text:
    CRABBLE v. STATE.
    (No. 4085.)
    (Court of Criminal Appeals of Texas.
    May 24, 1916.)
    1. Criminal Law <@=>956(2) — Appeal—Record — Sufficiency.
    A motion for new trial on the ground that the jury received testimony, after they retired, in no way sworn to and not accompanied by affidavit, presents no question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373, 2374; Dec. Dig. <S=> 956(2).]
    2. Criminal Law <@=>1124(3) — Appeal—Record — Sufficiency.
    An appeal from an order overruling motion for new trial, which recites that evidence was heard thereon, cannot be considered in the absence from the record of the evidence heard on the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2948; Dec. Dig. <@=>1124(3).]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    W. C. Grabble was convicted of passing a forged cheek, and, from the judgment and order denying new trial, he appeals.
    Affirmed.
    W. E. Huffhines, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of passing a forged- check and assessed the lowest punishment.

No question is attempted to be raised, except by appellant’s motion for a new trial. One ground of tbis is that the evidence was insufficient to sustain the verdict. We have carefully read the statement of facts and are of the opinion that the evidence is amply sufficient to sustain the verdict. It is unnecessary to recite the testimony.

The other ground is, he alleges that the jury received other testimony after they retired. This motion is in no way sworn to by any one, and the affidavit of no person to substantiate the allegation is filed therewith. Therefore the question is not raised in such a way that this court could review it, as has many times been held. There is nothing, in the record to show, other than the bare un-sworn allegation, that it is true. The judgment of the court overruling the motion recites that evidence was heard thereon. What that evidence was, if there was any, is in no way shown in this record. On that account, too, no error is shown.

The judgment is therefore affirmed.

HARPER, J„ not present at consultation.
      <£s»For other cases see same topic and KEY-NUMBI2R in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    REEVES v. FARIS.
    (No. 5670.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 10, 1916.
    Rehearing Denied June 7, 1916.)
    1. Courts <§=>169(2) — Limited Jurisdiction— Amount in Controversy.
    In a suit on a note and to foreclose a chattel mortgage, the jurisdiction of the county court is determined by the alleged value of the chattels upon which foreclosure is desired, not by the amount of the debt sought to be collected.
    [Ed. Note. — Por other eases, see Courts, Cent. Dig. §§ 415, 429-436, 458; Dec. Dig. <§=>169
    2. Courts <§=>170 — Limited Jurisdiction — County Court — Petition.
    In a suit in county court on a note for $150 and to foreclose a chattel mortgage, the failure to allege the value of the property on which foreclosure is sought, since it might not have been within the court’s jurisdiction, was fatal.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dee. Dig. <§=>170.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    , Action by E. E. Paris against J. A. Reeves. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    McCollum Burnett, of San Antonio, for appellant. Taliaferro, Cunningham & Birkhead and Joseph A. McCaleb, all of San Antonio, for appellee.
   FLY, C. J.

This is a suit instituted by appellee to recover on a note for $150 and foreclose a mortgage lien on four horses, one mule, three cows and calves, and a bale of cotton. The cause was tried by the court, and judgment rendered for $280.74, principal, interest, and attorney’s fees.

The amount sued for is alleged to be $150, with interest and attorneys’ fees, - but the value of the horses, mule, cows, and calves and bale of cotton upon which it is sought to foreclose the mortgage lien is not disclosed by the petition, and it may have been more than $1,000. It is the value of the property upon which it is sought to' foreclose the lien ■which fixes the jurisdiction of the county court, and not the amount of the debt sought to be collected. The amount in controversy is the alleged value of the chattels upon which a foreclosure is desired. Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742..

The failure to allege the value of the property was the failure to allege a matter that fixed the jurisdiction of the county court and constituted fundamental error. This is the tenor of the overwhelming weight of authority in Texas. Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618; Stricklin v. Arrington, 141 S. W. 189; Walker v. Raney, 154 S. W. 317; Wilson v. Ford, 159 S. W. 73; Marshal v. Stowers, 167 S. W. 230; Richardson v. Hethcock, 173 S. W. 1006; Lusk v. Hardin, 176 S. W. 787.

The case of Austin Real Estate Company v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430, does not conflict with the holding in the cases cited, as has been clearly and conclusively shown by Judge Key in the cited case of Walker v. Raney. After discussing jurisdiction as applied to the county court in this class of cases, it was held:

“However, when a suit is brought in the district court, and the amount of the debt exceeds $500, it is not necessary for the pleadings to allege the value of the mortgaged property, because there is no maximum limit to the jurisdiction of that court. This, in effect, was hold by the Supreme Court in Real Estate & Abstract Co. v. Bahn, 87 Tex. 582 [29 S. W. 646, 30 S. W. 430], which is relied on by counsel for appellee in this case in support of the contention that it was not necessary for the plaintiff in this case to allege the value of the mortgaged property; but the cases are not analogous. * * * That case is no authority for the contention that in all cases no necessity exists for alleging the value of the mortgaged property; but it is authority for the proposition heretofore asserted by us to the effect that, if the value of the mortgaged property be less than the amount of the debt, then the latter, and not the former, should control in determining the question of jurisdiction.”

There is but one decision in Texas which differs from the cases cited, and that was rendered by a court which rendered the decision from which we have quoted last, and which is in conflict with every decision in Texas on the subject, both of the Supreme Court and the different Courts of Civil Appeals. If the failure to allege the value of the stock was fundamental, as our courts hold, then it is a matter that can be raised at any time in the trial or appellate court.

In this case the suit is for a debt of $150, a sum of which the county court does not have jurisdiction, and, unless the animals on which the foreclosure- is sought are not of greater value than $200, the county court did not have jurisdiction. So, if the animals were worth more than $1,000 or less than $200, the county court was without jurisdiction to try the cause, and we are left completely in the dark by the allegations of the petition as to the value of the animals.

The judgment is reversed, and the cause remanded.
      <g=aFor other eases, see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    WILSON et al. v. THOMPSON.
    (No. 566.)
    (Court of Civil Appeals of Texas. El Paso.
    May 11, 1916.
    Rehearing Denied May 25, 1916.)
    1. Trtat. <§=>352(4) — Issues — Pleading and Proof.
    Plaintiff held a note against one J., for $100, and J. gave a note for a like amount signed by C. as principal and by McC. and W. as sureties, and himself indorsed the note in blank, which, when due, was renewed by J., McC., and W., and again renewed by note signed by McC. and W. only. In an action thereon defendants, following their pleadings, requested submission of issues as to whether plaintiff accepted the note in full payment of the debt from J., as to whether plaintiff accepted the renewal note as the note of ,T., with McC. and W. as sureties, in place of the original debt, and as to whether plaintiff represented that J. was the principal and the indorsers sureties, but the court submitted only the issue as to whether tho first note was accepted by plaintiff in payment of the indebtedness, to which the jury returned an affirmative answer. Held, that the issue submitted did not include the defense pleaded and proven, and that its failure to do so was reversible error, so that the finding would not support a judgment for plaintiff.
    [Ed. Note. — Por otíicr cases, see Trial, Dec. Dig. <@=>352(4).]
    2. Bills and Notes <@=>242 — Liability — Sureties or Principal.
    Under an agreement whereby the indorsers of a note renewed it without the maker’s signature to the renewal note, they would not be sureties, but principals, in the renewal note; and an indorser on a note, without an agreement fixing his liability, would be a surety, and, on its renewal, without the signature of the maker, would become a principal.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 542, 547, 548, 550, 551; Dec. Dig. <@=>242.]
    3. Evidence <@=>340(4) — Documentary Evidence.
    In such action, it was error to admit as evidence the bond on appeal from the justice court, as it tended to prove no issue in the case.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 129S; Dec. Dig. <@=>340(4).]
    Appeal from Scurry County Court; O. R. Buchanan, Judge.
    Action bj" W. T. Thompson against J. F. Wilson and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Smith & Spiller, of Snyder, for appellants. Rosser & Boyd, of Snyder, for appellee.
   WALTHALL, J.

In 1908, appellee, W. T. Thompson, held a note against T. J. Jackson for $100, and with some interest due, secured by a chattel mortgage on Jackson’s team of horses. At the same time Jackson held a note for a like amount signed by H. A. Carter as principal, and appellants W. R. McClanahan and J. F. Wilson as sureties. Jackson gave Thompson the Carter note in exchange for the note Thompson held against him and indorsed the Carter note in blank, biit leaving some interest on his note to Thompson still unpaid. When the Carter note became due, with Thompson’s consent, a new note was given, signed by Jackson, McClanahan, and Wilson. When that note became due, it was renewed by Jackson, Mc-Clanahan, and Wilson and the parties signing in the order stated. When this last note became due, Thompson again agreed to a renewal. Another note was prepared by Cur-nutte, cashier of the First National Bank of Snyder, Tex., where the note was payable and where Thompson left his papers. This last note was signed by McClanahan and Wilson, Jackson not signing. There is some controversy in the evidence as to Jackson not signing this last note, the one on which this suit was brought. Tho renewal notes were made payable to Thompson.

Wilson testified as a witness, and, after identifying the Carter note and the renewal notes, said:

“That note was made in renewal of a note of II. A. Carter which we were surety men on. Yes; that is the Carter note (the note payable to T. A. Jackson, signed II. A. Carter, W. R. McClanahan, and J. F. Wilson). IVhen this note of Carter’s was made it was turned over by Jackson who owed Thompson, to Thompson, and when it came duo Thompson notified us that wo come in and renew the note or make a new one. Carter was gone then. I don’t know where he was; he had gone some time. Wo came in town and went out to Mr. Thompson’s place south of town and found him in the field working. McClanahan and Dee McClanahan went with me. We talked the matter over with Thompson and ho told us to go to the First National Bank and he would phone Curnutte, who was the cashier of the bank, to make a now note and have Jackson and us sign it. Ho told us we would find Jackson up town somewhere and to get him to sign tiie note. We went back to the bank and Curnutte fixed up a new note, and when we went to sign it he said, ‘Jackson is the first man on this note; you must get him.’. So Mr. McClanahan went out and got Mr. Jáckson and he came in and signed the note. * * * When this note came due we were again notified and came in and made another note signed by Jackson and us two just as in case of the other note. * * * When that came due we were notified and came in the bank and made another note. This one that is sued on, which wo understood was a renewal noto, and which was such renewal — Jackson was not there, but wo signed up just as we always had signed as surety men only and we understood that Jackson was to sign the note; that the note was just like it had been before. I never knew anything about the change in the note until not- long before we were sued, and then when I found out that Jackson had not gotten on the note, I refused to pay it, as it was his note and we were only surety men; no, sir, I never agreed in any way that Jackson should be released and wouldn’t have signed the note sued on if I had known Jackson was not to be on it. I never owed Thompson anything; it wasn’t my debt, and when he released Jackson without my consent, I didn’t propose to pay the note. * * * I and Mr. McClanahan were surety men for Carter to Jackson, and then when that note was renewed and Carter was left off, McClanahan and I were surety men for Jackson. * * * When this note sued on was signed, we were up there in the bank; I think maybe Mr. Thompson was present then. I don’t know that anything was said about Jackson signing it, but we understood the note was to be the same as the old one. No ; Carter did not sign the note renewing the old Carter note.”

T. A. Jackson testified:

“The note now being sued upon is a renewal note of one signed by myself and these two defendants, which note was a renewal of a similar note, and that one had been given to Thompson in place of a note which I had transferred to Thompson, which note was made by Carter and these two men payable to me. I had some dealings with Mr. Thompson and owed him $100 to secure which he held a mortgage on my team. I turned him over this note of Carter’s and I thought he released me from the old debt. Yes; he afterwards dunned me for the Carter note arid also for these two other notes; he would always do it in a nice way, saying to me, ‘What are you fellows going to do about that note?’ and I would tell him I could not do anything, but would see the others; then we would renew the note. The last time the note was renewed I was left off. Mr. Thompson came to my place in Hermleigh where I was at, and told me I need not sign that note, and that there wasn’t any need of my signing those other-notes. * * * Yes; I thought he released me from the old debt, but when .he dunned me I thought otherwise. Yes; I signed the first note after the Carter note, and then a renewal of that one. When the first note was made Mr. McClanahan came down to the Higginbotham-Harris Lumber Yard where I was working and told me to come up and make the note. I did not think I ought to go on the note, but Mr. Curnutte said, ‘You are the first man on the note and must sign it,’ which I did and then afterwards renewed the. note. When I turned the note over to Mr. Thompson I indorsed it. Yes; indorsed it in blank. That is my signature (inspecting note submitted). Yes; he released me from the last note. Yes; I am sure he dunned me for the note. I owed Mr. Thompson a $100 note and some accrued interest, and he held a mortgage against my team to secure it. I had this note against Mr. Carter, McClanahan, and Wilson for $100 and I indorsed it over to Thompson, and my understanding was that that settled the note I owed Thompson. Thompson was to release my team from his mortgage. I do not remember whether he turned my note over to me or not. He has never claimed the team and has never attempted to foreclose the mortgage. No; at the time I turned the Carter note over to Thompson it did not pay the accrued interest on my note to him, but I agreed to pay that as soon as convenient. It was small account. No; Thompson has never dunned me on the original note that I owed him. He has dunned me on the Cartel-, McClanahan, and Wilson note that I indorsed over to him and he has dunned me on the two renewal notes I executed with McClanahan and Wilson. Yes; I met up with Thompson in Hermleigh one day and something was said about the note, and he told me that I need not have signed the two renewal notes which I signed. * * * No; I have never paid Thompson all the interest I owed him on my note to him.”

McClanahan testified substantially as did Wilson as to the renewal notes and said:

“I don’t remember which one it was, but he [Thompson] told me to get Jackson on that note. Yes; 1 remember going down to the lumber yard to find Jackson. Mr. Curnutte sent me. He said that Jackson had to sign this note; that he was the first man on it.”

Thompson testified substantially as did Jackson as to the Carter note and as to the unpaid interest on the Carter note, and substantially as did McClanahan and Wilson on their visit to him in his field anu said:

“They [McClanahan and Wilson] said Carter was away somewhere in another county, I do not remember what one. I agreed to take their note and told them to go up to see Curnutte at the bank and I would phone him to fix up a new note for them to sign. They left and soon after I went to the house and phoned Curnutte at the bank. Nothing was said about Jackson during the conversation. * * * On the occasion I met Jackson in Hermleigh, after the last note was executed, and in our conversation I told him there was no necessity for his signing the note, and he had just let those fellows fool him into signing the two notos he had signed. I never looked to Jackson for the money. When I took the note he indorsed to me I released him from his debt to me. I have asked him^ several tmes for the interest he owes me. * * * I found out afterwards that he was on the note and let him stay on the note and on the renewal note. Yes; he was on the two notes altogether for two years or more, and I never objected to his being on them. I authorized Curnutte to make a new note; I suppose I made him my agent for that purpose. I just told him to renew the note. No; we never expected Carter to sign the note.”

Curnutte testified:

“Yes; the indorsement, ‘New note made to W. T. Thompson by Jackson, McClanahan and Wilson, Feb. 4, 1909,’ was placed on the back of the note dated July 1, 1908, by me. I remember in a general way about taking these renewal notes, but nothing definite. Mr. Thompson kept his papers in the bank at that time. Yes; when I have instructions about drawing papers, I draw them according to instructions. No; I don’t know who wanted Jackson on the note, or who went and got him. * * * Well, I might make a note in renewal of another without including the indorser. It would depend upon the instructions I had. I do not think I would leave the indorser out of a renewal note unless I had instruction to do so.”

the case was submitted to the jury on special issues.

Appellants requested the court to submit the following issues:

“(1) Did W. T. Thompson accept the note made on the 1st day of July, 1908, and executed by Carter, McClanahan, and Wilson payable to T. A. Jackson, and indorsed by Jackson to Thompson, in full payment for the debt at that time owing by Jackson to Thompson, and release Jackson from the payment of that debt?
“(2) Did W. T. Thompson accept the note dated on the 4th day of February, 1909, in renewal of the Carter note, as the note of Jackson, with McClanahan and Wilson as sureties, in place of the original debt of Jackson to Thompson ?
“(3) Did Thompson represent that Jackson was principal and these defendants sureties, and did the three of them agree to that, and act upon it?”

The trial judge submitted to the jury but one issue, as follows:

“The note of the principal sum of $100 is dated July 1, 1908, was executed by H. A. Carter, as principal, and J. F. Wilson and W. R. Mc-Clanahan as sureties, and was payable to T. A. Jackson. When Jackson turned this note over to W. T. Thompson, did Thompson accept it as payment for $100 of indebtedness that Jackson owed Thompson at the time the note was der livered to Thompson?”

To which the jury answered:

“Yes. Rem. With T. A. Jackson indorsement on same.”

On the verdict of the jury, the court entered judgment for appellee against appellants for $208.60, interest from date of judgment and costs.

Appellants in their answer had pleaded that Jackson was the principal on the renewal notes, and that they were sureties; that at the time of the execution of the last renewal note sued upon appellee secured their signatures by representing to them that he would secure the signature of the principal, Jackson, and that it was the distinct understanding that Jackson was to sign the note as principal as he had theretofore done in the previous renewal notes; that appellee had failed to secure the signature of Jackson and had released him from any further liability thereon.

Appellants complain of the action of the court in not submitting to the jury all of the issues made by the pleadings and the evidence, bearing upon the question of the liability of appellants on the note sued on.

Without considering the several assignments separately, the contention of appellants is that the one issue submitted by the court did not submit all of the issues made by the pleadings and evidence, and that the one issue submitted and decided by the jury was not a sufficient settlement of the issues upon which to render judgment. Suppose it should be an admitted fact that Thompson, as between himself and Jackson, did accept the Carter note as payment for the $100 indebtedness of Jackson, and that as between Thompson and Jackson the indorsement in blank on the note by Jackson was intended only to pass the ownership of the note from Jackson to Thompson, and was not intended to strengthen the security of Thompson by becoming a surety on the note with McClana-han and Wilson, the admission of that one fact does not determine the issue pleaded by appellants that in the execution of the renewal notes “that it was the distinct understanding by and between the plaintiff (appel-lee) and these defendants (appellants) that said Jackson was to sign this note (the one sued on) as principal, as he had heretofore done in the renewal notes” as pleaded by appellants, and as denied by appellee in his supplemental petition “that in fact no such contract or agreement was ever made by this plaintiff, thus putting in issue the question as to whether, by agreement between appellants and appellee, Jackson was to sign the renewal notes as a substitute principal. It seems to us that the position Jackson was to fill on the renewal notes is the principal question in the ease. The facts are not disputed that Jackson had signed the former renewal notes and had signed first on the note, and that appellants had understood from the alleged agreement that he was signing as principal. If Jackson, by agreement, was to sign the note sued on, in whatever relation he was to sign, and if, appellants so understood it wlien they signed the note, and if appellee, after they had signed the note, released Jackson from the agreement and accepted the note without Jackson’s signature, the note sued on would be without the agreement. By the agreement of Mc-Clanahan and Wilson to renew the Carter note without Carter’s signing same, Mc-Clanahan and Wilson would not be sureties, but principals, in the renewal notes. Jackson’s indorsement on the Carter note, in the absence of an agreement fixing the character of his liability, would not make him a principal on the Carter note, but he would then be a surety, and by the renewal of the Carter note, he would, we think, stand in his new relation to Thompson, the same as McClanahan and Wilson — all principals — by reason of their agreement to release Carter in the making of the renewal note; that is, he would not necessarily be the principal, in the absence of an agreement that he should be, and McClanahan and Wilson could not have a judgment over and against him as the principal on the renewal note. If such were the rule, Jackson would get nothing for his Carter note, as he would in the end have to pay the whole of the renewal note. The issue submitted to the jury did not embrace the defense made by appellants, both by pleading and proof, and we think the failure to do so is reversible error. We are of the opinion that the finding of the jury on the one fact submitted was not only not sufficient to support the judgment, but was not a submission of the principal issues raised by the pleadings and proof.

In view of another trial, we will add that it was error to admit as evidence the bond on appeal from the justice court. It tended to prove no issue in the case. We think we need not comment on the form of the verdict, as it is not likely that the answer in that or a similar form will again occur.

Bor the reasons given, the case is reversed and remanded.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    DAVIS v. DAVIS.
    (No. 1606.)

    (Court of Civil Appeals of Texas. Texarkana.
    May 4, 1916.
    Rehearing Denied May 25, 1916.)
    1. Husband and Wife <&wkey;265 — Community BltOPEKTY — INTEREST OF WIFE.
    A married woman has as much interest in the community property as her husband, and has an equal right to its beneficial use.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 917-924; Dee. Dig. <&wkey;> 265.]

      •2. Husbani) 'AND Wife <&wkey;209(6) — Community Property — Husband’s Right of Action.
    A husband^ right to sue alone for the recovery of community property is incidental to his statutory right to the exclusive management thereof based on the assumption that he will discharge his obligations as the head of the family, and not on any legal disability of the wife,' so that when the husband leaves his wife, the reason for his control over community property ceases, and an action by the wife alone for damages for slander was not so fundamentally defective that her petition would be disregarded and her suit treated as a nullity.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 771; Dec. Dig. <S^o209(6)J
    3. Husband and Wife &wkey;j230 — Capacity to Sue — Objection—Waivee.
    Where the defendant, in an action by an abandoned wife to recover damages for slander, made no effort to abate the suit upon the ground of her coverture, he could not, after judgment on the merits, first raise that objection; that being a defense which he might waive.
    [Ed. Note. — For other cases, see I-Iusband and Wife, Cent. Dig. §§ 804, 83S, 840, 842; Dec. Dig. @=5230.]
    4. I-Iusband and Wife <&wkey;209(6) — Community Pkopeety — Action by Wife — Damages fob Slander.
    In a suit by a wife who had been abandoned by her husband, to recover damages for slander, where it was not alleged that she was separated ■from her husband, and that he had refused to join her in the suit, or that she was in need of the community funds for which the suit was brought, but it appeared that she had been abandoned without cause, driven from her husband’s home, and compelled to seek shelter at her father’s house, it was not essential to her right to sue alone that the husband should have expressly refused to bring a suit, as the jury might conclude that if she had not brought it, it would not have been brought, and that any damages recoverable would have been lost, and ■that she was dependent on her own resources or the generosity of her parents for support.
    [Ed. Note. — For other cases, see Husband and Wife,. Cent. Dig. § 771; Dec. Dig. @=5209(6).]
    5. Husband and Wife <&wkey;260 — Chose in Action — Use of Proceeds — Support. ■
    In such case, and although it did not appear that the husband had participated with his father in the slander for which his abandonment of his wife was indirectly responsible, the right to recover damages for the slander constituted a chose in action, and, whether community property or not, was such property as the wife might resort to for the support of herself and child.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 912; Dec. Dig. @=5260.]
    6. I-Iusband and Wife <&wkey;270(l) — Abandonment of Wife — Community Property Suit.
    In such case, it was not necessary that the wife should bo in actual want before she could sue for community property alone, and she might be empowered to sue alone to prevent the loss of her community interest by collusion between her husband and defendant, his father, though no fraud or collusion was alleged.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 968-971, 973; Dec. Dig. &wkey;270(l).]
    7. Libel and Slander <&wkey;7(16) — Actionable Words — Imputation of Unciiastity.
    The statement by the father of plaintiff’s husband, made to her father,-that she was four months advanced in pregnancy when she had been married only about seven weeks was slanderous per se, without any innuendo to show the defamatory character of the statement.
    [Ed. Note. — For other cases, se.e Libel and Slander, Cent. Dig. §§ 71, 73, 74; Dec. Dig. &wkey;7(16)J
    8. Libel and Slander <&wkey;100(2) — Damages —Special Damages.
    In an action for damages for words slanderous per se, it is not necessary to prove special damages.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 248; Dec. Dig. <&wkey;>100(2).]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Jessie Davis against Adam Davis. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    V. L. Sliurtleff and Wear & Frazier, all of Hillsboro, and C. L. Black, of Austin, for appellant. Walter Collins and B.; Y. Cummings, both, of Hillsboro, for appellee.

       Application for writ of error pending in Supreme Court.

   HODGES, J.

On February 18, 1914, the appellee filed this suit against the appellant, seeking damages for certain slanderous statements made by him concerning her. The offensive language was used by the appellant in talking to the father of the appellee, was, in substance, that she was four months advanced in pregnancy at a time when she had been married only about * seven weeks. The date of her marriage and other facts essential to show that the statements were designed to impute a want of chastity to the appellee were properly pleaded. It was also alleged that the appellee was a married woman at the time this suit was filed, but that her husband was the son of the appellant, was living separate and apart from her, “and will not join her in this suit, and has failed to bring any suit against .the defendant in this behalf.” She asked for damages, both actual and exemplary. The appellant answered denying all the material averments of the plaintiff. In reply to that portion of the petition which alleged cover-ture and the failure of the husband to join in the suit, he merely denied “that the plaintiff’s husband had refused to join her in bringing the suit against this defendant.” The material facts are, in substance, as follows: The appellee’s maiden name was Jessie Landrum. On January 4, 1913, when she was about 18 years of age, she was married to Ben Davis, then about 20 years old, the son of the appellant. The couple lived together at the residence of the groom’s parents until some time during the following February, when they separated and have since lived apart. A day or two after the separation a conversation took place between the appellant and W. I-I. Landrum, the father of the appellee. Each gives a different version as to what was there said. The appellant testified;

“When I spoke to Mr. Landrum about it I was in my wagon in Johnson county. I spoke about the matter first. Told him I had bad news to tell him. I had something to tell him that was bad, and I hated to tell him. I had three wagons carrying over a load of cotton, and I was driving the front team, and my boy (appellee’s husband) the second team; and Mr. Landrum and his wife and the plaintiff were in the third wagon, behind me and my boy. I stopped and told my boy to tell Mr. Landrum that I wanted to talk to him some, and he got in the wagon with me. * * * I told him that I had got a note, or a letter, from my wife, and she said she had told the boy that the girl was in a family way, and that the boy said it was not his’n and that he had quit her; and Mr. Lan-drum said: ‘It is a damn lie; it is his;’ and I said, T don’t know, Mr. Landrum, whose it is, but she looks like a woman that is three or four months gone.’ That conversation took place on the. day that the boy quit her, about the 25th of February. * * * At the time that I had the conversation with Landrum, there on the road when I stopped, and him and me talked in the wagon, that was not in response to any question that Landrum had asked mo. * * * I stopped and started the conversation off with the statement that I had some bad news to tell him.”

Landrum testified:

“The first conversation I had with Mr. Davis about this matter was on the road from Cle-burne. We had come out from Cleburne about a couple of miles, I reckon, and Mr. Davis motioned to me to get out of my wagon and come get in the wagon with him; and lie says to me, he says, ‘Landrum, I have got something to tell you.’ Say I, ‘Cut loose,’ says I, ‘what is it?’ He says: ‘My son and your daughter has separated.’ Says I, ‘What is the matter?’ ‘Why,’ he says, ‘your daughter is four months gone;’ that is what he replied to me. * * * Shortly after my daughter and her husband had separated I had occasion to see Adam Davis, the defendant, at his home. I went to see him and proposed to him to, ‘Let’s get those children back together. This is all foolishness;’ and he says, ‘No, never; your daughter is four months gone, and my son never shall live with her no more.’ I says, ‘Mr. Davis, you are mistaken;’ and he says he was not. I talked on, and I says: ‘Mr. Davis, I can ruin you with the law, the way you have talked with me about my girl;’ and he says, ‘You cannot do it, I have seen my lawyers, and if you want to do anything you crack your whip; I am ready.’ I think that was somewhere about the second or third day after the separation, the best I can remember.”

The appellant further testified, in substance, that when he said, the appellee was “four months gone” he meant that she was four months advanced in pregnancy at that time. There appears to be no controversy that all parties so understood the language he employed, and that it imputed to the ap-pellee unchaste conduct prior to her marriage with Ben Davis. In response to special interrogatories propounded the jury found that the defamatory statements charged imputed to the appelíee a want of chastity, that they were false, and that the appellant knew at the time that they were untrue, and uttered them' maliciously. Upon these and other answers the court entered a judgment in favor of the appellee, for the sum of $2,-500 as actual damages.

The first group of assigned errors attacks the right of the appellee to prosecute this suit alone. It is urged that the damages sued for constitute community property, and that neither the pleadings nor the evidence presents a case which a married woman may prosecute without the joinder of her husband. It is contended that the wife in bringing a suit of this character must allege and prove, not only that she is separated from her husband, and that he refuses to join her in the’ suit, but that he has failed to support her,, and that she is in need of the community funds for which the suit is brought.

A married woman has as much interest in the community property as her husband, and has an equal right to its beneficial use. The right of the husband to sue alone for its recovery is incidental to his right -to manage and control that class of property, and not upon any legal disability of the wife by reason 'of her coverture. The statutory right of the husband to exclusively manage and control the community property is based upon* the assumption that he will discharge his obligations as the head of the family; that he will live with and support his wife and children, or be ready and willing to do so. Wright v. Hays, 10 Tex. 131, 60 Am. Dec. 200; Dority v. Dority, 96 Tex. 215, 71 S. W. 950, 60 L. R. A. 941, and cases there cited.' When he abandons his duty, repudiates his connubial and parental obligations, and compels his wife to rely upon her own efforts, there is neither reason nor justice in continuing his statutory authority over the common property. Hence, an action by an abandoned wife alone is not so fundamentally defective that her petition will be disregarded and her suit treated as a nullity.

The appellant relies upon the case of Ifizell v. Dodson, 60 Tex. 331. That suit was brought by a married woman alone to recover damages for an assault and battery. Her husband was not a party to the action. As an excuse for not joining him as a party plaintiff, she alleged that they were living separate and apart from each other, and that he refused to join her in the prosecution of the suit. The trial court sustained special exceptions to the petition, and dismissed the case, for the reason that it did not allege sufficient grounds to justify a suit by the wife alone. Chief Justice Willie discussed at some length’the proposition involved, and in affirming the judgment said:

“The petition in this case does not give ns the circumstances of the separation, or the length of its continuance. It might have been of very recent occurrence, and we cannot presume as to the causes which produce it, or charge one party with fault rather than the other. It is only stated that the parties are living separate, and that the husband refuses to join in the suit. The mere fact that husband and wife are not living together does not authorize the wife to sue alone in any case where she could not thus sue if they were not separated. The refusal of a husband to become a party to an ordinary suit to recover community property would not give the wife the power to sue alone, when they were living together, and he was exercising rightful control over the common estate. She could not, contrary to his wishes, assume control over such estate and bring a suit for its recovery; and his refusal to join in such an action would be sufficient to defeat it. An ordinary separation, and much less one caused by her own unprovoked abandonment, would not give her more rights in this respect than she would possess if living amicably with her husband. * * * Oases might, perhaps, arise where the wife could, under their peculiar circumstances, sue alone for a trespass to her person, whether she lived with her husband or apart from him. A less aggravated case of abandonment on his part might be sufficient, in some instances, to give her this right, or if he was accessory to the outrage, or in other cases which might be mentioned, the wife would doubtless be allowed to maintain the action alone. It will be sufficient to decide the law of such cases when they arise.”

It will be observed that in the above case a special exception had been interposed questioning the sufficiency of the petition, and it was in sustaining that exception that the court used the language quoted. Here there was neither exception nor plea in abatement. When the defendant in a proceeding of this character makes no effort to abate the suit upon the ground of coverture, he cannot, after judgment on the merits, for the first time raise that objection. That is a matter of defense which he may waive. M., K. & T. Ry. Co. of Texas v. Allen, 53 Tex. Civ. App. 433, 115 S. W. 1179; City of San Antonio v. Wildenstein, 49 Tex. Civ. App. 514, 109 S. W. 231; Hamlett v. Coates, 182 S. W. 1147; 21 Cyc. p. 1517, and cases there cited.

There is nothing in the plaintiff’s petition in this case which affirmatively disclosed a situation where a wife may not sue alone for the recovery of community property. The most that can be said is that the petition fails to state all the facts which in law will ordinarily entitle her, as a matter of right, to maintain such a suit. We may therefore look to the facts in determining her authority to sue alone. When these are considered we have a much stronger case in her favor. They show that she was abandoned by her husband without a cause, at a time of life when his loyalty and fidelity were most needed. While still a mere child, and with approaching maternity, she was driven from his home, denied his lawful protection,' and compelled to seek shelter under the parental roof. Her husband remained with his father, the appellant, and appears to have acquiesced in, if he did not actually approve, the slanderous charges made. It was not essential to her right to sue alone that the husband should have expressly refused to bring this suit. The jury had a right to conclude that if the appellee had not instituted the suit, it would not have been prosecuted and such damages as were recoverable would have been lost. They also had a right to infer from the surrounding circumstances that the wife had been left to her own resources or to the generosity of her parents for the support of herself and child. While the husband may manage and dispose of the common property, he will not be allowed to collude with another, and thus defeat the just demands of the wife, especially when he has forsaken her' and refused to discharge his legal duties as a husband.

So far we have treated the damages recovered as belonging to the common estate, but it is by no means certain that under the peculiar facts of this case they should be so regarded. In the case of Nickerson v. Nickerson, 65 Tex. 281, the wife brought a suit for a tort committed upon her person by her husband and a third party. The Supreme Court held that the damages resulting constituted her separate property, and that she had a right to bring suit alone either before or after a divorce. The reason for so treating the damages awarded in that suit was based upon the fact that the husband was a joint wrongdoer and could not maintain a suit for their recovery. AYhile the facts in this case do not show clearly that the husband participated in the slander against his wife, yet, all of the circumstances surrounding the parties at the time indicate that he was indirectly responsible for the defamation from which she suffered. It is evident that he had already repudiated his wife and sympathized with his father in what the latter said in justification of the desertion. In Wright v. Hays, referred to above, Chief Justice Hemphill said:

“The broad principle is asserted, in the case from Sergeant and Itawle, that the desertion of the husband, and the cessation of his wonted duties, vest a separate property in the wife, in the acquisitions made during his desertion.”

The right to recover damages for slander constitutes a chose in action, and in this instance it arose after the desertion by the husband. But it is immaterial whether the damages here recovered should be treated as separate or community property, in vievi of the fact that it belongs to that class of the property to which the wife would have a perfect right to resort for support of herself and child.

We are not disposed to subscribe to the doctrine that an- abandoned wife must be in actual want before she can sue for community property alone. The law does not contemplate that there shall be a wrong without a remedy, or that those who have legal rights shall be denied access to the courts for their enforcement. It has often been held that the husband can use his statutory authority to control and manage the community property for the purpose of perpetrating a fraud upon the wife. Krenz v. Strohmeir, 177 S. W. 178; Stramler v. Coe, 15 Tex. 214; Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56 L. R. A. 585. This rule does not appear to rest upon or to be affected by the financial situation of the wife. The abandoned wife might, in this instance, be empowered to sue alone to prevent the loss of her community interests by collusion between' her husband and his father. It is true no fraud or collusion was alleged. But we are not discussing the sufficiency of the petition, but the sufficiency of the facts to authorize the suit.

It is next contended that the statements relied on as defamatory were uttered under circumstances which made them privileged communications. In the case of Davis v. State, 74 Tex. Cr. R. 29S, 167 S. W. 1108, L. R. A. 1915A, 572, this identical issue was before the Court of Criminal Appeals, and was determined adversely to the appellant. While it appears that the remarks there made upon that feature of the ease were not called for in order to determine any of the assignments of error, what was said has much persuasive force, and we think presented the proper rule of law. The testimony in this case shows by the admissions of the appellant himself that the defamatory statements were voluntarily made, and were not given in response to any questions or for the purpose of furthering an investigation. The jury found that he made them maliciously, and knew that they were untrue at the time. To one familiar with the date of the appellee’s marriage an’d the ordinary significance of the language used, the imputation of unchastity was too clear to be misunderstood. Upon a statement of all the facts as set out in the appellee’s original petition, an innuendo was unnecessary to show the defamatory nature of the utterances. The language was slanderous per se, and it was not necessary to prove special damages. Hatcher v. Range, 98 Tex. 85, 81 S. W. 289.

The remaining assignments are overruled, and the judgment of the district court is affirmed.

       — ^Fnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      t&sjt’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    BIVINS v. LANIER.
    (No. 965.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 19, 1916.
    On Motion for Rehearing, May 24, 1916.)
    1. Boundaries &wkey;>40(l) — Questions for Jury — Location os' Section.
    In trespass to try title, the evidence held to require submission to the jury of the question of the true location of a survey.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-203; Dec. Dig. &wkey;40Q).]
    2. Boundaries <&wkey;54(6) — Oeeicial Surveys —Presumption op Dub Notice.
    Under Rev. St. 1911, art. 5340, as to notice of surveyors running division line between two settlers or occupants, where such survey is proved, it will be presumed, in the absence of affirmative proof to the contrary, that the notice required by the statute was given.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 274, 277; Dec. Dig. &wkey;54(6).]
    3. Boundaries <&wkey;54(l) — Surveys — Necessity op Notice.
    Under such statute, if the notice required has not been given, the survey is not legal.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 268, 275, 276; Dec. Dig. <i&wkey; 64(1).]
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Action by J. M. Lanier against Lee Bivins. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    R. R. Hazlewood and A. A. Lumpkin, both of Amarillo, for appellant. Boyce & Davidson, of Amarillo, for appellee.
   HALL, J.

This is a suit in trespass to try title, filed by appellee, Lanier, against appellant, for the purpose of determining the true locality of section 52, block 0-18, D. & P. Railway Company surveys, as it affected the adjoining surveys. Appellant answered by a plea of not guilty. Although a jury was selected, after the conclusion of the evidence, the court instructed a verdict for appellee.

The following is the first assignment of ■error:

“The court erred in paragraph 1 of the general charge, in peremptorily instructing the jury to find for the plaintiff the land described in the third paragraph of his petition;. it being the same land described in the corrected field notes of section 52, block 0-18, made by the surveyor of Potter county, for the plaintiff, on the 3d day of November, 1913.”

Under this assignment several propositions are asserted, but we do not deem it necessary to consider them in detail. The original field notes of section 52 were made October 6, 1879, and describe the section as follows:

“Beginning at a mound in the west line of survey No. 22, block B-ll, 337 varas south from its N. W. corner; thence N. 1,917 varas, a mound in the S. line of survey No. 19, block 0-18, 17 varas W. from its S. E. corner; thence W. 1,883 varas to mound in the E. line of survey No. 23, block B-ll, 1,884 varas S. from its N. E. corner; thence S. 1,917 varas a mound; thence E'. 1,883 varas to the place of beginning.”

Surveys numbered 22 and 23, in block B-11, were made in the month of January, 1879. The various surveys composing block No. O-18 were made in October, 1879. The corners of the surveys in block B-ll are fixed upon the ground by well-known and established corners. This is not disputed. Since the location of section 52, according to the field notes, can be readily ascertained from its calls for the lines of the surveys in block B-11, no doubt can arise as to its proper location on the ground.

On the 3d day of November, 1913, the county surveyor of Potter county made and returned to the General Land Office what is termed in the record as:

“Corrected or resurvey field notes of section 52, made for J. M. Lanier (in accordance with an act of the Legislature of Texas, entitled ‘An act making the office of county surveyor an office of record,’ Approved March 30,1881. These field notes describe the land as beginning at a large stone and pile of stones set at the intersection of the south line of section No. 20, block 0-18, and the west line of section No. 21, block B-ll, 288.5 varas from the S. W. corner of section No. 21, and 1,337.5 varas W. of the S. E. corner of section No. 20; thence W. along the south lines of sections 20 and 19, block 0-18, 1,883 varas to a stone, set in the E. line of section No. 24, block B-ll; thence S. along the E. line of section 24, block B-ll, 1,917 varas to a pile of stone on S. E. slope for the N. W. corner of section No. 51, block 0-18; thence E. 1,883 varas to the N. E. corner of section No. 51; thence N. at 1,628.5 varas pass large pile of stone on the bluff, the N. W. corner of section 22, block B-ll, at 1,917 varas, the place of beginning.”

A copy of the field notes in th'e record contains in parentheses this notation by the surveyor:

“This construction made according to instructions contained in Band Office letter dated August 24, 1912, addressed to J. M. Lanier.”

The letter itself does not appear in the record, nor is there any evidence from the surveyor or any one else giving- us any information with reference to the instructions conveyed to the surveyor, nor showing under what authority or act of the Legislature the Land Office proceeded in having the survey made, if indeed it was made by the authority of the commissioner. The act of March 30, 1881 (Acts 17th Leg. c. 66), gives him no such authority.

Appellee contends that under articles 5347, 5349, 5353, and 5357, Rev. St. 1911, the land commissioner was authorized to order the survey in question made. In the first place, it does not appear from the record that the land commissioner, or the acting commissioner, or any one else with authority, ever ordered such survey. The articles of the statute referred to empower the commissioner to order such surveys only when there are conflicts or error in the original surveys, for the purpose of correcting the field notes thereof, or when he shall deem it to the best ■interest of the state when requested by a party owning a survey which conflicts with another. His right in the last instance is denied, however, where the school survey ha's been sold to other parties.

There being no question about the location of surveys 22 and 23, in block B-ll, according to the original field notes of section 52, calling for these surveys, we are unable to see how a conflict could arise, unless it was caused by what appears from the record .to be an attempted resurvey of sections 19 and 20, of block 0-18, made in June, 1883, by W. S. Mabry, surveyor of the Oldham district. The field notes of these surveys call for the lines of the surveys in block B-ll, but the original field notes of surveys 19 and 20, block 0-18, were made in 1879, and are evidently office surveys and do not show any conflict, the beginning corner of the former being on section 18 of the same block, and of the latter the southeast corner of section 19. We think the calls for the well-established surveys in block B-ll, as found in the orig-' inal field notes of section 52, block 0-18, are locative calls, from which the position of the section on the ground may be definitely ascertained, and until it is shown that the attempted correction .of its field notes which .created the conflict has been authoritatively made by the commissioner, to say the least, the question of its proper location should have been submitted to the jury. The corrected field notes change the location of the section on the ground materially to the ‘detriment of appellant.

Article 5340, Revised Statutes, provides that it shall be the duty of the survey- or in all cases, before he runs a division line between two settlers or occupants claiming lands, to notify in writing the parties interested before running the same, and any survey which may be made contrary to the true intent and meaning of this article shall not be a lawful one. Appellee Lanier testified that appellant was not notified before nor at the time this survey was made, and the record shows he did not know of it until a long while thereafter. We think this contention must also be sustained.

This question arose upon a similar statute in Indiana, in the case of Williams v. Atkinson et ux., 152 Ind. 98, 52 N. E. 603. By the statute of that state, ten days’ notice of a survey was required as to resident owners of adjoining lands, unless all the proprietors' of' the lands adjoining the corner which the county surveyor was required to establish were present and consenting to the survey, or had consented thereto in writing. In that case the record failed to show that any notice was given. The Supreme Court of Indiana held that the field notes of the county surveyor were inadmissible, because they failed to show that any notice was given or that the proprietors of the adjoining lands were present or that they had consented in writing, and used this language:

“To render the supposed record admissible in evidence, the names of such owners of the adjoining lands as were present should' have been set out, or it should have been shown by other evidence that they had been duly notified, had consented in writing to such survey, or were present and consenting to it. Such evidence by parol or in writing would have been competent. This omission in the document offered was not supplied by any kind of proof. If notice was not given to the adjoining landowners, or if they did not consent in writing, or were not present and consenting, the surveyor had no authority to establish or perpetuate a corner, or to view and establish a line, and his proceedings under such circumstances were void. This defect in the supposed record is not obviated by any presumption that the officer did his duty.”

We. take it, under the decisions of this state, the presumption would obtain that the surveyor had given the notice required by the statute, in the absence of affirmative proof that such notice was not given; but, where it clearly appears that Bivins had no notice, the statute has been violated, and a survey made which, as appellee claims, “is not legal.” This is the construction which has been placed upon similar statutes by the courts of this state. Article 1378, Revised Statutes, provides, with reference to the boundary lines between counties, that, when the commissioners’ court of one county shall order any line of the county surveyed, a copy of such order shall be sent to the county courts of the adjoining counties interested In such boundary lino, ten days before tbe meeting of tbe county court in sucb adjoining county. In tbe case of Wise County v. Montague County, 21 Tex. Civ. App. 444, 52 S. W. 615; Stephens, Justice, said:

“The necessity of such a notice, in order to bind tbe county in adverse interest, is apparent, because otherwise the proceeding would be wholly ex parte on the part of the acting county, and the result such as might be easily contemplated to have been brought about by an exclusive consideration of its own interest. It thus follows that the record fails to disclose that the conditions concur which would justify the conclusion that the line run by Camp was declared to be the true line, and established in the manner prescribed by law.”

Tbe bolding in tbat ease is applicable bere. Under this' record, tbe correct location of tbe land, according to tbe survey made apparently at tbe instance of appellee, is, to say the least, extremely doubtful, which emphasizes tbe necessity and propriety of serving notice upon appellant before tbe survey- or acted.

The judgment is reversed, and tbe cause remanded.

On Motion for Rehearing.

We have again carefully reviewed the record in tbis case, in the light of additional authorities presented by counsel, and with tbe exception of tbe statement in our original opinion that “tbe calls for tbe well-established surveys in block B-ll, as found in the original field notes of section 52, block 0-18, are locative calls,” we are not inclined to change our holding. Tbe question of whether or not these calls are locative calls may, under tbe record, be a question of fact, and upon another trial should, if the evidence warrants it, be submitted to a jury. With this exception, the motion is overruled.
      igsATor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'


author: FLY, O. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. BANDY.
    (No. 5675.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 24. 1916.)
    Railkoads <&wkey;443(l) — Operation—Injubies to Stock — Negligence—Evidence.
    Evidence that a train was operated at an excessive speed without proper warning signals while passing through a town where the railroad was not required to fence its track, and that a mare was killed, and section men carried her away after the train had passed, does not show liability of the railroad, when other trains.passed the point and no one saw the train in question kill the mare, but an engineer on another train testified that his engine did kill her, under circumstances negativing negligence.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1608, 1617; Dec. Dig. &wkey;443(l).]
    Appeal from Frio County Court; Mason Maney, Special Judge.
    Action by J. E. Bandy against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    See, also, 163' S. W. 341.
    S. T. Phelps, of Pearsall, and Wilson, Dab-ney & King, of Houston, for appellant. Magus Smith, of Pearsall, for appellee.
   FLY, O. J.

Appellee recovered judgment in the justice’s court for $150, the alleged value of a certain mare killed at or near the station of Moore by a train of appellant. On’ appeal to tbe county court a jury returned a verdict for $150, and judgment was rendered accordingly.

The grounds of negligence were that appellant had permitted grass and weeds to accumulate on its right of way and track in the town of Moore which attracted horses and other stock, and they habitually gathered there to graze; that appellant, on or about November 3, 1912, had its train to run into the town of Moore at a high rate of speed, and the employes failed to keep a lookout for stock where the mare was killed; that the statutory signals were not given as the train approached the crossing near which the mare was killed; and that appellant failed to blow the whistle or ring the bell to frighten the mare off the track.

The evidence of appellee was to the effect that between 5 and 6 o’clock on the morning of November 3, 1912, a train ran into tbe town of Moore at a fast rate of speed without giving any signals of its approach; that after the train bad left the section men of appellant w,ere seen carrying off the body of the mare and burying it. No one saw the mare on the track, no one saw the train strike her, and the only evidence tending to show that the morning train killed the mare was the evidence of a witness that he saw blood on the track in the morning, which appeared to be not more than an hour or an hour and a half old. The blood was in a cut where a horse could not well get off the track. No one saw the morning train hit the mare, and yet the only act of negligence on the part of the railway company, a failure to give the statutory signals, was proved in connection with that train. Three at least, and perhaps five, trains passed through Moore on the night the mare was killed. The mare was last seen by the owner on the evening of November 2, 1912, when he turned her out for the night. There is not one word of testimony tending to show that the mare was on the track for such a length of time that she could have been seen and the train stopped before it reached her. She might have been lying down, she might have walked on the track, just before the train reached her, and when it could not be stopped in time to save her. No causal connection, whatever, was indicated between the failure to blow tbe whistle and ring the bell, and it would be the merest surmise to' say that the mare would not have been hilled if the signals had been given. No one testified that the mare was on the track on the morning of November 3d, or that a lookout was not kept.

It is uncontroverted that the mare was killed in the town of Moore at a place where appellant was not required to fence its track, and at a place where, in order to recover, it rested on the plaintiff to prove negligence. The mere fact of the killing of the mare did not prove negligence. The fact that the signals were not given may have been negligence, but no connection was shown between that negligence and the death of the mare. If it had been shown that no outlook was kept, no connection between that failure of duty and the death of the mare was shown. It may be that in the daytime the mare could have been seen at a distance on the track and the train stopped before it struck her. But it was not in the daytime. If it had been in the light of the noonday sun, however, there is not one word of testimony to show that the mare was on the track long enough for her to have been seen at such a distance that the train could have been stopped.

In the case of Railway v. Bennett, 59 Tex. Civ. App. 321, 126 S. W. 607, the facts are stronger than in this case, and yet it was held that the testimony was insufficient to show negligence in the killing of the mare. In that case the train was seen to run through a drove of horses, and immediately afterwards the dead mare was found, and the court held that there was no evidence of negligence.

In the ease of Railway v. Conley, 142 S. W. 36, appellant was not required to fence its track, and a bull was struck by a certain train, which was known and identified. The bull was found, in an injured condition, about 15 minutes after the train passed. It was held that there was no evidence of negligence. The court said:

“The evidence here leads to no definite conclusion as to how the injury was inflicted, assuming that the bull was injured by the train. It rests entirely in conjecture as to whether he was on the track in time for the engineer, in the exercise of care, to have avoided the injury, or whether he was not on the track, but near to it, and started so suddenly to pass in front of the approaching ti*ain as for it to be impossible to have stopped or slackened the speed of the train and avoided the injury.”

To the same effect are numerous other cases. Railway v. Bailey, 150 S. W. 962; Railway v. Matthews, 158 S. W. 1048; Railway v. Leuschner, 166 S. W. 416; Railway v. Baker, 99 Tex. 452, 90 S. W. 869; Railway v. Anson, 101 Tex. 198, 105 S. W. 989.

This is the second time this case has been before this court, the judgment being reversed on the former appeal on account of the insufficiency of the evidence, with other things, and the cause was remanded to give the ap-pellee an opportunity to more fully develop his ease. 163 £>. W. 341. There has been no further development of the case, and the evidence is still totally inadequate to sustain the verdict.

It may be further stated that an engineer, on the train that passed Moore at 9:50 o’clock on the night of November 2, 1912, testified that his engine killed the mare under circumstances that showed no negligence whatever, and the court charged the jury:

“If you believe from the evidence that nlain-tiff’s animal was killed by the north-bound train arriving at Moore at 9:50 p. m. of November 2, 1912, by the train in charge of Engineer J. O. Burch under circumstances testified to by him, then you will find for defendant.”

There was not one word or syllable that contradicted the clear statement made by Burch, and yet the jury must have discarded his testimony and rested their verdict on surmise and conjecture, and not upon any proof tending to show the liability of appellant.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit, and pay all costs in this behalf expended.
      @=»For other cases see same-topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SAN ANTONIO & A. P. RY. CO. v. MULLAN et al.
    (No. 5666.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1916.
    Rehearing Denied June 7, 1916.)
    Trial <&wkey;395(l) — Duties ojt Judge — Findings or Fact.
    . The trial judge should not be and is not required in making his findings of fact to go into minute details as to damage at various times to a number of crops as embraced in 84 submitted questions; such a requirement being conducive to obstruction of justice.
    P3Jd. Note. — For other cases, see Trial, Cent. Dig. § 927; Dec. Dig. &wkey;395(l).]
    Appeal from District Court,' Aransas County; F. G. Chambliss, Judge.
    Action by H. W. Mullan and others against the San Antonio •& Aransas Pass Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Kleberg & Stay ton and David M. Picton,' Jr., all of Corpus Christi, for appellant. John B. Eddins and E. A. Stevens, both of Roekport, and Wm, H. Russell, of San An. tonio, for appellees.

       Application for writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit to recover dam-' ages' alleged to have accrued on account of the negligence of appellant in not building proper and sufficient culverts or sluices through its railroad embankment, so as to allow the surface water to drain in the natural way from appellees’ land, and causing the water to stand on said land in the years 1913, 1914, and 1915, for a long time, and, causing injury and damage to the crops and soil in the sum of $2,070. The cause was tried by the court, without a jury, and resulted in a judgment in favor of appellees for $850.

Appellant requested the judge to file his conclusions of fact and law, which he did, and this case is before this court on those conclusions, no statement of facts having been filed. Appellant asked for additional findings of fact, which were refused, and suc!h refusal was duly excepted to by appellant. The refusal to find additional facts is the only matter complained of in the brief of appellant

It was alleged in the petition that in 1913 appellees had crops destroyed by water thrown upon their land, through the negligence of appellant, consisting of one-half acre of bunch beans, one-half acre of black-eyed peas, one-half acre of pepper, one-half acre of onions, and an acre of beets, to ap-pellees’ damage in the sum of $235. Again in the spring of 1914 it was alleged that ap-pellees had lost by water pepper, cucumbers, tomatoes, beans, squashes, and that 28 fig trees were destroyed and 10 fig trees damaged, by which appellees were damaged in the sum of $1,345. In the fall of 1914 and spring of 1915, appellees were prevented by the water from planting and cultivating an acre in pepper by which they were damaged in the sum of $200, and permanently injured the land in the sum of $100 and damaged their corn in the sum of $40. The court found for a lump sum without indicating the amount for each year or the amounts for the vegetables separately or together, or the amount for the fig trees, although he found that the vegetables and fig trees were destroyed.

After the findings1 of the judge were filed appellant presented the request to answer in additional findings 84 questions. These questions went into the minutest detail as to the direction of the natural drainage of appellees’ land, as to whether the railroad dump obstructed the natural flow of surface water, whether if the dump had not been present the crops would have been damaged, and then these ideas are applied to each crop of beans, pepper, peas, beets, onions, tomatoes, figs, and corn, and the value of each crop is asked, whether there was any market for each of them, and what it would cost to prepare each crop for market. These questions were all on one paper and amounted to a rigid cross-examination of the trial judge on his findings of fact. The questions might probably be appropriate if addressed to a stubborn and refractory witness, but would hardly apply to a district judge in finding facts. He is not required to go into minute details as to the evidence, and while it might be entertaining to the party cross-examining the judge, it would be inappropriate for him to go into details that would cover the whole of the evidence. If any of the questions were appropriate, it was not the province of the judge to go into a mass of questions about vegetables and fruits, and cull therefrom those he would answer. The sufficiency of the evidence to sustain th'e judgment is not questioned, but the naked question is presented as to whether the judge should have answered the mass of questions presented. To hold that he should have spent his time in going into minute details as to how many beets, peppers, tomatoes, and figs appellees might have raised and the market value of each, would be to place in the hands of litigants a means of clogging the way of the courts and obstructing the due administration of justice.

The judge in this case found on every fact material or essential to the attainment of justice, and appellant fails to show how it would be benefited by additional findings. In fact, it is not contended that the judgment is excessive or that appellant could possibly be injured by a failure to answer the cross-questions propounded to the judge. We fail to see that the matters presented are material, but they seem to be merely academic.

If the court had failed and refused to file his conclusions of fact, no doubt that failure or refusal would have been sufficient ground for a reversal in the absence of a statement of facts, but we cannot subscribe to the proposition that, in the absence of a showing of probable injury, a failure to respond to questions seeking to evoke additional findings should require the reversal of a judgment. Whether that be true or not, we are confident that a judgment should not be reversed because the trial court refused to answer a cross-examination consisting of 84 questions, which went into details about matters concerning which no court should concern itself except in a general way. The questions could not have brought out any findings which would probably have had any effect upon the judgment; the effort being, seemingly, to have a detailed, itemized finding about matters concerning which the judge had already found.

The judgment is affirmed.
      igssjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    KERSH et al. v. MATTHEWS.
    (No. 7562.)
    (Court of Civil Appeals of Texas. Dallas.
    May 27, 1916.)
    1. Appeal and Error &wkey;3i001(l) — Review-Substantial Evidence.
    A verdict supported by substantial evidence will not be disturbed on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. &wkey;> 1001(1).]
    2. Appeal and Error &wkey;548(5) — Bill op Exceptions — Necessitt.
    A ruling admitting testimony cannot be reviewed on appeal, unless a bill of exceptions thereto is reserved.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. g 2436; Dec. Dig. <&wkey;548(5).]
    ’3. New Trial <&wkey;>105 — Newly Discovered Evidence — Cumulative and Impeaching.
    Ordinarily, alleged newly discovered testimony of a cumulative and impeaching character cannot form the basis of a motion for new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §S 183, 221-223, 229; Dec. Dig. &wkey; 105.]
    4. A PPEAXi AND ERROR &wkey;>981 — Review—Discretion — New Trial.
    The refusal of new trial for newly discovered evidence will not be reversed, unless it appears to. have been an abuse of discretion.
    [Ed. Note. — For other cases, see Appeal and ErrCv, Cent. Dig. § 3876; Dec. Dig. <&wkey;>981.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by J. Dawson Matthews against M. C. Kersh and another. From a judgment against the named defendant, he appeals.
    Affirmed.
    Henry P. Edwards and Cockrell, Gray & McBride, all of Dallas, for appellant. Morris & Williamson, of Dallas, for appellees.
   TALBOT, J.

The appellee, J. Dawson Matthews, brought this suit in the district court of Dallas county against appellants, M. C. Kersh and D. E. Waggoner, to recover $954.-50, the alleged amount due plaintiff by defendants for tracings, sketches, and plans alleged to have been furnished by plaintiff as architect for defendants. The said tracings, sketches, and plans were fully itemized with the price of each set opposite same and showing the dates when ordered. The defendants answered by general demurrer, general denial, and plea of payment. The case was tried before the court and a jury, and, upon the conclusion of the evidence, the court instructed a verdict in favor of the defendant D. E. Waggoner, and submitted the case as to the defendant Kersh upon a general charge. The jury returned a verdict in favor of the defendant Waggoner in accordance with the instruction of the court, and in favor of the plaintiff, Matthews, against the defendant Kersh for the amount sued for. Appellee entered a remittitur of $95, and from the judgment rendered Kersh appealed.

The first assignment of error asserts that:

“The verdict of the jury in plaintiffs favor is necessarily based upon tire finding that the defendant Kersh, under his agreement with the plaintiff, was to pay plaintiff for plans, sketches, and tracings, regardless of whether same were actually adopted or used for the construction of buildings, and the finding of the jury in this respect is against the evidence and certainly the great preponderance of the evidence, including the testimony of the plaintiff himself to this particular point.”

Whether the tracings, sketches, and plans were to be paid for by the appellant Kersh only in the event they were used for the construction of buildings was perhaps the principal issue in the case, and the testimony bearing upon the issue is entirely too voluminous to be detailed In this opinion. The testimony of the appellant is to the effect that he was not to pay anything for sketches or plans that were not used for the building of houses, and there are statements of the appellee, which, considered apart from other portions of his testimony, tend to corroborate the testimony of the appellant, to which we have referred. We have concluded, however, after a careful examination and consideration of all the testimony, that the issue was one for the determination of the jury. The appellee, among other things, unequivocally testified that the claim of appellant to the effect that the plans and sketches-not used were not to be paid for was not correct. He said:

“I never bad such an agreement as Mr. Kersh-claims; there was no agreement that I was not to be paid for the ones [sketches and plans], not used.”

The rule is thoroughly established in this state that where the verdict is supported by substantial evidence, it will not be disturbed on appeal.

The second assignment of error complains of the admission of certain testimony. The record fails to show that a bill of exception was reserved to this action of the court, and under the uniform decisions in this state the ruling cannot be reviewed by this court without such a bill. It seems, however, that if a proper bill of exception had been taken to the court’s action in admitting the testimony complained of, such action would not constitute reversible error, for the reason that similar testimony was admitted without objection.

The third and fourth assignments of error charge that the trial court erred in not granting appellant a new trial because of alleged newly discovered testimony. This testimony was of a cumulative and impeaching character, and, ordinarily, such testimony cannot form the basis of a motion for a new trial. Besides, the granting of a new trial upon the ground of newly discovered evidence is a matter resting very largely in the discretion of the trial court, and when the court has refused an application made upon such ground the appellate court will not reverse, unless it appears that the trial court has abused its discretion. It does not so appear in this instance. Indeed, according to- the-record sent to this court, it may be said that the diligence used, if any, to ascertain the-newly discovered evidence before the trial was wholly insufficient, and that the trial court for that reason was justified in overruling the motion for a new trial in so far-as the same was based upon such evidence..

The judgment is supported by the evidence,, and will be affirmed.

Affirmed.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes