author: PLEASANTS, C. J.

text:
    WORD v. COLLEY et al.
    (No. 6697.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 3, 1914.
    Rehearing Denied Dec. 23, 1914.)
    1. Husband and Wife &wkey;>248 — Community Property — Chaeacteb of Title.
    The court in determining whether land is community property, must look to the inception of the title, and the character the title acquired relates to its origin.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 880; Dec. Dig. &wkey;3248.]
    2. Executors and Administrators <&wkey;388 — ■ Sale of Real Estate — Title of Purchaser.
    Where a grantee in a bond for title executed by the sole heir of the deceased owner subsequently purchased the land at an administrator’s sale pursuant to the order of the court directing the sale and confirming it, his title was founded on the administrator’s sale.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1573-1582 ; Dec. Dig. <&wkey;>388.]
    3. Husband and Wife <@=^249 — Community Property — Conveyances.
    Where a grantor conveyed during the lifetime of his wife a half interest in land to a grantee, who during the lifetime of the wife reconveyed the land, at least one-half of the land was community property of the grantor and wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-S02; Dee. Dig. <&wkey;>249.]
    4. Husband and Wife <&wkey;274 — Community Property — Rights of Children — ¡settlements.
    A father, at the death of his wife, conveyed to his children real estate in settlement of their interest in the estate of the husband and deceased wife as community property. The children at the time of the eofiveyance were infants, but, on attaining full age, acquiesced therein. The father at the time was executor of Ms wife. BelcH, that the acceptance by the children of the conveyance was a settlement of their rights, and they had no interest in the community property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. &wkey;> 274.]
    5. Judgment <&wkey;740 — Res Judicata — Questions Concluded.
    A party in whose favor a judgment is rendered is not estopped, in a subsequent suit, from denying findings of the court rendering the judgment not essential or material to the judgment.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 1268; Dec. Dig. &wkey;>740.]
    6. Adverse Possession <&wkey;48 — Color of Title-Nature of Possession.
    Where a grantee of a league openly claimed title to it under a deed and paid taxes thereon continuously, and obtained judgments against squatters, who subsequently executed leases and remained in possession thereunder for more than ten years, the grantee acquired title to the entire league by adverse possession, though other persons entered on the property adversely until dispossessed by him.
    [Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 236, 237; Dec. Dig. &wkey;j 48.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by Horace Word against Thomas M. Colley and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    E. E. Easterling and H. M. Whitaker, both of Beaumont, Crow & Phillips, of Groveton, and H. G. Robertson, of Dallas, for appellant. Thos. B. Greenwood, of Palestine, for appellees.
   PLEASANTS, C. J.

This is an action of trespass • to try title brought by appellant against Mrs. Sarah Mary Elizabeth Colley and her husband, Thomas M. Colley, to recover an undivided one-half interest in the W. N. Cox lea'gue of land in Hardin county.

The defendants answered by plea of not guilty and pleas of limitation of three, five, and ten years, and further specially pleaded, in substance, that if plaintiff ever had any cause of action against defendants for any portion of the land in controversy, “such cause of action was for a repartition of the estate of Thomas J. Word, deceased, and of his deceased wives, and that such cause of action, if any, accrued more than four years and more than ten years prior to the filing of this suit, and was and is barred by the statute of limitation of four and ten years.”

Plaintiff by his second supplemental petition filed on the 30th day of September, 1913, set up:

“That in so far as the defendant Sarah Mary Elizabeth Colley may seek under her plea of ‘not guilty’ contained in her said answer to defeat plaintiff’s suit by showing a legal or equitable settlement between T. J. Word and Horace and Anna Word of the community property and estate of T. J. Word, their father, and their deceased mother, Mary Ann Word, or such acceptance of conveyance on the part of Horace and Anna Word from T. J. Word as to estop them from further claiming the community interest of their mother in said estate, or a partition of such community estate between T. J. Word and Horace and Anna Word, children of Mary Ann Word, deceased wife of T. J. Word, that said issues have been heretofore litigated and solemnly adjudicated between Horace Word, plaintiff herein, and Sarah Mary Elizabeth Col-ley, defendant herein, in that suit in the district court of Cherokee county, Tex., numbered 5082, and styled Horace Word v. Thomas M. Colley and Sarah Mary Elizabeth Colley, in favor of plaintiff, Horace Word, against Sarah Mary Elizabeth Colley, and that in said suit said issues were made by the following pleadings in said cause.”

This petition then copied in detail the pleadings of both plaintiff and defendant filed in said cause in Cherokee county, Tex.; also the conclusions of fact and law reached by the court in said cause and the judgment of the court therein. Plaintiff also, in reply to the statutes of limitation, pleaded that he was under the disability of insanity from the 1st day of January, 1885, until the 31st day of July, 1905, and the disability of minority of his grantor, Anna Word Collins, from 1856 to 1872, and the disability of cov-erture from 1872 to 1885.

Defendant by her second supplemental answer filed the 30th day of September. 1913, specially excepting on several different grounds to plaintiff’s plea of res adjudicata contained in his second supplemental petition, and generally denied the allegations contained in plaintiff’s said supplemental petition.

The trial in the court below without a jury resulted in a judgment in favor of defendants.

The evidence establishes the following facts: Plaintiff Horace Word and defendant Sarah Mary Elizabeth Colley are children of T. J. Word, deceased. T. J. Word had three wives. By his first wife, Mary E. Jackson, to whom he was married on July 14, 1840, he had four children, Justiana, who became the wife of H. J. Hunter, Sarah Mary Elizabeth, appellee, who became the wife of Thomas M. Colley, John J. Word, and Jeff Word. Mrs. 'Mafy Jackson Word died in July, 1852. On July 12, 1853, T. J. Word married his second wife, Mary Ann Word, by whom he had three children, Horace Word, appellant, Anna Word, who became the wife of J. W. Collins, and James Stearns Word, who died in infancy before the death of his mother. Mrs. Mary Ann Word died on August 9, 1869, leaving a will devising her estate to her three children. In 1871 T.- J. Word married his third wife, Mrs. N. L. Jackson, by whom he had one child, Eoline, who became the wife of Jeff Reagan. The third Mrs. Word died in 1888 or 1889. T. J. Word died in 1890.

David Brown was the common source of title asserted by plaintiff and defendants. After his death his sole heir, on October 31, 1850, executed a bond for title to T. J. Word and John Smith for all of her right, title, and interest in and to the estate of her father, David Brown, in the state of Texas. The consideration for this title bond was $6,000, $1,300 cash, and the balance of $4,700 in two annual payments of $2,350, evidenced by two notes executed by T. J. Word and John Smith. All of this consideration was paid by T. J. Word. The last three payments, which were as follows: February 23, 1854, $2,283.45 cash; October 9, 1854, $531.-24 cash; and January 20, 1855, $2,773 cash —were made after the marriage of T. J. Word with Mary Ann, the mother of appellant. On January 18, 1858, Wm. B. Frazier, the administrator of the estate of David Brown, and the husband of Mary E. Brown, conveyed to T1 J. Word the W. N. Oox league in Hardin county, an undivided one-half of which is the subject-matter of this suit. This conveyance was made under order of the probate court, and recites a consideration of $20. The report of the sale by the administrator stated that the consideration for which the land was sold was $100. The sale was confirmed by an order of the court made on December 28, 1857. On the 8th of December, 1858, T. J. Word conveyed one-half interest in the W. N. Oox league, together with other lands, to George F. Moore, for a recited consideration of $20,000. On July. 5, 1866, George F. Moore and wife, by R. A. Reeves, attorney in fact, conveyed a one-half interest in the W. N. Oox league to T. J. Word in consideration of other lands taken by them in partition.

On August 17, 1870, T. J. Word conveyed the W. N. Oox league, less 120 acres, to ap-pellee Mrs. Oolley by warranty deed. The consideration of this conveyance is stated in said deed as follows:

“In consideration of the sum of ten dollars to me in hand paid by my daughter Sarah Mary Elizabeth Oolley, formerly Sarah Mary Elizabeth Word, the receipt whereof is hereby fully acknowledged, as in consideration of the community interest which her mother; my beloved wife Mary Elizabeth Word, during her lifetime, had in and to the league of land hereinafter described, the deed to which was made to me individually after the death of my said wife, though the purchase and a large part of the payment was .made before her death, and also in consideration of the natural love and affection which I have and bear to and for my said daughter.”

On the same day, August 17, 1870, be conveyed to each of bis three children Justiana Hunter, Jeff Word, Jr., and John J. Word a league of land in Hardin county, for recited consideration in substance the same as those of the deed to Mrs. Colley.

On December 14, 1872, he conveyed to Horace Word and Anna Word a league and a half league of land in Hardin county, “in consideration of • the natural love and affection which I have and bear for my two children Horace Word and Anna Word, as in •consideration of the community interest which their mother, my departed wife Mary Ann Word, had and owned in my real and landed property and estate.” The conveyance just mentioned was executed only. a short time before the marriage of Anna Word to J. W. Collins, Jr., and when Horace Word was 19 years of age. But on April 25, 1876, when Horace Word was at least 22 years of age, he accepted and affirmed the above conveyance by mortgaging his half of the league and a half, and still later he and his sister, Anna, joined by her husband, both then being adults, sold and conveyed the entire league and a half of land.

Mrs. Colley has openly claimed to own the entire W. N. Cox league from the date of the conveyance of T. J. Word to her to the present time, and since 1898 she has alone successfully established, asserted, and defended her title as against numerous squatters and adverse claimants, through state and federal trial and appellate courts.

It was admitted that from and after the dates of the above-mentioned several deeds from T. J. Word no one has ever paid any taxes on the land conveyed, save and except that the grantee, or grantees, in each deed and his or their assigns have paid the taxes on the respective tracts conveyed to them, with Dr. Colley, husband of appellee Sarah, regularly paying all taxes on the W. N. Cox league from 1871 to 1911, inclusive.

On June 24, 1908, for a recited consideration of $500, Jeff Word conveyed to Horace Word all his “right, title, and interest as one of the heirs of my father, Thos. J. Word, and my mother, Mary E. Word, both deceased, in and to all lands and real estate owned by them in the state of Texas.”

On May 2, 1904, for the recited consideration of $50 and love and affection, Anna Word Collins conveyed to Horace Word “all my right, title, and interest as an heir of my father, Thos. Jefferson Word, and my mother, Mary Ann Word (formerly Stearns), both deceased, in and to all land and real éstate owned by them or either of them in the state of Texas. * * * ”

On November 18, 1009, for the recited consideration of $50, Eoline Word Reagan and husband, Jeff D. Reagan, conveyed to Horace Word “all of our right, title, and interest in and to the lands and real estate owned by Thos. J. Word, deceased, in his lifetime, in the state of Texas, save and except the lands owned by the said Thos. J. Word in Freestone county, Tex., all of the lands in Freestone county being excepted and reserved from this conveyance. And it is expressly agreed and stipulated that by the acceptance of this deed the said Horace Word releases and relinquishes all claim in and to a certain tract of land in Bh-eestone county, being part of the Simon Sanches grant, conveyed by the said Thomas J. Word to Mrs. M. L. Word.”

On April 19, 1905, Sarah Mary Elizabeth Colley and Dr. Thos. M. Colley, for the recited consideration of $1, conveyed to Horace Word “all of our right, title, and interest as heirs and beneficiaries of said Thos. J. Word and Mary E. Word above mentioned in and to all that certain tract, parcel, or league of land, situated in Polk county, state of Texas, patented or granted to Abner Mar-dez and sold by said Abner Mardez to David Brown, by deed dated November 25, 1837.”

It was proven that there is now pending in the district court of Polk county a suit brought by Horace Word, as plaintiff, against G. W. Burkitt and others, as defendants, for the recovery of the title to, and possession of, the entire Abner Mardez league, and that Horace Word in Ms suit deraigns his title through the bond for title from Mary E. Brown to T. J. Word and John Smith, and through the various deeds hereinbefore set out from the other heirs of Thos. J. Word to Horace Word.

The present suit was not filed until February 27, 1911, which was more than 40 years after the date of the deed from Thos. J. Word to Mrs. Colley.

The first assignment of error assails the judgment on the ground that:

“The evidence being that the land in controversy, the W. N. Cox league, was conveyed to T. J. Word during his marriage with Mary Ann Word, and remained their community property until the death of Mary Ann Word, the mother of Horace Word and Anna Word (afterwards Collins), and Mary Ann Word having willed her estate to her two children, Horace and Anna Word (afterwards Collins), and Anna Collins having convoyed her interest in said estate to Horace Word, the court erred in not giving judgment in favor of Horace Word for one-half of the W. N. Cox league of land in controversy.”

The last sentence in this assignment is a non sequitur. It does not follow that because the land was community property of the father and mother of plaintiff, and plaintiff’s mother by her will left her estate to plaintiff and his sister, who conveyed her interest in the estate to plaintiff, that plaintiff was entitled to recover the land from appel-lees. To give this effect to the facts recited in the assignment is to ignore the evidence upon the issue of a settlement between plaintiff and his father of plaintiff’s interest in his mother’s estate, and also the evidence upon the issue of limitation.

Appellees contend with much force that upon the evidence before set out the land in controversy was not the community property of T. J. Word and the mother of plaintiff, but belonged to the community estate of T. J. Word and his first wife. This contention is based upon the proposition, which is well established by the decisions of our courts, that in determining the question of whether land is the property of a community we must look to the inception of the title, or, as expressed by Judge Gaines in the case of Welder v. Lambert, 91 Tex. 526, 44 S. W. 286: “The title relates to its origin, and must take the impress of its character from it.” The cases of Manchaca v. Field, 62 Tex. 135, Creamer v. Briscoe, 101 Tex. 493, 109 S. W. 911, 17 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869, and others which we might cite, announce the same principle. If the title of T. J. Word to the W. N. Cox league can be hold under the facts before set out to have its inception or origin in the bond for title executed by Mary E. Brown to T. J.' Word and John Smith, under the decisions above cited the land was not the community property of T. J. Word and plaintiff’s mother, because the bond for title was executed and a part of the consideration therefor paid by T. J. Word before his marriage to plaintiff’s mother. We are not inclined, however, to agree with learned counsel for appellees that it can be held that the title of T. J. Word had its origin in the bond for title. By this instrument Mary E. Brown, the sole heir of David Brown, deceased, contracted, for the consideration named therein, to convey to T. J. Word and John Smith all of her right, title, and interest in the estate of her father in the state of Texas, and upon the payment of the consideration stated in the bond the grantees therein, as against the grantor, acquired title to the lands of said estate, which included the W. N. Cox league. But this title was subject to the right of the administrator to sell the land for the payment of the debts of the estate. This the administrator was ordered to do by the court in which the administration was pending, and, acting under this order, the land was sold by the administrator, and the sale confirmed by the court. If some person other than T. J. Word had been the purchaser at this sale, his title would not have been in the least affected by the bond for title executed by the heir. In such case the effect of the sale by the administrator under order of the court would have been to destroy any right or title in the grantees of the bond for title, and it is difficult to see how the effect of such sale, when the grantee in the bond for title is the purchaser thereat, can be held a merely auxiliary in passing the title to the grantee in the bond for title.

In addition to this, the facts show that T. J. Word conveyed a one-half interest in this and other lands to George E. Moore in 1858 for a consideration of $20,000, and that subsequently in 1866, before the death of plaintiff’s mother, George E. Moore reconveyed the Cox land to T. J. Word. Erom this it seems clear that at least one-half of the land was communit,y property of plaintiff’s mother and T. J. Word. If, however, it be conceded that the land was a part of the community estate of T. J. Word and plaintiff’s mother at the time of her death, we think judgment was properly rendered for the appellees upon both the issues of settlement between plaintiff and his father and the issue of limitation.

The evidence before set out shows that after the death of plaintiff’s mother he and his sister received from their father a league and a half league of land in Hardin county in settlement of their interest in the community estate of their father and mother. The deed from T. J. Word to plaintiff and his sister to the league and half league recites that the conveyance is made in consideration of love and affection and of the “community interest of which their mother, my departed wife Mary Ann Word, had and owned in my real and landed property and estate.” After plaintiff and his sister became of age they accepted and confirmed this conveyance by selling the land and appropriating the proceeds. There is no evidence that these lands were not equal in value to the land belonging to the community estate of plaintiff’s father and mother, and' it appears both plaintiff and his sister for more than 30 years after the execution of said deed acquiesced in the claim of their father and his other heirs to all of the property of the community estate of T. J. and Mary Ann Word. We think this evidence amply sustains the finding that plaintiff and his sister accepted the league and half league conveyed to them by their father in full settlement of their interest in their mother’s estate. The fact that T. J. Word, at the time he conveyed these lands to plaintiff and his sister, was executor of their mother’s will, and that both of said children were minors, does not affect the validity of the settlement, because the evidence shows an acceptance and ratification of said settlement after both children became of age, by their act in selling the lands received by them and their long acquiescence in said settlement.

We cannot agree with appellant in his contention that the evidence sustains his plea of res adjudicata against appellees upon this issue of settlement.

Upon the issue of res adjudicata the record discloses the following facts: In 1910 plaintiff in this suit brought a suit in the district court of Cherokee county against the appellees herein to recover an undivided one-half of a tract of land in said county which was owned by the community estate of T. J. Word and plaintiff’s mother at the time of his mother’s death. The defendants in that suit, appellees herein, in addition to plea of not guilty and pleas of limitation, interposed two special pleas in defense of plaintiff’s suit. They first pleaded, in substance, that the community estate of T. J. Word and Mary Ann Word was indebted to the defendant S. M. E. Colley, and to secure the indebtedness T. J. Word, as survivor, on the 9th of November, 1875, executed a deed of trust on the land in suit,. which deed of trust was foreclosed by a regular and valid sale of the said land, and that Mrs. Colley became the purchaser at such sale, and thereby secured title to the land. The defendants further pleaded that Horace and Anna Word, the children of Mary Ann Word, deceased, had accepted from T. J. Word, as and for their share in the community estate, a deed to a league and a half of land in Hardin county, Tex., dated December 14, 1872, and that thereby there had been a partition between them of the community estate of T. J. Word and Mary Ann Word, and that thereby the land in controversy, in that suit became the separate property of' T. J. Word, through whom, under a valid foreclosure and sale under a deed of trust given by T. J. Word, defendants had acquired title. Upon these issues the court, after setting out the facts in detail, found the following conclusions of facts.

“(1) T. J. Word and his wife, Mary A. Word, deceased, owned many thousands of acres of land, the exact amount of which is not made plain by the evidence, and their community estate was indebted, to the extent of which is not disclosed by the evidence.
“(2) T. J. Word conveyed small parts of the lands mentioned in the preceding paragraph to Horace Word and Anna Word Collins; but he did not undertake to make any complete or formal partition thereof. In accepting these conveyances Horace Word and Anna Word (Collins) had no reason to understand that they were accepting these lands in settlement of their interest in their mother’s part of the community estate.
“(3) The land in question in this suit belonged to the community estate of T. J. and Mary A. Word.
“(4) The community estate of T. J. and Mary A. Word was at the time of the death of Mary A. Word, and on the 21st of April, 1870, and on the execution of the deed of trust on the land in controversy, indebted to Sarah Mary Elizabeth Colley in an amount sufficient to justify T. J. Word in executing the deed of trust on the community estate to secure its payment. I base this conclusion on the declaration of T. J. Word as made in the memorandum and note dated April 21, 1870, and the recitals in the deed of trust dated November 9, 1875, there being no other evidence to support the finding. But the character and intelligence of T. J. Word is shown to have been such that this statement of the facts as to the ownership of the negroes Bob and Aaron, and his indebtedness, being against his own interest, can be credited with more safety than can the few circumstances that point in another direction.
“(5) I find that the land in question was conveyed by deed of trust by T J. Word to secure the above-mentioned indebtedness of the community estate of T. J. Word and Mary A. Word; that it was thereafter sold to satisfy said indebtedness; and that defendants held whatever title was conveyed by such deed and trustee’s sale.”

The conclusions of law upon these facts were as follows:

“(1) The plaintiff and his sister, Anna Word (Collins), are not estopped by their action in accepting the conveyances of a portion of these lands made by T. J. Word.
“(2) There was no such partition of the estate of T. J. Word and Mary A. Word as to affect the rights of plaintiff. Neither is any right of plaintiff barred by any of the statutes of limitation pleaded.
“(3) The deed of trust executed by T. J. Word on the land in question for the purpose of securing the payment of a community debt owing by the estate of T. J. Word and Mary A. Word was a valid one, and the sale thereunder passed the title of the community estate to the defendant.
“Judgment is rendered for the defendant.”

The judgment rendered and entered in said cause, after reciting the disqualification of the presiding judge and the election of a special judge to try said cause, is as follows:

“The above entitled and numbered causes being regularly called for trial, the plaintiff and defendants appeared by their respective attorneys and announced ready for trial, and, no party having demanded a jury, the issues of fact and of law were submitted to the court, who, after hearing the pleadings and evidence and argument of counsel, and after due consideration, on this, the 30th day of January, 1911, finds that the defendant Mrs. Sarah Mary E. Oolley has the superior title to the land sued for, and hence that plaintiff is not entitled to recover. Wherefore it is considered, ordered, and adjudged by the court that the plaintiff, Horace Word, take nothing by this suit, and that the defendants, Thos. M. Oolley and Sarah Mary E. Oolley (the latter having been sued herein by the name.of-Mary E. S. Oolley), go hence without day, and recover of and from the plaintiff, Horace Word, all costs herein, for which let execution issue, and to the court’s conclusions of fact and of law the plaintiff and the defendants each duly excepted in open court.”

From this statement of the issues in the former suit, the conclusions of fact and law filed by the trial judge and the judgment rendered, it is clear that the conclusion that Horace Word and his sister had no reason to understand that they were accepting the lands conveyed to them by their father in settlement of their interest in their mother’s part of the community estate, and that they were not estopped by accepting said lands from asserting claim to their mother’s portion of said estate, was not material to the adjudication actually made in said suit. These were not matters essential to be determined in order to render judgment for defendants, and they did not enter into nor become a part of the judgment rendered. It is the judgment, and not the verdict or the conclusions of fact, filed by a trial court which constitutes the estoppel, and a finding of fact by a jury or a court which does not become the basis or one of the grounds of the judgment rendered is not conclusive against either party to the suit.

In 2 Black on Judgments, p. 609, the author states the rule of estoppel by judgment as follows:

“The force of the estoppel resides in the judgment. It is not the finding of the court or the verdict of the jury rendered in an action which concludes the parties in subsequent litigation, but the judgment entered thereon.”

The fact that the judgment in the suit in Cherokee county was in favor of defendants precluded them from bringing in review the findings of the judge, and we cannot believe that a party can be estopped by a judgment in his favor from denying findings of the court rendering said judgment the decision of which was not essential or material to the rendition of the judgment. Philipowski v. Spencer, 63 Tex. 607; Sheffield v. Goff, 65 Tex. 358; Manning v. Green, 56 Tex. Civ. App. 579, 121 S. W. 725; Whitney v. Bayer, 101 Mich. 151, 59 N. W. 415; Cauhape v. Parke, Davis & Co., 121 N. Y. 152, 24 N. E. 186; 23 Cyc. 1227-1228.

Upon the issue of limitation the following facts were shown: The deed from T. J. Word to Mrs. Colley to the W. N. Cox league was duly recorded in Hardin county on February 9,1871, and she has openly claimed said league and paid all taxes thereon as they accrued since said date. In 1898, in a suit brought by Mrs. Colley in the district court of • Hardin county, she recovered a judgment against a number of squatters who had previously settled on the league. After the rendition of this judgment a number of these squatters signed the following lease contract, which was proven for record and duly recorded in July, 1900:

“Know all men by these presents that we, the undersigned, all of the state and county aforesaid, do by these presents acknowledge that he (or she, as the case may be) is in the possession of the W. N. Cox league of land in Hardin county, said state, as the tenants of Mrs. S. M. E. Colley, of Anderson county, said- state (the said Mrs. Colley being the wife of Dr. T. M. Colley), and each of the undersigned hereby agree to 'hold said possession as tenants of the said Mrs. S. M. E. Colley during the term of time from the date of this instrument until the 1st day of January, 1901, in consideration that no rent is to be paid to the said Mrs. S. M. E. Oolley for the use of enjoyment of any of the said league now occupied by us, or either of us, for the term above mentioned. It is distinctly agreed and understood by all the parties hereto that on said 1st day of January, 1901, each of the undersigned will deliver said possession and premises to the said Mrs. S. M. E. Colley or to those acting for or holding title from her to said W. N. Cox league of land.”

Possession of the land was held by the tenants under this lease for more than ten years before this suit was brought. During this tenancy, however, other parties entered upon the league and held small portions thereof adversely to appellees until dispossessed by them. These adverse holdings were four in number, and the lands actually occupied were 18, 20, 15, and 21 acres, respectively.

The evidence is sufficient to justify the conclusion that appellant was not of unsound mind during any portion of this occupancy of the league by appellees.

We think these facts sustain appellees’ pleas of limitation of five and ten years.

Under the lease contract above set out the grantees therein were tenants of the whole league, and their actual possession of the several small portions of the league upon which they had their improvements was sufficient notice of their claim under the lease contract to the whole of the league. Frazier v. Houston Oil Co., 161 S. W. 20.

The adverse character of appellees’ possession as against appellant of the entire league was not destroyed by the entry and occupancy by trespassers of the small portions of the league above mentioned. This question was discussed and determined by the Court of Civil Appeals for the Fourth District in the case of Glover v. Pfeuffer, 163 S. W. 986. We concur in the views expressed in that opinion, and deem it unnecessary to add anything thereto.

What has been said disposes of all of the questions presented in the able brief of appellant. We have considered each of the assignments of error, and none of them should, in our opinion, be sustained. It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      other oases see same topic and KEY-NUMBBR in ail Key-Numbered Digests and Indexes

      ignjjE’or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    HANKS et al. v. HOUSTON OIL CO. OF TEXAS.
    (No. 6571.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 15, 1914.
    On Motion for Rehearing, Feb. 8, 1915.)
    1.Appeal and Error <§=>927 — Burden oe Showing Error — Decision oe Trial Court.
    In trespass to try title, in which a peremptory instruction is given for defendant, the court not indicating on what issue the instruction was based, plaintiff, to obtain a reversal, must show that there was evidence to take all the issues, on which a peremptory instruction might be based, to the jury.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. <§=>927.]
    2. Adverse Possession <§=>25 — Constructive Possession — Possession oe Part — Tenancy Contract.
    A defendant in trespass to. try title shows constructive possession of the whole of a league of land for purposes of the five-year statute of limitations, where M., holding 43 acres thereof under a deed describing the land as without the boundaries of the league, the grantee believing that the 43 acres was no part of the league, at-torned to the defendant on a claim of title by defendant, and takes a tenancy contract for the whole league more than five years before suit.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 116-120; Dec. Dig. <§=> 25.]
    3. Adverse Possession <§=>43 — Possession oe Tenant — Attacking Successive Possessions.
    Under such circumstances, that an agent of defendant, ignorant of the prior contract, takes a new tenancy contract within five years before suit, would not destroy the constructive possession, if considered as a mere continuation of the first lease, and, if considered as a new lease, defendant had the right to tack the successive terms under the two leases.
    [Ed. Note. — Por other cases, session, Cent. Dig. §§ 213-224 43.] see Adverse Pos- ; Dec. Dig. <§=>
    4.Limitation oe Actions <§=>192 — Avoidance oe Defense — Pleading and Proof-Forgery oe Deed.
    To defeat the five-year statute of limitations because of the forgery of a deed under which the defendant claims, plaintiff must affirmatively allege and prove the fact.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 699-702; Dee. Dig. <§=>
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Trespass to try title by S. G. Hanks and others against the Houston Oil Company of Texas. Prom a judgment directing a verdict for defendant, plaintiffs appeal.
    Affirmed.
    John B. Durrett, of Belton, Singleton & Nall, of Kountze, Leon Sonfield, of Houston, and C. E. Mead and Smith & Crawford, all of Beaumont, for appellants. H. O. Head, of Sherman, and Hightower, Orgain & Butler and Lipscomb & Lipscomb, all of Beaumont, for appellee.
   McMEANS, J.

This is an action of trespass to try title, brought by appellants against the appellee to recover the title to and possession of the league of land originally granted by the state of Coahuila and Texas to A. W. Smith, situated in Hardin county. The appellee, defendant in the court below, in addition to the pleas of general denial and not guilty, specially pleaded the statute of limitations of three and five years. In answer to the pleas of' limitations, the plaintiff pleaded by supplemental petition that the defendant, in the absence of the five years’ statute of limitation, and the plea thereof, would deraign title through and under a forged deed, to wit, through and under a purported deed from A. W. Smith to John B. Stevens, which deed plaintiffs alleged was forged. Against this deed plaintiffs filed an affidavit of forgery. Trial was had before a jury, and the court, upon the close of the evidence, instructed the jury to return a verdict for the defendant, which was done, and judgment was thereon entered accordingly, from which judgment the plaintiffs, after their motion for a new trial had been overruled, have appealed.

The court, in giving the peremptory instruction, did not indicate upon what issue the instruction was based, and it therefore became necessary for the appellants, through proper assignments of error, to show that the evidence adduced upon the trial was sufficient to raise each issue which could have been raised under the pleadings and to require its submission to the jury. This they have attempted to do, and if they have done so the judgment must be reversed. But on the contrary, if the evidence adduced upon any of such issues by the defendant was without dispute and was such as to warrant the giving of the peremptory instruction, the judgment must stand, notwithstanding the evidence upon other issues may have been conflicting.

Among the other issues presented by the pleadings of defendant was that of title by virtue of the statute of limitations of five years. Appellant by and under its fifth assignment of error has undertaken to establish that the evidence offered upon this issue, if not conclusive against defendant, was not conclusive in defendant’s favor, but that it was at least of such character as to require the issue to be submitted to the jury. We copy the assignment:

“The court erred, to the prejudice of plaintiffs, in instructing the jury to find for the defendant in this case, because, if such instruction was given on the theory that defendants had shown title under the five years’ statute of limitation, then plaintiffs would show to the court that the undisputed evidence in the case shows that W. It. Mitchell, under whom defendant attempted to make out its title of limitation under the five years’ statute, went into possession of 43% acres 'of land, a part of the A, W. Smith league, under a deed from O. B. Oglesby in 1901, which said deed described said 43% acres by metes and bounds, and that said 43% acres had been theretofore surveyed on the ground and the lines and corners plainly marked, and that said 43% acres had been effectually segregated from the remainder of the A. W. Smith league long prior to any lease contract between the said Mitchell and defendant, and that said Mitchell did not change his actual holdings or possession after his entry within the period of five years before this suit was filed; that O. B. Oglesby went into possession of said 43% acres in 1882 and lived on it, claiming it as his own, and claiming it as against the Smith league, and lived on it continuously, cultivating, using, and enjoying the same till the latter part of the year 1901, when he sold the same to W. R. Mitchell, and that said Mitchell immediately _ went into possession thereof and used and enjoyed the same continuously, claiming it as his own till April, 1903, having thereby perfected title in said W. It. Mitchell to said 43% acres of land under the statute of limitation of ten years, thus showing that said 43% acres were segregated from the balance of the league, or at least the evidence raised an” issue on that point which should have been submitted to the jury under proper instructions; and further the testimony showed, or tended to show, that, if Mitchell executed a lease to defendant in 1903, same was never delivered and did not in fact become effective, and, if same did become effective, then the testimony shows that it was superseded and abrogated by the lease executed in September, 1900, and that said lease of date 1906 was a restricted lease and not sufficient to extend the possession of Mitchell to the entire league, and that the said Mitchell was all the time claiming the land which he had in possession as his own, and, if the evidence did not show conclusively that Mitchell was not holding the whole league for the defendant, it at least was sufficient to raise that issue, and should have been submitted to the jury under appro-pnate_ instructions, as shown by paragraph 4 of plaintiffs’ motion for a new trial.”

The following facts are undisputed: Ap-pellee claimed the land in controversy, under a deed or deeds duly registered, for more than five years next before the filing of this suit, and during said time paid all taxes thereon as the same fell due. Prior to 1901 one O. B. Oglesby, believing that a small tract of 43% acres of land in Hardin county was unappropriated public domain, settled thereon with a view of acquiring title thereto by pre-emption, and had the lines run out by a surveyor. 1-Ie made certain improvements on this tract in the way of clearing the land and preparing it for cultivation, building houses, etc., and thereafter lived upon the land until some time in December, 1910, at which time he sold to W. R. Mitchell, executing to him a deed which described the land as follows:

“All our right, title and interest in that certain tract of land, beginning on the south line of the Duncan league, thence west to east line of Pevito; thence south to corner of M. Cottle survey; thence east to line of David Choate; thence east to west line of A. W. Smith; thence north with west line of A. W. Smith to place of beginning, containing 43 acres more or less.”

Oglesby when he sold, and Mitchell when he bought, believed that the 43% acres was no part of the A. W. Smith league, and Mitchell’s deed described the tract as lying west of the Smith, while the uncontroverted fact is that the tract was upon the Smith and about 1,000 varas east of its west line. After Mitchell bought he moved on the land theretofore claimed by Oglesby, lived in the house, and cultivated the land that Oglesby had built on, and cleared and made some additional improvements thereon. But in 1902 Mitchell learned that the land he bought from Oglesby was not vacant land, as claimed by the latter, but that it was a part of the Smith, and thereafter on April 3, 1903, he executed to appellee a contract of tenancy whereunder he agreed to hold the entire league in subordination to the appel-lee’s title for the full period of five years, in consideration that he was to have free use of all timber and wood thereon reasonably necessary for fuel and for improvement upon said property, and at the end of the five years he was to have a deed to some of the land. In pursuance of this contract Mitchell lived upon the land, and upon the same tract which Oglesby had surveyed, keeping inclosed and cultivating a portion thereof, extending his improvements over additional land, but not beyond the boundaries of the 43% acres which Oglesby had caused to be surveyed when he thought it vacant land, except as hereinafter stated. 1-Ie had eight or ten acres in cultivation in 1901 and 1902, and from year to year, after signing the contract of tenancy, extended his fences until he had about 25 acres inclosed. In 1906 he built a house on the Smith beyond the limits of the 43% acres surveyed for Oglesby, and in 190S he fenced in a pasture of some 100 or 150'acres on the Smith, which was on no part of the survey made for Oglesby. Mitchell lived upon the land for the full period of five years after executing the tenancy contract, as a tenant of, and holding possession of, the entire league for appellee, and during said time the appellee, claiming the entire league under a deed from the Texas Pine Land Association, dated July 31, 1901, and duly recorded in the deed records of Hardin county on August 7, 1901, paid all taxes thereon. After Mitchell had been on the land about three years after signing the tenancy contract, an agent of appellee, different from the one with whom he made said contract, came and took a new contract of tenancy from him, dated September 11, 1906, covering the same property and giving Mitchell substantially the same rights as were given in the first lease. The explanation of this is that the agent last referred to did not know of the previous contract and was not informed of it by Mitchell. This contract, omitting the formal parts, is as follows:

“Know all men by these presents: That we, W. R. Mitchell and Ella Mitchell, wife of the said W. R. Mitchell, of the county of Hardin, state aforesaid, in consideration that the Houston Oil Company of Texas, a corporation duly incorporated and existing under and by virtue of the laws of the state of Texas, with its principal office in the city of Houston, Harris county, Texas, now owning in fee simple the following' described tract or parcel of land, to wit: [Here follows description] — and is desirous of placing tenant upon said land for the purpose of protecting any and all persons from cutting and removing the timber now situated, standing and growing thereupon, and for and in consideration that we are to use and enjoy, until the first day of January, A. D. 1912, the improvements situated thereon for farming use only, free of charge or rental, we, W. R. Mitchell and Ella Mitchell, husband and wife aforesaid, do hereby acknowledge our tenancy under the above-named company and obligate and .bind ourselves to use said land for farming purposes only, until the said first day of January, 1912, and that we will not cut and destroy any timber thereupon, and as agents and tenants as aforesaid will prevent any and. all trespasses from others of whatsoever nature, upon said land and timber, and at the expiration of the above-specified time, to wit, January 1, 1912, we will vacate, deliver and turn over the above-described premises unto said company, their successors or assigns, in as good and perfect condition as they are now, free from all charges, costs, expenses or delay to it (the said company) whatsoever.”

We think that, under the foregoing undisputed facts, every element essential to a title under the five years’ statute was proved. Here we have the assertion of a claim under a duly registered deed, and actual adverse possession with cultivation, use, and enjoyment of a part by a tenant which drew to it the constructive possession of the claimant to the whole, and the payment of all taxes concurrently with such actual possession; the whole covering a period of full five years. It is our opinion, therefore, that, upon the theory that appellee had title under the five years’ statute of limitation, the court did not err in instructing a verdict for appellee.

But appellants contend that Mitchell having entered upon and taken actual possession of a part of a 43%-acre tract of the league under a deed describing the tract by metes and bounds, and his claim being coextensive with his deed, his actual possession of a part gave him constructive possession of the 43% acres thus segregated from the balance of the league; that, the constructive possession of the appellants as the true owners having been thus invaded, they were charged by law with notice of the nature and extent of Mitchell’s claim manifested by such actual possession, which was fixed and determined by the deed under which the possession was taken; and that the subsequent attornment by Mitchell to appellee and acceptance of a lease from appellee to the entire league, being unaccompanied by a change of possession, did not give appellee constructive possession of the balance of the league — and in support of these contentions cite the Texas cases of Holland v. Nance, 102 Tex. 177, 114 S. W. 346, Broom v. Pearson, 08 Tex. 469, 86 S. W. 792, 86 S. W. 733, and Hill v. Harris, 26 Tex. Civ. App. 408, 64 S. W. 820, none of which are, in our opinion, applicable under the facts of this case. In the case first cited it is held that where an owner, in inclosing his land, extends his fence by mistake as to the boundary line, so as to include a portion of an adjoining tract which he had no intention of claiming, no adverse possession thereof was acquired beyond the limits of his inclosure. In Broom v. Pearson, supra, the holding is that the- possession of the east half of a survey held as a distinct tract under one deed, describing it alone, could not be extended by construction to the boundaries of the west half of the survey held under another deed. In Hill v. Harris, supra, it is decided that one holding part of a tract of land under deed duly recorded cannot extend his holding to the balance of the tract never in his actual possession, so that the statute of limitations will run in his favor, by executing a lease for the whole to his tenant. All of these cases are correct in principle under their facts. But the facts of these cases are widely variant from the facts of this. If Mitchell had been claiming 43% acres of the A. W. Smith league under the deed from Oglesby correctly describing the land as being a part of the Smith, it is reasonably clear, from the authorities cited, that he could not extend his possession of the tract conveyed to him by construction to the entire league. And it may be that in such circumstances, had Mitchell acknowledged tenancy to appellee of the entire league, his actual possession of the smaller tract would' not have drawn to it, by construction, the possession of the entire league. But this is not the case before us. Here Oglesby settled upon land supposed by him to be unappropriated public domain, and had it surveyed and its boundaries established. He did not intend to settle upon the Smith, nor did he claim or intend to sell, nor did Mitchell intend to buy any portion of the Smith. Ogles-by’s deed to Mitchell did not describe, nor did it convey any portion of the Smith. If the true owner of the Smith had seen this deed, or the record of it, he would not have been put on notice thereby that Mitchell was claiming or had a deed to any of his land. All this being true, Mitchell’s standing, in so far as the appellee, as a claimant of the land under a duly registered deed, is concerned, was that of a squatter or trespasser. When he learned that the land he had purchased from Oglesby was upon the Smith, he at once renounced any title thereto, and signed the contract of tenancy for the entire league. We do not think there can be any difference in principle if, instead of the entry by Mitchell upon the land under the circumstances detailed, he had entered upon it with a view of acquiring title by limitation to a specific portion of it, and then, when called upon by a claimant, yielded bis claim thereto and accepted a tenancy contract for the entire league. In the circumstances last stated the authorities warrant the holding that, even had the contract of tenancy limited the tenant to the improved portion of the land, the possession of the owner would thereby be extended by construction to the whole. Bowles v. Brice, 66 Tex. 730, 2 S. W. 729; Collier v. Couts, 45 S. W. 485; Frazier v. Houston Oil Co., 161 S. W. 20; Parker v. Cockrell, 31 S. W. 221; Cameron v. Blackwell, 53 Tex. Civ. App. 414, 115 S. W. 857; Cook v. Coleman, 33 S. W. 756.

But appellants contend that, as Mitchell during the term of the first lease entered into a new lease with appellee, the new lease superseded and abrogated the first, and that Mitchell’s possession after the execution of the second lease in 1906 was referable thereto, which lease was only to a part of the league; but that, if construed as a lease of the entire league, possession was not had thereunder the requisite length of time to give appellee title by limitation.

The circumstances attending execution of the new lease in 1906 have hereinbefore been explained. That it was a lease of the entire league we think there can be no doubt; the consideration moving the lessor being the free use of the improved portion thereof for farming purposes only. That the first lease was not, and was not intended to be, abrogated by the execution of the second, is fully shown by the testimony. Mitchell testified that he had been in possession continuously since the execution of the 1903 lease and holding the entire league for the appellee, recognizing the appellee’s title; that, when the agent took the second lease contract in 1906, he did not know whether he (the agent) knew of the first or not; that the appellee agreed, in the event he should carry out the contract of lease, as originally entered into, to convey to him a certain number of acres, which should be his at the end of five years. He testified that he had performed the contract, and, after the expiration of five years from the date of his first contract, the tract was conveyed to him; a part of it being that used by him during his tenancy, and a part was taken from another but adjoining portion of the Smith. When asked whether he had repudiated the 1903 lease at the time of the execution of the one in 1906, he answered: “I had not.” He said that he had no intention of relinquishing the 1903 lease, because he considered that he had to comply with that in order to get title to the land that was promised him.

W. A. McBelland, who secured the 1906 lease from Mitchell, testified that he found Mitchell in possession of Smith league in 1906, and, not knowing of his prior connection with the appellee, he got him to sign the lease.

We think that, under these facts, the lease of 1903 was not abrogated or superseded by taking the lease in 1906, but that appellee’s possession through its tenant Mitchell was referable to the tenancy contract of 1903. But if this is not so, and the 1903 lease was superseded by the later one, appellee would not thereby be deprived of his defense of limitation, because, under both leases Mitchell was tenant of appellee, and as such held adverse possession for five years, and his possession under the first lease could be tacked to his possession under the second.

In concluding that appellee has title under .the statute of limitation of five years, we are not unmindful that article 5674, Revised Statutes, provides that the article shall not apply to any one in possession of land who, in the absence of the article, would deraign title through a forged deed, and that no one claiming under a forged deed or deed executed under a forged power of attorney should be allowed the benefits of the article.

When the five years’ statute of limitation is pleaded as a defense in an action for the recovery of land, it is incumbent upon the plaintiff, if he would render such defense nugatory because of the forgery of a deed under which the defendant claims, or because, in the absence of the article, the defendant would deraign title through a forged deed, to affirmatively allege and prove such fact or facts. Harris v. Linberg, 39 S. W. 651; Chamberlain v. Showalter, 5 Tex. Civ. App. 232, 23 S. W. 1017. In recognition of this rule the plaintiffs, as hereinbefore shown, in answer to defendant’s plea of limitation of five years, pleaded that the defendant, in the absence of the five years’ statute of limitation, would deraign title through a forged deed. From the necessity to plead a fact generally results the necessity of proving it affirmatively. The plaintiffs assumed the burden of proving the forgery, and introduced a mass of evidence, which we have closely scrutinized, but which we think was wholly insufficient to raise the issue, because it consists of negative, disjointed circumstances, not inconsistent with the genuineness of the deed. Much of the testimony offered by appellants upon this issue was rejected by the court, and of this they complain by an appropriate assignment of error; but after' careful consideration we have reached the conclusion that, if the rejected evidence had been admitted and added to that which was admitted, it would have been not more than sufficient to raise a surmise or suspicion that the deed had been forged, and wholly insufficient to require the submission of the issue to the jury.

Upon the consideration of the foregoing, it is our opinion that the judgment of the court below should be affirmed; and it has so been ordered.

Affirmed.

On Motion for Rehearing.

At the request of appellant we make the following additional findings of fact:

(1) Tlie contract of tenancy or lease executed by Mitchell with the Houston Oil Company of date April 3, 1903, was filed for record on September 27, 1910.
(2) Mitchell, after the execution of the tenancy or lease Contract of April 3, 1903, rendered the 43%-acre tract for taxation as a part of the Oglesby survey for the years 1903 to 1908, inclusive, and probably up to 1909 or 1910.
      (@3»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JONES v. SISTERS OF CHARITY OF THE INCARNATE WORD.
    (No. 6707.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 16, 1914.
    Rehearing Denied Jan. 14, 1915.)
    Hospitals <@=>7 — Liability foe Death — Negligence.
    Where a hospital in which there was a patient suffering from smallpox received plaintiff’s wife as a pay patient therein without informing her or her relatives of the existence of the smallpox, but her physician knew of its presence, and plaintiff’s wife was assigned to a room in the building apart from that in which the smallpox patient was, and the strictest precautions were taken to prevent the spread of the disease, the failure to notify plaintiff or her relatives of the presence of smallpox was not negligence which renders the hospital liable for the death of plaintiff’s wife resulting from smallpox contracted therein.
    [Ed. Note. — For other cases, see Hospitals, Cent. Dig. § 13; Dec. Dig. <S==>7.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by W. B. Jones against Sisters of Charity of the Incarnate Word. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Geo. G. Clough, Henry O’Dell, and Thos. C. Turnley, all of Galveston, for appellant. James B. & Charles J. Stubbs, of Galveston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellant against the appellee to recover damages. For cause of action plaintiff alleges:

“That on or about the 14th day of January, A. D. 1913, he placed his wife, Emeline Jones, in the hospital or infirmary of the defendant, known as St. Mary’s Infirmary, in Galveston county, Tex., for the performing of a simple operation, and, for the purpose of such operation and the necessary and proper care and attention following the same, engaged a room in said infirmary of and from the defendant, through its agents and the persons intrusted by defendant with the conduct of its business in Galveston, paying therefor, and agreeing to pay therefor, for each week while such patient should occupy a room therein, the sum of $17.50 per week. That, pursuant to such agreement and contract, the defendant, through its agents and the persons to whom it intrusted its business in Galveston, received such patient, the wife of plaintiff, and assigned her to a room within its infirmary, and the same was continued to be occupied by said patient until On or about the 6th day of February, A. D. 1913, at which date she died in said infirmary of the defendant, of smallpox, contracted therein.
“Plaintiff would show to the court: That the room to which the wife of plaintiff had been assigned by the defendant, through its agents and the person intrusted with the management of its business in Galveston, was one in which a patient had a short time before died of smallpox ; and that the plaintiff and the patient, the wife of plaintiff, were ignorant of such fact; and that such fact had not been communicated to either the plaintiff or his wife, but that the same was concealed from them and each of them. That had such fact been communicated to plaintiff, or had it been made known to him by defendants, or by any one, that such building so occupied by defendant had harbored or treated a patient' suffering with smallpox, within any period of time less than six months previous, he would not have permitted his wife to have entered said building. And that the defendants and their agents and the persons intrusted with the duty of handling its affairs in Galveston were guilty of gross negligence in the premises, by failing and refusing to so notify the plaintiff, and by failing and refusing to provide isolated premises for the treatment of such contagious diseases.
“Plaintiff would further show to the court that by reason of the negligent acts and omissions of the defendants and its agent, and the persons intrusted with the duty of attending to its infirmary at Galveston, as above stated, his wife contracted smallpox in said hospital or infirmary of defendant, and died therein; and that by reason of the gross negligence of the defendant, its agents and the persons intrusted with the duty of attending to its affairs in Galveston, he has forever lost the companionship of his wife and been deprived of her society and aid; that he suffered great anguish and humiliation, and great stress of mind, by reason of the said death of his wife, which could and should have been avoided on the part of the defendant, its agents and the persons intrusted with the duty of managing its hospital business, and to his great and lasting damage, $20,000.”

The defendant answered by general demurrer and general denial. Upon the close of the evidence, the trial court instructed the jury to find a verdict for the defendant, and upon the return of such verdict judgment was rendered in accordance therewith.

The facts established by the undisputed evidence are as follows: On the 14th of January, 1913, plaintiff’s wife, who had been in bad health for some time, came to Galveston from her home in Chambers county to consult a physician. Her husband did not come with her, but she was met at Galveston by her son, a grown man, who acted for plaintiff in furthering the purpose of his mother’s visit. Soon after her arrival in Galveston, she consulted and was examined by Dr. Randall, a prominent physician and one of the faculty of the State Medical College, and was informed by him that it was necessary for her to undergo a surgical operation. Upon receiving this information, the son asked Dr. Randall to make arrangements to take his mother to the hospital of appellee. This the doctor did, and on the next day informed the son that the arrangements had been made. Upon receiving this information, the son took his mother to the hospital. They were met by one of the Sisters, and Mrs. Jones was given a room in a new building which had been recently added to the hospital, with which it was connected and formed a part. At tire time Mrs. Jones was received in the hospital, there was a patient therein who was afflicted with smallpox. This smallpox patient was not in the new building, but was on the opposite side of the hospital and on a different floor from that on which Mrs. Jones was placed. ' The Sister who received Mrs. Jones did not inform her or her son that there was a case of smallpox in the hospital, and they were both ignorant of that fact. If they had known of the case of smallpox being in the hospital, Mrs. Jones would not have gone there to be operated on, nor would plaintiff or her son have consented to her going in and remaining in said hospital. Dr. Randall, who acted for Mrs. Jones and her son in making the arrangements with the hospital authorities, knew when he made the arrangements of the existence of the ease of smallpox in the hospital. A short time after Mrs. Jones went to -the hospital and was operated on by Dr. Randall, another case of smallpox developed in a ward of the hospital upon the same floor and adjoining the ward in which the first case occurred. This was followed in the next week or ten days by two more cases, all of which were on the same floor and in the same portion of the building in which the first case was discovered. As soon as the first case occurred, the health officer of the city of Galveston was notified, and he at once took charge of the situation, and the strictest and most scientific method of treatment and quarantine of the patient was established and carried out by the hospital authorities. This patient recovered, but the second patient to contract the disease died therefrom. When the second, third, and fourth patients were found to have the disease, each of them was removed from the main hospital building and placed in a small building in the corner of the hospital yard. On the fourteenth day after Mrs. Jones was operated upon, and when she was fully convalescent from the operation, she was stricken with smallpox and died from that disease in a few days. Mrs. Jones was accepted by the hospital authorities as a pay patient at a charge of $17.-50 per week, and the charge for the first week was paid by her .son when she was placed in the hospital. There had never been a case of smallpox in the room, nor in the portion of the hospital in which Mrs. Jones was placed, and no case except hers developed in that portion of the building.

We agree with the trial judge that these facts are not sufficient to require the submission to the jury of the question of appellants’ liability for damages for the death of Mrs. Jones. The allegation that Mrs. Jones was placed in a room in which a patient had a short time before died of smallpox is disproved by all of the evidence.

The only remaining ground of recovery is the allegation that defendant negligently failed to inform plaintiff or his wife that there was a case of smallpox in the hospital at the time plaintiff’s wife entered therein as a patient. There is no evidence of any intentional concealment on the part of the hospital authorities of the existence of the case of smallpox. All that is shown is that neither Mrs. Jones nor her son was informed at the time she entered the hospital that there was a case of smallpox therein. Mrs. Jones was not placed near the smallpox patient, but in a room to herself in an entirely different portion of the hospital and upon a different floor and in a different building. No one was allowed to go into the room of the smallpox patient except the nurse and the doctor, and this nurse was not allowed to see other patients in the hospital and did not go into the portion of the building in which Mrs. Jones’ room was situated. Mrs. Jones’ physician, who knew of the existence of the smallpox therein when he made the arrangements for her to enter the hospital, evidently thought it perfectly safe for her to go there, or he would have advised her to go elsewhere to be operated on. The health officer of Galveston, who gave directions as to the quarantine of the patient, did not prohibit the reception of other patients in the hospital.

We cannot see how the Sisters can be held negligent for doing that which the most eminent medical authorities, with a full knowledge of the situation, -regarded as safe. Plaintiff’s wife in some unaccountable way may have contracted the disease from cases which occurred in the hospital, but the hospital authorities could not, in the circumstances, have reasonably anticipated that she would contract the disease, and cannot therefore ■be held to have been guilty of negligence in failing to inform her when she applied for admission that there was a case of smallpox in the hospital.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <®^>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: KEY, O. J.

text:
    TYLER v. SOWDERS.
    (No. 5437.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 3, 1915.)
    Landlord and Tenant <@=^274^Weongful-ly Suing Out Distress Warrant — Liability for Attorney’s Fees.
    The rule that, in the absence of a contract to pay the same, neither party can recover attorney’s fees expended by him in prosecuting and defending an action, applies to a case where a landlord has unlawfully sued out a distress warrant and procured a levy thereunder, and the tenant may not recover attorney’s fees.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1154-1166; Dec. Dig. @^274.]
    Appeal from Milam County Court; John Watson, Judge.

      Action by John Tyler against J. T. Sow-ders. From, a judgment for defendant, plaintiff appeals.
    Beformed and affirmed.
    See, also, 172 S. W. 205.
    W. A. Barlow, of Taylor, for appellant. E. A. Camp, of Rockdale, for appellee.
   KEY, O. J.

This ease is appealed from the county court of Milam county. Appellant owns a farm, a portion of which he leased to appellee for the year 1913. In October, 1913, appellant instituted a judicial proceeding for the purpose of collecting his rent and the amount due on a promissory note for a certain advancement to enable the tenant to make a crop, and under that proceeding a distress warrant was -. sued out and levied upon certain cotton and cane grown upon the land and owned by the tenant. The tenant, who was defendant in the court below, filed a cross-action for damages for the wrongful suing out of the distress warrant, for breach of the rent contract, and for the recovery of a certain amount alleged to be' due from the plaintiff to him for services performed for the plaintiff concerning the rented premises, and for $50 attorney’s fee expended by him in defending against the plaintiff’s suit. In his cross-action he set up some other items of damage, which were disallowed by the trial court, and are not now involved. There was a non jury trial, which resulted in a finding that the defendant was indebted to the plaintiff in the sum of §257.95, and that the plaintiff was indebted to the defendant for damages, etc., in the sum of $349.50, and, striking a balance, judgment was rendered for the defendant against the plaintiff for the sum of $91.50, and the plaintiff has appealed.

We have considered all the questions presented in appellant’s brief, and have reached the conclusion that they should all be decided against him, except his contention that appellee was not entitled to recover $50 as attorney’s fee, as held and allowed by the trial court. It is a well-settled general rule of law that, in the absence of a contract to pay the same, neither party can recover attorney’s fees expended by him in prosecuting or defending a lawsuit, and that rule has been applied to cases like this, where process had been unlawfully sued out and levied. Chisenhall v. Hines, 100 S. W. 362: Beckham v. Collins, 54 Tex. Civ. App. 241, 117 S. W. 431, and authorities there cited. Hence we hold that the trial court committed error in the matter referred to, but that holding does not require a reversal of the entire case.

It is therefore ordered that the judgment of the court below be reformed, so as to limit appellee’s recovery to the sum of $41.50 and costs of the trial court, and that appellee pay all the costs of the appeal; and, as thus reformed, the judgment of the trial court will be affirmed.

Reformed and affirmed.
      (g^jFor other oases see same topic and KBY-NTJMBER in all Key-Numbered Digests and Indexes


text:
    BEAUMONT, S. L. & W. RY. CO. v. STATE.
    (No. 6722.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 15, 1914.)
    1. Railboads <§=>231L-Maintenance ox Station — Action fob Penalty — Sufficiency of Evidence.
    In an action to recover the statutory penalty for violation of Rev. St. 1911, arts. 6592-6594, requiring railroads to keep the water-closets at stations in a reasonably clean and sanitary condition, evidence held not to warrant a finding as to the length of time that a closet had been in an unsanitary condition.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. <§==>254.]
    2. Penalties <§=>2 — Constitutionality of Statute — “Public Money.”
    Rev. St. 1911, arts. 6592-6594, requiring railroads to keep in a reasonably clean and sanitary condition suitable and separate water-closets for both male and female persons within each passenger station, or at a reasonable distance therefrom, article 6594 of which entitles the county attorney, in suits brought thereunder, to one-fourth of the penalty recovered as a commission, and the county road and bridge fund to the remainder, do not violate Const, art. 3, § 51, declaring that the Legislature shall not make any grant of public money to any individual, association, or corporation; since the term “public money” means money received by officers of the state in the ordinary processes of taxation, etc., and does not apply to money recovered as a penalty.
    [Ed. Note. — For other cases, see Penalties, Cent. Dig. §§ 2, 11; Dee. Dig. <§=2.
    For other definitions, see Words and Phrases, First and Second Series, Public Money.)
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Suit in behalf of the State of Texas against the Beaumont, Sour Lake & Western Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. C. H. Cain and Marshall & Harrison, all of Liberty, for the State.
   McMEANS, J.

This is a suit brought in behalf of the state of Texas by the county attorney of Liberty county against the Beaumont, Sour Lake & Western Railway Company to recover statutory penalties for the alleged violation of articles 6592-6594, Revised Statutes 1911, requiring each railroad corporation in this state to keep in a reasonably clean and sanitary condition suitable and separate water-closets or privies for both male and female persons at each passenger station on its line of railway within or at a reasonable distance from its depot, for the accommodation of its passengers received or discharged from its cars thereat, and of its patrons and employes who have business with the railroad corporation thereat, and imposing a penalty of $50 for each week for the failure to so keep them. Plaintiff alleged the failure of the defendant to comply with the requirement of the statute at its station of Hull, in Liberty county, to keep tbe water-closet there situate in a reasonably clean and sanitary condition for tbe period of two years.

Tbe case was submitted to tbe jury upon special issues, and, upon tbe coming in of tbé verdict, a judgment was rendered tbereon for $5,200 in favor of the state and against the railway company, from wbicb tbe defendant, after its motion for a new trial bad been overruled, bas appealed.

Tbe jury, in answer to special issues submitted to them, found that defendant’s water-closet at Hull bad been in a condition not reasonably clean or sanitary for a period of 104 weeks. This finding is attacked by appellant by its first assignment of error, in which it makes tbe contention that tbe evidence is wholly insufficient to support such finding.

But three witnesses were introduced in behalf of tbe plaintiff. Tbe first was L. P. Palmer, a farmer residing about a mile from 'the town of Hull. He testified that at times be had occasion to go to Hull pretty often, and sometimes it would be a good while — sometimes two or three times in 1 week, and other times bis visits to tbe town would be 2 or 3 weeks apart; that during tbe times be visited the town be had occasion, once in a while, to go into tbe defendant’s water-closet. It is shown by bis testimony that each time be b,ad occasion to go into tbe closet be found it in an exceedingly filthy and unsanitary condition. He testified that it would be impossible for him to tell bow often be visited tbe closet during tbe period be was testifying about, but that be was there “every once in a while; perhaps it would be once a month, or something like that.” He was not asked, nor did be say, whether on each of these visits tbe closet bad tbe appearance of not having been cleaned since bis last preceding visit.

The next witness was Claude Mitchell, Sr., who upon direct examination testified that for about a week be bad occasion to use tbe closet daily, and that when be first went into it be found tbe closet on tbe ladies’ side in a very unclean and unsanitary condition; that be cleaned that side out, and used lime freely as a deodorizer, but that be never saw tbe inside of tbe closet intended for tbe use of males. On cross-examination be testified:

“I think my actual knowledge of that closet covers about five days. I never used it an entire week, and after the time I quit using it I cannot say anything about its condition.”

Tbe third witness was J. M. Barrow. He testified that be never saw tbe closet but once, and that time bis attention was called to it by tbe witness Palmer. At that time it was in an unclean condition.

Tbe jury, in answer to special issues, found that the closet had been in an unclean and unsanitary condition for tbe period of 104 consecutive weeks, and upon this finding tbe court entered judgment against defendant for tbe penalty of $50 per week for this entire period, aggregating $5,200.

We are of the opinion that tbe evidence did not warrant tbe finding of the jury or tbe judgment rendered thereon. Tbe result of tbe testimony of Palmer is that about once a month for 24 months be found tbe closet unclean and unsanitary. Tbe other witnesses testified that their knowledge of it covered a period of 5 days and 1 day, respectively. It was not shown by Palmer that on tbe occasion of bis visits tbe closet did not have tbe appearance of not having been cleaned since bis last preceding visit. We think that this evidence is not of such definite character as to justify the jury in finding that tbe closet bad been in an unclean and unsanitary condition for 104 weeks consecutively.

By its third assignment appellant complains of tbe action of tbe court in refusing to sustain its general demurrer to plaintiff’s petition. Its contention is that articles 6592-6594 of tbe Statutes are unconstitutional, because of tbe provisions in article 6594, which are to tbe effect that in ease of recovery in suits brought under tbe article tbe county attorney shall be entitled to one-fourth thereof as commission for bis services in prosecuting tbe suit, and tbe remainder thereof shall be paid into tbe road and bridge fund of tbe county. Tbe claim is that these provisions are in contravention of section 51 of article 3 of tbe Texas Constitution, which reads as follows:

“Sec. 51. Tbe Legislature shall have no power to make or grant or authorize the making of any grant of public money to any individual, association of individuals, municipal or other corporations whatever.”

We are of tbe opinion that tbe language “public money,” as used in tbe section quoted, cannot be applied to money received as a penalty for the violation of tbe statute. Tbe state is a nominal party only, and by tbe express provisions of tbe statute tbe recovery belongs to tbe road and bridge fund of tbe county, except that portion of it allowed to tbe county attorney for bis services or commissions, and never at any time was tbe property of tbe state. “By ‘public money,’ as therein used, tbe framers of the Constitution most probably meant moneys received by officers of tbe state, * * * derived in tbe ordinary processes of taxation, and in other ways permissible under the Constitution.” Tarrant County v. Butler, 35 Tex. Civ. App. 426, 80 S. W. 659. It seems to us that the provisions of tbe statute referred to directing tbe payment of one-fourth of tbe recovery to tbe county attorney for bis services and tbe balance into tbe road and bridge fund of tbe county can in no reasonable sense be said to be a grant of public money to an individual or a municipal corporation. “At least it is not so clearly so as that we feel willing to declare the act unconstitutional on this ground.” Tarrant County v. Butler, supra. The assignment is overruled.

For tbe reason that, in our opinion, tbe evidence was not sufficient to justify a judgment for penalty for the violation of the statute for the full period of 104 weeks, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <g=>For other oases see same topic and KEY-NUMBEP. in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    JEANS et al. v. LIQUID CARBONIC CO.
    (No. 5394.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 28, 1914.
    Rehearing Denied Feb. 3, 1915.)
    1. Justices of the Peace i&wkey;43 — Jurisdiction — Amount in Controversy.
    Where the suit was for conversion of a soda fountain, alleged to be worth $350, the justice court was without jurisdiction.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 75, 149-156; Dec. Dig. <&wkey;>43.]
    2. Justices of the Peace <&wkey;43 — Jubisdiction — Amount in Controversy — Interest.
    The justice court has no jurisdiction, where the sum claimed as damages was less than $200, where the interest since the conversion, for which suit was brought, carried the total amount sued for over $200, since interest by way of damages for a tort must be included in determining amounts in controversy for purposes of jurisdiction.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 75, 149-156; Dec. Dig. <&wkey;43.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by J. P. Jeans and others against the Liquid Carbonic Company. Judgment for defendant, and plaintiffs appeal.
    Reversed, with instructions to dismiss.
    James E. Yeager, of Waco, for appellants. H. P. Jordan, Howard D. McElroy, and R. L. Neal, all of Waco, for appellee.
   JENKINS, J.

Appellants brought suit in justice court for damages for the alleged conversion by appellee of a soda fountain, alleging that he was the owner of same; that it was of the value of $350; and that it was unlawfully converted by appellee to its own use on March 15, 1913, by reason of which ap-pellee did “then and there damage plaintiff (appellant) in the reasonable sum and value thereof to the amount of $199.50, together with legal interest from March 15, 1913.” Suit was filed July 7, 1913. Judgment was rendered in justice court in favor of appellant for $95.60. Upon appeal to the county court judgment was rendered in favor of appellee, from which judgment this appeal is prosecuted.

The justice court was without jurisdiction to try this case, inasmuch as appellant’s (plaintiff’s) petition, which was in writing, shows that the amount in controversy was $350, the alleged value of the soda fountain, with interest from date of conversion. Railway Co. v. Coal Co., 102 Tex. 478, 119 S. W. 294.

Beside this, plaintiff (appellant) prayed for $199.50, with legal interest on the same from March 15th to July 7th. This was an amount exceeding $200. Railway Co. v. Mathews, 169 S. W. 1052, not yet officially reported. Interest by way of damages for a tort must be taken into consideration in determining the amount in controversy. Railway Co. v. Rayzor, 125 S. W. 619; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1032; Railway Co. v. Faulkner, 118 S. W. 747; Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163.

This case will be reversed, with instructions to the county court to dismiss the same; but, as appellant is responsible for this appeal, he will be taxed with cost of same.

Reversed, with instructions to dismiss.


author: RICE, J.

text:
    NOBLE et al. v. BROAD.
    (No. 5335.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 3, 1915.)
    Courts <&wkey;>247 — Jurisdiction of Court of Civil Appeals — Certification of Questions to Supreme Court.
    The Court of Civil Appeals has no jurisdiction to certify questions to the Supreme Court after the expiration of the term at which the case was finally disposed of by overruling a motion for rehearing, though there was a dissenting opinion.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247.] -
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    Action between P. B. Noble and another and William Broad. There was a judgment for the latter, and the former appealed to the Court of Civil Appeals, which reversed the judgment, with instructions. Thereafter the former filed a motion to certify questions to the Supreme Court.
    Motion overruled for want of jurisdiction.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for the motion.
   Opinion on Motion to Certify.

RICE, J.

On April 15, 1914, during the last term of this court, this case was reversed, with instructions (167 S. W. 1), in which, however, Mr. Justice Jenkins dissented. Thereafter a motion for rehearing was duly made and filed, which was overruled on the 13th of May, 1914, from which appellee sued out a writ of error to the Supreme Court, which was, on the 18th of November, 1914, dismissed by that court for want of jurisdiction. Thereafter, on the 31st of December, 1914, appellee filed his motion to certify the questions therein involved to the Supreme Court.

The case having been finally disposed of in this court by overruling the motion for rehearing, and the term at which this was done having expired, we no longer have jurisdiction over it, for which reason it becomes our duty (notwithstanding the fact that there was a dissenting opinion, which ordinarily would entitle the party to the certificate) to overrule said motion; and it is so ordered.

The motion is therefore overruled for want of jurisdiction.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROWN, O. J.

text:
    WICHITA COTTON OIL CO. v. HANNA.
    (No. 2343.)
    (Supreme Court of Texas.
    Feb. 17, 1915.)
    Appeal and Eerob c&wkey;>882 — Harmless Error —Invited Ereob.
    Where defendant in a personal injury action requested a charge submitting the question of damages for loss of time, it cannot, the request having been refused, complain of a charge given submitting that same issue; the error, if any, being invited.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. &wkey; 882.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by William B. Hanna against the Wichita Cotton Oil Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (139 S. W. 1000), and defendant brings error.
    Affirmed.
    Montgomery & Britain, of Wichita Palls, for appellant. R. E. Taylor, Wantland & Parrish, and Taylor, Jones & Humphrey, all of Henrietta, and N. A. Stedman, of Austin, for appellee.
   BROWN, O. J.

We copy the following statement of the case from the opinion of the Court of Civil Appeals:

“This appeal is from a judgment in favor of the appellee against the appellant for damages resulting from personal injuries. The evidence shows that the appellant was the owner of a plant in which were operated five cotton gins; that in the fall of 1909 the appellee was employed to work at the ‘packer,’ and was also expected to do other work when called upon. He was injured while cleaning the cotton from a gin stand, by having his hand caught in the saws. The petition alleged that he was inexperienced in that kind of work, and that he so informed appellant’s manager, by whom he was hired, at the time of his employment. The negligence relied on was the failure on the part of the appellant and its servants to warn the ap-pellee of the danger to which he was exposed in doing the work he was engaged in at the time he received his injuries.
“Complaint is made of the following charge of the court; ‘If you find from the evidence herein that the defendant employed the plaintiff to perform labor in its gin at Byers, Tex., on or about the 30th day of August, 1909, and at the time of said employment the defendant knew that the plaintiff was inexperienced in the matter of handling the machinery of said gin, and did not know the dangers, if any, incident to the cleaning of the gin stands in said gin, and if you find that the work of cleaning said gin stands was, in fact, dangerous, and that the plaintiff did not know the danger incident to cleaning said gin stands, and could not have known of said danger, if any, by the use of ordinary care, and you further find that W. M. Dunn had authority to direct and control the acts of the plaintiff in the matter of cleaning the said gin stands and to require the plaintiff to assist in the work of cleaning said gin stands in the event they became choked or clogged, and if you find that on or about the 20th day of September, 1909, the said gin stands became choked or clogged and the said W. M. Dunn required and directed the plaintiff to assist in unchoking and cleaning said gin stands, and that at said time the said Dunn knew that plaintiff did not know of the danger attendant upon the work of cleaning said gin stands, and the said Dunn failed to warn the plaintiff of the danger of said work, and that said failure to so warn the plaintiff was negligence, and was the direct and proximate cause of plaintiff receiving the injuries complained of in his petition, then you will find for the plaintiff, .unless you find for the defendant under some of the other instructions given you by the court.’ Two objections are urged to this charge. One is that the evidence shows that Hanna knew of the danger incident to cleaning the gin stands, and therefore that issue should not have been submitted. The other is that the facts show that Dunn was a fellow servant, and that for the same reason that issue should not have been submitted. Hanna testified that when he was employed by Cash; appellant’s manager, he was inexperienced in work about such machinery, and so informed Cash; that Cash told him his principal duties were to work at the ‘packer,’ which were simple, and did not expose him to any particular danger. But he was also told by Cash that when there was a breakdown or choke-up of the gins he was to assist in relieving the situation. W. M. Dunn was in charge of the gin stands on the occasion 'of Hanna’s injuries, and called him and one Haynie, the man who worked at the press, to assist in cleaning the gins and relieving their choked condition. Hanna testifies that he responded to that call, and, without having received any instructions or warning as to the dangers of working about that machinery, began pushing the cotton from between the ribs of the gin; that he noticed that it fell below, and reached his hand beneath for the purpose of pulling it out. As he did this his hand and arm were caught by the gin saws, and his injury resulted. It is true that, according to Hanna’s testimony, he had been working in this plant at the ‘packer’ for some weeks, and his place of work was only about 12 or 14 feet from the gin stands; but he testified that he had not before this particular occasion been around the gin stands, knew nothing of their mechanism and operation, and did not know that one gin stand could be run while the others were idle. He also stated that he did not know that the saws of this particular gin stand were running. The testimony was sufficient to raise an issue of fact for the jury as to Hanna’s knowledge of the situation and the danger to which he was exposed. The next question is; Should it be held, as a matter of law, that Dunn was a follow servant? As before stated, Hanna testified that when he was employed Cash assigned him to work at the ‘packer’; that he asked Cash if that was all he was expected to do. and was informed by the latter that in case there was a breakdown or choke-up of the gins he would be expected to help at the gins. Dunn testified that he was in charge of the gin stands, and was told by Cash that when these choked up he was to call on the other employés for help. These instructions evidently carried with them the inference that when the occasion arose upon which Dunn might call upon the other employes. for assistance they were to work under his direction as a part of their duties.”

The plaintiff in error submits the following assignment of error:

“The Court of Civil Appeals erred in overruling and refusing to sustain the appellant’s second assignment of error, and the first proposition of appellant thereunder, the same being error in that the charge of the court on the measure of damages was erroneous, in that the evidence did not show that appellee would lose any time in the future by reason of his injuries, but that only his capacity to earn money in tile future had been impaired, and the court authorized the jury to find damages for time that appellee would lose in the future.”

The plaintiff in error requested the court to give the following charge:

“If, under the charge of the court, you find anything for the plaintiff, then, in assessing his damages on account o.f loss of time in the future you will award him such a sum as you may believe from the evidence as paid at this time in cash will fairly compensate him for such loss of time.”

It will be seen that the charge which the Xilaintiff in error requested the court to give submits the very proposition in the charge of which he complains in the above assignment of error. He cannot therefore be heard to complain of that which he had invited, as he did in this case.

In the case of International & Great Northern Railway Co. v. Louisa Sein et al., 89 Tex. 63, 33 S. W. 215, 558, the law is correctly stated as follows:

“The question now before the court is, in substance, if, in the course of a trial, counsel requests the court to give an instruction to the jury, which is refused, but which in whole or in part is embraced in the charge of the court, can the counsel or the party for whom he acts question the correctness of the charge given by the court in so far as it conforms to the request made? This question has often been before appellate courts, and has uniformly, so far as we are able to find, been held against the right of a party or his counsel, upon appeal, to call in question a ruling of the trial 'court which was made at his suggestion; and it has been generally held that, when a charge requested, but refused, was embraced in the general charge of the court, any error arising therefrom could not be questioned by the party who requested the charge.”

The first and third assignments of error are without merit, and will not be discussed.

There being but one error assigned upon which the reversal of the judgment in this case is sought which calls for comment, and the plaintiff having invited that error, if it be error, the assignment must be overruled, and the judgments of the district court and the Court of Civil Appeals are affirmed.
      <S&wkey;For other cases see same topic and KBY-NUMBER in all Key-Numhered Digests and Indexes