author: YANTES, J.

text:
    STEPHENSON v. LUTTRELL.
    (No. 2770.)
    (Supreme Court of Texas.
    Oct. 20, 1915.)
    1. Tenancy in Common &wkey;j29 — Improvements — Right to Contribution.
    A tenant in common who improved the common property by having it filled in and its level raised by a dredging company could not recover from his cotenant his share of a portion of the agreed price for doing the work, which he had not paid, and against which limitations had run, as he was only entitled to reimbursement for the money spent by him in making the improvement, and could not speculate on the transaction or obtain a profit from his cotenant, even though the cotenant received the benefit of the work which had not been paid for.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 89-92, 94; Dec. Dig. <&wkey;>29.]
    2. Tenancy in Common <§=»38 — Actions for Contribution — Judgment—Conformity to Pleadings.
    In an action by one tenant in common against another to recover defendant’s share of the cost of improving the property by filling it in and raising its level, plaintiff could not recover defendant’s share of the cost of filling in a street adjacent to the property, where there was no allegation in the petition that he had incurred any expense in filling the street, or that it was necessary to fill the street as a benefit to the property.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 100-104, 107-118; Dec. Dig. <&wkey;>38.]
    3. Trial <&wkey;76 — Objection to Testimony-Time for Objection.
    In an action by one tenant in common against another to recover defendant’s share of the expense of improving the property by filling it in and raising its level, the petition did not allege that plaintiff had incurred any expense in filling an adjacent street, or that it was necessary to fill the street as a benefit to the lot, but did allege that the lot was filled at an expense of $6,825.87. Plaintiff testified without objection that the expense of filling the lot and the street was $6,825.87, and was then asked whether it was necessary to fill the street as a benefit to the lot, to which question defendant objected. Held, that the objection was timely interposed, and there was no waiver of the objection on the ground of variance, since the testimony admitted without objection showed that only a part of the expense alleged was incurred in filling the lot, and thus contradicted the allegation of the petition, and defendant was not required to object thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 172, 183-190, 237; Dec. Dig. &wkey;76.]
    Erfor to Court of Civil Appeals, Fourth Supreme Judicial District.
    Suit by R. W. Luttrell against John Stephenson and others. A judgment for plaintiff! was reformed and affirmed by the Court of Civil Appeals, Fourth District (160 S. W. 666), and the defendant named brings error.
    Reversed and remanded.
    Geo. G. Clough, of Galveston, for plaintiff in error. Stewarts and J. E. Quaid, all of Galveston, for defendant in error.
   YANTES, J.

B. W. Luttrell, defendant in error, sued John Stephenson, the plaintiff in error, William E. Stringfellow, Jas. W. Walker, Mrs. Jas. A. Borard, and husband, Jas. A. Borard, in trespass to try title for “out lot No. 7,” in the city and county of Galveston, and, in the alternative, sued them for contribution to recover their proportion of the expense incurred by the defendant in error in filling said lot and raising its level, if it should be decided that said Stephenson, plaintiff in error, and others sued with him, owned any interest in the lot.

The defendant in error, Luttrell, alleged in his petition that at the time he contracted to purchase said lot it was a part of a low marsh, worth about $3,500, and that preparations were then being made to fill up the surrounding territory, which was in a like condition, and that a necessity existed for the owners of said lot to fill same, and that he made a contract with the North American Dredging Company, with whom he was employed in doing other work, to fill said lot, at a cost of 17% cents per cubic yard, or at a cost of $6,825.87 for the entire lot; that the filling was to be done by hydraulic process, the solid material being held in position by the water by which it was borne into the lot and there allowed to settle, and, unless the opportunity then offered for filling the lot was availed of, it would have been left a hole in the ground, which could not after-wards have been filled, except at a cost greatly in excess of its value; that for his own protection, and that of his co-owners, it was necessary that the filling of the lot be done at that time in connection with the general scheme for filling the surrounding territory; and that otherwise it would have been rendered absolutely worthless, whereas after it was filled it was worth from $10,000 to $12,000, having been raised to a grade of 5.5 feet above mean low tide, as required by an ordinance of the city of Galveston. The defendant in error, Luttrell, in addition to his claim for contribution, sued for the establishment of a lien on the undivided one-third interest of the plaintiff in error and those under whom he claimed for a proportionate part of the expense incurred in filling said lot.

The plaintiff in err'or, John Stephenson, assumed the defense for himself and those under whom he claimed, and alleged that about the 7th day of June, 1009, the defendant Stringfellow sold to George Clough, and that about the 18th' of the same month he purchased from said Clough. The undisputed evidence established said dates o-f sale and purchase. He also alleged that neither he nor his vendors had any notice of the claim of a lien by the defendant in error, Luttrell, and that they purchased in good faith for value without notice; that the property was already filled to grade when they bought; that the defendant in error, Luttrell, had no right or authority to have the lot filled at his expense; and that it was an unnecessary act of an intermeddler.

There is evidence to support the finding that the lot had not been filled when plaintiff- in error purchased it, but that the filling j began while owned by his vendor the latter part of May, 1909, and continued until July 12th, thereafter. It was purchased by plaintiff in error June 18, 1909, and his deed withheld from record.

At the trial the defendant in error, Lut-trell, dismissed as to the defendants Jas. W. Walker, Jas. A. Borard, and Mrs. Jas. A. Borard, and also as to Stringfellow, though in the judgment that was entered after the trial the last name was omitted therefrom by a “clear oversight.” After the trial the district court corrected the oversight by rendering a judgment nunc pro tunc, dismissing said Stringfellow from the suit

The case was tried before the court without a jury, and the findings of fact filed by the trial court are as follows:

“I find the facts to be as stated in the petition, except as to the ownership of the one-third interest in out lot No. 7, formerly owned by the defendant Stringfellow, and that the ownership of that interest is as stated in the answer of the defendant Stephenson. I find that the plaintiff acted in good faith and with due diligence in seeking to learn the true ownership of the one-third interest not owned by him, with the purpose of trying to get the owner to join in availing of the opportunity of having the whole out lot filled at the moderate cost, made practical at the time by the North American Dredging Company being in position to do it, growing out of the fulfillment of contracts with the city of Galveston; that, if it had not been filled at the time, the out lot would have become a public nuisance, a menace to the life and health of the inhabitants of the city; and that it could not have been filled later except at a cost entirely prohibitory, because greatly in excess of the value of the property after being filled. I find that the plaintiff, in having the out lot filled without the co-operation of the owner of the Stringfellow interest, did so because he was unable to learn who the owner was, the deeds of Stringfellow to Clough. and of Clough to Stephenson having been withheld from record until after the filing of this suit, and was compelled to do it to save the common property and his own interest in it from being entirely lost and destroyed; that it was properly filled, at moderate cost; and that the plaintiff has paid to the North American Dredging Company in services the cost of the filling, except the sum of $1,000, which he still owes. I find that said filling operations for the area including this out lot, began about the last of May, 1909, and were completed on July 12, 1909, and that defendant Stephenson and those under whom he claims, knowing they were going on, stood by mute, and speculated in the chance of not having to pay for it. The total cost of filling the out lot was $6,825.87, payable July 12, 1909. I find that the filling saved the property from becoming valueless and increased its value by a sum at least equal to the expense.”

There is evidence of probative force to support all ofi the findings of fact by the trial court, except the finding that the total cost of filling the lot was $6,825.87, and this finding is true if a filling of a portion of the street adjacent to the lot should be treated as a part of the lot. On this question the evidence shows that 24,358 cubic yards went into the lot, which, at 17% cents per cubic yard, would be $4,262.65, which represents the total amount expended by the defendant in error, Luttrell, in filling said lot; that 14,652 cubic yards went to fill the street, which, at 17% cents per cubic yard, would be $2,564.10. The defendant in error, Lut-trell, in his amended petition, upon which trial' was had, did not allege that he had included any expense of filling any portion of the street. Plis allegation was, in substance, that he filled out lot No. 7 to the established grade, at an expense of $6,825.87. ■ The evidence shows that this sum covered the expense incurred by him in filling both the lot and the street.

It is contended by the plaintiff in error that he should not be held liable for any portion of the $1,000 which the defendant in error, Luttrell, still owes the North American Dredging Company, since it appears from the undisputed evidence that, as between said dredging company and Luttrell, the defendant in error, the said $1,000 is barred by the two-year statute of limitation, and, not having been paid 'by the defendant in error, and there being a legal defense to its payment by Luttrell, there should be no contribution required of the plaintiff in error, the expense not having been actually incurred by Luttrell, until he has paid the same. We think this contention must be sustained. When two persons are cotenants in the ownership of land, and one of them incurs expense in the improvement of the property which is necessary and beneficial, it is equitable that the one incurring the expense shall have contribution from his cotenant in an amount which is in proportion to the undivided interest owned by such cotenant; but there is no principle of equity that will permit him to speculate on the transaction, and require his cotenant to return to him any greater sum • than his proportion of the money actually expended. It is not an undertaking where he would be permitted to profit in any way except in proportion as his cotenant would also make profit. He could not claim more from his cotenant than his proportion of the money actually expended; for equity only allows a reimbursement of the mondy spent by him in making the improvement. The law implies a contract between him and his cotenant, authorizing him to spend for him the money which was necessarily spent, but further than this there is no implied contract. The cause of action allowed in such cases is not grounded on benefits received, though this be considered an element necessary to recovery, for he would not be authorized in law to spend money for his cotenant for a useless and unnecessary improvement; but the cause is founded on reimbursement for money necessarily, or beneficially spent. He could not contend that he drove a good bargain in the improvements, and that they were really worth more to his cotenant than they cost him, and that he should have his eotenant contribute to him in proportion to what it should have cost under ordinary circumstances. He must hot be permitted to profit either by business ability or otherwise. His cotenant, by rules of equity and justice, is required to contribute back to him his proportion of the expense actually incurred, and no more. He is required to share the burdens of the expense incurred, and, being so required, he is in justice allowed the benefits that might accrue by reason of the ‘business sagacity of his cotenant making the improvements.

In this case the defendant in error, Luttrell, has expended for filling the lot and the street the sum of $5,825.87. The plaintiff in error owns a one-third interest in the lot, and should be required to refund to Luttrell one-third of the expense incurred in filling the lot, but nothing for filling the street, in the present state of the pleadings, as indicated later herein. The defendant in error, Luttrell, still owes the North American Dredging Company $1,000 for filling said lot and street, which amount is barred by the two-year statute of limitation, since it became due on July 12, 1909, and had not been paid at the time of the trial of this suit, which was had on the 22d day of March, 1912, nearly three years having elapsed since the maturity of the account. Now, the defendant in error, Luttrell, has the legal right to defeat the payment of this claim to said dredging company by pleading the statute of limitation. We would not presume that he would plead the statute of limitation, neither should we assert that he would not, as he has a legal right to do it. But suppose he does plead the statute of limitation against the dredging company, and defeats the claim; would equity require that the plaintiff in error, Stephenson, refund to him one-third of this $1,000, disregarding for the sake of discussion that a portion of it was spent in filling the street, when the amount has never been expended by Luttrell? Would a court of equity require the plaintiff in error, Stephenson, to return to Luttrell money that Luttrell had never spent for his benefit? All equity should require would be that Stephenson refund to Luttrell the money that Luttrell spent for his benefit.. In no circumstances would Luttrell be allowed, while demanding that Stephenson do equity, to speculate on him in the transaction.

It is no answer to this- position to say that Stephenson received the benefits of the $1,000 which has not been paid by Luttrell, for a suit for contribution is not based alone on the benefits received by his cotenant. For instance, the improvements placed on the lot by Lut-trell, at an expense of $5,825.87, may have been worth much more than that to Stephenson, but Luttrell would not be heard to demand it, for this would be speculating on his cotenant, whereas the principle of contribution has no element of speculation in it. In cases of this kind it is implied that the person seeking contribution had authority from his cotenant to expend the money that was actually spent. It is the same as if he had been actually instructed by his cotenant to expend that much money for him in improving the lot. This much is implied by law. And if he spent it, equity would demand that it be returned to him; but if he failed to spend it, it would be an injustice to say that it should be returned to him anyhow, by his cotenant.

It follows, from what we have said, that the plaintiff in error, Stephenson, should not be held, as the judgment of the lower court undertakes to hold him, for the refund to Liuttrell of one-third of $1,000, which has not been expended by Luttrell, and which may never be expended by him.

The recovery in favor of the defendant in error, Luttrell, against the plaintiff in error, Stephenson, for one-third the expense of filling the street adjacent to the lot, should not have been allowed; there being no allegation in the amended petition by Luttrell' upon which the ease was tried that he had incurred any expense in filling the street, and no allegation that it was necessary to do so as a benefit to said lot. Not having sued for this item, he should not be permitted to recover it in the state of the pleadings. It is contended that there was no objection on the part of the plaintiff in error to the evidence as to the expense incurred in filling the street at the time it was offered, and that by reason of the failure to make a timely objection the error was waived. But we find from the record that the plaintiff in error, Stephenson, did object at the proper time to make the objection. The defendant in error, Luttrell, testified that the expense of filling the lot and the street was $6,825.87, all of which had been paid by him, except $1,000. There was no objection made to this evidence, but when the defendant in error was asked by his counsel whether it was necessary to fill said street as a benefit to the lot, the plaintiff in error objected to the evidence, on the ground that there was no allegation in the pleading to support the proof. This objection was overruled, and the plaintiff in error excepted. The objection was made at the proper time. It was permissible for Luttrell to testify that the total expense of $6,S25.87 covered the expense of filling the lot and the street, and the plaintiff in error was not called upon to object, for the sufficient reason that the evidence as offered was contradictory of Luttrell’s allegation that he had expended said amount in filling the lot. It established for the plaintiff in error that he only expended in filling the lot a portion of the sum; and the evidence went further and established the number of cubic yards which went into the street, whereby it was shown that only $4,262.65 went into the lot, instead of $6,825.87 alleged by Lut-trell, the defendant in error. The balance, $2,564.10, went towards filling the street. As the evidence of Luttrell about filling the street reduced the claim which he had pleaded against the plaintiff in error $2,564.10, it should not be expected that the plaintiff in error, Stephenson, would object to its introduction. But when it was attempted to fasten on the plaintiff in error the expense of filling the street, by showing that it was necessary to do so, and a benefit to the lot in order to have a way of ingress and egress, the plaintiff in error objected, because there was no pleading to support it. This was the appropriate place to make the objection, and we cannot treat the error as having been waived.

We have carefully examined the other assignments, and find no error in them which would likely arise upon another trial.

For the errors indicated, the judgments of the Court of Civil Appeals and of the trial court are reversed, and the cause is remanded for another trial.
      <@=jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    PARIS & G. N. R. CO. et al. v. FLANDERS.
    (No. 2771.)
    (Supreme Court of Texas.
    Oct. 20, 1915.)
    Appeal and Ekeob <&wkey;882 — Invited Ekkok— Submission op Issue.
    In a railroad switchman’s action for injuries, defendant could not complain of the submission, as a ground of recovery, of its negligence in permitting an engine with a brilliant headlight to stand in the yards, though this was not the proximate cause of the injury, where its own requested charges called for a determination of the same issue of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 4&wkey; 8S2.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Charles Flanders against the Paris & Great Northern Railroad Company and others. A judgment for plaintiff was affirmed by the Court of Civil Appeals (165 S. W. 98), and defendants bring error.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Andrews, Streetman, Burns & Logue, of Houston, and Wright & Patrick, of Paris, for plaintiffs in error. Oarlock & Carlock, of Ft. Worth, for defendant in error.
   PHILLIPS, C. J.

The suit of the defendant in error, Flanders, for damages on account of personal injuries suffered while engaged in his duties as a switchman in the employ of the plaintiffs in error, was predicated upon two distinct issues of negligence, and each of them was submitted by the court in its general charge to the jury. One was permitting a road engine to stand in the railway yards where Flanders was working at night — at the time of his injury setting the brakes on a car which had been shunted or “kicked in” by the switch engine on a side track, and which violently collided with another car stationary on the track, causing him to be thrown to the ground — with its electric headlight brilliantly burning, which, it was claimed, had the effect of blinding him, and rendering his work dangerous by obscuring his vision, and because of which he was unable to set the brakes on the car before the collision.

The honorable Court of Civil Appeals, upon the original hearing, reversed the judgment obtained by Flanders in the trial court because of the submission of this issue, holding that, while there was sufficient evidence to warrant a finding that this was an act of negligence, yet, under the evidence, it could not have contributed to the injury. On rehearing it affirmed the trial court judgment, because of its view that the error in submitting the issue had been invited by certain instructions requested on the trial by the railway. company. The writ of error was granted on this latter ruling. It presents the only question which it is necessary to discuss; on all other questions the judgment, in our opinion, being entitled to affirmance.

The rule of invited error rests in the principle of estoppel; its reason being that a party is in no position to complain of an error which he has induced the court to commit. It may easily be carried too far, especially in the case of requested instructions, which, in general, are as often framed by counsel for the purpose of adapting the submission of issues to what are understood to be the views of the court upon the questions involved as inducing the submission of a particular issue, or an issue in a particular way. The consequence of an évident error on the part of the court substantially affecting a party’s rights and depriving the trial of the legal character which it is the duty of the court to maintain ought not to be avoided by its technical application. For their elements of finality and conclusiveness the judgments of courts are dependent upon a legal trial. The conduct of the proceeding so as to insure such a trial is an obligation resting primarily upon the court itself; and the responsibility for the court’s action in the commission of hurtful errors ought not to be transferred to a litigant unless it is reasonably plain that through the action of his counsel he is equally chargeable with the mistake. As applied to errors in the charge apparently induced by requested instructions, the test of the question, therefore, is that definitely announced in the thoughtful opinion of Chief Justice Gaines in Railway Co. v. Eyer, 96 Tex. 73, 70 S. W. 529, following but limiting Railway Co. v. Sein, 89 Tex. 63, 33 S. W. 215, 558, namely, whether by means of á special instruction requested before the charge is read to the jury the court is asked to affirm the proposition which is erroneously affirmed in the given charge. If so, the rule applies; otherwise it does not.

Making use of that test here, it is manifest that the error of the court in submitting in the general charge as an issue of negligence the presence of the brilliant headlight in the railway yards while Flanders was engaged in his particular duties must be regarded as having been invited by at least one of the special instructions requested by the railway company. The instruction referred to is in the following language:

“If you should believe from the evidence that the light from the headlight of one of the defendants’ locomotives in the yard at the time of the plaintiff’s injury shone on plaintiff while he was in performance of his work in such manner as to render the performance of same dangerous, and if you should further believe from the evidence that plaintiff had knowledge of the presence of said light before beginning his work, or that a person exercising such care under the same circumstances would have had knowledge of the presence, position, and probable effect of said light upon a person attempting to perform the duties plaintiff was to perform on said track, and you further find from the evidence that plaintiff, in attempting to perform his duties, under the circumstances, failed to exercise ordinary care for his own safety, if he did, or if you believe from the evidence that by the exercise of ordinary care in the performance of his duty, plaintiff could by changing his position on the ear, if you find he did not do so, have avoided the effect of said light and danger therefrom, then in event you find that in either or all of the instances above named plaintiff failed to exercise ordinary care; and that such failure, if any, proximately caused or contributed to his injury, you are instructed that same would not bar a recovery by plaintiff, but the damage, if any, should be diminished by you in proportion to the amount of negligence attributed to plaintiff.”

The purpose of this special instruction was the- submission of the issue of contributory negligence, predicated upon the plaintiff’s attempting the particular work with knowledge of the presence of the headlight, or under circumstances charging him with such knowledge, and in making no effort to avoid its effect. But in its direction “that, if the jury should, believe from the evidence that the light from the headlight shone on the plaintiff while he was in the performance of his work, in such manner as 'to render its performance dangerous,” and should further find in accordance with the additional part of the instruction “a recovery would not be barred,” but the damages should only be diminished in proportion to the negligence attributable to him, the plain sense of the instruction is that on the issue of the headlight the plaintiff was entitled to recover in some amount, if the effect of its presence was to render dangerous the performance of his work. By its terms the recovery by the plaintiff, which it says would not be barred by a consistent finding under the entire instruction, is as definitely based upon that issue as a diminution of the damages is related to the issue of contributory negligence.

In the general charge the issue as to the headlight was presented in substantially the same terms, except that it required, as a condition for any recovery by the plaintiff upon the issue, not only that the light was of such brilliance as to render it dangerous to switchmen in the discharge of their duties, but that it blinded the plaintiff so as to prevent his seeing the standing car, or interfered with him in the discharge of his duties, and that permitting the light to be as it was amounted to negligence. The special instruction, in fact, imposed a less burden upon the plaintiff, in that, as already noted, it authorized a recovery in his favor on the issue, provided only that the jury found the headlight rendered dangerous the performance of nis work.

The special instruction was more than a mere reference to this issue. It announced the right of the plaintiff to recover on the issue, and, as stated, it furthermore permitted such recovery on a finding of less than the general charge exacted. Having in this instruction distinctly affirmed the proposition erroneously embodied in the general charge, under the ruling of Railway Co. v. Eyer, the plaintiff should not be heard to complain of the charge, unless there is sufficient indication in the record that the instruction was requested after the charge was given. Upon the trial no contention appears to have been made by the plaintiff in error that this was not properly an issue to be submitted to the jury. The record suggests nothing that would amount in any form to an objection to its submission. It in no wise indicates that the instruction was not requested until after the charge was given. With the record in this •state, the presumption obtains that it was requested before that time. Railway Co. v. Sein.

The judgments of the district court and Court of Civil Appeals are affirmed.
      <§=^Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    FREE AND ACCEPTED MASONS OF THE STATE OF TEXAS v. ANCIENT FREE AND ACCEPTED MASONS, COLORED, et al.
    (No. 7380.)
    (Court of Civil Appeals of Texas. Dallas.
    July 3, 1915.
    Rehearing Denied Oct. 16, 1915.)
    Beneficial Associations <§^>4 — Infringement in Names.
    A colored order, known as the “Free and Accepted Masons,” is not entitled to enjoin a rival order, subsequently started, which took the name of “Ancient Free and Accepted Masons, Colored,” it appearing that there was no confusion of mail, or applications of membership, and that the last order distinctly held itself out as being different from the first, for, as the orders were charitable and humanitarian and were not engaged in business, there was no question of infringing a trade-name.
    [Ed. Note. — For other cases, see Beneficial Associations, Dec. Dig. <§=>4.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by the Free and Accepted Masons of the State of Texas against the Ancient Free and Accepted Masons, Colored, and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Mike E. Smith and O. W. Gillespie, both of. Ft. Worth, for appellant. Thompson, Knight, Baker & Harris and George S. Wright, all of Dallas, for appellees.
   TALBOT, J.

The appellant, Free and Accepted Masons of the State of Texas, sued the appellees, Ancient Free and Accepted Masons, Colored, and others, to restrain the latter from using a name so similar to that of appellant, and especially from the use as a part of the appellees’ name of the words “Free and Accepted Masons.” Upon the presentation of appellant’s petition a temporary injunction was granted, but upon final hearing judgment was rendered that appellant take nothing by reason of its suit and that the injunction be dissolved. From this decree of the court appellant appealed.

All of the parties to the suit are negroes. Since 1875 the appellant, as a Masonic organization under the name of “Free and Accepted Masons of the State of Texas,” has conducted its affairs and acquired its membership and property. In 1885 appellant was duly incorporated by virtue of the laws of Texas under its said name. In 1908 or 1909 the appellees organized a Masonic order under the name “Ancient Free and Accepted Masons, Colored,” and have since maintained their organization in Texas, using practically the same password, emblems, badges, etc., as those used by appellant and other Masonic organizations. The charter of appellee is dated February 6, 1909, and many of its-members were formerly members of the appellant, and acquired a knowledge of the secret work and principles of Masonry while members thereof. Some of them were probably expelled from appellant’s lodge, and some voluntarily abandoned appellant’s organization and became members of the appellee’s organization. The appellant has a membership of about 7,000 men and 4,000 women-. It owns property of the estimated value of $300,000. This property is not used for profit. It is used for lodge purposes and as homes for orphan children of deceased members of the order and for indigent Masons of the order. The funds necessary for conducting and maintaining the work of the order seem to be raised by dues assessed and collected from its members. The appellee has a membership of about 740 men and about 320-women. It has no capital stock, but some property used for the purpose of conducting the work of the order, and the organization is not for the purpose of making money. Like appellant, its members are required to pay certain dues appropriated to charitable purposes and to care for the sick and widows and orphans of deceased members. In other words, the objects of both associations are “charitable and humanitarian.”

No question of property is involved, and the evidence, as we view it, shows no pecuniary injury to appellant by the use of the name .adopted by appellee, under which it maintains its organization, unless the teachings of the appellee’s order, to the effect that it is entirely different from the appellant order and the only regularly constituted Masonic order, which has led some of the latter’s members to withdraw and join appellee order, constitute such property or pecuniary damage. In 1908 some of the former members of the plaintiff order, in conjunction with various other colored men, organized five lodges of the “Ancient Free and Accepted Masons,” and later, prior to March 16, 1909, these five lodges organized the Sunset Grand Lodge of Masons, and on March 16, 1909, the state of Texas granted to the Sunset Grand Lodge of Masons a charter, which showed that the Sunset' Grand Lodge Free and Accepted Masons, Colored, of Texas, had incorporated, and that said charter gave to said Grand Lodge the rights to practice ancient free and accepted Masonry in the state of Texas. Since that time the Sunset Grand Lodge, Ancient Free and Accepted Masons, has been establishing subordinate lodges, practicing free and accepted Masonry, and engaged solely in a benevolent undertaking — the upbuilding of the negro race and the paying of benefits to the widows and orphans of deceased members of said order. The evidence further shows, or tends to show, that no person has ever made application to the defendant order, thinking or believing that he was making application to the plaintiff order; that no mail intended for defendant order has ever been received by plaintiff order; that there has never been any confusion in the minds of the public or in the minds of any person with reference to the identity of these two orders. On the contrary, the undisputed evidence shows that each of these orders has been contending that it was the only colored Masonic order, and that the other was spurious and clandestine.

Appellant presents but one assignment of .error, which is as follows:

“The testimony is conclusive that the plaintiff, long prior to the organization of defendant organization, having theretofore long used the name, was duly and legally incorporated by virtue of the laws of the state of Texas under its said name, ‘Free and Accepted Masons of the State of Texas,’ and that long subsequent to plaintiff’s incorporation, the defendant, without any valid authority pretended to organize a Masonic order and Supreme Lodge in the state of Texas, contrary to Masonic law, under the same, or substantially similar name, to wit, under the name ‘Ancient Free and Accepted Masons (Colored),’ and by virtue thereof began operations in Texas, asserting and pretending that the last-named body was the only true and regularly constituted body of colored Masons in this state, using the same password, emblems, badges, and other insignia common to Masonry, and which had been adopted and used' long prior by the plaintiff. The court therefore erred in not holding that the defendants were infringing upon plaintiff’s corporate name, and in not perpetuating the temporary injunction and permanently enjoining the defendants from operating and continuing the use of any part of plaintiff’s corporate name.”

The proposition asserted and urged under the assignment is:

“Where a corporation has appropriated and used a name for such a length of time as to become identified by the name, and has established a character and reputation under it, it is a fraud on the corporation if this name, or one similar thereto, is assumed by others under circumstances likely to lead the public to believe that the latter is the former body; and where injury will, or is calculated to, result to the former corporation on account thereof, a court of equity will, at the suit of the injured parties, restrain the further perpetration of the wrong.”

It is said that as applied to trading concerns the decisive principle is that no man has a right to sell or advertise his own business or goods as those of another. Williams v. Farrand, 88 Mich. 478, 50 N. W. 446, 14 L. R. A. 161. Therefore one must not adopt a name so similar to that of another as to draw to himself business intended for that other. Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490, 27 L. R. A. 42, 43 Am. St. Rep. 769; Supreme Lodge K. of P. v. Improved Order K. of P., 113 Mich, 133, 71 N. W. 470, 38 L. R. A. 658. In the last case cited it is said that this principle is correctly stated in the following language quoted in the opinion of the court:

“Where a corporation has appropriated and used a name for such length of time as to become identified by the name, and had established a character and reputation under it, it is a fraud upon the corporation and the public if this name be assumed by others under such circumstances as would lead the public to believe that they constitute the original corporation; and where injury will result to the corporation on account thereof, courts of equity will, at the suit of the injured parties, by injunction restrain the further perpetration of the wrong. It is the special injury to the party aggrieved and the imposition upon the public that constitute the wrong which the courts will redress. It is not necessary that the wrong should be intentionally committed. It is enough that the name should be used under such circumstances as would lead the public to believe that the latter organization was the former, and thereby cause injury to the former corporation.” But “where the name was not chosen for the purpose of deception, and has not been used under circumstances intended or calculated to deceive, the similarity of names must be such as to deceive ordinary persons proceeding with ordinary care to justify the inference.” Supreme Lodge K. of P. v. Improved Order K. of P., supra.

Mr. High, in his excellent work on Injunctions, after stating the general doctrine governing the jurisdiction of equity in restraint of the infringement of trade-marks, says:

“Courts of equity, in granting relief by injunction in this class of cases, proceed upon the principle that it is a fraud upon one who has established a trade and carried it on under a given name to permit another to assume that name, or the same name with a slight alteration, in such manner as to induce persons to deal with him in the belief that they are dealing with one who has given a reputation to that name,” and that, “since false representation is the principal1 ground for relief in equity by injunction against the piracy of a trade-mark, when no false representation or deceit is used, defendant only endeavoring, by his advertisement and by selling the article complained of, to show to the public that the article is that of his own manufacture, equity will not interfere, in the absence of any evidence of persons having been misled or deceived in the matter, even though defendant may also use, as designating his article, the name of the original manufacturer of the article sold by plaintiff,” and that “when, upon the case presented, there is no evidence of fraud or deceitful representation, the court will decline to interfere.” Sections 1085 and 1086.

Thus it appears, according to the rule announced by Mr. High, that even in suits involving the infringement of a trade-mark injunctive relief cannot successfully be invoked unless the evidence discloses that persons have been misled or deceived to their injury by false representations used by the party charged with the infringement. The only difference in the names of the organizations involved in the case of Supreme Lodge K. of P. v. Improved Order K. of P., cited above, consists in the words, “Improved Order,” which is found in the title of the appellee therein. There was no evidence that the appellee chose the name “Improved Order Knights of Pythias,” with the intention that their order should be supposed to be the order Knights of Pythias, nor that they had done anything since the order was founded to lead the public to believe that the orders were the same, and the court, after stating that the question was, “Is the name ‘Improved Order Knights of Pythias’ so nearly like the name ‘Knights of Pythias’ that ordinary persons, using ordinary care, would think them identical, would think them two names for the same order, or for branches of the same order, so that they would become members of the defendant’s society when they really wanted to join complainant’s society?” answered the same in the negative, and held that the name “Improved Order Knights of Pythias” could be lawfully taken as the name of the new order formed by members who had withdrawn from the old order of Knights of Pythias. There is as much dissimilarity in the names of the two organizations involved in the suit now before this court as in the names of the organizations before the court in the case cited, and just as much reason for holding that the appellant here is not entitled to the injunctive relief sought. There is no evidence warranting the conclusion that appellee order selected the name “Ancient Free and Accepted Masons, Colored,” with the intention that its order should be understood and supposed to he the appellant order. ' On the contrary, the evidence tends strongly to show, if it does not conclusively do so, that since the organization of the appellee order it has uniformly sought to convince the public and those contemplating taking membership in the order that it was materially different from’ the appellant order and the only colored Masonic order in the state or elsewhere. So upon the authority of Supreme Lodge K. of P. v. Improved Order K. of P., supra, it might be held in the instant case that the appellee is using the name “Ancient Free and Accepted Masons” under circumstances which do not lead the public to believe that it is the same or a branch order of the appellant, and hence could lawfully take the name adopted by it.

The cases, cited by appellant very clearly show that, where a firm or corporation has built up a business under a firm or corporate name which has given that name a pecuniary value, another firm or corporation cannot adopt another name so similar as to mislead the public, and lead individuals to the belief that the firm or corporation using the new name is the same firm or corporation that was using that old name. This principle of law is well established, but it is not, in our opinion, applicable in the case at bar. The rule applicable to the facts of the present case is announced in the case of Grand Lodge v. Grimshaw, 34 App. D. C. 383. In that case the court, speaking through Mr. Chief Justice Shepard, says:

“The principle upon which courts of equity proceed in restraining the simulation of names is not that there is property acquired by one party in the name, but to prevent fraud and deception in the dealing with the party charged with the simulation of a name used by another- in a similar business or manufacture. * * *
Courts of equity do not exercise jurisdiction to inquire into, and adjudicate the right of different associations for charitable or religious objects who hold themselves out to be the regular and only accredited representatives of some particular order or religious system. There must be some pecuniary injury resulting from the use of a name that may have been adopted by another, to warrant inquiry and justify relief. The injury must not be fanciful or sentimental, but real. It must be substantial, and such as a court of equity, upon principles of justice, will interpose to prevent” — citing Original La Tosca Social Club v. La Tosca Social Club, 23 App. D. C. 96-104.

The case of International Committee of Young Women’s Christian Association v. Young Women’s Christian Association of Chicago, 194 Ill. 194, 62 N. E. 551, 56 L. R. A. 888, is more in point and comes nearer sustaining the contention of appellant in this case, in our opinion, than any other authority cited by its able counsel; but, as pointed out by counsel for appellee:

“The Supreme Court in that case gave relief solely upon the ground that the names wore so similar as to deceive and mislead the public into believing that the defendant was the plaintiff or a committee of plaintiff, and the court in its opinion said, in substance, that it clearly appeared from the entire record that the defendant adopted the name advisedly, and for the purpose of leading the general public to believe that it stood as a committee and representative of plaintiff association.”

Our conclusion is that the facts did, not warrant the interference of a court of equity in this case, and that the judgment of the district court should be affirmed. It is therefore accordingly so ordered.

Affirmed.
      igssEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ■


author: McMEANS, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. VOGEL et ux.
    (No. 6959.)
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1915.
    Rehearing Denied Oct. 14, 1915.)
    1. Trial <@=^130, 140 — Province of Jury— Weight of Testimony.
    The credibility of witnesses and the weight of testimony is a question peculiarly for the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332-335, 338-341, 365; Dec. Dig. <©=> 139, 140.]
    2. Evidence <@=:>568 — Opinion Evidence,— Expert Testimony.
    A jury are not concluded by opinion evidence, but may apply their own experience and knowledge in solving the question.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2392-2394; Dec. Dig. <®^568.]
    3. Eminent Domain <3^307 — Construction of Railroad — Damages.
    Whether plaintiff’s property was depreciated by reason of the construction of a railroad held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 820-824; Dec. Dig. <@=> 307.]
    4. Evidence <3=^474 — Opinion Evidence.
    Where plaintiff testified to his familiarity with conditions and knowledge of the market value of his property, which he claimed had depreciated by reason of the construction of a railroad, he was competent to testify as to the depreciation, and, notwithstanding that on cross-examination he became confused as to the distinction between actual and market value, his testimony could not be stricken; that fact going only to the weight of his testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. <3^>474.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge.
    Action by John Vogel and wife, against the Houston Belt & Terminal Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    See, also, 156 S. W. 261.
    Andrews, Streetman, Bums & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellees.
   McMEANS, J.

John Vogel and wife sued the Houston Belt & Terminal Railway Company, alleging damages by way of depreciation in the market value of certain real estate in the city of Houston owned by them, the depreciation complained of being charged to the fact that the Houston Belt & Terminal Railway Company had built certain tracks in front of said property and had carried on railway operations over said tracks from and after the early part of the year 1910. Defendant answered by general denial, and pleaded that the property, instead of depreciating, had enhanced in value by reason of the construction. The case was tried before a jury upon special issues, and damages to plaintiffs’ property from railroad construction and operations in proximity thereto were found by special verdict, as follows:

“(1) What was the fair market value of plaintiffs’ property, inclusive of improvements thereon, immediately before the construction and operation of the defendant’s railroad in the vicinity of it? Answer: $10,000.
_ “(2) What was the fair market value of plaintiffs’ property, inclusive of the improvements thereon, immediately after such construction and operation of defendant’s railroad? Answer: $5,250.
“(3) If the market value of said property was less immediately after than immediately before the construction and operation of defendant’s railroad, was the depreciation or decrease of value caused by such construction and operation of defendant’s railroad? Answer: Yes.”

On this verdict a judgment was rendered in plaintiffs’ favor for $4,750, from which the defendant has appealed.

Appellant’s first, second, third, fourth, and fifth assignments of error in different forms contend that the verdict was excessive, under the claim that the value found before the railroad operations, to wit, $10,000, was too large, and the value found after, to wit, $5,250, was too small. The claim is made, particularly in the first assignment, that the value fixed before the railroad operation was so grossly excessive as to indicate that the jury was actuated by sympathy, bias, prejudice, or some other improper motive.

We shall not undertake to set out the testimony bearing upon the issues presented by the assignments, but find that the evidence adduced upon the trial fairly warranted the verdict in that regard. Seven witnesses, including the plaintiff John Vogel, testified as to the market value of the plaintiffs’ property before and after the construction of defendant’s railroad and the operations thereover, and no two of them agreed. Vogel’s estimate was that the property, including the improvements thereon, was worth before the construction and operation $12,500, and after $6,000; his witness W. E. Carter placed the value before at $11,500, and after at $6,000; while the five following named witnesses placed the value as follows: W. H. Taylor, $5,187.50 before, and $8,750 after; J. W. N. Burkett, $5,400 before, and $6,250 after; J. PI. McCracken, $6,000 before, and an increase in value of 30 to 50 per cent, after; L. W. Murdock, $5,500 before, and $11,000 after; and L. Dunn, $6,250 before, and the same amount after. As before shown, the jury found the value to be $10,000 before, and $5,250 after. There was testimony admitted which would warrant a finding that there was no demand for property situated as was plaintiffs’ for other purposes than residences; and the witness last named testified that plaintiffs’ property for residence purposes had decreased 75 per cent, by reason of the construction and operation of defendant’s railroad. The witnesses testified at length as to their knowledge of property values and asi to their methods of arriving at the market value of plaintiffs’ property both before and after the construction and operation of defendant’s railroad; and it was a matter peculiarly within the province of the jury to weigh the testimony, judge the credibility of the witnesses, and to reach a conclusion supported by testimony to which they gave credence, or a conclusion reached by blending all the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry. We cannot say, therefore, that the jury, in arriving at the conclusion they reached, did so without regard to the testimony, or that their verdict was against the preponderance of the evidence to that degree which shows that manifest injustice has been done, or to indicate that they were actuated by sympathy, bias, prejudice, or some other improper motive. They were not concluded by the opinion of experts, but in weighing the testimony they had a right to apply their own experience and knowledge, and to deduce therefrom the truth as they believed it Thus in Lawson’s Expert and Opinion Ev. (2d Ed.) p. 496, under rule 61, it is said:

“We have seen the opinions of attorneys testifying to the value of lawyers’ services are not conclusive on the jury, who may act independently or in opposition to them, applying to the case their own experience and knowledge of the character of the services. The same is true of the opinions of all experts and nonexperts as to value.”

In Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028, it is said:

“While they [the jury] cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry.”

In Patterson v. Boston, 20 Pick. (Mass.) 166, it is said:

“Juries would be very little fit for the high and responsible office to which they are called, especially to make an appraisement, which depends on knowledge and experience, if they might not avail themselves of those powers of their minds when they are most necessary to the performance of their duties.”

The jury were not compelled to credit all the testimony of any witness or reject it all (Railway v. Taylor, 20 Tex. Civ. App. 654, 49 S. W. 1055), but could have accepted as true a portion of the testimony of any or either of them, rejecting the remainder, in order to base their verdict upon what they believed to be the real facts. Garcia v. Sanders, 90 Tex. 109, 37 S. W. 314.

The assignments do not point out reversible error, and are overruled.

The sixth assignment complains that the court erred in overruling defendant’s motion to exclude all of the testimony of the plaintiff John Yogel as to the value of hi's property, the motion being predicated- upon the grounds that the cross-examination of plaintiff developed that he was not qualified to give an opinion as to the market value of his property, since it showed that he had never been in the real estate business; that the estimate which he gave was not based on any actual sales with which he was familiar; that he had had no experience in fixing the values of property or estimating such values; and that his estimate was simply an unsupported opinion.

On a former appeal of this ease a judgment in favor of plaintiffs was reversed, for the reason that the plaintiff John Yogel, although he testified that he was not acquainted with the market value of property in question, nor of the market value of property in that neighborhood, was permitted, over the objection of the defendant, to testify what its market value was. Houston Belt & Terminal Ry. Co. v. Vogel, 156 S. W. 261. On the last trial he testified on direct examination to the effect that he was specially familiar with the property in question, and the other property in the neighborhood of it, and of the location and character thereof, and had been for about 30 years, and had owned and lived on the property in question as the home of his family for 28 years, and had special knowledge of the uses to which the property in question and the other neighborhood property had been put during that period, which was for residence purposes exclusively, and of the uses to which the property was adapted before and since the railroad operations, and that from his knowledge and familiarity with the property in question and its improvements, which he had built, and with property in the neighborhood, its location and character, and the uses to which same had been put, and to which such was adapted, he had knowledge and an opinion of the market value of the property immediately before and immediately after the railroad operations in question on August 10, 1910, and that the market value of the same immediately before such operations was 812,700, and immediately after not more than half that amount, say, $6,000. Among other things, he testified on the direct examination :

“Prom my knowledge and the nature and character of this property., and the uses for which it is fit, and its location, I am able, from my knowledge of these things, to estimate and give an opinion of the market value of this property just before the railroad began its operations there. In my opinion, its market value, without the road there, at that time, was $6,000 a lot, with the improvements (there were 2% lots). In my opinion, immediately after the road was constructed and began operations there, it was not worth hardly half of what it was worth before; I don’t think it was. Nobody would have it; you couldn’t sell it to anybody — that is, for home purposes. That is my opinion, from my acquaintance with the property and knowledge of it.”

On cross examination he testified:

“I say that my property, in my opinion, just before these tracks were built there, with the improvements on it, was worth $6,000 a lot; I mean $6,000 a lot, not for the entire property, but $6,000 a lot, was what I estimated it. I don’t believe after those tracks were built in there that I could get half what it was worth before. Of course, I have got to have a place to live in, and it takes money to build another place to live on. I could not get hardly half for it now. I testified that, in my opinion, after those tracks wore built there, immediately afterwards, my property was only worth one-half as much as it was before, because nobody else would have it; nobody would want to live there to make it a home.”

On redirect examination, he testified:

“The opinion I gave counsel on the other side is not based on any experience as a real estate man, or anything of that sort, but it is based on my knowledge of the property and its uses— my own acquaintance with it and its uses.”

After Vogel had testified on direct examination he was interrogated by defendant’s counsel, and the questions propounded to him and his answers thereto are set out in defendants bill of exceptions No. 3. ■ The pertinent answers, reduced as far as practicable to narrative form, are as follows:

“I could not say that I knew what the market value of my property was before these tracks were built there in 1910 ; I just had an opinion. There was no transfer made before that, or at any time that I knew of, that I could judge by. I just had that opinion; thought it was worth that much. I didn’t have an opinion as to the market value of that property upon the former trial of this case at all. X. didn’t know what it was. That thing came so sudden on me that I couldn’t think of it quick enough to form an opinion on it, but I have now.”
“Q. I will ask you whether or not, on the former trial of this case, you testified that you had no opinion as to the market value of that property. A. No, no; I did not.”
“Q. I will ask you whether or not on the former trial of this case, Mr. Vogel, you testified that you didn’t know the market value of this property, and was not acquainted with the market value of the property in that vicinity. A. I was not. I was not acquainted with it. I didn’t have no opinion what it was. I have not been acquainted with all these laws, and I didn’t know what it meant. I know what it means now. I think it means — I am not sure, but I think it means, if one man coinés and wants to buy, and offers you so much, and you don’t care to sell it, and sell it; I think it is that way; I don’t know. After these tracks were built there I never heard of any demand for the property; I never had no offer made me; it was not on the market; it never was. I never put any price on it after these tracks were built. X have never been in the real estate business nor engaged in buying and selling property, and I have never had occasion to become familiar with property values in general, and I never bothered myself in regard to the demand for property of any particular kind, and am not familiar with property in different parts of the city and the demand for it — not familiar with these matters at all; and the price that the property was worth, in my opinion, before these tracks were built is simply my estimate, but that was not based on any experience which I have had in the real estate business.”

After Vogel had thus testified the defendant’s counsel moved to strike out his testimony as to the value 'of the property, upon the ground that it was developed on cross-examination that he was not qualified to give an opinion as to the market value of his property, his testimony showing that he had never been in the real estate business, and that the estimate which he gave was not based upon any actual sales with which he was familiar, and that he had had no experience in fixing or estimating value of property, and that his statement was simply an estimate and an unsupported opinion, which objection was overruled. The Court, in approving the bill of exceptions, referred to the statement of facts as a part of the bill for the other testimony of the plaintiff as showing his qualification to express an opinion as to the market value of his property, a part of which we have referred to above preceding the testimony elicited by cross-examination and set out in the bill of exceptions. The witness also testified:

“I didn’t know at that time [the former trial] what market value meant. Since then they have been talking about it, and I studied it over. I came to the conclusion that ‘market value’ means property is worth so much; that is the way I understand it now.”

The statement of facts discloses that in the cross-examination referred to Vogel, in attempting to define “market value,” used the word “have” where the word “care” is used in the bill of exceptions; thus his definition, as given in the statement of facts, is:

“If one man comes and wants to buy and offers you so much, and you don’t have to sell it, and sell it, I think it is that way.”

No assignment is presented by appellant complaining of the admission of Vogel’s testimony, given on direct examination, to the effect that he knew the market value of his property, and as to the difference in values before and after the construction of the tracks and the operations thereover. He said he knew such values, and testified what they were. His testimony as to the amount of depreciation by reason of the construction and operation, we think, was clearly admissible even as against an objection timely urged. Railway v. Maddox, 26 Tex. Civ. App. 297, 63 S. W. 137; Railway v. Ruby, 80 Tex. 175, 15 S. W. 1040. Having plainly stated that he knew the market value, he was competent to testify as to such value (Davis v. Fain, 152 S. W. 218), and the matter brought out upon the cross-examination went only to the weight of the evidence and credibility of the witness, and not to the competency of his testimony (Railway v. Fagan, 72 Tex. 130, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776). The determination of whether the witness was qualified to testify as to the market value of his land under all the facts testified to by him was largely a matter resting within the discretion of the trial judge, and, as we have concluded that no abuse of that discretion has been shown, his action in admitting the testimony complained of will not be disturbed. In Byrd Irr. Co. v. Smyth, 157 S. W. 262, it is said:

“What is sufficient to show the qualification of a witness to give his opinion concerning the value of land is very largely in the discretion of the trial court, and its conclusion upon such a matter will not he disturbed by the appellate court unless it be clearly shown that he has abused his discretion. G., C. & S. F. Ry. Co. v. Norfleet, 78 Tex. 321, 14 S. W. 703; Railway v. Houghton, [163 Mo. 470] 68 S. W. 718; 17 Cyc. 31; Telephone & Telegraph Co. v. Porke, 2 Willson, Civ. Cas. Ct. App. § 365.”

It is our conclusion that the assignment should not he sustained.

The remarks made by plaintiff’s counsel in the closing argument, even if not appropriate or proper, were n'ot, in our opinion, so prejudicial to the defendant as to be calculated to cause or probably cause the rendition of an improper judgment, and the seventh assignment, which raises the point, is overruled without further discussion.

It is our opinion that no reversible error is pointed out in any of the assignments presented by appellant in its brief.

The judgment of the trial court is affirmed.

Affirmed.
      <§=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY G. J.

text:
    TRAMMELL et al. v. NEIMAN-MARCUS CO.
    (No. 7366.)
    (Court of Civil Appeals of Texas. Dallas.
    June 19, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Venue <®=^22 — Residence — Actions Against Husband and Wife.
    Under Rev. St. 1911, art. 1840, providing that husband and wife shall be jointly sued for all debts contracted by the wife for necessaries furnished herself and children and for all expenses incurred by the wife for the benefit of her separate property, an action against a husband and his divorced wife for the value of alleged necessaries purchased by the wife during the. marriage, in which plaintiff sought to make the wife liable individually, was properly brought in the county of the wife’s residence, though the husband resided in a different county, as, she being no longer his wife, his domicile did not control as to her domicile, and she could be sued in the county of her residence.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. &wkey;>22.]
    2. Husband and Wife &wkey;>235 — Actions foe Value of Necessaries — Insteuctions.
    In an action against a husband and his divorced wife for the value of alleged necessaries purchased by the wife during the marriage, the court submitted a question as to whether the goods purchased were, as between plaintiff and the wife, necessary wearing apparel, and charged that the wife had pleaded and testified that such wearing apparel was necessary and that accordingly the jury would answer this question “Yes.” The court also submitted a question as to whether the goods were necessaries as between plaintiff and the husband. Held, that the instruction was erroneous, since, there being an issue as between plaintiff and the husband as to whether the goods were necessaries, the charge was calculated to and did unduly impress the jury that the goods were necessaries.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 589, 849-852, 982; Dec. Dig. &wkey;235.]
    3. Husband and Wife <&wkey;235 — Actions foe Value of Necessaries — Submission of Issues.
    In an action against a husband for the value of alleged necessaries purchased by his wife, it was error to submit a question as to whether the goods were necessaries, taking into consideration the financial circumstances and station in life of the husband and wife at “and prior” to the time the goods were sold, where there was evidence that at the time of the sale the husband was to some extend indebted, and worth much less than he was some time prior thereto, since the test was his standing and financial ability at the very time of the purchase.
    LI5d. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 589, 849-852, 982; Dec. Dig. <®^235.]
    4. Husband and Wife <&wkey;235 — Actions foe Value of Neoessaeies — Questions fob Jury.
    Where, in an action against a husband for the value of alleged necessaries purchased by the wife, though he admitted that he was in plaintiff’s store when the wife purchased some of the goods, he testified that he had notified plaintiff prior to that time not to charge to his account any purchases by the wife, and that he did not know that they were being so charged, and it was also shown that he had made her a sufficient allowance, the question whether he knew that the goods Were being charged to him should have been submitted to the jury, plaintiff having pleaded an estoppel.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 589, 849-852, 982; Dec. Dec. <®=j235.]
    5. Estoppel <&wkey;54 — Elements — Knowledge —Liability of Husband foe Necessaries.
    If the husband did not in fact know that the goods were being charged to him, he would not be estopped from defeating liability on that ground.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 128-135; Dec. Dig. <&wkey;>54.]
    6. Husband and Wife <&wkey;19 — Liability of Wife for Goods Purchased.
    A wife, who in person purchased goods which were necessaries for her own use, was personally liable for their value.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 109, 121-138, 142, 146, 322; Dec. Dig. <&wkey;>19.]
    7. Evidence <&wkey;248 — Admissions of Divorced Wife — Effect as Against Husband.
    Though a husband is liable for actual necessaries furnished his wife during marriage, the pleadings and evidence of a divorced wife, in which she admitted that goods purchased by her during the marriage were necessaries, did not necessarily establish that fact as against the husband.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 953-964; Dee. Dig. <&wkey;>248.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by the Neiman-Marcus Company against W. T. Trammell and another. Judgment for plaintiff, and defendants appeal.
    Affirmed in part, and reversed and remanded in part.
    Cockrell, Gray & McBride, Henry P. Edwards, and George, Hancock & 1-Iardwicke, all of Dallas, and Tarlton Morrow, of Hills-boro, 'for appellants. Thompson, Knight, Baker & Harris, Will C. Thompson, and J. Hart Willis, all of Dallas, for appellee.
   RAINEY G. J.

Suit in the county court of Dallas county by appellee against W. T. Trammell and former wife, Fay Trammell, appellants, to recover $4S0.60 and interest, alleged to be for goods purchased by the said wife during their marriage. Special issues were submitted to a jury, and upon a return of their answers a judgment was entered for appellee, from which this appeal is taken.

W. T. Trammell resides in Taylor county, Tex., and Fay Trammell resides in Dallas county, Tex. Appellee brought suit in the last-named county, alleging liability of W. T. Trammell and against Fay Trammell’s separate estate, alleging the goods purchased were necessaries for the wife and being purchased during the marital relations. W. T. Trammell interposed a plea of privilege to be sued in the county of his residence. After filing said plea, the same was continued several times by agreement, and no action was taken, thereon by the court; but when the cause was submitted to the jury W. T. Tram-mell asked the court to give the following charge, which was refused by the court, viz., in effect to return a verdict for Trammell on his plea of privilege to be sued in the county of his residence. The refusal to give said charge is assigned as error.

At the time suit was instituted W. T. Trammell and Fay Trammell were living apart, having been prior to that time divorced. The plaintiff sought to make Fay Trammell liable individually for the value of the goods purchased, and in such a case the statute (Rev. St. 1911, art. 1840) requires the husband and wife to be jointly sued. She being no longer his wife, the domicile of the husband did not control as to her domicile. She being a feme sole, she could be sued in the county of her residence, which was Dallas county, and the county court of said county had jurisdiction of W. T. Trammell in. this suit, being joined therein by his former wife, of whom said court had jurisdiction. No error was committed by the court in refusing said special instruction.

2. W. T. Trammell complains of the instruction given to the jury in submitting the issues as follows:

“Question 1. As between plaintiff and Mrs. Fay Trammell, was the wearing apparel which was sold by Neiman-Marcus Company necessary wearing apparel for Mrs. Fay Trammell, taking into consideration the financial circumstances and station in life of W. T. Trammell and Mrs. Fay Trammell at and prior to the time when the merchandise was sold and delivered by plaintiff? (You are instructed that Mrs. Fay Trammell has pleaded in her answer, and has also testified in her deposition, read in evidence in this case, that such wearing apparel was necessary. Accordingly you will answer this question ‘Yes.’). Answer: Yes.
“Question 2. As between plaintiff and W. T. Trammell, was the wearing apparel which was sold by Neiman-Marcus Company necessary wearing apparel for Mrs. Fay Trammell, taking into consideration the financial circumstances and station in life of W. T. Trammell and Mrs. Fay Trammell at and prior to the time when the merchandise was sold and delivered by plaintiff? Answer: Yes.”

The objection, in effect, was that the attention of the jury was called to Fay Tram-mell’s plea admitting the goods were necessaries for herself, and to her testimony that such were necessaries, and misleading the jury in their finding on said issue as to W. T. Trammell.

We are inclined to think the court erred in the instruction complained of. It is true that, Fay Trammell having admitted by plea and testified that the goods were necessaries, she has no ground of complaint; but, it being an issue as between plaintiff and W. T. Trammell, we think the charge was calculated to and did unduly impress the jury that the goods were necessaries, and probably influenced a verdict against him.

3. W. T. Trammell also complains of the issue as submitted, in that the, jury are told, in determining his liability, they would consider his financial ability and standing “at and prior to the time the goods were purchased.” The test is his standing and financial ability at the time of said purchase, and the coni't erred in inserting the word “prior.” There is some evidence tending to show that at the time the goods were purchased Trammell was to some extent indebted, and worth much less than he was some time prior thereto, which, if true, might not warrant the expenditure then made, when his affiairs at some prior time might have done so; hence the court erred in not limiting his liability on the ground of necessaries to the very time of purchase.

4. Trammell complains of the failure of the court to submit to the jury the issue whether or not he (Trammell) knew when he was in the store of plaintiff that the goods were being furnished to his wife and charged to him. Plaintiff pleaded estoppel as against said Trammell, and there was evidence tending to show that he was in the store with his wife when some of the goods were purchased, while he admits this, he testifies that he had notified plaintiff, prior to that time, not to charge to his account any purchases made by his wife, that he did not know' that the purchases were being charged to his account, and it was also shown that he made her sufficient allowance for this purpose. These facts raised the issue, and it was for the jury to determine. If Trammell did not in fact know that the goods were being charged to him under the circumstances detailed by the evidence, he would not be es-topped from defeating liability on that ground.

5. We will now consider the appeal of Fay Trammell. The question as to her is: Were the goods contracted for by her, and were they necessaries for herself? The evidence shows that she in person purchased the goods and had them charged. She admits in her pleadings that the goods were necessaries for her own use, and she testifies to the same effect. Having contracted for the goods in person, and she testifying they were necessaries for her own use, renders her personally liable for the value of the goods. Under the pleadings and evidence of Fay Trammell, there was no error in the court in instructing the jury to find against her.

While a husband is liable for the actual necessaries furnished the wife during the marriage, the pleadings and evidence of the divorced wife do not necessarily establish that fact as against Trammell. That being a controverted issue, and the court having erred, as we have indicated, the judgment will be reversed and- remanded as- to him, but affirmed as to Fay Trammell.

Reversed and remanded in part, and affirmed in part.
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text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. FORREST.
    (No. 7358.)
    (Court of Civil Appeals of Texas. Dallas.
    June 26, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Agriculture <&wkey;8 — Johnson Grass — Jury Question.
    In an action under Rev. St. 1911, §§ 6601, 6602, against a railroad company for injuries to plaintiff’s land sustained by reason of the company’s allowing Johnson grass to go to seed on its right of way contiguous thereto, where there was substantial evidence that, when land becomes infested with Johnson grass, it is impossible to eradicate it, the submission of the Question of permanent injuries under the rule that damages should be estimated at the difference between the market value of the property before and after the infection with Johnson grass is proper.
    [Ed. Note. — For other cases, see Agriculture, Dec. Dig. <&wkey;>8.]
    2. Agriculture t&wkey;8 — Johnson Grass — Actions — Instructions.
    In an action for damages for defendant’s act in allowing Johnson- grass to go to seed on its right of way, there was evidence that the Johnson grass on plaintiff’s property might have come from other sources. The jury were charged that plaintiff was bound to show the amount of his damage caused solely by defendant’s act. Held, that defendant could not complain of the submission of the matter to the jury, on the ground that, where the damage might have come from several sources, only nominal damages can be recovered.
    [Ed. Note. — For other cases, see Agriculture, Dee. Dig. &wkey;*8.]
    Error from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by T. C. Forrest against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    C. C. Huff and A. H. McKnight, both of Dallas, and G. C. Groce, of Waxahachie, for plaintiff in error. Clyde F. Winn and Supple & Harding, all of Waxahachie, for defendant in error.
   TALBOT, J.

This is the second time this case has been before this court. See 148 S. W. 1176. The suit was instituted July 5th, 1910, by the defendant in error, hereinafter called plaintiff, against the plaintiff in error, hereinafter called defendant, under what is known as the Johnson grass statutes, now articles 6601 and 6602 of the Revised Statutes 1911, for the recovery of penalties prescribed for a violation of those statutes and for damages sustained by reason of the defendant allowing Johnson grass to go to seed on its right of way contiguous to certain lands owned by plaintiff. In his first amended petition these lands were described as four separate tracts, but in a second amended petition, filed after the case was remanded for a new trial on appeal heretofore prosecuted to this court, they are described as two tracts containing, respectively, 117 acres and 239 acres, there being of the 117 acres 109 acres in cultivation, and of the 239 acres 232 acres in cultivation.

The petition of the plaintiff charges:

“That his lands were in cultivation- during the years 1908, 1909, and 1910, and that the right of way of the railway company ran through the same for one mile, and was during the said time thickly set and matted with Johnson grass, placed there by the railway company, and that during said years matured and went to seed sufficient to incur penalties of $500; that Johnson grass is a rank, pernicious, tall, and perennial plant of the grass species, propagated both by roots and seed, producing enormous growth of underground stems and great quantities of seed; that its roots penetrate so deeply into the earth and ramify through same in- so many directions as that it can be exterminated only with the greatest difficulty and labor, and that it has such a depressing effect on crops that good crops cannot be grown on land infested by it; that it seeds many times each year, and during the time complained of the water from rains washed enormous quantities of seed from the said right of way onto and over the lands of plaintiff, by reason of the defective, improper, and negligent construction of the roadbed, dump, bridges, and culverts of railway company through said lands; that seed of Johnson grass on the right of way was also carried by winds, birds, and animals and deposited on said lands; that such seed so. conveyed to and over the lands of plaintiff sprouted, grew, and infested said lands and damaged the same to the extent of $2,848.”

The answer of the defendant put in issue all the material allegations of the petition, and alleged that the plaintiff had permitted Johnson grass to seed on the lauds for which he sued during the years covered by the suit. A trial resulted in a verdict for plaintiff for $125, besides interest and cost. A motion for a new trial was made and overruled, and afterwards a writ of error to this court was duly sued out and perfected.

The first assignment of error is as follows:

“The court erred in its charge to the jury in charging, in effect, that the measure of plaintiff’s damages, if he was entitled to recover damages, was the difference in the market value of said lands on- July 5, 1910, and what would have been their market value as to the 56-acre tract on May 5, 1909, when plaintiff acquired it, and the other land on July 5, 1908, in so far as the difference in market value, if there was a difference, was attributable solely to the defendant company permitting, if it did, Johnson grass to mature and go to seed on- its right of way between said respective dates, such not being the true measure of damages under the evidence in this case, or, if the true measure, then, under the evidence, to determine damages under the rule given was impossible in any reasonable way, and the rule stated, under the evidence before the Jury, necessarily made any findings of damages by the jury purely speculative.”

The propositions contended for are, in substance : First, that the measure of damages as given in the court’s charge applies only to cases of permanent injury to land; second, that the evidence failed to show any permanent injury to the lands of the defendant in error during the years for which he sues, or, if permanent injury did result to defendant in error’s lands from Johnson grass seeding on the railway company’s right of way during said years, it was from his own failure to kill the grass as it came up, as the evidence showed that, if attacked at such time, it can with reasonable effort be easily killed; third, that the evidence showed that, if the plaintiff’s lands were, to any material extent, more infested by Johnson grass when this suit was brought than they were two years before, such increased infestation probably resulted largely, if not wholly, from causes other than the seeding of Johnson grass on the railway company’s right of way during the years for which suit is brought, and there was no evidence distinguishing between damage resulting from the seeding complained of, and that from other causes, and there was no way, under the evidence, of determining with any reasonable certainty what was recoverable under the rule charged, hence any verdict under the evidence and rule charged was necessarily purely speculative; fourth, that under the evidence in this case and the well-settled rule that, although a legal injury is shown, yet, if the extent of injury is not also shown, and evidence given from which it may be determined, only nominal damages are recoverable, plaintiff, if entitled to recover damages at all, was entitled to recover only nominal damages, and the court should have so charged, and, under the evidence, erred in submitting the case under the rule as to measure of damages that was given.

We think that neither of the foregoing propositions should be sustained and the case reversed, under the evidence shown by 'the record sent to this court. The evidence is conflicting upon the material issues in the case, but sufficient, as we understand it, to support the verdict and judgment rendered. There are doubtless many cases in which it has been held that, in the absence of proof of injury to the soil, no recovery for permanent injury to the land could be had, and that the “market value rule” is applicable only when permanent injury to the land is shown, and there are also authorities holding, and it may be conceded that the general rule is, that a party should ordinarily protect himself against the injurious consequences of the wrongful acts of another when it can be done without great expense; but, if it be admitted that these principles of law are applicable to the character of case before us, the evidence is clearly not so one way as to justify this court in declaring, as a matter of law, that, no permanent injury to plaintiff’s lands was shown, or that he failed to exercise the care required of him to prevent or lessen the damages sustained as the result of the alleged wrongful acts of the railway company. The following are some of the cases in which the difference between the market value of the land before and after infestation with Johnson grass from a railroad right of way has been recognized as the proper measure of damages. Railway Company v. Doeppenschmidt, 120 S. W. 928; Railway Company v. Malone, 126 S. W. 936; Railway Company v. Tolbert, 134 S. W. 280. It is true, as contended by the defendant, that it does not appear from the report of those cases that there was any contention in either of them as to the measure of damages, but there evidently was, as here, evidence from which the jury was authorized to find injury to and depreciation in the value of the land because of the communication to it of Johnson grass from the right of way of the railway company. In the case before us the plaintiff offered substantial testimony from which the jury was warranted in concluding that his land was infested with Johnson grass from the defendant’s right of way during the years for which he sues; that said grass had grown and spread during those years, notwithstanding diligent efforts on his part to prevent it, to such an extent as to injure his land and depreciate its value in the amount awarded him. This being the state of tne evidence, the court correctly instructed the jury as to the measure of damages. Touching the permanency of injury to land from infestation with Johnson grass and the efforts made by the defendant in error to rid his land of it, he testified, among other things, that he had been fighting Johnson grass for 20 years, and had used everything he had ever heard of in trying to exterminate it without success.

The evidence shows that there were sources other than the defendant’s right of way from which the plaintiff’s lands might have become infested with Johnson grass, and, of course, defendant would not be liable for infestation and the resultant damage of plaintiff’s land from such sources. It was therefore essential that the evidence be of such a character that the jury could distinguish between the damage resulting from the seeding of Johnson grass on the defendant’s right of way and from other sources, and determine with reasonable certainty the amount thereof. The defendant claims that such was not the character of the evidence, and that, even- though a legal injury was shown, in the absence of evidence disclosing the extent of the injury, the plaintiff was entitled to recover only nominal damages. We recognize the force in this contention, but after a careful examination of the evidence have concluded that it was sufficient to take these questions to the jury, and that its findings should not be disturbed. The defendant’s rights in respect to these issues were carefully guarded, both in the court’s general charge and in a special charge given at its request. This special charge reads:

“The court is requested to instruct the jury that it is the duty of the plaintiff claiming damages to produce evidence by which the amount of his damages may be reasonably estimated according to the rule of law applicable to the case, and, unless they are able from the evidence to determine what damage, if any, accrued to plaintiff from July 5, 1908, to July 6, 1910, solely from Johnson grass going to seed on defendant’s right of way during said years, to plaintiff’s land, excluding from consideration all other character of damage, then plaintiff is not entitled to recover damages, and the jury will not find any.’’

What we have said disposes of the questions raised in defendant’s remaining assignments of error against its contention, and we deem it unnecessary to state and discuss them.

Believing the judgment should be affirmed, it is accordingly so ordered.
      <©r^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes