author: REESE, J.

text:
    WAGNER v. GEISELMAN.
    (Court of Civil Appeals of Texas. Galveston.
    April 4, 1913.
    Rehearing Denied April 24, 1913.)
    1. Appeal and Error (§ 219) — Adoption of Tbial Coubt’s Findings.
    Where the trial court’s findings of fact were not objected to, they would be adopted by the Court 'of Civil Appeals, although such findings were not requested.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315, 1317, 1320, 1322, 1323; Dec. Dig. § 219.]
    2. Trial (§ 396) — Findings—Conformity to Evidence.
    The trial court’s conclusions of law and fact must be based upon the evidence introduced on the trial, and not upon independent investigation and search for evidence by him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 935-938; Dec. Dig. § 396.]
    3. Appeal and Error (§ 527) — Record — Matters to be Included.
    Where the trial court in overruling a motion for a new trial made additional findings, such findings were not a part of the record and could not be considered for any purpose.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2381-23S3; De*c. Dig. § 527.]

      4. Estoppel (§ 2S) — Eeeect of Ancestor’s Covenant as Against Heir.
    Where a grantor’s daughter, who inherited such title as he had to a tract of land, purchased a paramount title, the title did not inure to the benefit of a grantee of a part of such tract under her father’s covenant of warranty; his rights being limited to a recovery against the daughter on the warranty to the extent of the value of any property inherited from her father.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 68; Dec. Dig. § 28.]
    5. Tenancy in Common (§ 20) — Acquisition op Paramount Title.
    Where the owner of a tract of 127 acres conveyed a lot therein, his daughter, who inherited the part not conveyed, was not a tenant in common with the grantee, and hence a paramount title acquired by her did not inure to the benefit of the grantee.
    [Ed. Note.. — For other cases, see Tenancy in Common, Cent. Dig. §§ 60, 61; Dec. Dig. § 20.]
    6. Appeal and Ereob (§ 1008) — Review-Questions op Fact.
    In trespass to try title against a person claiming under a conveyance of 500 acres of land or more and being all of one-third of a league not theretofore sold, where the circumstances strongly suggested that the land in question had theretofore been sold by contract to plaintiffs remote grantor, although not deeded to him until afterwards, but did not point unmistakably to such a conclusion, whether it was so sold was a question of fact, and the trial ' court’s refusal to find such a sale would not be-disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. § 1008.]
    7. Judgment (§ 743) — Conclusiveness — Persons Bound.
    A judgment in a suit to remove a cloud against the executor and heirs of B. did not affect parties who had acquired B.’s title prior to the institution of such suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1252, 1253, 1275-1277, 1284; Dec. Dig. § 743.]
    8. New Trial (§ 102) — Newly Discovered-Evidence — Diligence.
    Where an action of trespass to try title was commenced in April, 1905, and tried in-January, 1912, it could-not be said that the trial. court abused its discretion in denying a new trial for newly discovered evidence, consisting of public records of the same court, for1 lack of diligence.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.].
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Trespass to try title by J. F. Wagner against M. P. Geiselman. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    E. T. Cbew, of Houston, for appellant. W. F. Tarver, of Houston, for appellee.

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

   REESE, J.

J. F. Wagner instituted this action in trespass to try title against M. P. Geiselman to recover lot No. 2 in block No. 52 in Foster’s addition to the city of Houston. The lot is a part of the Harris third of a league, and part of a tract of 127 acres conveyed by Harris to Richey; the title afterwards coming to J. E. Foster. Defendant pleaded not guilty and the statute of limitation of three, five, and ten years. Plaintiff, by supplemental petition, pleaded estoppel against defendant to set up the title under which he claims on grounds which will hereafter appear. The suit was instituted in 1905, and tried January 3, 1912. Trial without a jury resulted in a judgment for defendant, from which plaintiff prosecutes this appeal.

The trial court prepared and filed conclusions of fact and law. It does not appear from the record that any request was made-for such findings; but no objection is made to their consideration on this ground, nor is any objection made to any of the fact findings by either party. We feel justified, therefore, in adopting the conclusions of fact, so far as material.

Mixed in with the conclusions are observations of the district judge which form part of such fact conclusions, and are omitted. A considerable part of these conclusions appear, from the statement of the judge, to be the result of independent investigation and search for evidence, made by bim, and not based upon evidence introduced on the trial. These cannot properly form •any part of such conclusions, which are properly only the conclusions of the court from the evidence introduced on the trial. How•ever, no objection is made by either party to the consideration of these extrajudicial conclusions. They do not appear to he material. So far as material, the conclusions •are as follows:

“S. M'. Harris owned a third of a league adjoining the corporate limits of the city of Houston, and some of it probably was inside the corporate limits.

“(2) Beginning on the 17th day of October, 1838, and continuing on down through 1839, T840,1847,1848,1851, and 1852, he sold off various tracts of 100 acres and 50 acres, and on .April 3, 1856, he made a deed to Paul Bre-mond, describing the land as follows: ‘500 ■acres of land or more, lying partly within the ■corporate limits of the city of Houston, and on the north side of Buffalo Bayou, bounded on the west by lands sold to Dobie and the John Austin tract, and on the east lands originally belonging to D. Gregg, it being part of the •headlight of Sam Harris of a third of a league, and all of said one-third of a league not heretofore sold is conveyed by the said Harris.’ This deed was recorded on April 4, 1S56, in the deed records of Harris county.

“(3) It was not made clear to me upon the trial what lands he had sold, so in order to advise myself in the premises, I went to the records of one of the leading abstract companies and got a consecutive list of the transfers and at the time the deed was made to Bremond, who gob the land from Harris, the latter party, Harris, being the source from which both parties derive their title, 100 acres had been conveyed to one Reynolds ■on the 17th day of October, 1838, and it adjoins the Austin on the west, that is to say, its west line, beginning at Buffalo Bayou, was coincident with the east line of the John Austin to the extent, approximately, of halfway up said west line of the Harris survey, and directly north of the Reynolds land, and of tñe same width as it and the Richey 127 acres, which had not been conveyed when the deed from Harris to Bremond was made. The next tract sold was that of April 19, 1839, of 100 acres to Dobie; so the 500 acres ‘or more’ sold to Bremond did in fact touch or reach the east line of the Austin which is the west line of the Harris and the north end of the Reynolds out to the north end of the Harris survey, and it did go east to the west line of the D. Gregg land, which west line was coincident with the east line of the Harris one-third of a league. It will be seen from the map that the Dobie 100 acres lies between the Paul Bremond 500 acres and the Reynolds for the full length of the Reynolds and for a part of the way between the Bremond and the Richey 127 acres.

“(4) The record shows that at the time Harris made the deed to Bremond he had sold 800 acres of the land out of his third of a league, down to January 27, 1852, but the deed to Bremond is recorded in Book P. p. 623, of the Records, while the two last deeds before that, each for 100 acres, one made May 23, 1851, and one January 27, 1852, were not recorded until later, as the first appears in volume Q, p. 315, and the other volume V. p. 6S3; but counting in those two deeds the whole amount of land that Harris had sold out of his third of a league up to the time of making the deed to Bre-mond was 800 acres, six 100-acre tracts, and four 50-acre tracts, therefore he had left 676 acres.

“(5) The deed to Benjamin Richey, under whom the plaintiff claims, was made on the 23d day of December, 1856, but was not recorded until August 15, 1857.

“(6) Counting the Bremond conveyance at just 500 acres, for the purpose of a statement, he sold altogether, including conveyances made in 1858 and 1860 and 1863, 1,440 acres, and if there he added to that the 127 acres which he sold Richey, in 1856, but which was not recorded until 1857, he sold altogether out of the tracts 1,567 acres, or 91 acres more than there was in the whole survey.

“(7) It will be seen from these figures that, if the Bremond conveyance had been calculated at only 500 acres, he would have had 176 acres left after he sold to Bremond, or 49 acres more than necessary to make up the 127 acres which he sold to Richey; but his deed to Bremond called for 500 acres ‘or more’ and described it as being all the land not heretofore sold and conveyed by him.

“(8) Bremond lived until 18S5, and his estate was administered on in this county, and the property covered' by the deed for 127 acres seems to have never been inventoried as a part of his estate; or at least the inventory called for 500 acres, and the lot in controversy is in the south end of the 127 acres.

,r(9) A large part of the estate of Bremond passed into the hands of the executrix of the estate of one A. P. Lufkin by foreclosure, and the Lufkin heirs and the Bremond heirs made deeds to the 500 acres, and the title passed into the hands of James A. Baker and George L. Porter.

“(10) There appeared to have been Richey and J. E. Foster eleven conveyances, and J. E. Foster, in 1874, divided the property covered by the 127 acres into city lots and blocks, some of them in the extreme northern or northeastern end of the city and some perhaps beyond the city limits, and through a lottery scheme he sold the property divided into lots, those drawing certain numbered tickets getting certain lots, and one Miss Sternenberg drew one of the numbers and received one of the .lots, a conveyance being made to her in the ordinary form, and that lot passed down from lier to the plaintiff: in this case by a regular chain of title.

“(11) About the 14th day of September, 1898, James A. Baker and George L. Porter conveyed by special warranty deed, for a consideration which I find was not full value of the property, the 127-acre tract platted by Poster into his said addition (which was the same land conveyed by Plarris to Richey) to P. S. Burke, and Burke, who was an attorney at law and a solvent man, at once conveyed all of the blocks, except Nos. 53 and 54, to Miss Violet Poster, the daughter of J. E. Poster, who had died some years before, and the block 52, in which this lot is situated, was among the lots conveyed by Burke to Miss Poster, and he retained lots 53 and 54, and Miss Poster conveyed the lot to the defendant, Geiselman, who had his title examined, and who paid full value for the property he bought, which was the entire block 52, and I find that he purchased in good faith, and I also find that Louis Stahl, who bought from Miss Sternenberg, afterwards Mrs. Penton, and by whom the lot sued for was given to the plaintiff, purchased in good faith.

“(12) There is no limitation in the case, so it is not necessary to refer to the question of possession and improvements; but the defendant had had the property fenced since his purchase.

“(13) It was agreed that Poster sold a great many of the lots, just as he did to Miss Sternenberg, and that many of the parties went into possession, and that either they or their vendees or those who were claiming under their vendees are still in possession, and there has been no attack made upon their title, and that the Poster estate had .been administered upon and the property of 127 acres was administered as a part of his estate, or at least' so much of it as he had not sold prior to his death.

“(14) I find that the plaintiff has paid taxes on the lot in controversy as far back as the year 1896, and that the defendant has paid taxes on the property regularly from 1901 up to this time, and that on miscellaneous lots and blocks in the 127 acres, or the Poster addition, parties claiming lots through and under Poster have paid taxes on them since 1874. This, however, does not apply to the lot in controversy, finding as to taxes upon which is made above in the first part of this paragraph.”

Appellant filed a motion for a new trial upon the ground, among others, of n.ewly discovered evidence. This was overruled by the court. The court thereupon prepared and filed certain “findings” which are in the record. These findings are objected to by appellee as forming no part of the record. They are properly no part of the record and cannot be considered for any purpose. The court overruled the motion for a new trial, and that was the end of the matter so far as the trial court was concerned. Appellant refers largely to these findings in support of some of the assignments of error, and to the newly discovered evidence. Obviously this can only be considered by the court in determining whether the trial court erred in overruling the motion for a new trial.

The first assignment of error is based upon the assumption that the court found in the eleventh finding of fact, and that the uncontradicted evidence showed that Violet Foster inherited as heir of J. E. Foster, her father, all of the unsold portion of the 127-acre tract originally sold by Harris to Richey and which afterwards was conveyed to-Foster, and upon this assumption as to the facts, that when she procured through her attorney, F. S. Burke, the deed from Porter and Baker, the title thus procured inured to the benefit of the vendee of J. E. Foster, Miss Sternenberg, under Foster’s warranty of title, and to the vendee of Miss Sternenberg, the appellant. In the statement under the proposition appellant refers for support partly to the findings of the trial court on the motion for new trial, to which reference has been made and which cannot be considered. In the eleventh finding of fact the court only finds that Violet Foster was the daughter of J. E. Foster, and there is no finding there, nor elsewhere in the conclusions of fact, that she inherited the unsold portion of the 127 acres from her father. An examination of the statement of facts shows that even this finding is not supported by the evidence, as there is no evidence that Violet Foster was the daughter of J. E. Foster. However, as there is no objection to'the conclusions of fact, the finding that Violet Foster was the daughter of J. E. Foster must be accepted. It then appears that Harris sold to Bremond all the unsold portion of the Harris third of a league survey, which included the 127 acres which he subsequently sold and conveyed to Foster. Bremond therefore had the title to this 127 acres, which afterwards passed into Baker and Porter. When afterwards this title was acquired by Violet Foster, there is no principle of law or equity under which this title inured pro tanto to the holder of the title, under warranty deed from J. E. Foster, of the lot in controversy. Even if she had inherited from her father such title as he had to the 127 acres, this would not prevent her acquiring for. her own benefit the superior title of Baker and Porter. The principle that if A. conveys to B. by warranty deed, and subsequently acquires a title superior to that thus conveyed, it passes by estoppel to his grantor, does not apply to this case. The doctrine is well established. Baldwin v. Root, 90 Tex. 553, 40 S. W. 3, and cases cited. But it does not apply here. Violet Foster did not acquire this lot from her father by inheritance, at all events; the only title she ever had to it is the title she got from Baker and Porter. The precise question presented by this assignment was decided adversely to appellant’s contention by this court in Cleveland v. .Smith, 113 S. W. 550. The right of appellee to recover against Violet Foster on the warranty of her father to the extent of the value of any property she may have inherited from her father is the extent of the right of appellee, and would not affect the title of appellant. In this case there is no evidence that would support even such a right, as there is no evidence as to the value of such inheritance. However, that principle of law could not avail appellant here in any case. The assignment is overruled.

Nor can the second assignment of error be sustained. The basis of the assignment is that Violet Foster was the tenant in common with Miss Sternenberg or her ven-dees of the lot in controversy. This could not be. J. E. Foster conveyed' this lot, or such title as he had, entire, and there could have been no tenancy in common.

The circumstances shown to exist probably raised the issue of the existence of some sort of contract of sale from Harris to Richey of the 127 acres prior to the sale of the entire unsold portion to Bremond, which was known to Bremond prior to his purchase. The circumstances are strongly suggestive of such a contract, and that Bremond knew of it. Hermann v. Thomas, 141 S. W. 574. But such presumption was one of fact, and we cannot say that the court erred in not so finding, as is complained of in the third assignment of error. The evidence on this point does not point so unmistakably to such a conclusion as to compel such a finding. If the case had been with a jury, and upon submission of the issue the jury should have found against appellant’s contention on this point, we would not have been authorized to set such verdict aside. The circumstances in Hermann v. Thomas, supra, were of , a strongly similar nature; but the most that was said in that case was that they were sufficient to present the issue of a contract of sale from Sarah Goodman to Woodyard and Biorgan of the 100 acres prior to the conveyance of the unsold balance to Bourgeois. It will be seen from the court’s conclusions of law in this case that it declined to presume the existence of such contract of sale, from the evidence. We cannot say that this was error. It must be noted that in support of this assignment appellant again draws largely upon the court’s findings upon overruling the motion for a new trial, which cannot be considered.

The fourth assignment of error is based entirely upon the newly discovered evidehee set out in the motion for a new trial and the court’s so-called findings thereon. As these cannot be considered, the assignment must also fail. But independently of this the evidence shows that the suit against the executor and heirs of Bremond, instituted by Violet Foster, to recover the 127 acres or to remove cloud from her title, was instituted after title had passed out of the Bremond estate. According to the statement in appellant’s brief, this suit.was instituted November 26, 1888. So there was no title left in the executor or heirs of Bremond, and Violet Foster got no title by her judgment. This probably accounts for the ease with which she procured this judgment. So that even if this newly discovered evidence, which was made the basis for the motion for a new trial, had been before the court, and properly in this record for our consideration, it would not have helped appellant. There was nothing in such judgment to prevent Violet Foster from acquiring for her own benefit, as against appellant and his vendors, the title of Baker and Porter.

What we have said disposes also of the fifth assignment of error, which is overruled.

By the sixth assignment of error appellant complains of the action of the court in overruling the motion for a new trial on the ground of newly discovered evidence. This evidence consisted of the pleadings and judgment in the case of Violet Foster against the executor and heirs of Bremond heretofore referred to. In attaching so much importance to this evidence the trial court overlooked the fact that at the date of the institution of the suit the title had passed out of the estate of Bremond. Even if this were not true, however, we do not think that the judgment would have had the effect of passing to appellant or his vendors by estoppel the title afterwards acquired by Violet Foster from Baker and Porter, Cleveland v. Smith, supra.

But the motion was properly overruled on the ground that appellant had not shown such diligence in discovering the existence of this evidence and producing it upon the trial as to entitle him to the new trial. Certainly we cannot say that there was such abuse of the discretion vested in the trial court in such case as would authorize,us to reverse the judgment and grant appellant’s motion for a hew trial on this ground. This action was instituted April 5, 1905, and tried in January, 1912. The evidence was afforded by the public records of the district court of Harris county. Whether proper diligence would have enabled appellant to discover it before the trial could be better judged by the trial court than by this court, so, both on the ground that the evidence would not have availed appellant and that there had not been sufficient diligence, we cannot say that the court committed error in overruling the motion for a new trial.

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

Affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    FT. WORTH & D. C. RY. CO. v. MAPES et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 1, 1913.
    Rehearing Denied March 29, 1913.)
    Railroads (§ 222) — Operation—Nuisance— . Liability.
    A railroad company constructing and maintaining, as authorized by ordinance, tracks in a street for the storage and loading and unloading of cars, in connection with its depot, is not liable for injuries to an abutting owner, caused by noises, dust, cinders, and odors, though the tracks were originally constructed for private concerns, and though the private concerns are deriving more benefit from the tracks than the general public, since the company could under Rev. Civ. St. 1911, art. 6504, have condemned the land for the tracks if owned by the abutting owner, especially where the construction and operation of the tracks did not depreciate the value of the abutting property but enhanced its value.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec. Dig. § 222.]
    Error to District Court, Wichita County; P. A. Martin, Judge.
    Action by A. E. Mapes and another against the Ft. Worth & Denver City Railway Company. There was a judgment for plaintiffs, and defendant brings error.
    Reversed and rendered for defendant.
    Huff & Bullington, of Wichita Falls, for plaintiff in error. Montgomery & Britain, of Wichita Falls, for defendants in error.

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

   DUNKLIN, J.

Mrs. A. E. Mapes owned a home in the city of Wichita Falls fronting on Michigan avenue, a public street running approximately north and south. She, together with her family, had occupied the home which was her separate property, for several years, when in 1910 the Ft. Worth & Denver City Railway Company constructed a side track along the center of Michigan avenue. It also constructed another side track intersecting the one in the center of the street in front of plaintiff’s home and running in a southeasterly direction practically across the street and terminating at the Carroll, Brough, Robinson & Gates Company’s wholesale house situated in the next block south of the block in which plaintiff’s home is situated and on the same side of Michigan avenue.

Mrs. Mapes, joined by her husband, instituted this suit against the Railway Company to recover damages for personal discomfort which she alleged she suffered while occupying her home as the result of smoke, cinders, sparks of fire, and noises caused by the operation of defendant’s engines and cars upon those side tracks and as a result of obstruction of ingress to and egress from her home caused by the standing of cars upon those tracks, all of which incidents constituted a nuisance. She alleged that the side tracks were constructed solely for the use and convenience of private persons and corporations owning lots abutting on said street, and that the location of those tracks upon that street was not necessary for the use or convenience of the public at large or for the purpose of performing any duty which defendant owed to the public; that such side tracks, located at some other places which were as available to defendant as those in question, and the use of same at such locations, would result in no annoyance to plaintiff in the occupation of her home. She also alleged that the nuisance complained of had depreciated the market value of her property and prayed for damages for such depreciation as well as for the personal discomfort suffered by her. In the court’s charge the only measure of damages submitted was for the alleged annoyance and discomfort to plaintiff in the occupancy of her home, and the jury were expressly instructed not-to consider the testimony which defendant had introduced upon the trial strongly tending to show that the market value of plaintiff’s property had been enhanced by the construction of the side tracks in question, as thereby the property has been rendered desirable as trackage property, and hence more valuable for commercial purposes.

The main line of defendant’s track crossed Michigan avenue south of the location of plaintiff’s home, running diagonally across it, and adjacent to and parallel with this main line were six other side tracks also running diagonally across that street; the street being thus partially or wholly utilized by said side tracks and the main line for more than two blocks, beginning with the first block south of plaintiff’s property. Defendant introduced evidence tending to show that the annoyances of which plaintiff complained were due in whole, or at least in part, to the operation of trains on these side tracks and the main line, and the court instructed the jury that no damage could be allowed plaintiff for discomfort suffered by her as a result of the operation of trains upon any tracks other than two side tracks first mentioned above which were constructed in front of her home. But in the charge the jury were instructed to allow plaintiff damages for such personal annoyance and discomfort suffered by her in the occupancy of her home as resulted from disagreeable noises, vibrations, and smoke incident to the operation of engines and cars upon the two side tracks in front of her home, provided the jury should further find that said tracks were constructed for the purpose of furnishing sidings to private enterprises alone and not for the use or benefit of the general public, and that such side tracks, if necessary for the handling of business for the public, could reasonably and practically have been constructed at some other place where the operation of the' engines and cars thereon would work no inconvenience or annoyance to plaintiff in lier borne. The jury were further instructed, as follows: “If you believe from the evidence that the switch tracks complained of by plaintiff were constructed for the public use or for the benefit of the general public, and that it was reasonable and nejessary that such switches should be so constructed in Michigan avenue in order that the defendant company might perform its duties to the public, then you will find for defendant; or if you believe that the plaintiffs have not suffered any annoyance or inconvenience from the operation of trains or engines on said switch, you will find for defendant.”

For the alleged personal annoyance to plaintiff the jury allowed her damages in the sum of $575.

Plaintiff’s petition contained no allegation that the defendant operated its engines and cars upon the side tracks in a negligent manner, but relied solely upon the' contention that the operation of the same necessarily constituted a nuisance. The proof showed that, by two special ordinances of the city council of the city of Wichita Falls, defendant was granted the right to construct the two tracks in controversy upon and along Michigan avenue just as they were constructed. Appellant insists that the evidence conclusively showed without contradiction that the side tracks or switches in question were necessary and essential to the discharge of defendant’s duties to the general public. But while there is much testimony tending to show that those tracks were necessary for the discharge of such public duties, yet there were other facts and circumstances in evidence which we think sufficient to sustain a finding by the jury to a contrary effect. Two of defendant’s engine foremen and also its local agent employed in Wichita Falls at the time of the construction of the tracks and since that time testified to various uses made of the tracks including the storage of cars thereon, their use as team tracks, i. e., tracks upon which cars could be loaded and unloaded from and upon private vehicles.

It was shown by the evidence that the Pierce Fordyce Oil Company’s tanks and also an elevator were situated on Michigan avenue and reached by the tracks in question. The local agent of the defendant further testified that one purpose of building the tracks was to serve the private industries located on the street such as the Carroll, Brough, Robinson & Gates Wholesale Company, but that they were built for any use that the company might see fit to make of them. He testified further: “It is true that we could have built tracks at other places to store cars. * * * I did not have anything to do with the construction of that track. I am only agent here. They did not tell me what the purpose was before they built it, but they told me after they built it, they said, ‘Use it for what you see fit, anything you want to use it for.’ The general superintendent told me that. He told that because I asked him, and I asked him because it was a track. We do use all tracks for any purpose we want to. I asked him because he was there; he was looking over the ground. It was built there to be used for all purposes. This track along Michigan avenue is used for switching all of these industries; it is what we call a lead; all of these tracks lead off from it; we use it in going from one spur to the other; it would be the main line to all of these spurs. We have got to use it when we go there for any purpose.”

W. M. Langford, one of the defendant’s engine foremen, after testifying to the numerous uses made of the tracks including the storage of cars, said: “We have placed cars for the city, there to unload. This Carroll-Brough-Robinspn-Gates Company’s track is used principally to work that industry. We have spotted cars there; they use that as a team track. If a request is made to place cars on any convenient track, it would be granted; certain places were designated on that Michigan avenue track for cars to be placed, and they were placed there.”

The official of the defendant company under whose direction the tracks in question were constructed, and who could have explained the purpose for which they were constructed, did not testify in the ease.

Article 6481, Revised Givil Statutes 1911, reads: “Any railroad corporation shall have the right to construct and operate a railroad between any points within this state and to connect at the state line with' railroads of other states.”

In the case of Rainey v. R. R. T. & S. Ry., 99 Tex. 276, 89 S. W. 768, 90 S. W. 1096, 3 L. R. A. (N. S.) 590, 122 Am. St. Rep. 622, 13 Ann. Cas. 580, our Supreme Court held that an injunction might lie to restrain a railroad company from locating its machine and repair shops and necessary structures of a like character at such a place that their operation would cause personal annoyance and discomfort to citizens living in that vicinity when another location equally as useful and convenient for such purposes is available to the company. But in reaching that conclusion the court said: “Article 4445 of the Revised Statutes also provides that: ‘If any railroad corporation shall at any time be unable to agree with the owner for the purchase of any real estate or- the material thereon required for the purpose of its incorporation or the transaction of its business, for its depots, station buildings, machine and repair shops, or for the right of way, or any lawful purpose connected with- or necessary to the building, operating or running its road, such corporation may acquire such property in the manner provided in this chapter.’ The manner provided in the chapter is by condemnation. That a railroad company should have the right to designate its right of way and to condemn property therefor, as well.as to damage other property not taken, would seem almost a necessity. Article 4424 of the Revised Statutes reads as follows: ‘Every railroad corporation shall have the right to cause such examination and survey for its purposed railway to be made as may be necessary to the selection of the most advantageous route, and for such purpose may enter upon lands or waters of any person or corporation, but subject to responsibility for all damage that may be occasioned thereby.’ We think it a reasonable implication from this provision that it was contemplated that the company was empowered absolutely to select such right of way as it should deem ’ ‘most advantageous’ to its enterprise. We are of the opinion, however, that the case of machine and repair shops and the like stands upon a different footing. Prom the statute first quoted above, it is seen that they have the express power to condemn land for such structures, and of necessity they must make the selection of the location. But in our opinion it does not follow that the Legislature intended to empower them to act arbitrarily and without regard to any injury that might be inflicted upon others.”

In the case of St. L., S. P. & T. Ry. Co. v. Shaw, 99 Tex. 559, 92 S. W. 30, 6 L. R. A. (N. S.) 245, 122 Am. St. Rep. 663, the court held that plaintiff, who resided near a railroad company’s depot, could not recover for the nuisance to her caused by noises, dust, cinders, and odors resulting from the operation of engines and trains upon its track near its depot station in the town of Deni-son, all constructed upon its right 'of way, said tracks including five spur tracks, in the absence of a showing that such trains were operated negligently, and in the opinion rendered in that case the court said: “Here, the defendant, in the location of its right of way, its main track, its freight depot, and such sidings and spurs as were necessary to the proper carrying on of its freight business and the discharge of its duties therein, did only that which the law authorized it to do. In other words, for the public good, its action in these regards, so long at least as it was only a reasonable exercise of the privileges granted, was made lawful; and. any incidental damage resulting to members of the public, beyond that caused to their property, against which they are protected by the Constitution, is to be regarded as a damnum absque injuria, which must be. borne because the work which inflicts it is authorized by law for the general welfare. Structures like that here existing are only such as the law requires railroad companies to have as a necessary part of their equipment and requires them to locate, not at designated places, it is true, but yet with proper regard to the public interests. As is pointed out in the Rainey Case, this was. .not true of such structures as were there under consideration and as were involved in the cases first cited, the location of which the law did not attempt in any way to control or influence. That the right of way and track of a railroad company is excluded by the considerations stated from the operation of the principle of the cases referred to is expressly conceded 'in the Rainey Case and has long been the settled law; and this is equally true of depots and their necessary incidents. By articles 4492 and 4493, Revised Statutes, railroad • companies aré required to locate their depot grounds before they construct their roads and are forbidden to change them, and by article 4519 they are required to erect at such depots suitable buildings, etc. It is hardly necessary to add that side tracks at such stations are an essential part of the road, and are as much authorized and required as the main line and stations. It cannot be held, therefore, that the mere location of such tracks and stations near to the property of others gives rise to the liability here asserted. If so, the same liability would arise to every one who might be annoyed by trains passing along the main line, for no reason could be given for the liability in one case which would not be valid in support of it in the other; and yet it has often been held that no such liability can be sustained consistently with the law which authorizes the construction of such quasi public works.”

In the case of Daniel v. E. W. & R. G. Ry. Co., 96 Tex. 327, 72 S. W. 578, it was held that damages recoverable resulting from a nuisance caused by dust and noise emanating from the use of a coal hoist from which locomotive engines were supplied with coal were not limited to depreciation in the market value of property located in that vicinity, but might include personal annoyance and discomfort suffered by the occupants of such property. In M., K. & T. Ry. Co. v. Mott, 98 Tex. 91, 81 S. W. 285, 70 L. R. A. 579, it was held that damages for the depreciation in the market value of residence property by reason of the maintenance of stock pens were recoverable. In Boyer v. St. L., S. F. & T. Ry. Co., 97 Tex. 107, 76 S. W. 441, it was held that the railway company was liable for the depreciation in the market value of property caused by the nuisance resulting from the construction and operation of a railway in a street upon which the property abutted. And to the same effect substantially was the decision in Rainey v. Railway, supra.

It was shown by uncontroverted proof that during the maintenance of the alleged nuisance the side tracks were used for tlie service of the public at large in connection with appellant’s depot at Wichita Palls, in fact for practically the same purpose as any other side track in defendant’s yards. And even though it should be held that the use of the side tracks 'originally intended was not- such as to give appellant the right of condemnation under the circumstances instanced, we think it can make no difference, since the use now made of the track is unquestionably for the benefit of the general public. For such uses as are now made of the tracks in question, appellant could have condemned the land covered by Michigan avenue if the same had been owned by appellee and - had not been appropriated for a public street, even though, the private concerns located on Michigan avenue derive more benefit therefrom than does the general public. Rev. Civ. Stat. 1911, art. 6504; Railway v. Shaw, supra; Mangan v. Texas Transportation Co., 18 Tex. Civ. App. 478, 44 S. W. 998-1001, and authorities there cited; 15 Cyc. 588-590; M. & St. L. Ry. Co. v. Nicolin, 76 Minn. 302, 79 N. W. 304.

Plaintiff introduced no evidence to show that the market value of her property was depreciated by reason of the construction and operation of the side track in question, while evidence'introduced by appellant showed conclusively that the market value of the property was enhanced by the construction and operation of the tracks, -as the property was thereby rendered more valuable for commercial uses as trackage property. In view of this proof made by appellant, and as no proof to the contrary was offered by appellee, no reason appears for remanding the cause for trial upon that issue.

For the reason indicated, the judgment of the trial court is reversed, and judgment here rendered in favor of appellant.


author: JENKINS, J.

text:
    BAILEY et al. v. ARNOLD et al.
    (Court of Civil Appeals of Texas. Austin.
    March 19, 1913.)
    1. Appeal and Error (§ 285) — Motion eor New Trial — Motion—Demurrer to Petition.
    Fundamental error committed by sustaining a general demurrer to a sufficient complaint was reviewable on appeal, without a motion for a new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1684-1690; Dec. Dig. § 285.]
    2. Homestead (§ 213) — Enjoining Sale— Levy on Homestead — Petition.
    A. complaint alleged that defendant, having recovered a judgment against complainant’s husband, caused execution to be levied on certain land which complainant claimed as her homestead, whereupon, their landlord employed attorneys who instituted a suit to enjoin a sale of the property for that reason, pending which complainant’s husband died, whereupon the landlord directed the attorneys no longer to prosecute the suit at his expense, and they, without notice to complainant, withdrew from the case entirely, whereupon it was dismissed for want of prosecution. The complaint also alleged that defendant knew that complainant’s husband was dead but that fact was not'known to the court; that complainant relied on the attorneys to notify her when she was wanted, and on the law which requires that defendant should suggest the death of complainant’s hus7 band and continue the cause, to make their children parties; that she did not discover the dismissal until four months later,- • when - her ■home was levied on and advertised for, sale; that, though she had been appointed as her husband’s administratrix, and the land levied on Had been set aside to her by the probate1 court as her homestead,- and the same was in fact her homestead, no claim had been filed with her, as administratrix on said judgment. Held), that such facts showed that complainant was entitled to equitable relief, and the petition alleging them not subject to a general demurrer.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 394r-396; Dec. Dig. § 213.]
    3. Pleading (§ 193*) — Demurrer—Laches. .
    A special exception to a petition to ‘ set aside the dismissal of a prior suit for an injunction to restrain a levy on a homestead, .in that the petition had not been acted on for eight years, could not be raised by demurrer. '
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437-443; Dec. Dig. § 193.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by- Dick Bailey and others against J. C. Arnold and others. Judgment for der fendants, and plaintiffs appeal.
    Reversed and remanded.
    Henderson, Kidd & Gillis, of Cameron, for appellants. W. A. Morrison, 'of Cameroii, for appellees.

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

   JENKINS, J.

There was no motion for a new trial in this case, and, consequently, the assignments of error, which are objected to by appellee, cannot be considered by this court; but appellant insists that there is fundamental error in the judgment in that a general demurrer was sustained and that appellant’s petition showed a good cause of action. “A judgment sustaining a general demurrer, which is a declaration that no cause of action existed, is fundamental, and should therefore be considered, although the error is not assigned.” Hall v. Johnson, 40 S. W. 47; San Antonio v. Talerico, 98 Tex. 154, 81 S. W. 519.

The petition in this case alleged that on February 28, 1901, Dick Bailey, the husband of Leah Bailey, and the said Leah Bailey, filed in the district court of Milam county their petition for injunction, to' enjoin the sale of 16 acres of land described in said petition, which they claimed as their homestead; that appellee, J. C. Arnold, had theretofore recovered a judgment in the justice’s court against said Dick Bailey, and on the 2d day of February, 1901, had caused an execution, sued out on said judgment, to be levied on said land and advertised the same for sale; that said land at the time of the levy of said execution and at the time of filing of said petition for injunction was the homestead of said Richard and Leah Bailey; that thereafter, during the pendency of said suit, to wit, on the 30th of March, 1902, the said Dick Bailey died intestate, leaving as his sole heirs at law the said Leah Bailey and her six children, who were named in said petition, some of whom were minors; that on the 3d day of- June, 1908, the last day of said term, said case was called for trial, and that the attorneys for said Dick and Leah Bailey announced in open court that they withdrew from said cause; whereupon the court dismissed said cause for want of prosecution; that said attorneys had been employed by Moses, the landlord of Dick and Leah Bailey, who were negroes, and that he had stated to said attorneys that he did not desire to continue their employment; that appellant Leah Bailey knew nothing of this, and that said Moses had no authority to abandon the prosecution of said case, and did not undertake to do so, nor instruct said attorneys so to do, but simply to withdraw from the case in so far as his employment of them was concerned; that the fact that said Dick Bailey .was dead at the time said case was dismissed was known to appellee Arnold, but that said fact was not known to the court; that appellant relied upon said attorneys to notify her when she would be wjmted, and that she relied upon the law, which required that appellee should suggest the death of said Dick Bailey, and continue said cause to make his said children parties; that she did not discover that said case had been dismissed for want of prosecution until about four months later, when her home was levied upon and advertised for sale under said judgment against Dick Bailey; that she thereupon employed attorneys and filed a motion in said court to set aside said judgment of dismissal; that she had been appointed administratrix of the estate of Dick Bailey and said judgment had never been presented to her for allowance; that said land had been set aside to her by the probate court as her homestead, and that the same was in fact and had been her homestead continuously from the time said judgment was rendered in the justice’s court against said Dick Bailey to the present time, and that she then was and still is occupying the same as the head of a family, to wit, herself and her minor children.

We are of the opinion that this petition presented a good cause of action, and that the general demurrer to the same was wrongfully sustained. Appellee filed a number of special demurrers all of which were sustained by the court; but it does not follow that because a special demurrer is rightfully sustained there is not sufficient left in the petition to show a good cause of action. The so-called special demurrers in this case are, for the most part, only general demurrers.

One of the special exceptions is that “this petition to set aside the judgment of dismissal has not been acted on by the court for' a period of eight years.” It does not appear why the same has not been sooner acted upon, or that it was the fault of appellant; and we do not think that issue could be raised by demurrer.

Eor the reasons stated, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: TALIAFERRO, J.

text:
    GRAND TEMPLE AND TABERNACLE IN STATE OF TEXAS OF KNIGHTS AND DAUGHTERS OF TABOR OF INTERNATIONAL ORDER OF TWELVE v. JOHNSON.
    (Court of Civil Appeals of Texas. San Antonio.
    March 26, 1913.
    Rehearing Denied April 30, 1913.)
    1. Trial (§ 420) — Waives of Ereos — DIRECTION OF VERDICT.
    Defendant’s motion for an instructed verdict at the close of plaintiff’s evidence is waived by an election to proceed with his case and to present his defense.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.]
    2. Appeal and Eeeor (§ 294) — Necessity of Motion foe New Trial — Review of Sufficiency of Evidence.
    The sufficiency of the evidence to support the verdict cannot be questioned upon appeal, unless presented to the court below in a motion for a new trial.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1724, 1725, 1727-1735; Dec. Dig. § 294.]
    3. Appeal and Eeeoe (§ 302) — Motion foe New Trial — Sufficiency of Motion — Sufficiency of Evidence.
    In an action against a fraternal order for damages alleged to have been caused by a fall during the initiation of plaintiff, in which it was in issue whether plaintiff was being initiated or was only taking the obligation, in which latter ceremony defendant did not authorize the use of swords, a motion to set aside the verdict for plaintiff and grant á new trial, because the undisputed evidence was that plaintiff was being obligated in defendant’s order, and that defendant did not authorize the use of swords during that ceremony, and that the verdict against defendant was contrary to the law and the evidence, was not adequate to raise on appeal the question whether the evidence, upon the whole case, was sufficient to support the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 392.]
    4. Teial 105) — Opinion Evidence — Failure to Object.
    In an action for injuries received while being initiated into defendant’s membership, in which defendant answered by general denial and special plea that plaintiff was only being obligated, conclusions of plaintiff’s witnesses to the effect that he “was being initiated,” or was “brought there to be initiated,” or “was told to come and be initiated,” were evidence, where they were admitted without objection, and that theory of the case was fully presented to the jury by the court’s general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. § 105.]

      5. Beneficial Associations (§ 20)—Tobts— Matteks Admissible Under General Denial.
    Under a general denial in an action for injuries received by a fall during plaintiff’s initiation into defendant’s membership, defendant might show that plaintiff’s injury was in fact caused by the willful act of a stranger, or by a spirit of malice.
    [Ed. Note.—For other cases, see Beneficial Associations, Cent. Dig. §§ 51-56; Dec. Dig. § 20.*]
    6. Beneficial Associations (§ 20)—Tobts— Theory of Defense.
    In an action for injuries alleged to have been caused by one of defendant’s agents, while initiating plaintiff into defendant’s membership, by negligently permitting a sword, which such agent was required to carry, to trip plaintiff, in which defendant answered by general denial and specially pleaded that plaintiff was only being obligated, in which ceremony the use of a sword was not authorized, and also that the injury was caused by. a stranger in a spirit of sport or play, tried upon' both of these theories, the court, on any evidence that the injury resulted from the act of a stranger, should have given defendant’s special affirmative charge covering its theory that' the injuries resulted from the act of a stranger in a spirit of sport or play.
    [Ed. Note.—Por other cases, see Beneficial Associations, Cent. Dig. §§ 51-56; Dec. Dig. § 20.]
    Appeal from District Court, Bexar County; A. W. Seeligson, Judge.
    Action by Smith Johnson against the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    See, also, 135 S. W. 173.
    Carlos Bee and O. C. Todd, both of San Antonio, for appellant. T. H. Ridgeway and John Sehorn, both of San Antonio, for ap-pellee.

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

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

   TALIAFERRO, J.

This is the second appeal of this case to this court. The former opinion appears in 135 S. W. 173. A full statement of the case is there made, which, so far as is necessary to the determination of this appeal, sufficiently states the case as it is now presented.

Appellant’s fifth, sixth, seventh, eighth, ninth, and tenth assignments of error assail the judgment of the court in overruling the motion for an instructed verdict, “made when the plaintiff rested his case,” upon the ground that the appellee had wholly failed to show that his injury was the result of an authorized act of appellant’s agent, or that the act which caused appellee’s injury was a part of any ceremony authorized by the appellant. This motion was overruled by the court; appellant proceeded to put on testimony, and did not renew its motion for an instructed verdict at the end of the trial.

Appellee insists that under the decisions of this state and the great weight of authority appellant is conclusively presumed to have waived its motion for an instructed verdict by having elected to proceed with its case and present its defenses, rather than stand upon its motion and submit the case to the jury upon the evidence of appellee. There is no doubt about the correctness of appellee’s position upon this point. In the ease of Goggan v. Goggan, 146 S. W. 972, in which Chief Justice James wrote the opinion, the court said: “The second assignment is as follows: ‘The court erred in overruling the motion of the defendant and interveners for an instructed verdict in their favor at the conclusion of plaintiff’s testimony in chief, because the evidence failed to establish the ease pleaded by him, and required judgment in favor of defendant.’ A bill of exceptions was tall-en. This assignment must also be overruled. The bill shows the defendant did not demur to the evidence, and did not waive the right to introduce evidence on behalf of defendant, should the motion be overruled, but reserved that right. If the court had granted the motion and given a peremptory charge, plaintiff could have assigned error thereon. But appellant had not the right to do so when it was overruled, where he did not submit to withdrawing the ease from the jury and did not rely solely upon the testimony already introduced, but chose not to do so:” Semple v. United Railways Co., 152 Mo. App. 18, 133 S. W. 114; Remmers v. Shubert, 155 Mo. App. 588, 134 S. W. 1043; Lohnes v. Baker, 156 Mo. App. 397, 137 S. W. 283; Mound Oil Co. v. Heitman, 148 S. W. 1189; S. A. Traction Co. v. Kelleher, 48 Tex. Civ. App. 421, 107 S. W. 64.

It is well settled, as urged by appellee, that in our practice the sufficiency of the evidence to support the verdict cannot be raised upon appeal, unless it has been presented to the court below in a motion for a new trial. W. U. Telegraph Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; Clark v. Pearce, 80 Tex. 146, 15 S. W. 787; City v. Forbis, 99 Tex. 238, 89 S. W. 405; Railway v. Sparger, 11 Tex. Civ. App. 82, 32 S. W. 49.

The motion for new trial in this cage nowhere questions the sufficiency of the evidence to support the verdict, unless it is done in the twentieth paragraph, which reads as follows: “The court ought to set aside the verdict of the jury rendered herein and grant this defendant a new trial, because the undisputed evidence before this court is that plaintiff was being obligated as a charter member in Lone Star Temple No. 143 on the night of said injury, and the undisputed evidence before the court further shows that defendant does not authorize the use of any sword or saber, or regalia whatever, during the ceremony of obligation; and the jury' having found as a matter of fact, in the face of said charge of the court, against defendant, said verdict is'contrary to the law and evidence of this case.”

•iWe must’agree with appellee that this paragraph, which is transcribed verbatim and made the twentieth assignment of error, do'és not sufficiently raise the issue. We would construe it to have been an attack upon the- sufficiency of the evidence, even though its language seems to assail only the' charge of the court, if it had contemplated the whole case. This it does not do, but only contends that appellant did .not authorize the use of swords in the “obligation” of charter members. One of the controverted questions presented in the case vtas whether appellee was being initiated, or was only taking the obligation. It might be admitted that the swords were not- authorized in -giving the obligation, and it would not change the situation, because the jury might have found from the evidence that the- appellee was being “initiated,” and not merely “obligated,” and that in the ceremonies of initiation the sword was authorized. The assignment is wholly inadequate to raise the issue of the insufficiency of the evidence upon the whole case to support the verdict.

There is no merit in appellant’s second, third, fourth, eighteenth and twentieth assignments of error, and they are overruled.

Appellant, in its fourteenth assignment of error, contends that the court erred in ■ refusing to give the following special charge to the jury: “If you believe from the evidence that, while plaintiff was being obligated into Lone Star Temple No. 143 on October 18th, 1908, some person deliberately and willfully, either in a malicious and wanton spirit, or in a spirit of sport and play placed a sword or saber between the legs of plaintiff and caught the said plaintiff over his toe, and pulling his leg back violently threw him to the ground, then you are instructed that the defendant would not be liable for any injury received by plaintiff, if any, and you are charged that under those circumstances the plaintiff cannot recover, and your verdict will be for the defendant.”

This assignment is well taken. The petition of appellee charged that one of appellant’s agents, while initiating appellee into membership in Lone Star Lodge 143, a subordinate lodge of appellant order, injured him in the manner complained of by carelessly and negligently permitting a sword or saber, which said agent was required to carry, to become entangled between appel-lee’s legs, whereby he was thrown to the ground. Appellant answered by general denial and special plea that appellee was not being initiated, but that he was being obligated, and that in- the ceremony of obligation the use of a sword by the officers or members of the lodge was not authorized; and further alleged that the injury of ap-pellee was caused by the act of some one, not connected with the appellant, in a spirit of sport or play, and not in performance of any act contemplated in or required by the ritual. The case was tried upon these two theories. Appellee’s proof tended to show that the appellee was being initiated, and many witnesses in their testimony broadly stated their- conclusion that the appellee “was being initiated” or was “brought there to be initiated,” or “was told to come and be initiated.” These statements of conclusion are evidence, for the reason that they were admitted without objection, and that theory of the case was fully presented to the jury in the court’s general charge. But, on the other hand, there was evidence that ap-pellee was only being obligated, and that in the ceremony of obligation no swords were permitted by appellant order, and also evidence tending to show that appellee’s injury was caused by the act of some one who willfully placed the wire attached to one of the wooden swords over appellee’s toe and violently pulled his foot, throwing him to the floor. Appellee himself testified that “some one slipped something behind my left leg, over the toe of my right foot, and drew it violently backward and threw me forward on my right knee.” Appellee was hoodwinked and could not see how this was done; but it was not necessary for him to see to be able to say that the object which was placed over his toe was “violently pulled,” or that the violent pulling was the real cause of his fall. He also testified that the man who conducted him was Allen Brothers; that Allen Brothers, in putting the hoodwink on appellee’s eyes, leaned the sword that he carried against appellee’s knee; and that he saw the sword, and knew the sword that caiight his toe and tripped him was not the sword carried by Allen Brothers. Under its plea of general denial appellant had the right to show that appellee’s injury, instead of having been caused as appellee alleged, was in fact caused by the willful act of a stranger, or in a spirit of malice, and if there was evidence that the injury was so caused appellant had a right to have that issue affirmatively submitted to the jury. The court did not do that in his general charge, and he should have given appellant’s special charge covering that theory of its case. Norwood v. Boon, 21 Tex. 592; St. L. & S. W. Ry. v. Casseday, 92 Tex. 525, 50 S. W. 125, and cases there cited; Hoefiing v. Dobban, 91 Tex. 210, 42 S. W. 541, 43 S. W. 262, and cases cited; Railway v. Shieder, 88 Tex. 167, 30 S. W. 902, 28 L. R. A. 538; S. A. Machine & Supply Co. v. Campbell, 110 S. W. 770, and cases cited.

Eor the above error the judgment of the lower court is reversed and the cause remanded for a' new trial. The opinion of this court written in this case at a former day of this term is withdrawn, and this opinion is substituted for the same.


author: HENDRICKS, J.

text:
    FIRST NAT. BANK OF WELLINGTON v. HIX et al.
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1913.)
    Appeal and Error (§ 1127*) — Affirmance— Certificate.
    In order to have a judgment affirmed on certificate on appellee’s motion, appellee must file his certificate at the term of court to which the appeal is returnable, and a motion to affirm will be denied, where the certificate was filed at a subsequent term.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432-4440; Dec. Dig. § 1127.*]
    Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    Action between the First National Bank of Wellington and E. M. Hix and others, in which the Bank appeals.
    On motion to affirm on certificate. Motion overruled.
    J. L. Lackey, of Wellington, and Presler & Thorne, of Memphis, for appellant. R. H. Templeton, of Wellington, for appellee.
   HENDRICKS, J.

The motion to affirm and the certificate in this matter show that the appeal bond in the above cause was filed in the lower court on the 16th of March, 1912; hence the appeal was returnable at the preceding' term of this court, and as this motion to affirm, with the certificate of the clerk, was filed at this term of this court, this matter is controlled by the decision in the case of Laughlin v. Dabney, 86 Tex. 120, 24 S. W. 259, by the Supreme Court, holding that “the appellee, or defendant in error, as the case may be, must file his certificate at the term of the court to which the appeal or writ of error is returnable.”

The motion to affirm on certificate is overruled.


text:
    CITY OF AUSTIN v. GRESS.
    (Court of Civil Appeals of Texas. Austin.
    April 2, 1913.
    Rehearing Denied April 30, 1913.)
    1. Master and Servant (§§ 101, 102, 235)— Injuries to Servant — Duty of Master-Safe Place to Work — Duty to Inspect.
    A master is bound to exercise ordinary care to furnish a safe place for his servants to work, and it is not their duty to inspect the place so furnished.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192, 710-722; Dec. Dig. §§ 101, 102, 235.]
    2. Master and Servant (§ 219) — Injuries to Servant — Safe Place to Work —Assumed Risk.
    Plaintiff, an ordinary laborer, while tamping dirt around a pipe in a ditch 4 feet wide and 12 feet deep as an employs of defendant city, was injured by a cave of the side of the ditch. The evidence was conflicting as to the character of the earth, and it was shown that wells dug by the city in the immediate neighborhood without supporting walls did not cave. The work of digging the ditch was superintended by the city’s chief engineer, and it was shown that he had not considered the ditch in danger of caving, and that plaintiff had no experience in such work. Held1, that the danger was not so obvious as to charge plaintiff with the assumption of the risk.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 610-624; Dec. Dig. § 219.]
    3. Trial (§ 133) — Misconduct of Counsel.
    In an action by a laborer against a city for injuries, defendant’s counsel on requesting a physical examination of plaintiff during the trial was asked by plaintiff’s counsel whether he represented the city or an insurance company, to which counsel replied that they represented the city, when counsel for plaintiff asked if they had been paid by the city, and that if defendant’s counsel would state that it was not for the benefit of an insurance company, at which point defendant’s counsel excepted, and the court directed the jury not to regard the remark. Held), that the statements by plaintiff’s counsel were improper and reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by E. J. Gress against the City of Austin. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Gregory, Batts & Brooks and J. H. Hart, all of Austin, for appellant. J. N. Keith and Dickens & Dickens, all of Austin, for appellee.

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

   JENKINS, J.

This is a suit in which ap-pellee recovered $400 damages against appellant on account of injuries received by him from the caving of a ditch in which, he was at work. The ditch was about 4 feet wide and 12 feet deep. Appellee at the time of the injury was tamping dirt around a pipe in said ditch.

The general and special charges given by the court properly submitted to the jury the issue of negligence on the part of appellant, and of assumed risk on the part of appellee. It is the contention of appellant, however, that the court should have peremptorily instructed a verdict against appellee, for the reason that as matter of law there was no evidence that would support a verdict for damages. The ground of this contention is that the ditch was an open one in which the appellee had been working for two or three days; that the nature of the soil and the probability of its caving was as open to the observation of appellee as to the servants of appellant.

In several eases of somewhat similar nature, it has been held that the evidence would not support a verdict for plaintiff. Railway Co. v. French, 86 Tex. 98, 23 S. W. 642; Stockyards Co. v. Whittenburg, 34 Tex. Civ. App. 163, 78 S. W. 365; Hightower v Gray, 36 Tex. Civ. App. 674, 83 S. W. 254; Railway v. Lempe, 59 Tex. 19. In Hightower v. Gray and Railway v. French, supra, the acts of the plaintiff in removing the support of a rock in one instance, and of a log in the other, were the immediate cause of the injury; and the fact that removing the support of a rock or a log will cause it to fall must be presumed to be known to all men of ordinary intelligence. In Railway v. Lempe, supra, the plaintiff was digging in a well, and had some warning as to the danger by clods and dirt falling in upon him. In the Stockyards Case, supra, the injury was caused by the caving in of a sand and gravel pit. It is fair to presume that all men know that sand and gravel are liable to cave.

In the instant case the appellee was not digging nor doing anything else at the time of the injury calculated to cause the ditch to cave. The issue is as to whether or not the danger was as apparent to him as to the city’s employes. The evidence indicates that as to whether or not there was any danger depended upon the nature of the soil. Some of the witnesses for appellant say that it was what is known as brick clay; others refer to it as loam; others as clay and sand; and others as having streaks of sand. The evidence shows that two wells had been dug by the city in the immediate neighborhood of this ditch, and, although the walls of the same were not supported in any way, they did not cave. On the other hand, the evidence shows that a ditch dug within 45 feet of the ditch in which appellee was injured had caved in part, and that that ditch was dug partly in river sand and partly in clay. The work of digging this ditch was superintended by the chief engineer of the city, who had had considerable experience in having ditches dug for appellant. The evidence shows that the appellee, with the exception of two or three days in which he had been at work in this ditch, had had no experience in digging ditches in the ci'ty of Austin.

We regard this as a border li'ne case, in which the jury might have rendered a verdict for appellant; but we cannot say as matter of law that there was no evidence on which to render a verdict for appellee. It is the duty of an employer to exercise ordinary care to furnish a safe place for his employés to work, and it is not the duty of an employe to inspect such place. As to the danger’s being open to observation, it is evident that neither the appellee nor the engineer of appellant believed from what they saw that there was danger of caving; but that there was such danger is shown by the fact that the ditch did cave. A common laborer, where the danger is not apparent, might well take it for granted that an experienced engineer was acquainted with the character of the soil, and knew that there was no danger; and in accepting work under such circumstances would not assume the risk of darnger which was not apparent, and of which he had no knowledge. The jury would be justified in assuming that the engineer was negligent in not properly inspecting the nature of the soil where the caving occurred. •

This case, however, must be reversed on account of the remarks of appellee’s counsel as follows, and made under the following circumstances: Counsel for appellant contending that appellee was not permanently injured, and cross-examining him as to this matter, asked him if he was willing to be examined by competent physicians. Appellee replied that he did not see any use of such examination, but that, if th,e court thought it necessary, he was willing to submit to the same. Thereupon counsel for appellant named in open court to counsel for appellee six reputable physicians in the city of Austin, and requested him to select a committee from said physicians to examine appellee, stating that appellant would pay for such examination. Counsel for appellee replied: “Who do you represent, the city of Austin, or an insurance company?” To which counsel for appellant replied: “We represent the city of Austin.” Thereupon counsel for appellee asked, “Been paid by them?” To which . counsel for appellant replied: “That is my business. I generally manage to collect my fees.” Thereupon counsel for appellee said: “If you will state that it is , not for the benefit of an insurance company. * * * ” At which point counsel for appellant interrupted said statement, and said that he desired to take a bill of exception to said remarks upon the ground that they were made for the deliberate purpose of creating some character of prejudice. Thereupon the court said, “Well, the jury will disregard that remark.”

Appellee insists that the error is not material, for the reason that the court instructed the jury to disregard such remark. We are loath to reverse a case upon the ground of improper remarks by counsel. Such remarks are sometimes held by the trial judge to be improper, when, in fact, they are not. Sometimes they are made unthoughtedly in the heat of discussion; and in such cases, where the court instructs the jury to disregard them, it will usually be presumed that the jury did so. But where statements, deliberately made, are of such a character that no attorney would have pleaded them, and no well-informed attorney would suppose that he would be permitted to prove them, and the effect of such remarks is highly prejudicial, we can see no-way of enforcing proper practice in this regard except to reverse and remand the case, where the party making such remarks has obtained a verdict. It is apparent that the purpose of these remarks was to lead the jury to believe that the city of Austin would not suffer by a verdict against it, inasmuch as the judgment would be paid by some insurance company.

We have given due consideration to the other assignments, and have reached the conclusion that they should be overruled. As they present no novel questions, we do not deem it necessary to write at length ■upon them.

For the reason that the remarks of counsel were improper and highly prejudicial, the judgment of the trial’court is reversed and the cause remanded.

Reversed and remanded.


text:
    STEWART et al. v. WEBB et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 26, 1912.)
    1. Executors and Administbatoes (§ 435)— Actions — Vendob’s Lien — Enfoecement —Jurisdiction.
    S. conveyed land, taking notes for the purchase price secured by a vendor’s lien, and subsequently transferred the notes and lien to plaintiff, a third person also indorsing the notes for the security of plaintiff. By the foreclosure of a mortgage subsequent to the vendor’s lien, S. later obtained title to the land, and thereafter died. Beld, that an action on the notes and to foreclose the lien was properly brought in the district court, since it involved the adjustment of plaintiff’s rights against the vendee and the surety on the notes, as well as against the administrators of S. and the rights of the administrators as against the vendee, which the probate court had no jurisdiction to adjust.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1716-1725; Dec. Dig. § 435.]
    2. Executors and Administrators (§ 431)— Claims — Presentation—Necessity.
    It was not necessary for plaintiff to present her claim against the estate to the administrators before bringing suit in the district court.
    [Ed. Note. — For other eases, see Executors and Administrators, Cent. Dig. §§ 764, 767, 819, 1664, 1679-1682; Dec. Dig. § 431.]
    3. Executors and Administrators (§ 454) — Action — Lien — Enforcement of Judgment.
    The district court having jurisdiction of the action could enforce its judgment by a sale of the property which was subject to the vendor’s lien, instead of leaving its enforcement to the county court under the probate statutes.
    ■ [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.]
    4. Executors and Administrators (§ 454) — Action — Lien — Enforcement of Judgment.
    Any deficiency judgment against administrators should be enforced by the county court under the probate statutes, and not by an execution issued by the district court.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.]
    Appeal from District Court, Scurry County; Jno. B. Thomas, Judge.
    Action by Mrs. M. J. Webb and others against Will A. Stewart, J. Y. Stewart, and others. From the judgment, the defendants named appeal.
    Reformed and affirmed.
    M. E. Rosser, of Snyder, for appellants. Higgins, Hamilton & Taylor, of Snyder, for appellees.

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

   HENDRICKS, J.

On the 11th day of October, A. D. 1908, J. Y. Stewart, Sr., and wife, A. D. Stewart, conveyed to the defendant Elma Callis the W. % of section 61, in block No. 3, H. & T. C. Co. survey, situated in Scurry county, Tex., and upon said date the said Elma Callis, with her husband, executed and delivered to J. Y. Stewart, Sr., as a part of the consideration for the payment of the land, six vendor lien promissory notes for the sum of $400 each, the deed and notes expressly reserving the vendor’s lien as security for the payment of the same; and thereafter, on April 7, 1910, Stewart indorsed in blank, and transferred to Mrs. M. J. Webb a feme sole, the notes; also-transferring in writing the vendor’s lien, and prior to said transfers John R. Smith also indorsed the notes in blank for a valuable consideration for the benefit of Mrs. Webb, and J. Y. Stewart, Sr., having died and administration having been made upon his estate, Mrs. Webb brought this suit against the administrators of his estate, and also against Elma Callis and husband, C. H. Callis, the makers of the notes, and J. R. Smith as indorser. After the institution of the suit, Mrs. Webb having died, her heirs were suggested as proper parties plaintiff to-the suit, and by supplemental petition alleged the lack of necessity of any administration upon her estate; that no debts were owing by the same, which was sufficiently proven. Before the death of J. Y. Stewart this record discloses that the Callises, his vendees, mortgaged the same land to him as security for the payment of an indebtedness created after the original conveyance by him to them, and under a foreclosure of this mortgage the title of Elma Callis and husband was divested out of them and revested in the said J. Y. Stewart, Sr. The plaintiffs in their petition do not allege the presentation of the vendor’s lien notes to the administrators of the estate of J. Y. Stewart, and in lieu thereof state: “That the amount of the indebtedness herein sued for,.which the estate of J. Y. Stewart, deceased, will ultimately be bound, if any, in satisfaction of the indebtedness herein sued on, is an indefinite amount, and cannot for said reason be intelligently presented to the administrators of the estate for allowance and payment until after the sale of the above-described property under the foreclosure proceedings.” The administrators denied liability of the estate as to one of the notes; also specially pleading that the proceeds of sale be applied to the judgment against them as administrator, and in the event the sale of the land is insufficient to pay the judgment that they have judgment against their codefendants for the full amount, with a demand for subrogation. Judgment was entered by the district court of Scurry county against the administrators of said estate, as well as against the makers of the notes, and the said John R. Smith as indorser upon the same; the administrators, the only defendants, appealing in said cause.

First. The administrators, appellants herein, assign “that the district court erred in granting judgment, * * * for the reason that there was no evidence showing that the notes sued on and used as a basis of this cause of action by plaintiff were ever presented to the administrators' of the estate of J. Y. Stewart, deceased, prior to the time of filing this suit,” clearly presenting the issue in this character of an action involving different litigants, and the rights of other parties, whether the district court has jurisdiction to render judgment upon the notes to foreclose the vendor’s lien and order a sale of the property for that purpose without presenting them to the administrators.

Second. The amount of the liquidated demand in this case is $2,860, which, if it were only the simple adjudication of a debt and lien against an estate, the claim would necessarily have to be presented, and, if allowed, would be dominated by the probate statutes and the county court. We think it is clear from the authorities in this state that, if the, probate court is unable to administer the rights of the parties where they are so correlated to the cause of action as that the district court would be the proper forum for the administration of the remedies as affecting the different and conflicting rights of the parties, the probate court would be devoid of jurisdiction, and that of the district court would attach. In this matter it is clear that the plaintiff would have been unable in the probate court, even if the administrators had allowed the vendor’s lien notes as a claim against the estate, to have obtained judgment against Elma Callis and her husband, the makers of the notes, and against John R. Smith, who indorsed the same before the transfer by J. Y. Stewart, Sr., to Mrs. Webb, having no jurisdiction over that part of the subject-matter of the suit. Again, the probate court wduld have been devoid of jurisdiction for the purpose of rendering judgment in favor of the administrators in this matter as against Elma Callis and her husband on account of surety-ship of the deceased, J. Y. Stewart. While this question, so far as we are able to ascertain, upon an investigation of the authorities, has ever been directly decided, and While, of course, it has been definitely decided in this state from the time of Robertson v. Paul, 16 Tex. 472, that a vendor’s lien should be enforced in the probate court, although it has preference and priority over all claims with reference to the particular security, however, it seems to us that in a matter of this kind, where there arise conflicting interests, and the adjustment of different equities for adjudication, and the enforcement of substantive rights which the probate court, separate and distinct from the enforcement of the vendor’s lien, is unable to adjudicate, that under the statute and under the constitution, with reference to the residuary jurisdiction of the district court, that necessarily that court in this character .of a case had the jurisdiction. The Court of Civil Appeals, in the case of National Guaranty Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S. W. 231, where the matter was also sharply presented with reference to the enforcement of liens and the adjustment of equities, where the probate statute had not been complied with as to institution of the suit within 90 days after the allowance of the claim by the administrator, said: “Appellants sought in this suit to enforce its several liens, and to adjust the equities of all parties in the property covered by same, as well as to establish its claim against the estate of Jessel upon the contract of guaranty. It is clear that the relief to which appellant was entitled was beyond the power of the county court to grant, and, such being the case, we do not think it was necessary or proper for the claim against the estate of Jessel to have been presented to the administrator. Appellant was entitled to full relief, and he was not required to abandon any portion of his cause of action, or to divide same, and seek relief in the probate court on one portion and in the district court on another. Being compelled, in order to obtain full relief, to sue the administrator in the district court, regardless of whether the claim against the estate upon the guaranty had been allowed by the administrator, appellant was not required to present such claim for allowance.” While in that case the property upon which the lien was sought to be enforced was not in the estate, the principle enunciated by that court, we believe, is applicable to the question of the maintenance of the jurisdiction of the district court in this cause, for the reason that it would be peculiarly inequitable and in violation of the principle condemning the multiplicity of suits, and the symmetry of the law upon that subject, to compel this litigant to resort piecemeal to different jurisdictions for the attainment of one end; and the residuary clause of the Constitution as to the jurisdiction of the district court would apply. If in this case the claim had been presented and allowed against the estate, unless the claimant temporarily or permanently waived his rights as against others (which action might become disastrous as to claimant’s rights), the county court could not then have entertained the jurisdiction to have enforced the rights and remedies of all parties. If so, the presentation to the administrators was unnecessary. The Supreme Court said in the case of George v. Ryon, Administrator, 94 Tex. 321, 60 S. W. 428, where the question was certified whether the district court had jurisdiction to try the question of the validity of the deed in trust there involved: “In such cases, however, the claimant may have some legal or equitable right connected with his claim for the adjudication of which the powers of the probate •court are inadequate and for the enforcement of which suit may be maintained in the district court. Cannon v. McDaniel, supra.” 46 Tex. 303. And, further, that •court said: “This much may be said of the jurisdiction arising out of the plaintiffs’ cause of action. It may be true, also that the defendant in her own right had an independent cause of' action against plaintiff to free the homestead of the asserted lien, of which the district court had jurisdiction •when asserted by cross-petition. Groesbeck v. Groesbeck, 78 Tex. 664 [14 S. W. 792], and •authorities cited.” Of course, the Supreme •Court was only applying the language to the facts in that suit, but we think the language, .as the announcement of a principle, is applicable here. The estate in this suit “had an independent cause of action” against ■some of the other defendants, and the right ■of subrogation growing out of suretyship which the county court could not possibly enforce; and it is discernible in this case that the rights of different parties could be affected and prejudiced by delay resultant by a division of jurisdiction over different interests growing out of the same state, if required to be enforced by a splitting of actions.

Third. The appellants also complain that the judgment of the district court in this matter should be certified to the probate court for its enforcement, in the event we ■overrule the other contention as to the presentation to the administrators, on the proposition that no jCourt, except the county court, has a right to divest title in real estate out of the estate of decedents, and the order •of sale should issue out of that court, and even though the district court have exclusive jurisdiction over the suit. In this distinct proceeding, if the jurisdiction of the ■district court attaches, we think it is to be invoked practically for all purposes, for the reason that upon examination of the statutes with reference to the divestiture of title •and enforcement of claims, this character of judgment, we think, clearly is not within the purview of the articles of those statutes for that purpose. The rights of Smith and •defendants Callis are just as prominent and ■substantive as the rights of the estate; they have equities with reference to this estate, and the defendant Smith also would be clearly entitled to subrogation under certain con•ditions, and the kind and character of sale contemplated by the probate statutes being to some extent different from the order of sale following a judgment in the district •court, we can see no reason why the district court in furtherance of the execution of his judgment should not issue the order of sale, and a sale to be made thereunder, and that the independent parties in this suit, on account of their rights, affected by this litigation have that right without their equities being affected by the probate statutes with reference to the order of sale contemplated lin those enactments. Articles 3488, 3489, 3494, 3495, 3496, New Revised Statutes.

Fourth. However, whenever the rights of Smith and Callis are eliminated with reference to this estate, the district court has no right by its writ to subject other portions of the estate of J. Y.' Stewart upon a deficiency judgment and execution based upon it. The rights of thé estate in the event of such a demand arise and the district court would have no right to impound the remainder of the estate for that purpose; the matter of costs, priority of claims, allowances, if any, bring into existence the probate statutes, and the jurisdiction of the probate court, for the enforcement of sucfi a deficiency judgment as an independent demand against said estate, would arise; and it is adjudged by this court that the provision for execution for the satisfaction of any unpaid balance upon the judgment is not applicable as a writ for the enforcement of same against said estate, and to that extent only the judgment of the lower court is reformed.

Á11 assignments are overruled except as to the extent indicated, wherein we reform the judgment, and the judgment of the trial court is in all other respects affirmed.