to the assignment will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000.]

      7. Sheriffs ánd Constables <&wkey;91 — Indemnity Bond — Validity.
    Where a bond to- indemnify a constable levying execution was made out on a blank used for the purpose, failure to describe any property, where none had been pointed out by the judgment creditor, and the, constable had never requested him to do so, did not affect its validity.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 131-133.]
    8. Sheriffs and Constables <&wkey;91 — Indemnity Bond — Validity.
    Failure to erase the word “sheriff,” where the two words “constable” and “sheriff” appeared on a blank for a bond to indemnify a levying constable, was a clerical mistake not affecting the validity of the bond; execution being delivered, not to a sheriff, but to a constable.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. ’ §§ 131-133.]
    9. Sheriffs and Constables <&wkey;159 — Indemnity Bond — Objection to.
    Where, in a bond .to indemnify a constable levying execution, the solvency of the sureties was not certified to by any officer of the county of the sureties’ residence, they being strangers to the constable and their solvency unknown to him, but the constable accepted the bond, and did not raise the question of solvency until the judgment creditor moved for judgment against him for failure to levy the execution, it was too late to urge the objection to .the bond that it did not certify the solvency of the sureties.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 372-382.]
    Appeal from Donley County Court; J. C. ICillough, Judge.
    Motion by W. C. Morgan against J. F. Cagle, as constable, and the sureties on his official bond, seeking to recover under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3776, the amount of á judgment. From a judgment for plaintiff against the constable and his sureties on appeal from the justice of the peace to the county court, they appeal.
    Judgment affirmed.
    H. B. White,-of Clarendon, for appellants. W. T. Link, of Clarendon, for appellee.
   HALL, J.

Appellee filed a motion in the justice court of Donley county against J. F. Cagle, as constable of Hale county, joining the sureties on his official bond as defendants seeking to recover against them under Vernon’s Sayles’ Civil Statutes, art. 3776, the sum of $208.40, being the amount of a judgment which apiiellee had previously recovered against J. J. Sharp of Hale county. It is alleged that on the 12th day of August, 1914, an execution was issued on the judgment addressed “To the Sheriff or Any Constable of'Donley County — Greeting,”' and returned nulla bona the same date; that on October 13, 1915, appellee caused an alias execution to issue on said judgment, and on the 15th day of the same month.delivered, it to appellant J. F. Cagle, as constable of preifinct No. 4 of Hale county; that this pro.ces?, was returned by the said Cagle not executed"; that thereafter on the 11th day of November, 1915, he caused a pluries execution to issue on said judgment, addressed to the sheriff or any constable of Hale county, and on the 4th day of said month placed the same in the hands of the said Cagle for execution; that Cagle failed and refused to execute the same, but returned it on the 4th day of December, 1915; that, simultaneous with the delivery of each of said executions to said Cagle, appellee also delivered good and sufficient indemnity bonds which were accepted by said Cagle; that, at the time said last-mentioned execution was delivered as aforesaid, the judgment defendant Sharp had personal property in his possession in Hale county, subject to execution, sufficient to satisfy the amount named in said writ; that the judgment upon which said execution was based was at that time, and has ever since the rendition thereof, been in full force and effect; and that the said Cagle could have realized the amount named in the execution mentioned had he levied the same upon the property of* the judgment debtor. The prayer is for the amount of the judgment, $208.40, with 10 per cent, interest thereon from date and costs of suit. Judgment was entered upon said motion for the sum of - $251.48. From this judgment appellants, by supersedeas bond, appealed to the county court of Donley county. After the removal of the cause to the county court, Cagle filed his answer in said court, consisting of a general demurrer, general denial, and specially pleading that upon receipt of the execution of October" 13, 1915, and after due investigation made by appellee and himself, it was agreed and understood between them that there was not sufficient unincumbered property belonging-to said Sharp in Hale county from which the amount of the judgment could be realized; that all the property owned by Sharp-was heavily incumbered by unsatisfied mortgage liens, which fact was known to ap-pellee at the time he delivered the execution to appellant; that in view of such fact before making a levy upon such mortgaged property appellant demanded of appellee a good and sufficient indemnity bond, in order that appellant might be protected' against any claim or claims for damages should he-levy upon such mortgaged property and attempt to sell the same, but that appellee failed and refused to furnish him with such bond; that in fact he received the execution dated November 11, 1915, with the understanding between appellee and this appellant that it would be turned over to one Henry Vates, the then aeting deputy sheriff of Hale county;- that appellant received.such execution only for the purpose of delivering same to such deputy sheriff:; and that in fact he immediately) upon receipt of such execution, delivered the same to such deputy sheriff for service, in accordance.with the understanding with appellee.

By supplemental motion, consisting of demurrers and general denial, appellee specially denied all the allegations in appellants’ special answer, alleging that he did deliver to Cagle a good and sufficient indemnity bond, with both executions, and that such bonds were accepted by Cagle, without objection. Upon these issues, a trial before a jury resulted in a judgment in favor of appellee against appellants, in the sum of $258.50, from which this appeal is prosecuted.

By their first assignment, appellants complain of the refusal of the court to give their first special charge that if the jury found and believed from the evidence that at the time the plaintiff Morgan left • the execution, dated October 13th, with Cagle, that he informed Cagle that the property of Sharp was covered by mortgages and that it was doubtful whether or not he would be able to realize anything on the execution, and for him to use his best judgment and discretion in making a levy, and that in pursuance to such understanding and instruction Cagle, after making an investigation as to such mortgages and the condition of such property, decided it would not be to the best interest of the plaintiff Morgan to make a levy upon such mortgaged property and returned the execution without doing so, then to find for the defendant. If we should admit that this instruction should have been given under the pleadings, we doubt its propriety for the reason that the uncontradicted evidence shows that Sharp owned sufficient property subject to execution at the time the writ was delivered to Cagle, from which it is evident that Cagle did not use sufficient diligence to inform himself, and abused the discretion which he says appellee gave him,‘ in not making the levy. We are told in the brief of appellants that in addition to the written pleadings of Cagle, outlined above, he pleaded orally before -'the jury that at the time the execution dated October 13, 1915, was delivered to him by appellee, he was informed by appellee that all the personal property of Sharp, the judgment defendant, was heavily incumbered with mortgages, and that it was very doubtful whether or not anything could be made, instructing appellant to use his best judgment and discretion as to whether or not he would make a levy upon the property. Appellants, however, confess that no such oral pleading was noted upon the docket, either in the justice court or in the county court, and this record is innocent of any such allegations. The rule has been announced several times that, when the parties to an action in the justice court, have filed written pleadings, the issues- are confined to those made by such pleadings, if no other pleadings are noted upon the docket. Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591; H. E. & W. T. Ry. Co. v. Eastern Texas Railway, 57 Tex. Civ. App. 488, 122 S. W. 972; Southwestern Portland Cement Co. v. O. D. Havard Co., 155 S. W. 656; Young Mens’ Christian Ass’n v. Schow Bros., 161 S. W. 931. There being no pleadings upon which to base such a charge, the court did not err in refusing the requested instruction. H. & T. C. Ry. Co. v. Red Cross Stock Farm, 22 Tex. Civ. App. 114, 53 S. W. 834; San Antonio Traction Co. v. Yost, 39 Tex. Civ. App. 551, 88 S. W. 428; First State Bank v. Hare, 152 S. W. 501.

The court charged the jury in the fifth paragraph as follows:

“Bearing in mind the foregoing instructions, I charge you that if you believe from the evidence that said executions or either of them were delivered to and received by the defendant Cagle, and that the defendant Sharp then had property in Hale county, Tex., subject to execution, then you will find for the plaintiff Morgan and against the defendant J. F. Cagle, as principal, etc., for the full amount sued for by plaintiff.”

The defendant Sharp testified that at that time he had property subject to execution; that he then owned eight mules, five horses, eighty tons of kaffir corn, and maize, worth $8 per ton, and two wagons and an automobile; that Cagle never asked him to point out any property. It appears that there were mortgages upon six of the mules and three or four horses, and about $165 indebtedness against the crop. The record does not show that these mortgages were ever recorded, or that any one was entitled to rents out of the crop.

The fifth paragraph of the charge is made the basis of appellant’s second assignment of error, and the first proposition under this assignment is that appellant Cagle, having pleaded that at the time the first execution was delivered to him he was informed by ap-pellee that the property of the judgment defendant was heavily incumbered with mortgages, who instructed appellant to use his best judgment and discretion as to whether or not he would make a levy upon the property of Sharp, it was error for the trial court to ignore such defensive issues, and to instruct the jury that in the event they found that either of the executions in question had been placed in the hands of Cagle and at the time they were so placed in his hands the judgment defendant had property in Hale county, subject to execution, they should find for appellee. The trouble with this assignment is that no such pleading is shown by the record. The court specifically charged the jury that they “should bear in mind the foregoing instructions.” Under the pleadings and evidence we think the charge is not subject to the criticism. A sufficient reply to the second proposition is that no such defensive matter as is claimed by appellants appears to have been set up.

The court charged the jury, at appellants’ request, that if plaintiff agreed for defendant to turn the execution, dated November 11th, over to Deputy Sheriff Yates, then not to find against defendant upon that ground. The court erred, as is claimed by the third assignment, in submitting to the jury the issues, “Were either of the executions, bearing date October 13, 1915, and November 11, 1915, delivered to and received by the defendant Cagle?” and “Did the defendant Sharp, at the time of the delivery of said executions, or either of them, have any property in Hale county, subject to execution?” This was simply a submission by the court of the different theories urged by the respective parties. The objections urged to the first and second paragraphs of the court’s charge were that they were merely interrogatories, propounded to the jury, and were misleading and confusing. We think these objections were properly overruled. If appellant desired to have the issues with reference to each execution submitted separately, a special charge should have been asked to that effect. Taking the court’s charge as a whole, we think it is a fair presentation of the law applicable to the case. The second proposition under this assignment is not germane to the assignment and will not be considered.

Under the fourth assignment, appellant contends that the court erred in admitting in evidence the indemnity bond. The objections urged to its admission were: (a) That the bond was not made payable to the defendant J. P. Cagle as constable of Hale county, Tex.; (b) the property that said bond had been levied upon by defendant Cagle was not described in the blank left in the bond for that purpose; and (e) because in said bond the solvency of the sureties was not certified to by any officer of Donley county, Tex., the evidence having shown that the sureties resided in Donley county, that they were strangers to the defendant Cagle, and that their solvency was unknown to him. The bond contains this recital:

“Whereas, a writ of execution bearing date on the 26th day of January, A. D. 1915, issued in a certain suit pending in the justice court of precinct No. 2, Donley county, Tex., wherein W. C. Morgan, plaintiff, and J. J. Sharp, defendant, which the said W. C. Morgan has directed the constable, sheriff of Hale county, to levy upon certain goods and chattels pointed out by him as the property of said J. J. Sharp, viz.”

The obligation of the bond is in consideration of the levy of said writ appellee and his sureties acknowledge themselves bound to pay “to the said constable, sheriff, as aforesaid,” etc.

It is clear that the bond was made out upon a blank used for that purpose, and the failure- to describe any property does not affect its validity, since none has been pointed out by appellee, and, so far as the record shows, Cagle had never requested him to point out any. . The failure to erase the word “sheriff,” where the two words, “constable” and “sheriff” appear, was a clerical mistake and does not affect the validity of the bond, since the evidence shows that the execution was not delivered to a sheriff but to appellant Cagle, who was a constable.

It is too late to urge the third objection to the solvency of the bond, since the record shows it was accepted by Cagle, and the question of its solvency was not raised until after this action was instituted.

We find no reversible error in the record, and the judgment is affirmed.

       — iFnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For>o.tker oases see same topic and.KEY-NUMBER Jn all.Key-Numbered. Pigests ana Indexes,


author: RICE, J.

text:
    LEACH et al. v. THOMPSON.
    (No. 5724.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1917.)
    1. Injunction <&wkey;191 — Action—Pleading— Answer — 'Verification.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4649, 4663, 4671, as to pleadings in injunction proceedings, plaintiff, in a proceeding to make perpetual a temporary injunction, is put upon proof of his case by an answer containing a general denial, although not sworn to; an answer under oath being essential only on motion to dissolve before final hearing.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 410.]
    2. Appeal -and Error <&wkey;759 — Briefs — Cross-Assignments.
    Cross-assignments of appellee, not briefed in accordance with the rules, will not be considered by the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094.]
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action by Tennessee Thompson against T. E. Leach, trustee, and others. From judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Forrester & Stanford, of Waco, for appellants. Pat M. Neff and James E. Yeager, both of Waco, for appellee.
   RICE, J.

It appears from the record that on June 27, 1895, C. M. Thompson executed a deed of trust to T. A. Blair, trustee, for J. E. Stone, on 22% acres of land out of the Loftin league in McLennan county, to secure a note for $600. The acknowledgment thereof was taken by T. A. Blair, trustee, acting as notary, which was duly recorded in said county on July 1, 1895. Default having been made in the payment of said note when due, Blair, as such trustee., advertised and sold said land on November 12, 1900; the same being purchased by J. E. Stone, who received a deed duly acknowledged by said trustee therefor, which was on the 18th of October, 1901, duly recorded1 in said county. T. A. Blair died in 1910, and J. E. Stone in 1911, and T. J. Stone, D. E. Stone, and W. J. Dunk-lin were appointed and qualified as executors of the latter’s estate. On the 1st of September, 1913, C. M. Thompson conveyed the land to Tennessee Thompson, whereupon the said executors, on the 28th of April, 1914, brought a suit in trespass to try title in the district court of McLennan county against him therefor, claiming title thereto under said trustee’s' deed. Tennessee Thompson appeared and defended that suit, which is still pending, the merits of whose defense it is not necessary to state.

Thereafter, on the 11th of November, 1915, said executors appointed T. E. Leach substitute trustee under said deed of trust, who at their request advertised said land for sale on the first Tuesday in December, 1915, and this suit was brought by Tennessee Thompson to enjoin such sale, who, among other grounds therefor, alleged, in substance, that the acknowledgment to the-deed of trust was void, because taken by the trustee as notary, and that the recording of the same was not notice to him, and that he was an innocent purchaser for valuq, without notice thereof. This petition was sworn to.

Appellants, who were defendants below, filed their original answer and motion to dissolve, which was duly sworn to; but it was never presented to nor acted upon by the court. Before the trial of the case appellants filed an amended answer, consisting of special exceptions to all the grounds for injunc-tive relief, and also containing a general denial. The court sustained all of appellants’ special exceptions, except the one to the effect that appellee bought without notice of the trust deed and was an innocent purchaser for value. A temporary injunction was granted on December 6, 1915. On April 4, 1916, upon trial of said injunction suit upon the evidence before the court without a jury, the court rendered judgment perpetuating said temporary injunction, from which judgment this appeal is prosecuted.

The court filed its findings of fact and conclusions of law, among which is the following:

“It is alleged in plaintiff’s petition that O. M. Thompson, for a valuable consideration, conveyed to plaintiff by warranty deed the land in question. Plaintiff further alleges that he was an innocent purchaser, without notice of the trust deed in question. Plaintiff’s pleadings were sworn to, as required by statute, and a temporary injunction was issued thereon. Defendants’ amended answer was not sworn to, and therefore the allegations as above set out are taken by this court as confessed.”

This finding is assailed by appellants on the ground that, since this is a proceeding to perpetuate the temporary injunction, and not a preliminary hearing in chambers, the court erred in taking as confessed the allegation in plaintiff’s petition to the effect that plaintiff was an innocent purchaser without notice of the trust deed in question, because the same was sworn to, and defendants’ amended answer was not sworn to, and by their propositions thereunder assert: (1) That an answer containing a general denial, although not sworn to, puts plaintiff upon proof of his case, in order to procure a perpetual injunction; (2) that an answer under oath is essential only on motion to dissolve before final hearing — citing in support of their contention Vernon’s Sayles’ Civil Stats, arts. 4649, 4663 and 4671; Scales v. G. C. & S. F. Ry. Co., 35 S. W. 205; Murphey et al. v. Smith, 38 Tex. Civ. App. 50, 84 S. W. 678; Smith v. Palo Pinto Co., 60 Tex. Civ. App. 531, 128 S. W. 1193.

We agree with appellants in this contention. Article 4663, supra, provides that:

“The defendant to an injunction proceeding may answer as in other civil actions; but no injunction shall be dissolved before final hearing because of a denial of the material allegations of the plaintiff’s petition, unless the answer denying the same is verified by the oath or affirmation of the defendant.”

By article 4671, supra, it is provided that:

“The principles, practice and procedure governing courts of equity shall govern proceedings in injunctions when the same are not in conflict with the provisions of this title or other law.”

Under these articles it has been held, as shown by the cases above cited, that a general denial upon the part of the defendant puts the plaintiff upon proof of his case in a final trial, in order to procure a perpetual injunction. The court, therefore, erred in taking the allegations of plaintiff’s petition as confessed and rendering judgment in his favor thereon.

Appellee has filed a number of cross-assignments ; but, since none of them is briefed in accordance with the rules prescribed for the government of this court, it will be unnecessary for us to consider same.

Eor the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
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author: £> WE AREN GEN, J.

text:
    DINCANS et al. v. KEERAN et al.
    (No. 5805.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1917.)
    1. Trespass <@==»25 — Use of Land — Camping, Fishing, and Hunting.
    Use of lands of another for hunting, fishing, and camping and taking water from the owner’s well was trespass, and unauthorized permission by one other than the owner, after the trespass, was no defense.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 54-57.]
    2. Injunction i&wkey;189 — Trespass—Decree.
    Decree enjoining defendants from trespassing on plaintiff’s lands adjoining a navigable stream, and also restraining them from their lawful right to use shore line for fisbing_ and hunting and camping, was toó comprehensive.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 409.]
    3. Navigable Waters <&wkey;36(3) — Boundaries —“Shore Line.”
    Under the civil law the “shore line” boundary of lands adjoining navigable waters is the line marked by the highest tide.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 186.
    For other definitions, see Words and Phrases, First and Second Series, Shore Line.]

      4; Navigable Waters <&wkey;36(3) — Boundaries —“Highest Tide.”
    The term “highest tide,” referring to boundaries of lands adjoining navigable waters, does not mean the highest crest of storm-driven sea water.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 186.]
    6. Navigable Waters <&wkey;33 — Riparian Rights — Shore op Streams.
    Campers and owners of land adjoining navigable stream had equal rights to use shore line between high and low tide marts.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 179.]
    6. Navigable Waters &wkey;>16 — Riparian Rights — Water of Streams.
    Campers and owners of lands adjoining navigable stream had equal rights to use such navigable waters.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 43-49, 61-53.]
    7. Fish <&wkey;3 — Navigable Waters <&wkey;29— Reasonable Public Uses.
    Hunting, camping, and fishing are reasonable tises of the waters and short line of navigable streams.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 3, 4, 6-8.]
    8. Navigable Waters <&wkey;36(3) — Shore Line —Rights of Adjoining Owners.
    Owners of land adjoining a navigable stream could acquire exclusive rights to the shore line thereof only by express legislative act, and no state officer could lease or sell it in any other way. ■
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 186.]
    Appeal from District Court, Victoria County; -John M. Green, Judge.
    Suit by Mrs. M. J. Keeran and another against Tom Dincans and others. Decree for plaintiffs, and defendants appeal.
    Decree reformed and affirmed.
    Dinebaugh & Crain and R. L. Daniel, all of Victoria, for appellants. Proctor, Vanden-berge, Crain & Mitchell, of Victoria, for ap-pellees.
   £> WE AREN GEN, J.

Appellees, Claude Kee-ran and Mrs. M. J. Keeran, brought this suit against appellants to recover damages caused by trespassing upon the inclosed lands owned by appellees, and to restrain appellants from further trespass thereon. Appellants denied the trespass, alleging that they camped on the shore line of the navigable stream; and from the shore line fished in the stream.

The court instructed a verdict for appel-lees, and thereupon decreed that appellees recover from appellants one cent and costs, and that appellants be perpetually restrained from entering upon appellees’ land for the purpose Of hunting, fishing, and camping thereon. And the 'decree further enjoined appellants from trespassing or entering upon the pasture inclosure of the plaintiff’s for all or either of said purposes.

The evidence justified the court’s peremptory instruction, because it is undisputed that appellants used the inclosed lands of appellees for the purpose of hunting,, fishing, and camping: . First, in order to reach the navigable (Stream; and, again¡, to supply their camp with water from the artesian well of appellees. Appellants attempted to allege and prove permission for the drinking water trespass, but failed. Permission from the colored cow skinner was not authorized, and, besides, was obtained after trespass. The danger of damage to appellees’ cattle was proven.

It seems, however, that the trial court’s decree was too comprehensive, in this, that it not only enjoined appellants from trespass upon the lands owned by appellees, but also restrained appellants from the enjoyment of their lawful right to use the shore line of the navigable waters, which formed the western boundary of appellees’ land.

It will be observed that the petition of appellees contained two conflicting descriptions of their lands: first there is the description of the recorded title; second, this description: All lands within appellees’ pasture inclosure.

The lands described in the title papers passed out of the sovereignty in 1833, while the civil law controlled, and that description extended the western boundary only to the line marked by the highest tide of the navigable waters, which were affected by the ebb and flow of the tide from the Gulf through intervening named bays. Hynes v. Packard, 92 Tex. 44, 45 S. W. 562; De Merit v. Robison, 102 Tex. 358, 116 S. W. 796.

The second description, “All lands within appellees’ pasture inclosure,” extended, not to the line of the highest tide according to the title, but to the waters’ edge, and thereby included in the pasture inclosure the shore line as definitely defined in the opinion in Hynes v. Packard, 92 Tex. 44, 45 S. W. 562.

There was an abundance of evidence that the pasture, inelosure contained land lying between the low and highest tide. By the term “highest tide” we must not be understood to mean the highest crest of storm driven sea water.

In and upon the shore line, as fixed by the civil law in this instant case, and in and upon the navigable' waters, appellants enjoyed rights coequal with appellees. Neither could have the other enjoined from the reasonable use of either. City of Austin v. Hall, 93 Tex. 591, 57 S. W. 563. Burrus Ferry B. & C. Ry. Co. v. Allen, 164 S. W. 878; Orange Lumber Company v. Thompson, 59 Tex. Civ. App. 562, 126 S. W. 604.

Hunting, camping, and fishing are reasonable uses of the navigable waters and shore line. State ex rel. Cates, v. West. Tenn. Land Co., 127 Tenn. 575, 158 S. W. 746, Ann. Cas. 1914B, 1043, and authorities cited therein.

Appellees could acquire an exclusive or prior right to the shore line in only one way, and that is from the state by express legislative act clearly granting it. No state ministerial officer under the present laws could lease or sell or in any other way grant such exclusive privilege. Hynes v. Packard, 92 Tex. 44, 45 S. W. 562.

We therefore conclude that the judgment should be reformed by striking from the restraining order the following words: “And from trespassing or entering upon the pasture inclosure of the plaintiffs for all or either of said purposes.” As thus reformed the judgment of the trial court is affirmed. All costs of this court adjudged against appellants.

Reformed and affirmed.
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author: FLY, C. J.

text:
    NEW YORK LIFE INS. CO. v. VEITH.
    (No. 5802.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1917.)
    1. Insurance <@=>602 — Lote Insurance — Failure to Pat — Penalty — Conflicting Claims — Statute .
    Where a life insurance company in good faith is in doubt as to whom a policy should be paid, on account of conflicting claims, and places its refusal to pay on that ground, the company has the right to an interpleader; and if it proceeds promptly to make known its decision, it is not liable for penalties, under Rev. St. 1911, art, 4746, prescribing a penalty of 12 per cent, for failure to pay loss within 30 days after demand.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498.]
    2. Criminal Law <@=3308 —Evidence —Presumption of Innocence.
    An accused person is presumed to be innocent until his guilt is established beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 731.]
    3. Insurance <@=>602 — Life Insurance — Failure to Pay — Penalty—Statute.
    Where a life insurance company refused to pay policies to insured’s wife on the ground that she had murdered him, maintaining its position for a year, before filing interpleader in which it admitted liability, it was liable, under Rev. St. 1911, art. 4746, for a penalty of 12 per cent, for failure to pay the policies within 30 days after demand, since the time for protection from penalties had been lost by the persistent denial of all liability. When insured died, and proofs of death were made, it was the insurer’s duty to promptly pay the amount of the policy, promptly file an original suit to determine the person to whom it should be paid, or to promptly file a bill of interpleader.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498.]
    4. Criminal Law <@=>48 — Insanity as Defense.
    An insane person cannot commit felony; insanity at the time the alleged offense was committed being an absolute defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 53-58.]
    5. Insurance <@=>646(6), 665(5) — Life Insure ance — Actions on Policies — Homicide — Burden of Proof.
    If the felonious killing of an insured person by the beneficiary rendered the policies void, the burden to establish such killing rested on the insurer, and the finding of the coroner, or newspaper accounts of the homicide, did not establish a felony; and the burden did not rest on the beneficiary in her suit against the insurer to establish her innocence of felonious homicide.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1659-1662, 1664, 1719, 1722.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Suit by Carrie Veith against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Taliaferro, Cunningham & Birkhead, of San Antonio, and Locke & Locke, of Dallas, for appellant. Terrell & Terrell, of San Antonio, for appellee.
   FLY, C. J.

Appellee, on January 2, 1915, sued to recover the sum of $5,000, alleged to be due on two insurance policies on the life of her deceased husband, Simon Veith, together with interest at 6 per cent, per annum from September 21, 1914. Appellant answered on January 25, 1915, admitting that it had failed and refused, and still failed and refused, to pay to the appellee any sum whatsoever on the policies, and denied all liability to appellee on the policies. It also answered that $823.09 had been borrowed on the policies, and asked that, if appellant was found liable, that sum be deducted from the policies. On November 13, 1915, over ten months after the suit was filed, and nearly 10 months after the original answer was filed, an amended answer was filed, in which liability on the policies was admitted by appellant, and that it was ready and willing to pay the sum of $4,229.52 on- the policies, and that the only reason that it had not paid the same before was because it did not know to whom the money should be paid. It prayed that the two minor children of the deceased and ap-pellee be made parties. The cause was tried without a jury, and judgment rendered in favor of appellee for the aggregate sum of $5,668.20, of which sum the principal was $4,229.52, interest at 6 per cent, from November 9, 1914, to June 30, 1916, $416.56 attorneys’ fees, 10 per cent, principal and interest, $464.60, and statutory penalty of 12 per cent, on principal and interest, $557.52. The children, through their guardians, ‘disclaimed any interest in the policies, in wjbich Mrs. Oarrie Yeith was named as the sole beneficiary.

The facts in this case are: That Simon Yeith, the husband of appellee, was killed by a gunshot wound in the head, on September 21, 1914. That on July 8, 1907, deceased had procured two policies for $2,500 each on his life, payable in case of Ms death to Carrie Veith, appellee herein. He afterwards borrowed $820 from appellant on the policies. That on or about October 23, 1914, due notice was given to appellant, and on or about November 5, 1914, appellee furnished appellant with proofs of the death of Simon Veith, upon forms furnished by it. Corrected proofs were furnished appellant on November 12, and on November 13,-1914, appellant wrote appellee’s attorney:

“It appears in said papers that Simon Veith ‘came to his death by pistol wound inflicted by Carrie Veith.’ Under the circumstances this company, therefore, denies all liability under said policies, and returns herewith the documents you have submitted.”

On November 14, 1914, appellant wrote appellee’s attorney:

“This letter is to confirm following telegram which has just been sent you: ‘Do not complete claim under policies forty twenty seven, seven thirty eight and nine, Simon Veith. Home Company advises company is denying liability under these policies.”

At the request of appellant full newspaper accounts of the killing were sent by appellee. Those accounts stated that appellee had been arrested and charged with the murder of her husband. Formal demand of payment of the policies was made on November 16, 1914, and, being refused, on January 2, 1915, suit was instituted by appellee against appellant. As hereinbefore stated, appellant, in its original answer, denied all liability on the policies.

In Article 4746, Revised Statutes, it is provided that where a loss occurs, if a life, or other named, insurance company—

“shall fail to pay the same within thirty days afer demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent, damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.”

That language is clear, and no exception has been ingrafted on it by the courts of Texas, except where the insurance company should be in doubt as to whom the policies should be paid on account of conflicting claims, and the company has the right, under the law and facts, to an interpleader, and it proceeds promptly to make known its position, it would not be liable for the penalties. Stevens v. Insurance Co., 26 Tex. Civ. App. 156, 62 S. W. 824; Insurance Company v. Woods Bank, 107 S. W. 114. Construing the old statute on the same subject, this court in the case last cited held:

“A literal construction of that statute would authorize 1¡he penalty and attorney’s fees against life and health insurance companies in every case in which payment was not made of any loss, after demand, no matter what the circumstances might be. The statute, however, must be given a reasonable construction, and it cannot be maintained that, where there are rival claimants to the amount due on a life policy, the insurance companies by an original suit, or by way of answer when sued, might not interplead •the- different claimants and cause them to settle their disputes in the courts of the state', and the insurance companies be thereby protected from being harassed and possibly from a double payment of the loss incurred. * * * Of course it must appear that the refusal to pay was made in good faith for the purpose of discovering the true and lawful owner of the fund, and not for * * * gaining time, or for any other ulterior object.”

In the case of Nixon v. Insurance Co., 100 Tex. 250, 98 S. W. 380, 99 S. W. 403, it was held:

“The remedy of interpleader is an equitable one, and is for the protection of the disinterested and innocent stakeholder, who claims no interest in the money or property as a claimant or litigant, and who by reason of the conflicting claims of persons, who derive their title either from a common source or one from the other', and the uncertain and doubtful position in which he is placed by the diverse claimants, knows not what to do, and, fearing he may be hurt by some of them, asks instructions and protection from a court of equity.”

As said in the opinions last cited, the question is one of good faith on the part of the insurance company, which must have grounds for anticipating rival or antagonistic claims, and it must place its refusal to pay on that ground. In the case of Insurance Company v. Woods Bank, the company, as soon as suit was filed, admitted its liability, and promptly assumed the position of a stakeholder, and deposited the money in the court. So in the other cases cited. In none of them was liability denied, but it was admitted, and aid of the court sought to determine to whom the fund belonged. It was well said, however, in the ease of National Life Association v. Parsons, 170 S. W. 1038, after citing and quoting from Woods Bank v. Insurance Co.:

“We have no quarrel with that decision, but, on the contrary, approve it; but that case is not authority for the contention here made that an insurance company which fails to pay a loss after proper proofs have been submitted and within 30 days after due demand is not liable for the penalty and attorneys’ fees upon the loss being_ established in court, when the refusal to pay is based solely upon * * * nonliability made in good faith.”

No question as to the good faith of a defense to the policy can be interposed to prevent collection of the penalties; but the only exception to the statute is when an interpleader is sought in good faith and promptly. If the question of good faith as to a defense was allowed to intrude itself into the trial of cases against insurance companies, it would be a difficult matter to ever obtain a judgment for penalties.

In tMs case the defense was inaugurated on the ground that the policy had become invalid because appellee had been accused of killing her husband. The conclusion was reached at once that appellee had not only killed her husband, but had feloniously killed him. The principle of the law, that an accused person is presumed to be innocent until his guilt is established beyond a reasonable doubt, was ignored, and the position assumed that, because there had been a homicide, murder had been committed. It required over a year to change this opinion, for it was a year after refusal to pay appellee before tlie interpleader was filed, in which liability was admitted. Up to that time all liability had been denied. The time for protection from the penalties had been lost by the persistent denial of all liability.

The amended answer alleged the insanity of appellee when her husband was hilled, and although, in connection with that plea, it is alleged “that the death of the said Simon Yeith was caused by the plaintiff, who feloniously slew him,” it is a proposition which cannot be sustained in law, for an insane person could not be a felon. The insane person is incapable of committing a crime, and insanity at the time the offense was committed is an absolute defense. It follows that the amended answer' does not charge that Simon Yeith was feloniously killed.

But, if it had been charged that Simon Yeith had been murdered by his wife, it could not profit appellant, because it is admitted that appellant owes the money, and what does it matter to appellant whether the money goes to appellee or to her children? No attempt is made to defend on the ground that an administrator might be appointed, who might claim that the acquittal of appel-lee of the charge of murder did not establish her innocence so far as the insurance money was concerned, and that the money could be claimed by creditors. We do not intimate that such a defense could be maintained, but because of the argument in the brief that an administrator would probably be the one entitled to recover. That argument, however, has no basis in the pleadings or assignments of error.

Appellant quotes the following language from the opinion of this court in Stevens v. Germania Life Ins. Go., hereinbefore cited, as justifying its refusal to pay the policies:

“We are of opinion that in a case where the beneficiary is uncertain by reason of conflicting claims, and the company has a right to a bill of interpleader, as in this case, and it proceeds promptly and properly in this regard, as has been determined here, it is not liable for penalties.”

That undoubtedly is the law, as enunciated by the courts of this state, but it carries with it no aid, comfort, or justification to appellant. There were no conflicting claims set up by appellant when it refused to pay, and in fact there were no conflicting claims' at that time. If, however, there were conflicting claims, appellant knew that fact as well at the time of the refusal as when it filed its bill of interpleader a year afterwards, because the papers sent it by appellee showed that there were two children, the offspring of Simon Veith and appellee. It cannot, therefore, obtain the benefits of. one who “proceeds promptly and properly” to inter-plead rival claimants, described in the Stevens Case and the Woods Bank OaSe. As said in the last-named case the interpleader eanñot be used to evade or postpone payment of insurance policies, even though it should eventually be ascertained that there were rival claimants. Appellant cannot be permitted to deny all liability to the beneficiary named in an insurance policy for a year, and then, when it ascertains it cannot maintain its defense, file an interpleader in order to escape the statutory penalties. No case has been cited which tends in the least to justify the acts of appellant.

When Simon Yeith died, and the proofs were made, it was the duty of appellant to promptly pay the amount of the policies, to promptly file an original suit to determine the person to whom it should be paid, or to promptly file a bill of interpleader, and in case it did neither it must pay the penalties, if its defenses were not sustained- If the felonious killing of the insured person by the beneficiary would render the policies of insurance void, the burden to establish the felonious killing rested upon the insurance company, and the finding of the coroner, or newspaper accounts of the homicide, would not establish a felony, and the burden would not rest on the beneficiary to establish her innocence of felonious homicide. She went into every court clothed with the presumption of her innocence, and to. defeat her rights the burden would rest on her accuser to establish her guilt. She could not be deprived of her right of trial by jury, and her rights jeopardized, by the judgment of an insurance company. Appellant made no effort to show the guilt of appellee, but, on the other hand, admitted her innocence by admitting her insanity. In all the cases cited by appellant, to show that a beneficiary in a policy of insurance who murdered the insured could not recover, which are accessible to this court, it appears that proof of the felony was either offered and refused, or was made by the insurance company.

The judgment is affirmed.
      <@=»For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes