author: LANE, J.

text:
    HOUSTON CHRONICLE PUB. CO. v. LEMMON.
    (No. 7265.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 28, 1917.
    Rehearing Denied March 22, 1917.)
    1. MASTER AND SERVANT &wkey;>332(l) — INJURIES to Third Person — Question for Jury.
    Evidence that defendant newspapers em-ployé threw a tightly folded newspaper into a group, injuring plaintiff, made defendant’s negligence a jury question.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1274.]
    2. Negligence (&wkey;59 — Proximate Cause — Anticipating Exact Injury.
    It is sufficient to constitute negligence if defendant should have anticipated his act would likely cause some injury to some person; it being unnecessary that its precise result be foreseen.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 72.]
    3. Trial &wkey;>260(3) — Requested Instruction —Instruction Already Given.
    In action against a newspaper**because an employé threw a folded paper against plaintiff, various requested charges by defendant on the burden of proof held sufficiently covered by the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 653.]
    4. Appeal and Error <&wkey;743(l) — Briefs in Reference to Record.
    Under Rev. St. 1911, art. 2061, requiring bills of exceptions to refusal of special charges, and Court of Civil Appeals rule 31 (142 S. W. xiii), requiring appellant’s brief to contain references to the record, etc., an assignment of error not showing where the bill of exceptions to the charge complained of can be found in the record will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2999.]
    5. Trial <&wkey;115(4) — Argument of Counsel-Reading Portion of Deposition.
    Counsel in his argument to the jury may read only a portion of a deposition.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 282, 298.]
    6. Master and Servant <&wkey;330(3) — Injuries to Third Person — Sufficiency of Evidence.
    The direct testimony of several witnesses held to sustain a jury finding that a folded newspaper which injured plaintiff was thrown by defendant newspaper’s employé rather than by another boy who accompanied him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1272.]
    7. Negligence <&wkey;134(ll) — Sufficiency of Evidence — Cause of Injury.
    Evidence, including testimony of several physicians, held to sustain a jury finding that plaintiff’s severe and long-continued suffering was caused by being hit in the face by a folded newspaper.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. § 273.]
    8. Appeal and Error >&wkey;1171 (2) — Verdict-Prejudice and Passion.
    A $10,000 verdict does not indicate prejudice and passion on the jury’s part requiring reversal because exceeding the amount claimed by $19.50.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 4547, 4548.]
    Appeal from District Court, Harris County ; Henry J. 'Dannenbaum, Judge.
    Action by Mollie Lemmon against the Houston Chronicle Publishing Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Eittrell & Kittrell, of Houston, for appellant. Fisher, Campbell & Amerman, of Houston, for appellee.
   LANE, J.

This suit was instituted by ap-pellee against appellant to recover damages for injury alleged to have been suffered by her by being struck by a newspaper thrown by a party who was alleged to he a servant of appellant, such paper being thrown July 31, 1911, for the purpose of delivering it at No. 2408 La Branch street, Houston, Tex.; said paper having been published by the ap- . pellant.

Appellee alleged that on and prior to the date of the injury, defendant published and distributed the Houston Chronicle, and distributed the same throughout the residence district of the city of Houston, by its employes for that purpose, who delivered such newspaper each day by hand to the regular subscribers, as a part of the general plan and custom of the publication and delivery of said newspaper; that upon the date named appellee was sitting upon the porch in company with her sister and other persons of the household, when the employe of appellant, whose custom and duty it was to deliver said paper daily, in the performance of such duty, twisted one of said papers tightly together, so that it formed a compact projectile, which could be thrown to a great distance, and negligently, and with great force, threw said paper toward and upon said porch where appellee was sitting, striking her, and that as a result of the blow she was seriously and permanently injured; that the act and conduct of appellant’s employé in throwing said paper towards appellee in the manner and under the circumstances stated was negligent and careless, and that he knew, or should reasonably have known, of the danger to appellee thereby; and that in the exercise of ordinary care he should have foreseen the danger of injury to which appellee, and those with her, would be and were exposed by such act. She sought to recover damages both for the injury and the alleged attendant suffering, and to recover damages for expenditures incurred in the way of doctor’s bills, drug bills, and traveling and hotel bills incurred ip the effort to recover her health by means of travel and recreation, under the advice of physicians.

Appellant pleaded by way of exception that such expenditures of traveling expenses were not recoverable, because they were not the proximate consequence of any act of the agent of the appellant.

Defendant further pleaded a general denial under which it offered evidence that the party who threw the paper was not in its employment, nor acting under its directions, and further pleaded that the paper was de-. livered in the same manner and by the same method that it had delivered papers in the city of Houston for ten years, and in the way in which such delivery of papers is almost, if not altogether, universally made in cities of the population of Houston, and which by long experience has been found to be safe,' efficient, and expeditious; that it is well-nigh the universal custom among newspaper managers to have boys move rapidly from one part of the city to another and throw papers into yards or onto the porch or steps of residences, and pleaded that such method of delivery is the only one necessarily available, and that if plaintiff was injured, such injury was the result of an accident against which skill, care, and foresight could not provide, and which was not possible to be foreseen, and the injury and accident was not such that it might necessarily have been expected to have occurred.

Upon trial had before a jury there was a verdict for plaintiff, specifying different amounts on different grounds, the whole aggregating $10,000. Judgment in accordance with such verdict was rendered by the court.

Appellant requested the court to charge the jury as follows:

“The evidence in this case is not sufficient to establish the allegations of plaintiff’s petition, and therefore you will return a verdict for defendant.”

The court refused to give such charge to the jury, and appellant has made the action of the court in so doing the ground of its first assignment of error.

Appellant’s contention under said assignment is: First, that the requested charge should have been given because the evidence indisputably shows that more than 20,000,000 papers had been delivered in the same manner as the one in question in this suit, without injury following to any one, and that plaintiff’s injuries were the result of an accident which could not be foreseen or contemplated as likely to occur; second, where injury and damages are alleged to be the result of an accident occurring in a certain way, and such way is charged to constitute “negligence,” and it is indisputably proved that the act was done in order to effectuate a lawful purpose, and that it was done in the identical way in which such purpose was invariably carried into effect by ordinarily prudent persons engaged in the same line of business, and that such way had by long experience and invariable custom been found safe, expeditious, and efficient, and that the actual experience of the parties charged with “negligence” in doing the act had, pursuant to usage and custom and the necessities of the business, done the act in the same way about 22,000,000 times before the accident, and about 10,000,000 times since, without injuring any person, and had done the same act approximately 100 times at the place of the accident, without injury to any person, such fact conclusively rebutted the charge of “negligence,” and defendant was entitled to have the jury so instructed, and the court erred in refusing the instruction.

The fact that appellant had caused 20,-000,000 papers to be delivered by boys throwing them into the yards and upon the porches of subscribers, and that such manner of delivery was practically the universal manner of making such deliveries by publishers, and that no injury to any person, similar to that of appellee, had theretofore occurred, so far as known, is not disputed. But such admission is not an admission that to throw a tightly rolled paper, so as to make it a compact body, 75 or 100 feet among and upon women and children, was not an act of negligence. The existing conditions and surroundings at the time of the throwing of such papers we think should be considered in determining whether or not such throwing was negligence upon the part of the thrower. Wé think there was sufficient evidence to support the finding by the jury that the act of the delivery boy in this case throwing said paper under the conditions and surroundings shown to have existed at the time and place of the alleged accident was negligence, and that a person in the exercise of ordinary care and prudence might reasonably have anticipated that some injury to some of those shown by the evidence to have been on the porch might result from such act. We think the test as to whether or not appellant should be held to be guilty of actionable negligence under the facts of this case is, could a cautious and prudent person in the same or similar situation as appellant’s delivery boy was at the time he threw the paper in question, as he threw it, have reasonably anticipated that some one would probably be injured from his act, and not as to whether he might anticipate the exact injury and the extent of same, which might result from such act. It has never been held, and it is not the law, that a defendant must have anticipated the precise and exact injury or precise person receiving the injury, but it is sufficient if he ought to have anticipated that the act causing the injury was calculated or likely to do some injury to some person. Moore v. Northern Tex. Tr. Co., 41 Tex. Civ. App. 583, 95 S. W. 652; Railway Co. v. Currie, 91 S. W. 1100; Railway Co. v. Morgan, 49 Tex. Civ. App. 212, 108 S. W. 724; Railway Co. v. McComus, 36 Tex. Civ. App. 170, 81 S. W. 760; Railway Co. v. Wood, 63 S. W. 164. In Railway Co. v. McComus, supra, it was held that the fact that an act of negligence produced an injury to another in a manner so unusual that it was not to be expected or anticipated does not relieve the party responsible from liability when such act was one likely to cause injury in a way that might be foreseen. In Railway Co. v. Wood, supra, it is held that where a piece of coal fell off a passing train and injured a section hand, who was standing near the track, it cannot be contended that the company was not liable because the injury was not such a result of defendant’s negligencq as might usually have been expected.

We conclude that the trial court properly refused the requested charge and therefore overrule the first assignment of error.

Appellant’s second assignment is as follows:

The court erred in refusing special charge No. 3 asked by defendant, reading as follows: “The burden of proof is on the plaintiff to prove the allegations of. her petition substantially as alleged, and she is required under the law to prove by a preponderance of the evidence: Eirst, that the paper was thrown by an employé of the defendant company; second, that it was thrown in such a way and under such circum-, stances as to constitute the act ‘negligence’ as negligence has been defined in this charge; third, that plaintiff was injured by being struck by said paper substantially as by her alleged in her petition, and that the blow from said paper was the proximate cause of such injuries, as the term ‘proximate’ cause has been defined in this charge.”

Appellant’s contention is that this charge was important to defendant because the crucial and controlling questions in the case were: First. Was the party who threw the paper in the employment of the defendant? Second. Was the paper thrown in such way as to make the act “negligence” ? And third. Was the blow from the paper the “proximate” cause of the alleged sufferings of the plaintiff? That each of these questions were extremely doubtful, and were strongly contested, and there was evidence' by a reputable physician, a witness for plaintiff, to the effect that there were other causes to which the condition of plaintiff might be attributed, hence the justice and necessity of having such issues distinctly put before the jury, and of having it made clear to the jury what was essential to be proved.

The court in his main charge instructed the jury as follows:

“The burden is upon the plaintiff to prove, substantially, by a preponderance of the evidence, the facts alleged in her petition.”
“If you believe from the preponderance of the evidence that on or about the 31st day of July, 1911, an agent, servant or employé of the defendant threw a copy of the Houston Chronicle toward the plaintiff, and that the same struck her and injured her substantially as alleged, and if you further believe from the evidence that the act of such servant, agent or employs of defendant in throwing said paper, if he did, constituted negligence upon his part, as the term has heretofore been defined to you, and that such negligence, if any, was the proximate cause of the injury sustained by the plaintiff therefrom, as the term ‘proximate cause’ has heretofore been defined to you, then you will find your verdict in favor of the plaintiff as against the defendant, and assess her damages as hereinafter instructed.”
“If, on the other hand, you do not believe from the preponderance of the evidence that the plaintiff was struck and injured as alleged by her, or do not believe that such striking was caused by the act of a servant, agent or employé of the defendant, or do not believe that in throwing said paper and striking plaintiff, if you find such to be the fact, the servant, agent or em-ployé, if any, of the defendant, was guilty of ‘negligence’ as that term has been hereinbefore defined, or do not believe that the injuries, if any, of the plaintiff were proximately caused by the act of such servant, agent or employé, if any, or do not believe that the injury to plaintiff, if any, was one which might have been reasonably foreseen by a person of ordinary prudence, in the light, of the attending circumstances, as likely to result from such an act, then, in either one or more of such events, let your verdict be for the defendant.”

We think the charge of the court fully and fairly, especially as to defendant, presents the issues in the case, and that he properly refused the requested charge set out above.

By the third and fourth assignments it is insisted that the trial court erred in refusing to give appellant’s special requested charges 4 and 5, which are as follows:

“Under the law the plaintiff is required to prove the allegations of her petition on which she bases her right to recover hy a preponderance of the evidence, and if the evidence does not preponderate in her favor as to the allegation that an employs of the Chronicle threw the paper, or if it does not preponderate in her favor as to the allegation that the paper was negligently thrown, then in contemplation of law the plaintiff has failed to prove such allegation, and in event she so fails as to either of the grounds mentioned above in this paragraph, you will find for defendant and incpiire no further.”
“As you have been instructed, the evidence must preponderate in favor of the plaintiff upon every allegation which it is necessary for her to prove in order to recover, and if you find that the evidence does not preponderate, but is evenly balanced as to any allegation which you are instructed it is necessary for her to prove in order to recover, you will find for defendant.”

We think the court’s main charge above quoted sufficiently covers the instructions asked by the charges refused. We therefore overrule the third and fourth assignments.

By the fifth assignment appellant insists that the court erred in refusing to give to the jury its special charge No. 6. We have carefully examined and considered such special charge and also paragraphs 10 and 11 of the court’s main charge, and we conclude that said paragraphs 10 and 11 fairly and fully present the matter raised by appellant’s said special charge, and therefore the court did not err in refusing said special charge.

What has been said under the first assignment fully answers the contention made by appellant’s sixth and eighth assignments, and therefore it is unnecessary to further discuss the matter presented by said assignments, and besides, the matters raised by the charges, the refusal of which complaint is made, were substantially covered by the court’s charge. They are therefore overruled.

We are not called upon to consider the seventh assignment of error, by which it is insisted that the court erred in refusing appellant’s special charge No. 8, as the statement under such assignment does not show that the action of the trial court in refusing to give such charge was excepted to, nor are we referred to the pages of the record where such bill of exception, if any, can be found. Rule 31 prescribed hy the Supreme Court for the Courts of Civil Appeals (142 S. W. xiii) provides that to each proposition in appellant’s brief there shall be subjoined a brief statement, in substance, of such proceedings, * * contained in the record, as will be necessary and sufficient to * * support the proposition with reference to the pages of the record. Under article 2061 of the Revised Civil Statutes of 1911, this state, litigants are required to reserve, hy proper bill of exceptions, their exceptions to the action of the trial court in refusing special charges, or else such exceptions are to be regarded as waived. Therefore unless the record shows that such hill of exceptions was reserved, the assignment that the court erred in refusing a special charge will not be considered by the appellate court. This court will not search through the record to find whether or not such bills have been reserved. However, we have considered the assignment and overrule same, because the instructions requested by said special charge, material to the issues involved, were substantially given in the court’s main charge.

Appellant’s ninth assignment is as follows:

“The court erred in allowing, over defendant’s objection, counsel for plaintiff, while addressing the jury in the closing argument, to read so much of the depositions of Forrest Longstreth as contained the statement that Mrs. Norsworthy told him the day after the accident that he had hit a lady the day before, without reading the further question as to what the witness replied to the statement of Mrs. Norsworthy, and the objection of plaintiff to the question, and the action of the court in sustaining the objection, all of which had been read to the jury, the omission of counsel to read the question, what the witness said in reply to the charge, and the objection of plaintiff, leaving the jury to believe that the witness acquiesced in and admitted the truth of the statement that he had thrown the paper, when in fact he did not do so.”

There is no merit in said assignment. It was not improper for counsel for appellee in argument to refer to or quote any portion of the testimony of a witness without quoting' any other portions thereof, and neither the court nor opposing counsel has the right to so demand. If counsel for appellant wanted the reply made by the witness to Mrs. Norsworthy, as testified to by him, repeated to the jury in argument, it was his privilege to quote the same, but he nor the court had any authority to compel counsel for appellee to do so.

The substance of appellant’s tenth and eleventh assignments is that the court erred in overruling the defendant’s motion for a new trial: First, because the great weight and preponderance of the evidence as to whether appellant’s delivery boy threw the paper that caused the injury to plaintiff was against such conclusion; and, second, that the paper in question was thrown from a point 121 feet from where the plaintiff was sitting; that it weighed only three ounces; and that the blow from the paper did not cause an abrasion of the skin, and therefore the physical facts refute the contention that plaintiff was injured as alleged by her.

Replying to the first contention under said assignments we here give the substance of the testimony of the following witnesses as to who threw the paper that caused the injury complained of, to wit:

Mrs. Stearn: “At the time of the accident, I was on the front porch of our -house; that porch extends all the way across the front end of the house; at the time of the accident one of Mrs. Matthews’ daughters and myself were sitting on the bench, facing La Branch street; and my sister, Mrs. Lemmon, had her back to La Branch street, and Mrs. Matthews was facing La Branch. * * * The paper was usually thrown toward the house by a big boy. * * * When he threw the paper he was at the corner of Bremond and La Branch, near the corner of the Norsworthy property; between 4:30 and 5 o’clock we were sitting on the gallery, and he threw the Norsworthy paper so close that I hollered for him not to throw the other paper; I thought he was going to hit me; he threw Mrs. Norsworthy’s paper so close I thought he was going to hit me, and I screamed to him not to throw our paper, but in the meantime he threw the other paper that hit Mrs. Lemmon. This boy that delivered the Chronicle that afternoon had some one with him; he had a little boy with him; the big boy threw the paper, and he was the one who usually delivered the paper on that route. I was sitting on the bench facing La Branch street at the time of the accident. * * * He had not thrown the paper when I hollered to him, and he was not prepared to throw the paper with his hand drawn back.”
Mrs. Matthews: “I saw the boys that delivered the Chronicle as they came up on their delivery route on this particular afternoon. * * * The big boy that threw the paper was the boy who usually delivered my Chronicle to my house. That big boy had been delivering the Chronicle to me pretty near as long as I had lived there, and I moved there in May, 1011. * * * My paper was thrown from the corner; rolled up tight and thrown from the comer. The big boy threw the paper; I saw him throw it. * * * I sat right this side of Mrs. Lewis, and when I was looking back — we were sitting with our backs to the street (meaning La Branch street) when I happened to look around — they were coming with the paper, and he threw it, and I dodged, and I knew it was coming, and it hit her right on the head. * * * Mrs. Lemmon and I were both sitting facing the house, because the sun was so strong, and I had my left side toward the boy. The paper was thrown with much force; it came very strong. * * * I identified those boys as a little boy and a big boy. I remember, it was the big boy that threw the paper, because I saw him throw it. We were all there, and I was looking right at him, and Mrs. Stearn hollered, ‘Don’t throw,’ but he threw it just the same.”
Miss Virginia Matthews: “Mrs. Stearn; Mrs. Lemmon, my mother and myself were sitting on the porch at the time of the accident to Mrs. Lemmon. * * * I saw two boys. The paper was thrown by one of them. One of them was a big boy, and one was a little boy; the big boy threw the paper. I saw him throw it. He threw the paper from that corner on Bre-mond, I think it is, there a't Mrs. Norsworthy’s corner. My mother was sitting next to Mrs. Lemmon waiting to see the paper come, and she dodged, and it went right on over and hit Mrs. Lemmon. * * * Mrs. Lemmon was sitting with her back to La Branch street. I heard Mrs. Steam say, ‘Don’t throw the paper,’ or something like that, before he threw the paper; he was just about ready to throw it when she made that remark, and he threw it after she said that. * * * The little boy was in the cart and the big boy was out.”
Miss Helen Matthews: “I was on the porch on the afternoon, and saw him deliver the Chronicle that afternoon Mrs. Lemmon got hurt. There were two boys with the papers; one was a big boy and one was a small boy. I don’t know which boy it was that was in the habit of delivering the Chronicle around there. On this particular afternoon the Chronicle was thrown from the corner; the big boy threw it; I saw him when he threw the paper. I heard Mrs. Stearn halloa to him, but she holloaed to him before the paper was thrown, as he was about to throw it.”

Unquestionably the foregoing testimony was sufficient to support a finding by the jury that the big boy, the delivery boy of appellant, threw said paper, regardless of the testimony of other witnesses to the contrary.

Replying to the second contention under said assignments, we find that the undisputed evidence shows that the paper was thrown forcibly from some point 100 or more feet from where the women and children were sitting on the porch; that it reached them and struck plaintiff, Mrs. Lemmon, on the head, and knocked out one of her teeth, and for a time rendered her unconscious, and that by reason thereof she was confined to her bed for about two weeks, and practically all the time from the date of the accident, on July 31, 3911, until she went to San Antonio on the 22d day of November, 1911; that before she suffered such injury she was in good health; that after she suffered the injury she suffered intense pain in her back, head, face, eyes, and spine, and that she suffered from extreme nervousness, sleeplessness, loss of appetite, loss of weight, strength, and memory, etc. We find testimony in the statement of facts to support a finding of the following facts: That since the injury, and as a result of it, she has been treated by Dr. Eckhardt, of Houston, Dr. Jackson and Dr. ■-, of 'San Antonio, Dr. Bernard Sachs, of New York City, and Dr. Whitmore Steele, of Phoenicia, N. Y. She has also been treated by Dr. Minnie Archer, deceased, and by Dr. James A. Mulle, eye specialists, and by Dr. Perkins and Dr. Greenbaum, dentists. At the time of the trial she was still under the constant treatment of Dr. Eckhardt and Dr. Mullen.

In the month of November, following the injury in July, her condition showing no improvement, Dr. Eckhardt advised taking her to San Antonio, in hope that the change of climate might benefit her. She was not able to travel alone, and her sister, Mrs. Stearn, and her brother, Mr. Sol Harris, took her; Mrs. Lemmon agreeing to pay her sister’s actual expenses of the trip in consideration of the latter acting as her nurse. She was kept in San Antonio five weeks, she and her sister staying at the St. Anthony Hotel, and she was forced to have medical treatment while there. She did not seem to get much benefit from her stay in San Antonio, and, failing to improve after her return, the doctors attending her advised that she be taken to New York for a change of climate and surroundings, and for treatment by Dr. Bernard Sachs, a well-known and experienced nerve specialist of New York City.

She was taken to New York in the summer of 1912 by her brother, Mr. Harris, and her sister, Mrs. Lewis. She was not able to travel alone, and Mrs. Lewis volunteered to go with her, and Mrs. Lemmon agreed to pay her actual expenses of the trip in consideration for the services of nurse and attendant, which Mrs. Lewis would render her. She was taken to New York City and placed under the care and treatment of Dr. Sachs, and she and her nurse stayed at various places in and near New York City, as directed by Dr. Sachs; the whole trip consuming about five months. While staying in Phoenicia, N. Y., under the direction of Dr. Sachs, she suffered, on August 6, 1912, one of the worst attacks that she had experienced since the injury, and Dr. Whitmore Steele of that place was called in and attended her for three days. She was very much benefited by this trip, but after her return to Houston began to relapse, so that by the summer of the next year (1913) her health had returned to its previous bad condition. Mrs. Demmon’s doctors advised her brother and sisters that if they did get her away from Houston she might die, and following their advice they again sent her to New York for change of climate and further treatment by Dr. Sachs. ■She made the trip to New York with friends, who were going from Houston, and there met her sister, Mrs. Stearn, who stayed with her until her return to Houston, no charge being made for her sister’s expenses. This trip consumed about two months. She was again benefited by the trip and treatment, but again relapsed from the benefit thereof, and by the following summer (1914) her condition was such that Dr. Eckhardt and Dr. Mullen ordered that she be sent to Colorado. She was accompanied on this trip by her sister-in-law, Mrs. Harris, who paid her own expenses, and the trip consumed about two months. Her condition became very bad again before the summer of 1915. She would not have taken the trips but for the condition of her health, and the insistence of her doctors and her family that she do so, in the hope that she could improve her health and probably recover.

Drs. Sachs, Mullen, and Eckhardt testified at the trial, and they all attributed Mrs. Lemmon’s condition to the injury of the blow which she had received, as above detailed. Dr. Sachs, in his deposition taken September 25, 1913, said that in his opinion complete recovery would ensue within a period from two to three years; that it was possible that her condition would be permanent, but not probable. Dr. Steele, by deposition, said that it was impossible to state accurately what time might elapse before she recovered, as much depended upon the nerve organization of the patient; that it was possible and probable that her condition wpuld be permanent. Dr. Eckhardt testified that her condition was not any better at the time of the trial that it had been at any time following the injury, and that “the general history of eases of this kind is that if they have continued for as long as four years, without any improvement, the probabilities are that the condition will continue for a long length of time.” Dr. Eckhardt further testified that if a projectile weighing several ounces struck a person in the face or around the temple, some injury such as that suffered by appellee would naturally be expected to result, if it were thrown hard enough; and that if the blow was hard enough to break a tooth and cause the bruise which he found upon Mrs. Lemmon’s mouth, it would be of sufficient force to cause just such an injury as resulted to Mrs. Lemmon. We think this testimony amply sufficient to support a finding that the blow from the paper thrown caused the injury from which the plaintiff suffered. We therefore overrule the tenth and eleventh assignments.

Jtfy appellant’s twelfth assignment it is insisted that the finding of the jury as to railroad fare, Pullman reservations, and meals on trains, expended by plaintiff, as alleged by her, is contrary to the evidence, and is for a greater sum than claimed by plaintiff in her petition by $19.50.

Appellant’s proposition under this assignment is that a verdict in the face of definite itemized pleadings, and specific testimony, for a sum of $19.50 greater than the amount claimed by plaintiff, is conclusive evidence not only of recklessness and indifference to the rights of defendant, but also of prejudice and passion, and such being true, the judgment based on such verdict should be reversed.

We do not think there is any merit in such contention. We cannot conceive that a jury moved by prejudice and passion would exhibit such prejudice and passion by adding so small an amount as $19.50 to a verdict of $10,000, or that their finding a verdict for such small amount in excess of the sum claimed by plaintiff in her petition is any evidence of either prejudice or passion; but we conclude that such finding must have been the result of a mistake in stating and summing up the various items claimed and proven. It is shown that after the verdict was rendered appellee entered a remittitur of $25.50, which was more than the sum claimed by appellant to have been erroneously found by the jury. The assignment is overruled.

By appellant’s thirteenth assignment it is insisted that the trial court erred in not granting defendant a new trial, because the finding of the jury for hotel bills, meals, and incidental expenses of plaintiff at San Antonio, New York, and other places, is unreasonable and unjust, wholly out of reason under all the facts and circumstances, and that such finding is contrary to the evidence and to the justice of the case.

There was testimony by several witnesses that the money spent for hotel bills, meals, railroad fare, Pullman accommodation, medicine, doctors’ bills, etc., was reasonable and necessary for the proper care and treatment of the plaintiff, and the jury so found, and while such sums alleged and proven to have been paid out seems to us large, we are not prepared to say that the evidence does not support the findings of the jury that such expenses were necessary and reasonable, and therefore we cannot sustain appellant’s assignment.

While it is to be regretted that such serious and unusual damage resulted from such seemingly slight act of negligence on the part of appellant’s delivery boy, we are not for that reason alone authorized to reverse the judgment based upon the findings of a jury supported by evidence; and as we find no error in the trial of the case, the judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    GALVESTON-HOUSTON INTERURBAN LAND CO. v. DOW et al.
    (No. 7314.)
    (Court of Civil Appeals of Texas. Galveston.
    March 8, 1917.
    Rehearing Denied March 22, 1917.)
    1. Bills and Notes &wkey;>502 — Admissibility of Evidence.
    In an action against a corporation as mater of notes, such notes are inadmissible in evidence in face of plea of non est factum without proof of their execution by a defendant.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1708-1716.]
    2. Gouporations <&wkey;432(12) — Actions — Evidence — Authority of Officers.
    In an action against corporation as maker of notes, there being a plea of non est factum, direct proof of authority of defendant’s officers to execute notes for company is not required to render such notes admissible, but such authority may be shown by circumstantial evidence.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762.]
    3. Corpoeations <&wkey;432(12) — Actions — Evidence — Sufficiency.
    Evidence held sufficient to sustain finding that a corporation authorized execution of notes indorsed by its officers.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762.]
    4. Appeal and Error <&wkey;1010(l) — Review-Findings — Sufficiency of Evidence.
    In an action against corporation as maker of notes, where the issue as to authority of defendant’s officers to execute notes for defendant was not submitted to jury, and no request for its submission made, a finding of the court, necessarily included in the judgment, that such authority existed, must be sustained if there is any evidence to support it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. "Dig." §§ 3979-3981.]
    5. Corporations <&wkey;4S7(2) — Ultra Vires — Evidence.
    Under Rev. St. 1911, arts. 1140, 1162, the execution and issuance of notes by corporation cannot be held to be ultra vires in absence of evidence that they were not issued in transaction of corporation’s authorized business.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1894.]
    6. Bills and Notes <&wkey;367 — Bona Fide Purchaser — Ultra Vires Act of Corporation.
    An innocent purchaser, without notice of the purpose for which notes given by authority of a corporation were issued, may recover, though the notes were ultra vires.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 947, 948.]
    7. Corporations <&wkey;426(4) — Unauthorized Acts of Officers — Ratification.
    Where notes were executed by corporation as maker and two of its directors owning 93 per cent, of its stock, signed as indorsers, such notes were binding on the corporation, even if not expressly authorized, since the indorsement of a majority of directors and stockholders was equivalent to a ratification.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1702, 1710-1712.]
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by Andrew Dow and others against the Galveston-Houston Interurban Land Company and another. Judgment for plaintiffs, and the defendant named appeals.
    Affirmed.
    Moody & Boyles, of Houston, for appellant. E. P. & Otis K. Hamblen, of Houston, for ap-pellees.
   PLEASANTS, C. J.

This suit was brought by appellees against appellant, as maker, and J. H. Bute, as indorser, of three promissory notes for the sum of $5,009 each, to recover the amount due upon said notes, and in the alternative to recover against Bute the amount due upon five notes for $4,835.55 each executed by him and held by appellees.

The petition alleges the execution by appellant of the notes for $5,000 in favor of Bute and their transfer by him to appellees under a guaranty by him that said notes were good and would be paid at maturity, and that appellees agreed to accept the amount of said notes in satisfaction of the five notes of Bute before mentioned and to surrender and cancel said five notes when the three $5,000 notes were paid, and, if same were not paid, the five notes should remain in full force and effect.

Appellant pleaded non est factum in that its president had no authority to execute the notes; failure of consideration; ultra vires; and general denial.

Bute pleaded that, if it should appear that plaintiff could not recover against appellant because of said notes being without consideration, and executed by the president without authority, which allegations of appellant he adopted, then, the maker not being liable, he, as indorser, would not be; and, as to his individual notes, that three of them were barred by limitation.

Appellees by supplemental petition replied that the three company notes were properly executed and binding upon it; that appellant was a trading corporation, and the notes were executed in due course of business in pursuit of its purposes, and comprehended within acts to be done in its management; that the president expressly and impliedly and according to the custom of said business was acting with authority and within the scope and apparent scope of his agency as such official and was held out as having such authority; that in the doing of all of which the directors and stockholders acquiesced, and appellant was estopped to deny liability; that appellant was largely indebted to the American Loan & Mortgage Company and Bute and others for services and other considerations, and issued paper to evidence same, and received- the benefit thereof, and was estopped to question same; that the issuance of said notes-was authorized by its charter and powers incidental thereto; that appellees acquired said notes in due course of business for value before maturity thereof, without knowledge of any defenses thereto, and were entitled to protection. As against Bute’s plea of limitation, appellees replied that the maturity of his individual indebtedness was postponed by agreement until the company notes fell due, payment of which was to discharge his indebtedness, and that he was estopped to set up such plea.

The trial in the court below with a jury resulted in a judgment in favor of plaintiff against both defendants for the amount due upon the three notes for $5,000 each; the aggregate amount of the judgment being*$22,-044.

The appeal is prosecuted by the Galveston-Houston Interurban Land Company alone.

Only two questions were submitted to the jury by the trial court. The first question submitted was whether the Galveston-Houston Interurban Land Company received a valuable consideration for the execution of the $5,000 notes, and the second question was whether it was agreed by the plaintiffs and the defendant Bute that the five notes for $4,835.55 were not to be paid if the $5,000 notes were paid at maturity. The jury answered both of these questions in the affirmative. There was no request by any of the parties for the submission to the jury of any other issue.

The evidence shows that of the 7,000 shares of the capital stock of appellant company 3,250 shares were owned by W. E. Richards, 3,250 by J. H. Bute, and 500 by J. O. Ross. These three men were the directors of the corporation. Richards was president and Bute vice president and general manager. According to its charter the company was organized for the purpose of “growing, selling, and purchasing seeds, plants, and trees,, * * * and to purchase and lease all lands necessary for that purpose.” The face value of a share of stock in the company was $50. The 50 per cent, of the capital stock which was required to be paid in order to obtain the charter was paid in 7,000 acres of land which was conveyed to the corporation by the subscribers to the stock above named. The company was chartered in November, 1909. In February, 1910, it conveyed 5,000 acres of its land acquired from Bute to the American Loan & Mortgage Company under a trust agreement by which the mortgage company undertook to act as agent of appellant in disposing of said land under an acre bond and stock scheme the details of which are not material to any question in this case.

Prior to the acquisition of the three $5,000 promissory notes appellees became the owners of five notes for $4,835.55 each, executed by J. H. Bute. The amount of principal and interest due on said notes at the date mentioned was $30,000. Appellees were pressing for a settlement of these notes, and finally, offered to accept $15,000 in full satisfaction of the debt Bute said he had no money, but, offered to give appellees three $5,000 notes executed by appellant and indorsed by him. The transaction by which the appellees became the holders of these $5,000 notes is thus stated by the appellee Dow:

“Dr. Bute said he did not have any money, but he said that he had equities in the Galveston-Houston Interurban Land Company that would' amount to a good deal of money, and that they owed him a lot of money for his equities in these lands, and finally he said that he- would give us their notes for $15,000 and that they would be paid when they were due according to the way the notes read. So we finally agreed that we would take these notes, contingent upon their payment at maturity, as an offset of his indebtedness to us provided the notes were paid, but at the same time we agreed that it didn’t release the original notes if these notes given by the Galveston-Houston Interurban Land Company were not paid.”

The three $5,000 notes were dated. November 1, 1911, payable to the order of American Loan & Mortgage Company one, two, and three years after date, respectively. Each of the notes were signed, “Galveston-Houston Interurban Land Co., by W. E. Richards, President.” Each of the notes were indorsed to-Bute without recourse by the American Loan & Mortgage Company on November 9, 1911. Bute indorsed them to plaintiffs before ma-. turity and for the consideration above stated. The notes were regular upon their face, and appellees took them without notice of any infirmity of any kind which would render them invalid, if any such infirmity existed.

Richards was president of the American-Loan & Mortgage Company. A man named Alverson was bookkeeper and auditor of said company and also of appellant. E. L. M. Beavens, who swore to appellant’s plea of non est factum, is secretary for both companies.

Appellant was given notice to produce its. books and those of the American Loan & Mortgage Company, but declined to do so on the ground 'that “they were too bulky,” but put in evidence portions of the journal and ledgers of the American Loan & Mortgage Company. Neither Richards, Bute, nor Al-verson testified in the case. The portion of the ledger of the American Loan & Mortgage Company put in evidence by appellant shows various entries of debits and credits in accounts between the loan company and appellant and said company and Bute. It appears from these entries that on the date of the execution of the three $5,000 notes appellant was indebted to the loan company. These entries further show that on November 9, 1911, appellant’s account was credited with four notes aggregating $20,000. These transactions were not explained, and, as before stated, none of the officers of the company who might have explained them testified.

Under appropriate assignments of error appellant assails the judgment: First, on the ground that the plea of non est factum having been filed, and there being no evidence to show that Richards was authorized to execute the notes for appellant corporation, said notes were not admissible in evidence; and, second, on the ground that the finding of the jury that appellant received a valuable consideration for the notes is not supported by any evidencé.

Neither of these objections to the judgment can be sustained. The plea of non. est factum having been filed, the notes were not admissible without evidence of their execution by appellant, but direct proof of the authority of the president to execute the notes for the company was not required, and such authority could be shown by circumstantial evidence. We think the evidence before set out was sufficient to overcome the plea of non est factum, and sustains the finding of the trial court that the execution of the notes was authorized by appellant. This issue was not submitted to the jury and appellant made no request for its submission. In these circumstances, if there is any evidence to support the finding of the court, which is necessarily included in the judgment rendered, that the president was authorized to execute the notes, such finding must' be sustained. Revised Statutes, art. 1985; Mabry v. Kennedy, 49 Tex. Civ. App. 45, 108 S. W. 176.

That the issuance of the notes by appellant cannot be held to be ultra vires, in the absence of evidence that they were not issued in furtherance of, or their issuance essential to, the transaction of the authorized business of the company, is well settled. Revised Statutes, arts. 1140 and 1162; Gaston & Ayres v. Campbell Co., 104 Tex. 576, 140 S. W. 770, 141 S. W. 515.

There was no evidence that the notes were not issued for a purpose essential to the transaction of the authorized business of the company, but if such fact had been proven, if the notes were issued by authority of the company, an innocent purchaser without notice of the purpose for which they were issued would be protected. Bank v. O’Neal, 11 Tex. Civ. App. 640, 34 S. W. 347; Scheffel v. Smith, 169 S. W. 1131.

As above stated, we think the evidence before set out is sufficient to sustain the finding that the notes were executed with the assent of the board of directors. Presumably they .were executed in furtherance of the authoriz- • ed business of the company. Two of the three directors were.parties to the instruments. The appellant failed to produce its books containing the minutes of the meetings of the board of directors, nor was evidence offered tending to show that the president was not authorized to execute the notes. If • no such authority existed, it was clearly with,in the power of- appellant to establish such fact, but it ,not only, failed to produce its books, but did not offer the testimony, of any member of the board of directors, or any officer of the company, showing, or tending to show that the president was not authorized by the board of . directors to execute the notes, but relied solely on its plea of non est factum sworn to by -its secretary, who, although he was put upon the stand by appellant, was not .questioned in regard to the plea of. non est factum, and made no statement as to any knowledge on his part of whether the president was authorized by. the board of directors to execute the notes.

Upon this state of the evidence we think the trial court was authorized to find that the execution of the notes was expressly authorized by the board of directors. Such express authorization, however, was not necessary t.o the validity of the notes. If their execution was ratified by a majority of the board of directors and the stockholders, they are valid obligations of the company, no fraud being alleged nor proven, and there being no evidence that they werp not executed in the transaction of the business of the company. Two of the three directors were parties to the instrument and owned'93 per cent, of the stock of the company. For all practical purposes Richards and Bute and the corporation were one and. the same, notwithstanding the technical rule which holds the identity of the corporation distinct from the stockholders. The execution of the notes by Richards and their indorsement by Bute shows the ratification of a majority of the board of directors, and we can see no reason why such ratification should not be binding upon the company when no fraud is shown and the notes were presumably executed in furtherance of the business of the company. Coppard v. Bank, 184 S. W. 552; Pub. Co. v. Hitson, 80 Tex. 228, 14 S. W. 843, 16 S. W. 551; Feed Pen Co. v. Bank, 181 S. W. 538.

Our conclusion being that the evidence is sufficient to support the finding of the tria) court that Richards was authorized to execute the notes for the company, said notes were admissible in evidence, and the burden of showing want or failure of consideration was upon the appellant, if such plea was available as a defense against appellees. The evidence fails to show that appellant received no consideration for the notes, and it is therefore unnecessary for us to determine whether there was sufficient evidence to sustain the affirmative finding of the jury that appellant received a valuable consideration or whether appellees are in the position of innocent purchasers for value without notice.

No issue was made by the pleadings or evidence as to the right of appellees as legal holders of the notes to sue and recover thereon, and the- assignment complaining of the judgment on this ground is without merit. This disposes of all the material questions presented by the appeal.

We are of opinion that the judgment should be affirmed; and it has been so ordered. Affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J. HUPP, C. J.

text:
    QUANAH, A. & P. RY. CO. et al. v. WATKINS.
    (No. 1120.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1916.
    On the Merits, Eéb. 21, 1917.)
    1. Appeal and Error &wkey;>628(2) — Piling Transcript — Permission op Appellate Court.
    Permission is reluctantly granted to file a transcript presented three days late, where appellants’ uncontroverted affidavits showed repeated requests were made of the clerk below to prepare it promptly and he promised to do so, but failed..
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2751-2755.]
    On the Merits.
    2. Damages &wkey;148 — Attorney’s Pees — Pleading.
    ", Allegations that plaintiff promised his attorney a certain fee are insufficient to authorize a recovery under Rev. St. art. 2178, allowing reasonable attorney fees to be taxed in certain cases where claims are not paid within 30 days.
    ' [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 412.]
    3. Justices op the Peace <&wkey;100(l)' — Appeals— Sufficiency op Pleadings.
    While technical rules of pleading do not apply on appeals from a justice court, yet where plaintiff states the issues, he is confined to his pleadings.
    [Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. §§ 336-340.]
    Appeal from Motley County Court; O. B. Whitten, Judge.
    Action by W. D. Watkins against the Qua-nah, Acme & Pacific Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Affirmed upon condition.
    D. E. Decker,-of Quanah, and <5. E.. Hamilton, of Matador, for appellants. A. B. Crane and T. T. Bouldin, both- of Matador, for appellee.
   HALL, J.

Appellant moves the court for permission to file the transcript, which reached the clerk of this court 3 days after the expiration of the statutory time for filing it here.. The uncontroverted affidavit of the attorneys for appellant shows that they repeatedly, during the 90 days requested R. A. Seay, clerk of the county court of Motley county, to prepare the transcript, and that he promised them faithfully every time to. comply with their request, and utterly failed to do so. We doubt the propriety of granting this motion, since it appears that this is the same clerk whose dereliction was considered in the case of Q., A. & P. Ry. Co. v. Leckie, 176 S. W. 662, and appellants were forcibly reminded in that case that they could not depend upon his promises: If appellant had applied for a mandamus, stating the facts set up in this motion, this court would have granted the relief. The granting of this motion must not be taken as a precedent, especially in cases where attorneys know from experience, that the clerk of the trial court is habitually negligent in the performance of his duties.

The motion is reluctantly granted.

On the Merits.

HUPP, C. J.

The first, third, and fourth assignments presented by the Pt. Worth & Denver City Railway Company, and the second, third, and fourth assignments of the Quanah, Acme & Pacific Railway Company, are overruled.

The first assignment of the Quanah, Acme & Pacific Railway Company and the second assignment of the Pt. Worth & Denver City Railway Company are sustained. These assignments complain at the action of the trial court in overruling the fourth special exception to the appellee’s amended answer, filed in the county court. The allegation therein is “that plaintiff employed attorney to represent him in his cases for which he has agreed to pay a fee of $20.” This allegation stated no cause of action against either of the appellants for such fee. The only authority for recovering attorney’s fees that we have any knowledge is under article 2178, Revised Civil Statutes. A claim must, .under that article, be presented to the party inflicting the injury and at the expiration of 30 days after the presentation, if the railroad does not pay, the same suit may be brought, and if the claim is fully established and judgment for the full amount thereof as presented is rendered, the claimant may recover a reasonable attorney’s fee, to be determined by the court or jury trying the case. There is no allegation that the claim was so presented, or, if so, its amount and no evidence in the record of any such claim having been made. The allegation is not that the court or jury allow a reasonable attorney’s fee, but that the appellee agreed to pay las attorney $20. This allegation clearly does not authorize a recovery under the above article.

It is contended by appellee that this was a suit instituted in the justice court where the pleadings are oral,- and that the rules of pleading as to form and strictness will not apply. The pleadings, however, herein are in writing, in the county court. Technical rules of pleading do not apply to cases originating in an appeal from the justice court The form in which the cause of action is stated is of no importance. If from all that is stated the court can ascertain what right the plaintiff asserts, this will be sufficient, but where the plaintiff undertakes to plead and states tide issues on which lie relies lie is confined to liis pleadings. Railroad Co. v. Red Cross Stock Farm, 22 Tex. Civ. App. 114, 53 S. W. 834; Houston, E. & W. T. Railway Co. v. Eastern Texas Railway Co., 57 Tex. Civ. App. 488, 122 S. W. 972; Railway Co. v. Welbourne, 113 S. W. 780. The pleadings in this case ask for attorney’s fees upon an agreement between the appellee and his attorney. This he was not entitled to recover from the appellants. He did not sue for a reasonable attorney’s fee on the ground that the appellants had refused to allow and pay a just claim presented 30 days before suit was instituted. The trial court should have sustained the exception. In rendering the judgment the court allowed the entire claim sued for, with the exception of 10 cents. The suit was for $195, and the judgment for $194.90. This amount included the $20 attorney’s fees sued for. Under the pleadings and evidence the court was not authorized to allow this amount. If the appellee will file -within 30 days a re-mittitur of $20, $4.55 of which will be credited on the judgment against the Quanah, Acme & Pacific Railway Company and $15.45 on the judgment. against the Ft. Worth & Denver City Railway Company, the judgment will be affirmed, with costs against ap-pellee on appeal; otherwise, it will be reversed and remanded.
      other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexea


author: HIGHTOWER, O. J.

text:
    BROWN et al. v. FISHER.
    (No. 64.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1917.
    Rehearing Denied March 28, 1917.)
    1. Advebse Possession <&wkey;112 — Burden of Proof.
    In trespass to try title, defendant, claiming by adverse possession, has the burden of proving that he was in peaceable and adverse possession for ten years prior to the time when suit was brought, when it was agreed that the record title was in the plaintiffs.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666.]
    2. Adverse Possession <&wkey;114(l) — Evidence —Sufficiency.
    Evidence held sufficient to warrant the jury in finding that defendant in trespass to try title had had ten years’ peaceable and adverse possession prior to the time of bringing suit.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683.]
    3. Adverse Possession &wkey;>23 — Acts of Possession — Sufficiency. '
    Mere felling or cutting timber on land would not in itself be sufficient to constitute adverse possession as against the true owner, but such acts when done for the purpose of clearing the land to permit use for farming purposes and as a home may show adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 112, 113.]
    4. Adverse Possession &wkey;»29 — Character of Possession — Requisites—Sufficiency.
    The character of use to which land is put and acts done by one in possession must be such as to reasonably apprise persons in general in-the community or the true owner of the land that the possessor is claiming the right to appropriate it to his own use in hostility to the claim of the true owner.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 124, 125.]
    5. Trespass to Try Title &wkey;j59 — Defenses— Adverse Possession — Improvements in Good Faith — Questions fori Jury.
    Though defendant in trespass to try title had a deed to land upon which he entered, he was not entitled to go to the jury on the issue of improvements made in good faith where before making improvements he had notice that his deed was void.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 90.]
    6. Appeal'and Error <&wkey;1062(l) — Harmless Error — Submission of Issue.
    In trespass to try title, error in submitting issue of improvements in good faith by reason of defendant’s knowledge of defect, in his title was not prejudicial, where the jury upon sufficient evidence found in his favor on the issue of adverse possession.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.]
    7. Adverse Possession <&wkey;116(l) — Instructions — Sufficiency.
    In action in trespass to try title under defense of adverse possession, instruction that adverse possession means actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another is sufficient and further requested instructions that the mere clearing of timber from land with the intention of subsequently erecting fences and houses does not constitute adverse possession, and that the adverse possessor must inclose the land and use, cultivate, or reside on it, were properly refused as tending to confuse the jury.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66.
    For other definitions, see Words and Phrases, First and Second Series, Adverse Possession.]
    8. Adverse Possession <&wkey;l'09 — Completion of Title — Attornment as Tenant — Effect.
    If defendant in trespass to try title had complete title by limitation of ten years, his act in thereafter attorning to the true owner as his tenant did not effect a divestiture of title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 629-635.]
    9. Adverse Possession <&wkey;29 — Sufficiency of Possession — Necessity of Claim of Right.
    One who enters on land with knowledge that he has no title and that another has, but with the intention to occupy in hostility to all the world, and who does so occupy openly and visibly, is in adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 124, 125.]
    19. Adverse Possession &wkey;>9 — Acquirement of Title — Lands of Municipality.
    In spite of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5683, providing that no person shall ever acquire by adverse possession any title to grounds belonging to any town donated or delegated for public use to the town, a person can maintain adverse possession, and acquire title against the city as to outlying wild and unimproved land covered with timber and brush.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 42, 50.]
    Appeal from District Court, liberty County; J. Llewellyn, Judge.
    Action by O. A. Brown and another against Wesley Fisher. Judgment for defendant, and' plaintiffs appeal.
    Affirmed.
    Stevens & Stevens, of Houston, for appellants. E. B. Pickett, Jr., of Liberty, for ap-pellee.
   HIGHTOWER, O. J.

This was an action of -trespass to try title, instituted in the district court of Liberty county by O. A. Brown and A. E. Kerr, appellants, against Wesley Fisher, appellee, to recover six acres of land out of block No. 46 in the town of Dayton, formerly West Liberty, Liberty county, Tex., consisting of the west half of said block. Suit was filed on the 4th day of October, 1913. O. A. Brown, who was a tenant in common with A. E. Kerr, filed a suit in his own name at first, and afterwards, on the ■6th day of December, 1915, the other coten-ant, A. E. Kerr, was made a party plaintiff. Appellee, Wesley Fisher, answered by a plea of ten years’ limitation, and also a plea for improvements in good faith. Appellee also set up a cross-action, which was met by a plea of not guilty on the part of appellants.

• The case was tried with a jury upon special issues submitted by the court. After the return of the verdict upon special issues, judgment was entered in favor of appellee, from which appellants, after their motion for new trial was overruled, have appealed to this court.

Appellants’ first assignment of error is:

“(I) Because the court erred in its charge, wherein it submitted in the second special issue to the jury to determine whether or not the defendant had peaceable and adverse possession of the land for ten years prior to the 11th day of November, 1909, since the undisputed proof showed that plaintiffs held the record title to the land, that Wesley Fisher erected no permanent improvements thereon, and did not begin to use, occupy, cultivate or enjoy the land adversely to the plaintiffs for the full period of ten years prior to November 11,, 1909; said error having been previously pointed out to the court by seasonable objections prior to giving the said instruction.
“(II) Because the court erred in the third paragraph of its charge in submitting to the jury an issue as to adverse possession of the defendant for a period prior to October 14, 1913, since the undisputed evidence showed that the defendant failed to enter upon the land under a claim of right and adversely hold the same, which error in the charge of the court was seasonably pointed out and objected to by the plaintiffs before the giving of said charge to the jury.”

Appellants’ first proposition under .this assignment is as follows:

“While the clearing of land may constitute evidence of an adverse claim, there can be no exclusive possession until the land is actually inclosed and used, hence the statute of limitation did not begin to run until Wesley Fisher, about Christmas, 1909, inclosed the land and planted the garden.”

In order to a proper disposition of the above assignment, it is necessary to state, at least in substance, the evidence bearing upon appellee’s claim of title to the land in controversy, based upon bis claim of peaceable and adverse possession thereof for- a period of ten years prior to November 11, 1909, but it will not be necessary to quote this testimony in detail.

At the outset, we might say that it was incumbent upon appellee, Wesley Fisher, to prove in the trial court that he was in peaceable and adverse possession of the land sued for ten years prior to November 11, 1909, because it was agreed in the trial court that the record title was in appellants, and that they were entitled to recover the land from appellee, unless title had vested in appellee by virtue of the ten-year statute of limitation ; and it was necessary to show that title had so vested in appellee prior to November 11, 1909, because on that date he executed and acknowledged a written contract or agreement of tenancy to J. H. Herndon and E. J. Davis, appellants’ predecessors in title, and, of course, the execution of such contract of tenancy had the effect in law to cut off any further claim of adverse possession on the part of appellee, subsequent to November 11, 1909.

On the question of adverse possession by appellee, it might be stated that his own testimony, and that of his witness, W. B. Jones, was the only really material testimony adduced on the trial for appellee, and it might also be correctly stated that the only testimony introduced by appellants on the issue of a material and satisfactory character was that of the witnesses, Dave Martin and Gus White, and it might be stated that appellants’ witness, W. M. Babcock, testified to some few circumstances that would have a tendency to show that appellee had not had adverse possession of the land in controversy for the full period of ten years prior to November 11, 1909.

We have very carefully gone over the testimony of each witness bearing on the issue of appellee’s claim of adverse possession, and have concluded that the evidence was sufficient as to warrant the jury in finding, as they did, that appellee had ten years’ peaceable and adverse possession of the land in controversy prior to November 11, 1909. To state such evidence, in substance, it amounts to about this: Appellee, Wesley Fisher, moved from Ft. Bend county, Tex., to Liberty county, Tex., in the fall of 1899, either in September or about the first of October, and he shortly thereafter returned to Ft. Bend county and remained there about two weeks, after which time he came back to Liberty county, at Dayton, and, according to his testimony and that of his witness W. B. Jones, he immediately, or very soon after his return to Dayton, met W. M. Babcock, who then resided at Dayton, Liberty county, and appellee testified, in substance, and so does his witness W. B. Jones that he (appellee) entered into some kind of an agreement with Babcock, by which Babcock agreed to sell appellee the land in controversy for a consideration of $75, $5 of which appellee at the time paid Babcock; that Babcock agreed to make appellee a deed, and relying upon such agreement with Babcock, appellee immediately entered upon the land in controversy, and commenced to clear the same, that is, fell the timber, cutting and burning the brush, with a view to clearing up and putting in a farm on the land. It would be next to impossible for us to tell from the testimony of appellee alone just when it was that he entered upon this land and commenced clearing the same under the claimed agreement with Babcock, because the testimony of appellee himself on that point is not at all clear or certain, but, considered as a whole, is rather contradictory. However, looking to the testimony of his witness Jones, it appears with reasonable certainty that the entry upon the land by appellee, under this agreement with Babcock, was made about the middle of October, 1809, or at least not later than November 1, 1899. The Witness Jones testified that he was present when the agreement between appellee and Babcock for the purchase of the land by appellee was made, and that this agreement was some time about the middle of October, 1899, and witness saw appellee pay Babcock the $5, and further testified that appellee thereafter immediately entered upon the land in controversy and commenced to clear and improve the same, for the purposes of a home and farm. The land in controversy was wild thicket land at the time appellee entered upon the same, was not in the actual possession of any one, and had no improvements of any character upon it; in fact, the land is referred to in the record as a thicket prior to the entry of appellee. The evidence of appellee is reasonably susceptible of the construction that from the time he first entered upon the land, he continuously and regularly kept up bis work of clearing the brush and timber from the same, and that by the first of December, perhaps, of the same year, had enough of the land cleared and the brush burned to give room for his house, and for the purposes of a garden, and that he planted a garden that same winter, and that some time.in the spring of the following year the frame of his house had been erected, but the testimony is indefinite as to the time the frame of the house was up. The testimony is certain, however, that appellee did not actually move in this house with his family until about a year after he first entered upon this land, but during all of that period, the testimony is reasonably clear to the effect that appellee was continuously and regularly clearing the land and fencing the same, as cleared, and that during the year 1900 he raised a crop on the land, consisting of corn, peas, sorghum, etc., and he testified, in substance, that during the first year he raised enough corn for his horses, and some other things, and that during all the year 1900 he was constantly working on the place, clearing, fencing, and working on his house, and moved his family into the house about one year after his first entry upon the land. The evidence of appellee and that of his witness Jones is definite and certain to the effect that after appellee first started his improvements on the land his possession was continuous, and the same was cultivated each and every year thereafter, and more and more of the land was cleared each year, until at the time of the trial there was in cultivation approximately six acres. Improvements placed upon the land by appellee altogether consisted of his dwelling house, which was a house made of lumber, and also a log house, and a small crib or two, a well, garden, and the cleared portion, which was fenced and used for farming purposes. Appellee testified that he had at all times claimed the land in controversy from the time he made the trade with Babcock, and that he intended to reside upon and hold the same against the claim of any one, and until he should be removed by law. He was substantially corroborated in this respect by the witness W. B. Jones. We believe that the foregoing states substantially the material facts adduced on the trial in behalf of appellee’s claim of title by limitation.

According to the testimony of appellants’ witness Dave Martin, appellee did not enter upon the land until approximately 2 or 2% years after appellee came to Liberty county, and according to the testimony of the appellants’ witness Gus White, appellee did not enter upon the land, or at least never commenced to clear or improve the same until a year or so after appellee came to Liberty county. The testimony of both these witnesses, however, while it tends to negative the fact that appellee was in possession of the land for 10 full years prior to November 11, 1909, is not certain and altogether satisfactory, and we cannot say that the jury was not warranted in accepting the testimony of appellee and his witness W. B. Jones on this point. Indeed, we would have no hesitancy in reaching the conclusion that the testimony was abundantly sufficient to warrant the jury in finding that appellee entered upon the land prior to November 1, 1899, and the only difficulty we have encountered in passing upon this assignment is as to the sufficiency of the character of the acts done by appellee upon the land, and the use to which the same was put by him during the first few months after his entry, to constitute adverse possession thereof in contemplation of law.

We agree with the contention of appellants that the mere felling or cutting of timber on land would not, in itself, be sufficient to constitute adverse possession as against the true owner, and we are aware that the appellate courts of this state have regularly so decided, but the entry by appellee upon this land was not for the sole purpose of felling the timber, but his main object was to clear the land for the purpose of using and enjoying and cultivating the same as a farm, and to make the same his home, and this, it would appear from the evidence, he proceeded regularly and continuously to do, though his progress in that direction was slow, and his improvements were limited and humble; hut taking into consideration, as we should, the nature and character of the land in controversy, it being at the time of appellee’s entry wild and covered with thick growth of timber and brush, we cannot say that appellee did not proceed in such manner and in such way in his.efforts to clear and improve and use the same as to reasonably indicate to the true owner that it was appellee’s purpose to claim and use the land as his own, in hostility to the true owner.

We understand that it has never been decided in this state, as a matter of law, just what is necessary to constitute adverse possession of land; in other words, leaving the general language of the statute on the point out of consideration, the courts of this state have never undertaken to say just what facts in detail were required to constitute adverse possession of land. They have consistently, and we think correctly, held that the character of the use to which land is put, and the acts done upon the same by one in possession, must be such as to reasonably apprise persons in general in the surrounding community, or the true owner of the.land, that such person is claiming the right to appropriate the land to his own use, in hostility to the claim of the true owner. It is shown by the record in this case that the land in controversy was adapted to farming purposes when cleared, and it would seem therefore that one of the essential elements of adverse possession, to wit, the use to which the land was adapted, was made by appellee, though, as stated above, the progress made by him in that direction was slow; but we are not willing to say, as. a matter of law, that the character of appellee’s possession of this land, after entry, and the use to which the same was put by him, were not sufficient to apprise the true owner of the fact that this land was being adversely claimed by appellee, in contemplation of the statute.

What we have said has reference to section 1 of the first assignment, and we will discuss section 2 thereof in connection with appellants’ fifth assignment of error. Taking the evidence as a whole, we believe that the trial court did not err in charging the jury, as pointed out by' the above assignment, and such assignment is overruled.

Appellants’ second assignment of error challenges the correctness of the court’s action, in submitting to the jury, as it did, the issue of improvements in good faith interposed by appellee, for the reason that the undisputed evidence showed that appellee, prior to the time he put any improvements whatever on the land in controversy, knew that Babcock, from whom he claimed to have purchased the same, had no title thereto, and could not convey any to appellee. We think this assignment is well taken, for the reason stated by appellants, because, as we read the statement of facts, the evidence is almost conclusive to the effect that no improvements were placed upon the land by appellee prior to the time he was informed by Babcock that he (Babcock) could not convey him a title to the land, and for this reason we think the court should not have submitted to the jury the issue of improvements in good faith.

But in view of the jury’s finding on the issue of adverse possession in favor of appel-lee we think that the court’s error in submitting the issue of improvements in good faith was entirely immaterial, and could not have prejudiced appellants in any way. It is true the jury found that appellee’s improvements were placed on the land in good faith, and it is probable that the jury so believed, not being advised by the charge what was required to constitute improvements in good faith; but, as above stated, we think that no prejudice resulted to appellants in consequence of this charge, and the assignment is overruled.

Appellants’ third assignment of error complains of the action of the trial court in refusing to give to the jury the following special instruction:

“ ‘Gentlemen of the jury: You are instructed that the mere clearing of timber from the property with the intention of subsequently erecting fences and houses upon the property does not constitute adverse possession, and that the law contemplates, in order for a person to take adverse possession of land, he must inclose the same, using it, or cultivating it, or reside upon it,’ for the reason that the evidence showed that the defendant, according to his own testimony, and the testimony of others, made clearings upon the land at various times, and there was evidence showing that there were no fences or houses erected upon the land until within ten years from the 11th day of November, 1909, which was the date of the attornment by defendant as a tenant, and since the court, in its general charge to the jury, failed to properly define the law of adverse possession as applied to the facts of this case, all of which errors were pointed, out to the court by objections before the giving of said charge, by requesting the foregoing special instruction.
“(V) Because the court failed to definé the law of adverse possession, as applied to the facts of this case, simply defining it as an abstract proposition, to wit, that by adverse possession is meant an actual and visible appropriation of the land, commenced and continued under a claim of right, inconsistent with and hostile to the claim of another, whereas the plaintiffs, by special instruction requested by them, which was refused by the court, pointed out to the court the necessity of instructing the jury that the law contemplates, in order for a person to take possession of land, he must inciose the same, use it, or cultivate it, or reside upon it, as shown by the said special instruction requested by the plaintiff, which was refused by the court.
“(VI) Because the court erred in failing to instruct the jury that the mere clearing of timber from property with the intention of subsequently erecting fences and houses upon the property does not constitute adverse possession, as set forth by the said special instruction of plaintiffs, which was refused by the court.”

Appellants’ proposition under the above assignment is:

“The mere clearing of timber from land with the intention of subsequently erecting fences and houses upon the same does not constitute adverse possession.”

The trial court did instruct the jury:

“By adverse possession is meant an actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”

This instruction was a literal copy of the statute itself, and of course was correct, and we believe that, as applied to the facts of this case, the same was sufficient on the issue of appellee’s adverse possession, and we think that if the trial court had given the above special instruction requested by appellants, the same would have probably been misleading in this particular case,- because the jury would likely have gotten the idea from such charge that the period of time during which appellee was engaged in clearing the land, and burning the brush, prior to his actually getting the same inclosed, and actually cultivating the same, could not be taken into consideration by the jury in computing the period of time that appellee was in possession of the land; in other words, the jury would likely have gotten the idea from such charge that in answering the question as to whether appellee was in adverse possession for a period of ten years prior to November 11, 1909, they would only consider such time as elapsed after appellee had actually inclosed the land, or had the same in actual cultivation. Under this assignment appellants cite Richards v. Smith, 67 Tes. 610, 4 S. W. 571, Pendleton v. Snyder, 5 Tex. Civ. App. 427, 24 S. W. 364, and Freedman v. Bonner, 40 S. W. 49. We have carefully examined each of these authorities, and we find that they do not sustain appellants’ contention that an actual inclosure under all circumstances is necessary to constitute adverse possession of land. It is true that the court, in each of these cases in discussing the question of adverse possession, stated that an inclosure of land was one of the strongest evidences of an adverse and exclusive possession, but the court did not say in either case that an inclosure was indispensable in order to constitute adverse possession. In fact, a careful analysis of the ease of Richards v. Smith, supra, will disclose the fact that the court in that case announced that an inelo-sure was not necessary to constitute adverse' possession of land. Without discussing in detail either of these- authorities, we hold that neither of them sustains the broad doctrine contended for by appellants here. As stated above, we believe that the court’s charge on the issue of adverse possession was sufficient in this particular case, and that to have given the special charge requested would have probably mislead the jury. The assignment is overruled.

Appellants’ fourth assignment of error is:

“(VII) Because the court erred in rendering judgment for the defendant, for the reason that the jury answered the first special issue submitted to them in the affirmative; that is to say, that the defendant had leased the land from the plaintiffs on the 11th day of November, 1909, which answer was inconsistent with the answer of the jury to the third special issue, wherein they answered that the defendant had been in adverse possession of the land for ten years prior to October 4, 1913.
“(VIII) The jury having found, in answer to special issue submitted to them, that the defendant leased the land in controversy from Hern-don, under whom plaintiffs held, on the 11th day of November, 1909, and that he held and occupied the land under said lease from that period as the tenant of said Herndon, and the plaintiffs, hence the defendant cannot dispute the title of the plaintiffs and those under whom they hold, hence the court erred in rendering judgment for the defendant, and a new trial should be granted.”

The proposition under this assignment is:

“A tenant cannot dispute his landlord’s title without first having reinvested his landlord with possession.”

We are aware of the doctrine that a tenant cannot set up title adverse to bis landlord, unless it be clearly shown that the tenant repudiated his contract of tenancy with the . knowledge of his landlord, and that sufficient length of time lapsed after such repudiation to authorize the interposition of the bar of limitation; but the jury in this case found that appellee was in peaceable and adverse possession of the land in controversy for the full period of ten years prior -to November 11, 1909, which was the date of the acknowledgment of tenancy by appellee, and therefore if the jury’s finding on that issue is supported by the evidence, which we hold it is, the acknowledgment of tenancy after the title by limitation was complete would not have the effect to divest title so acquired by appellee out of him, and such acknowledgment of tenancy could only be considered by the jury in passing upon the question of whether the possession theretofore held by appellee had been adverse, but the same could have no other effect. Wick-izer v. Williams, 173 S. W. 288; Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104; Thayer v. Clark, 47 Tex. Civ. App. 61, 104 S. W. 196; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 511. The above assignment is overruled.

Appellants’ fifth assignment bf error, which we do not copy in full, as it is unnecessary to do so, is to the effect that the undisputed evidence in the case shows that appel-lee was never in adverse possession of the land in controversy, for the reason that his possession thereof was not “commenced and continued under claim of right.” The proposition under this assignment is:

“A party who enters upon land for the purpose of acquiring a title by limitation is not in adverse, peaceable, and hostile possession of the land.”

We understand that the statute of this state says that before a possessor of land by reason of his possession alone can acquire title thereto by limitation, such possession must .have commenced and been continued “under a claim of right.” Appellants cite, under this assignment, the case of Stevens v. Pedregon, 106 Tex. 576, 173 S. W. 210. We are familiar with this case cited by appellants, and we concede that certain portions of the opinion of the Supreme Court in that case, speaking through Chief Justice Hrown, would seem to sustain the contention of appellants to the effect that a possession of land in order to vest title in the possessor must have been commenced and continued under a claim of right, but when we consider the opinion as a whole, ,we have concluded that Judge Brown did not intend to hold that such a possessor entering upon land would have to believe that he had some character of title, or legal or equitable right to enter upon and claim the same; but if the <¡purt in that case did so intend to hold, then we say that the opinion is out of harmony, and in complete variance with every other opinion from the appellate courts of Texas on that point, which had been rendered prior to the decision in the case of Stevens v. Pedregón, supra. We note that Judge Brown, in the Stevens v. Pedregón Case, cites, as sustaining the conclusion reached in that case, the cases of Sellman v. Hardin, 58 Tex. 86; and Murphy v. Welder, 58 Tex. 235. From reading these two cases cited by Judge Brown we find that neither of them touches this question here raised by appellants. Nothing whatever was said in either of those cases cited by Judge Brown relative to any claim of right that must have been made by the adverse possessor at the time he entered upon the land in controversy in those cases. Each of those cases simply dealt with the character of the use, acts of ownership, etc., that were made by the possessors of the land in those cases, and when we read the Stevens-Pedre-gon Case as a whole, we are forced to the conclusion that Judge Brown simply meant to hold in that case that the uses to which the land was put by the possessor in that ease, the character of his improvements, etc., were not sufficient to constitute adverse possession in contemplation of law. Judge Brown, as the bench and bar of this state admit, was an able jurist, and at the time of his opinion in the Stevens v. Pedregón Case, supra, had had many years’ experience on the Supreme Court of this state, and we bqlieve that if it had been his intention to overrule the long line of decisions, some of which were by the Supreme Court of this state, bearing on this point, he would have said so frankly, but instead, he never even mentioned any of the authorities which had theretofore held to the contrary on the proposition here asserted by appellants. Some of these authorities are Charle v. Saffold, 13 Tex. 112; Word v. Drouthett, 44 Tex. 369; Holland v. Nance, 102 Tex. 183, 114 S. W. 346; Smith v. Jones, 103 Tex. 637, 132 S. W. 469, 31 L. R. A. (N. S.) 153; Craig v. Cartwright, 65 Tex. 423; Cox v. Sherman Hotel Co., 47 S. W. 808. See, also, Link v. Bland, 43 Tex. Civ. App. 519, 95 S. W. 1110. In this last case (Link v. Bland) the only point for decision was the very question raised by this assignment; that is, is it necessary, in order to acquire title by limitation, for the possessor of land to enter upon the same “under a claim of right”? The opinion in the case was by the Galveston Court of Civil Appeals, speaking through Justice Reese, and many of the authorities bearing upon the question are there cited, and the conclusion is reached in the following language:

“Under Revised Statutes of 1895, art. 3349, defining adverse possession as the actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another, a person who enters upon land with knowledge that he has no title, and that another has, but with the intention to occupy it in hostility to all the world, and who does so occupy openly and visibly, is in adverse possession.”

We understand that there are, perhaps, several cases now pending before our Supreme Court involving the question raised in this assignment, but until our Supreme Court sustains the point here raised, we shall continue to follow the rule heretofore laid down by our appellate courts whenever that question arose. We admit that there might be room for the contention of appellant on this point, and if the question were raised for the first time here, we confess that it might give us some difficulty, but we believe that the rule laid down heretofore has become a rule of property in this state, and should not be, at this late day, disregarded, unless the Supreme Court of this state should so hold. The assignment is overruled.

Appellants’ sixth assignment of error raises this question: The land in controversy belonged to the city of Liberty until the 17th day of September, 1901, on which date said city conveyed the same to M. D. Rayburn, from whom the title passes, by mesne conveyances, to appellants. Appellants contend that during the time title to this land was in the city of Liberty, limitation did not commence to run in favor of appellee, and that therefore appellee was not in adverse possession, and that therefore sufficient time did not elapse between September, 1901, and November 11; 1909, to give title to appellee by limitation of ten years. The proposition under this assignment is:

“Title to ground or land belonging to a city or town cannot be acquired by adverse possession.”

If the proposition thus broadly stated by appellants be correct, then appellee could not have title in this case, and this assignment would have to be sustained. The only authority cited by appellants under this proposition is article 5683, Yernon’s Sayles’ Texas Civil Statutes. This article reads as follows:

“The right of the state shall not be barred by any of the provisions of this chapter, nor shall any person ever" acquire, by occupancy or adverse possession, any right or title to any part or portion of any road, street, sidewalk or grounds which belong to any town, city or county, or which have been donated or dedicated for public use to any' such town, city or county by the owner thereof, or which have been laid out or dedicated in any manner to public use in any town, city or county in this state: Provided this law shall not apply to any alley laid out across any block or square in any city or town.”

It is not contended by appellants that the land in controversy was ever used or was ever intended to be used by the city of Liberty for any public purpose whatever,, or that any portion of the same claimed adversely by appellee was ever a street of such city, or ever intended to be; but the undisputed evidence throughout the whole record is that this land was wild, unimproved land, covered with timber and brush prior to appellee’s entry on the same, and putting the same in a farm. Under such circumstances, limitation ran against the city of Liberty in favor of appellee during the period of time between appellee’s entry upon the land and his adverse possession thereof down to the date that the city of Liberty conveyed the same, and continued to run in favor of appellee until the 11th day of November, 1909. See Johnson v. Llano County, 15 Tex. Civ. App. 421, 39 S. W. 995; Hardin County v. Nona Mills Company, 112 S. W. 822. There are other authorities in this state on the same point, but the case first above cited clearly holds to the contrary of appellants’ contention in this assignment, and we approve the holding, and the reason for same. The assignment is overruled.

What we have said disposes', practically, of every contention made by appellants, and, finding no reversible error in the record, we are of opinion that the judgment of the lower court should be affirmed; and it is so ordered.
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