author: PLEASANTS, C. J.

text:
    SPILLER et al. v. BELL et al.
    No. 9775.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 2, 1932.
    Rehearing Denied Dec. 22, 1932.
    Williams & Williams, of Austin, for appellants.
    Lewis Rogers and B. C. Billingsley, both of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellee R. E. Bell against appellants and other defendants to recover the title and possession of the east half of section 84, block 2, Houston & Texas Central Railroad Company survey in Harris county.

The defendants named in plaintiff’s petition are R. C. Lambie,' Gibbs Spiller and wife, Annie Spiller, the Guaranty State Bank, a private corporation, and the Gulf Produetion Company, and a number of vendors in tbe chain of title specially pleaded by plaintiff, and the unknown heirs, devisees, and legal representatives of each such named vendors. All these remote and intermediate vendors and their heirs, devisees, and legal representatives were cited by publication.

Upon the call of the case for trial in the court below, plaintiff dismissed his suit against the heirs, devisees, and legal representatives of the vendors in plaintiff’s chain of title who were made parties defendant as above stated. All of the other parties announced ready for trial without a jury. After hearing the evidence, the trial court rendered judgment in' favor of tlie plaintiff against all the remaining defendants for the title and possession of the land sued for. From this judgment the defendants Lambie, Spiller and wife, and I. D. Childress prosecute this appeal.

The evidence shows that the title- to all of the land passed -through I. D. Childress, through whom' appellee claims, to R. C. Lam-bie on February 27, 1913, and on January 6, 1914, R. C. Lambie executed a deed of trust to George E. Shelly to secure a note for $4,-000 owing by him to John Burwell Pope, the said note being due five years after its date. On August 3, 1914, Lambie conveyed the land to J. E. Smith, who assumed the Pope note. The land was passed back to Lambie by mesne conveyances, in which each grantee except Lambie assumed the Pope debt; the reconveyance to Lambie being dated February, 1917. To this point the deed of trust lien securing the Pope note was unchanged, except by the assumptions of Lambie’s vendees and his failure to reas-sume in the reconveyance to him.

On October 3, 1917, R. C. Lambie conveyed the surface of the land, together with one-third of the minerals therein, to John Wolf, by deed recorded in volume 389, p. 427, of the Deed Records of Harris county, and as part of the consideration for said deed Wolf specifically assumed the payment of the note to Pope.

The grant to Wolf was by said deed “subject to the oil and mineral rights hereinafter reserved,” and the habendum limits the grant as follows: “To have and to hold the above described tracts of land and premises unto the said John Wolf, his heirs and assigns forever, subject to the oil and mineral reservation hereinafter; and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend the right and title of the above described premises unto the said John Wolf, his heirs and assigns, against the lawful claim and claims of all persons whomsoever claiming or to claim the same or any part thereof. It is expressly understood that two-thirds of all oil and minerals in the above described tracts of land shall be and remain the property of the grantor herein and are here reserved unto him and not conveyed by this deed, and the right in and to said two-thirds of all oil and minerals is hereby reserved by the grantor herein unto himself.”

On March 19, 1920, Lambie and Wolf entered into a contract in which they agreed that Lambie was then owner of two-thirds, and Wolf one-third, of the oil, gas, and minerals in and under said land, and caused this contract to be recorded in Harris county.

Thereafter, on February 27, 1922, John Wolf conveyed the land to Gibbs Spiller, who also specifically assumed the payment of the Pope note, and the deed says it is the same land which was conveyed to him by R. C. Lambie by deed dated October 3,1917, recorded in volume 389, p. 42†, of the Deed Records of Harris county. The deed referred to for description of the land conveyed is the identical deed which reserved two-thirds of the minerals in Lambie.

On March 15, 1922, Gibbs Spiller and his wife, Annie Spiller, executed a deed of trust on the land to M. H. Gossett as trustee to secure a note for $3,200 which Spiller had borrowed from the Federal Land Bank to pay the -balance of $2,817 then "owing on the Pope note. Lambie was not a party to this loan transaction, and the deed of trust refers to the deed which reserved two-thirds of the minerals in Lambie, for description of the property on which the lien was fixed. On the same date Pope assigned and transferred the unpaid balance of $2,817 to the Land Bank, and also “all of the right, title and interest now owned or held by the grantor in and to said land by virtue of said note or notes and the lien securing the same.” This note had and has never been renewed by Lambie, and he has not been a party to any transaction affecting its maturity since its execution on January 6, 1914, or the increase of the debt by Spiller and the Land Bank. This $3,200 note is payable in installments extending over thirty-three years. The value of the land decreased from $6,-400 to $3,200 after the extension and increase in the amount of the note, and before the sale in 1927.

The Pope note was executed by Lambie on January 6, 1914, and was due January 6, 1919, and as to him it became barred by limitation on January 6, 1923. The full amount due on this note was paid Pope out of the $3,200 loan made by Spiller and wife from the Land Bank.

On March 24, 1923, Lambie conveyed his two-thirds of all of the oil and minerals to Spiller, reserving a royalty of one-sixteenth to himself.

On May 12,1927, M. H. Gossett, trustee, acting under power conferred by the deed of trust before mentioned, executed a power of attorney by which he appointed J. W. Canada his agent and attorney in fact. Thereafter, on June 27, 1927, Canada, acting under such power of attorney, at the request of the Fair-: banks National Earm Loan Association, the holder of unpaid installments due on the Spiller $3,200 note, advertised and sold the property conveyed by the trust deed from Spiller and wife to Gossett to secure the payment of the note: The Fairbanks Association became the purchaser at this sale, and thereafter conveyed the property to appellee.

The deed from Wolf to Spiller, the deed of trust by Spiller and wife to Gobsett, the power of attorney from Gossett to Canada, the deed from Canada to Fairbanks Association, and the deed from the Fairbanks Association to the plaintiff Bell, each refer to the deed from Lambie to Wolf, dated October 3, 1917, and recorded in volume 389, p. 427, of the Deqd Records of Harris county, for description.

The pleadings of appellants in the trial court and their briefs in this court fully present the defenses, and raise the issues hereinafter discussed and decided, and need not be. further here stated.

Upon the facts before set out, we agree with appellants that the deed from Wolf to Spiller, under which appellee deraigns title, did not pass title to two-thirds of the oil and other minerals in and under the land. When Lambie conveyed to Wolf, he expressly reserved the title to two-thirds of the oil and minerals. This deed, which was of record in the deed records of Harris county, was referred to in the deed from Wolf to Spiller for a description of the land thereby conveyed. The record of the deed was correctly stated in the deed from Wolf. The reservation of two-thirds of the oil and minerals in the land in the Lambie deed was part of the description of the property thereby conveyed, and we do not think that Spiller or those holding under him can be held to have acquired any title by the Wolf deed to the minerals in the land which the deed from Lambie to Wolf expressly reserves.

The deed of trust executed by Lambie to secure the Pope note did not divest him of the legal title to the land. He still held the superior legal title, subject, however, to the right of Pope or the holder of the Pope note to foreclose the lien given by the deed of trust through a sale under the provision of the trust, and thereby vest the legal title in the purchaser at such sale. Bradford v. Knowles, 86 Tex. 509, 25 S. W. 1117.

There can be no question of the fact that a severance of two-thirds of the oil and minerals from the land by Lambie was effected in his deed to AVolf, nor of his legal right to make such severance. Paddock v. Williamson (Tex. Civ. App.) 9 S.W.(2d) 452, 454.

All of the deeds under which appellee claims title to all of the oil and other minerals in the land refer to the deed from Lambie to AVolf by which the severance was made, just as did the deed from AVolf to Spiller, and appellee is charged with notice that he acquired no title to two-thirds of these minerals by any of these deeds.

It seems clear to us that appellee acquired no title to the two-thirds interest in' the minerals in the land in controversy in this suit under any of the deeds executed by Spiller and wife, or any of their vendees, and certainly did not acquire title to such minerals under the deed of trust executed by Spiller to secure the Pope note and the transfer of this note and all of Pope’s interest in the land under the deed of trust. There has been no foreclosure of the Pope lien. If suit had been brought to foreclose this lien, it is well settled that, having accepted the deed of trust from Spiller and'advanced the money to pay off the balance of the Pope note and extended the payment of the indebtedness without the consent of Lambie, appellee could not have held Lambie liable on the Pope note. By this extension and change in the terms and conditions of the indebtedness Lambie was released from all liability thereon, and appellee could not in any event under the transfer from Pope have more than a lien upon Lambie’s reserved interest in the land to secure the payment of any balance due on the Pope note, and the pleas of limitation made by appellants in their respective answers would have been a good defense to such claim of lien. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672; Maier v. Thorman (Tex. Civ. App.) 234 S. W. 239; Red River National Bank v. Bray, 105 Tex. 312, 148 S. W. 290.

The appellants further contend that the note for $3,200 executed by Spiller to the Land Bank was usurious, and that the sale of the land by the trustee under the deed of trust executed by Spiller having been made to enforce the payment of usurious interest, was void and passed no title to the purchaser.

While the question may not be wholly free from doubt, we have reached the conclusion that the note was not usurious, and the land was not sold to enforce payment of usurious interest. The note provides that the $3,200 for which it is given shall bear interest at the rate of 6 per cent, per annum, and that the principal and interest shall be payable in annual installments of $112. If the note had run for the full thirty-three year term of the loan, the aggregate sum of principal and interest would have been $7,363.33. The note further provides that the “failure to pay any installment or interest when due shall at the option of the holder thereof mature the entire indebtedness remaining unpaid.” The deed of trust executed by Spiller provides that, in case of default in the payment of any of the installments, the holder of the note or owner of such unpaid installment may have the land sold for the amount of the due and unpaid installments, subject to the deed of trust lien for the remainder of the note. The sale under which appellee claims title was made at the request of the Fairbanks Loan Association, who held by assignment from the Land Bank unpaid installments due on the note. Such sale was only made for the amount of those installments, and the land was sold subject to the lien for the remainder of the note. It is, we think, clear that there was no usurious interest involved in this sale. Nor do we think any sale for usurious interest was authorized by the terms of the note or the deed of trust.

The amount of principal and interest which make up the installments of $112 provided for by the note are separately stated in the indorsement contained on the back of the note, and which are a part of the note. We do not think the acceleration provision in the note above quoted can be reasonably construed as authorizing collection of usurious interest, and there is no evidence that either of the parties so construed or understood it. “The entire indebtedness remaining unpaid,” as that term is used in the acceleration clause of the note, cannot be reasonably construed to mean more than the $3,200 principal of the note and 6 per cent, interest thereon, and the provision that past-due installments of principal and interest shall bear interest at the rate of 6 per cent, per annum does not make the note usurious.

It may be true, as contended by appellants, that the provision in the deed of trust authorizing the sale of the land for the amount of the unpaid installments and subject to the lien for the remainder of the indebtedness evidenced by the note tended under the conditions existing at the time of this sale to restrict, the probable purchasers at such sale, and thereby cause loss to appellants Spiller. But this cannot make the contract usurious. These appellants made this contract, and, if at the time the default occurred and the sale was made the value of the property had increased, such provisions would likely have benefited the appellants.

The judgment heretofore rendered and entered by this court reversing and rendering the judgment of the trial court in part is erroneous, in that it affirms the judgment against the appellant I. D. Childress: This erroneous judgment was rendered by us because no separate brief was filed by Childress complaining of the failure of the court to establish and foreclose his asserted vendor’s lien against appellee and the defendants Lambie and Spiller upon the two-thirds interest in the oil and other minerals in the land conveyed by Lambie to Spiller, and we inadvertently overlooked the fact that the other appellants in a joint brief which was filed by attorneys representing all the appellants, including Childress, expressly ask: “That appellant Childress have his judgment foreclosing his vendor’s lien on two-thirds of the minerals to pay the $658.00 renewal note executed by Spiller to Lambie on June 4, 1927, bearing interest at 8% from its date.”

It is apparent upon this state of the record that Appellant Childress is entitled to a judgment of foreclosure as requested in the joint brief of all the appellants.

The judgment heretofore rendered and entered will upon our own motion be corrected as above indicated.

- Reversed and rendered in part, and affirmed in part.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    UNION CITY TRANSFER CO. v. TEXAS & N. O. RY. CO.
    No. 2299.
    Court of Civil Appeals of Texas. Beaumont
    Dec. 29, 1932.
    Rehearing Denied Jan. 4, 1933.

      Barnes & Barnes and E. S. Jones, all of Beaumont, for appellant.
    Duff & Cecil, of Beaumont, for appellee.
   WALKER, C. J.

Appellant, Union City Transfer Company, instituted this suit in the district court of Jefferson county against appellee, Texas & New Orleans Railway Company, claiming damages in the sum of $2,752.62, as a result of a collision between its truck and trailer and one of appellee’s passenger traihs, on the 6th day of August, 19S0. Commercial Standard Insurance Company intervened, claiming the right of subrogation as to certain items of damage pleaded by appellant. Appellee answered by pleas of general and special demurrers, general denial, contributory negligence, etc., and by cross-action against appellant for the sum of $882.81, damages to its equipment as the proximate result of appellant’s negligence in colliding with its train. Upon trial' to a jury, appel-lee’s special defenses against appellant’s cause of action were sustained, and it was awarded damages against appellant on its cross-action for the sum of $650. Upon the verdict, judgment was entered that appellant and intervener take, nothing by reason of their claims against appellee, and that ap-pellee recover judgment against appellant for the sum of $650 on its cross-action.

Opinion.

We sustain appellant’s proposition that the answer of the jury to appellee’s “Special Requested Issue No. 5,” together with the testimony in the record, does not support the judgment of $650. This issue was worded as follows: “What was the reasonable cost to the defendant and cross-plaintiff of repairs to its locomotive and two cars?”

The answer was “$650.00.” The correct measure of damages to personal property is the difference between its reasonable market value immediately before injury and immediately after injury; and, if it has no “market value” at the time and place of injury, then the damages should be calculated upon the basis of its actual value. But, as in Milby Auto Co. v. Kendrick (Tex. Civ. App.) 8 S.W.(2d) 743, 744, El Paso Electric Co. v. Collins (Tex. Civ. App.) 10 S.W.(2d) 397, and Chicago, R. I. & G. Railway Co. v. Zumwalt (Tex. Com. App.) 239 S. W. 912, 915, our courts permit recovery of the reasonable value of replacements and repairs,, made necessary by the injury, when by such replacements and repairs the injured property is restored “to its former condition immediately before the accident” (see the Kendrick Case, supra), and, as held in the Zumwalt Case, if the injured article, after being repaired, is worth less than it was before the injury, -“the difference in the value of the article before the accident and after such repairs are completed may also be recovered.” In order to recover the cost of replacements and repairs, it is also the rule that the bill for the repairs must not exceed the difference between the market value of the car before and after the injury, as held by this court in White v. Beaumont Implement Co., 21 S.W.(2d) 559. Texas Jurisprudence, vol. 13, p. 160, offers the following accurate criticism of the rule contended for by appellee in support of this issue: “The rule announced by some authorities that the reasonable value of necessary repairs caused by an injury to personal property should measure the damage is inaccurate or incomplete, the reason being that after having been repaired the property may be of greater or less value than before the injury, necessitating that such increased or decreased value be added to or subtracted from the cost of the repairs.”

There was no proof of the value of appel-lee’s injured property immediately before the injury nor immediately after the injury; nor did it offer proof that the repairs sued for merely restored the property to its former condition immediately before the accident. In explanation of this omission in its proof, appellee says that railway engines and its other property damaged by appellant in the collision, had no market value at the time and place of the collision. The point may be conceded, but, without relation to the issue of value, if appellee was unable to prove either market value or actual value, it was required to show, at least, that the repairs did not restore the property to a better condition than it was before the accident. The Court of Appeals of Kentucky, in Robson v. Zumstein Taxicab Co., 198 Ky. 365, 248 S. W. 872, 873, stated the law of this special issue correctly. It was there said: “While the reasonable cost of repairs is always admissible on the question of damages, yet, as the repairs may render the artielé more valuable than it was before the injury, he who causes the injury is not required to bear the full expenditure for the repairs, but is only liable for the difference in the market price of the article before and after the injury.”

It follows that appellee’s judgment against appellant, on its cross-action, must be reversed, and this phase of the case remanded for a new trial. But, as appellant has no assignments or propositions against the judgment in appellee’s favor on its cause of action against appellee, we order that the judgment of the lower court in this respect be in all things affirmed, and also that the judgment against intervener be in all things affirmed.

Affirmed in part, and reversed and remanded in part.


author: HALL, C. J.

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. HENDERSON et al.
    No. 3880.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 21, 1932.
    See, also, (Tex. Civ. App.) 53 S.W.(2d) 811.
    Gibson & Sutton, of Amarillo, for appellant.
    Snyder, Owen & Lybrand, of Oklahoma City, Okl., W. A. Keeling, of Austin, and W. M. Lewright, of Pampa, for appellees.
   HALL, C. J.

Glen Dale and Earline Henderson, the in fant defendants in this case, through their guardian ad litem, W. M. Lewright, have filed a motion to issue mandate without payment of costs. Attached to the motion is an affidavit by guardian ad litem, Lewright, reciting that said minors are wholly unable to pay the costs or to give security therefor.

While it is true that a guardian ad litem is not chargeable personally with the costs of the suit taxed against his ward, because his connection with the case is imposed by the order of court, it appears that Gladys L. Henderson (Wolf) by cross-action as next friend for her minor children sought to.recover for herself and said minors in this suit.

R. S. art. 1994 expressly provides that a next friend shall, when required, give security for costs or make an affidavit in lieu thereof, and the courts have held that such next friend is liable for the costs incurred by an infant party to a suit. Galveston Oil Co. v. Thompson, 76 Tex. 235,13 S. W. 60; John son v. Taylor, 43 Tex. 121; Biggins v. G., C. & S. F. Ry. (Tex. Civ. App.) 110 S. W. 561.

Since the mother is liable for the costs under this statute, the guardian ad litem’s motion to issue mandate without payment of costs must be overruled.


author: LAWHON, J.

text:
    TEAGUE et al. v. FARMERS’ STATE BANK OF CENTER.
    No. 2303.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 22, 1932.
    Rehearing Denied Dec. 28, 1932.

      Anderson & Lewis, of Center, for appellants.
    Sanders & McLeroy, of Center, for appellee.
   LAWHON, J.

Appellee brought suit in the county court of Shelby county against W. E. Teague, Louis Teague, J. E. Watson, and J. R. Thomason. Recovery was sought on a promissory.note in the principal sum of $140, together with interest and 10 per cent, attorney’s fees.

No answer was filed by W. E. Teague and Louis Teague, and judgment by default was taken against them. J. E. Watson and J. R. Thomason alleged that they were induced to sign the note upon representations and promises made them by officers of the bank that they would not be held liable, as the bank held a chattel mortgage on two trucks belonging to W. E. Teague, and that this was ample security for the debt, and that the only reason that their signatures were wanted was to satisfy the commissioner of banking and his assistants. It was further alleged that appellee had willfully and negligently failed and refused to foreclose on the personal property, but allowed it to be taken and appropriated by other parties. A trial was had before the court, and a joint and several judgment was rendered against W. E. Teague, Louis Teague, J. E. Watson, and J. R. Thomason, but judgment in favor of Watson and Thomason was given against W. E. Teague for any amount they might be compelled to pay. W. E. and Louis Teague have not appealed from the judgment.

The record discloses that the note sued upon was a renewal of a former note. The first note was signed by W. E. Teague, J. E. Watr son, and J. R. Thomason. Louis Teague did not sign this'note. W. E. Teague gave a chattel mortgage to secure this note on two trucks. The evidence showed that there were prior chattel mortgages against both trucks to secure part of the purchase price of same. When the note was renewed, the bank requested that Louis Teague sign it also, and it was signed by the other parties, as before. W. E. Teague received from the bank the amount of the first note, and Watson and Thomason received no benefit therefrom. The evidence shows that, before the execution of the renewal note, the two trucks had been turned over to the holders of the first liens, and that the value of the property was not equal to the debts against them. It was further shown that the officers of the bank did not know about this when the renewal note, which was sued upon, was taken. The court found that at least one of the appellants knew that the property had been turned over to the prior lienholders, and that there was no security for the second note.

J. E. Watson, one of the appellants, testified that Mr. Smith Sanders, the acting vice president and executive head of the Farmers’ State Bank, came to his place of business and talked to him about signing the first note and also about getting Mr. Thomason to sign it. He swore that Mr. Sanders stated that he had taken a mortgage on W. E. Teague’s trucks, and that the bank was fully secured under its mortgage, and that he only wanted his signature and the signature of Mr. Thomason in order to get by the rules of the banking commissioner and to get by the bank examiners; that Mr. Sanders would see that neither he nor Mr. Thomason would ever be bothered about the note or called upon to pay the same, and upon these representations he signed the note. The appellant Thomason did not claim to have had any conversation with any officer of the bank, but that appellant Watson told him the facts as substantially testified to by him. R. S. Sanders, the vice president of the bank, denied having made any such statements to either Watson or Thomason; that he did not recall, ever having a conversation with Watson. He stated that he did recall having a conversation with Mr. Thomason, and that Mr. Thomason told him that he would sign the note. The matter does not seem to have been discussed by any one at the time the second note was signed.

Appellants contend that the judgment against them is erroneous because the preponderance of the testimony shows that they executed the note solely for the purpose of accommodating appellee bank, and therefore no recovery could be had against them. Article 5933, § 24, R. O. S., providesi that every negotiable instrument is deemed to have been issued for a valuable consideration. The burden was upon appellants to prove their defenses by a preponderance of the testimony. Hamilton-Turner Grocery Co. v. Hander (Tex. Com. App.) 299 S. W. 848. As to whether the vice president of the bank made the representations claimed by appellants was a question of fact, and the court, in .this case, was the exclusive judge of this question. Central National Bank v. Lawson (Tex. Com. App.) 27 S.W.(2d) 125. The preponderance of the testimony does not depend upon the number of the witnesses for or against an issue. The vice president of the bank denied making the representations, and the trial judge believed his testimony. His findings are conclusive on this court.

Appellants further say that, as the bank held a mortgage on the two trucks, it became its duty to foreclose, and its failure to do this released appellants. There is no proof that appellants ever requested that any action be taken against this property, but it is shown without dispute that the maker of the note returned the property, without the knowledge of the bank, to the first lienholders, and that the property was not sufficient to pay these debts. Even if the value of the property had been more than sufficient to pay the first liens, the failure of the bank to enforce the mortgage it held would not have relieved appellants of their liability on. the note. Ramsey v. Wahl et al. (Com. Tex. App.) 235 S. W. 838.

We find no error in the judgment of the trial court, and it is affirmed.


text:
    JACOBS v. GASOW HOWARD MOTOR CO.
    No. 2315.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 22, 1932.
    O. M. Lord and D. E. O’Fiel, both of Beaumont, for appellant.
    C. E. Pool, of Beaumont, for appellee.
   WALKER, C. J.

In the court below appellant, A.. Jacobs, was plaintiff, and appellee, Gasow Howard Motor Company, was defendant. At the close of the evidence appellee moved for an instructed verdict. The following docket entry shows the ruling of the court on this motion: “10-19-31 Deft has leave to amend 10/19/31 both sides announce ready jury empaneled and sworn. Trial proceeds 10/21/31 both sides close. Defendant presents motion for instructed verdict at close of argument on said motion and not in presence of juiy. Trial judge said the motion for instructed verdict is granted bring in the jury. Plaintiff’s counsel moved a non suit. Court refused a non suit, on ground that it came after he had announced his decision on motion for instructed verdict, though he had not entered said decision on the docket; to which plaintiff excepts. Instructed verdict given to which plaintiff excepts.” Appellant’s request for a nonsuit was refused, the instructed verdict given, and judgment entered accordingly.

Appellant’s only assignment complains of the court’s refusal to grant his nonsuit. This assignment is overruled. In Texas Electric Ry. v. Cox, 49 S.W.(2d) 725, the Commission of Appeals said: “Where the defendant moves for a peremptory instruction, the plaintiff’s right to a nonsuit is controlled by that portion of the statute applicable to cases tried before the court without the intervention of a jury.” Article 2182, R. S. 1925, expressly provides: “When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced.” Where the court, trying the case without a jury, announces his judgment, it is too late to ask for a nonsuit. This is the direct holding of the court in the case cited. See, also, Adams v. Railway Co. (Tex. Civ. App.) 137 S. W. 437; Wood v. Moers (Tex. Civ. App.) 289 S. W. 1017.

Affirmed.


author: FLY, O. J.

text:
    CITY OF CORPUS CHRISTI v. JOHNSON.
    No. 8926.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 23, 1932.
    Rehearing Denied Jan. 4, 1933.
    See, also, 52 S.W.(2d) 281.
    John S. McCampbell, Kleberg & Eckhardt, and T. S. Cyrus, all of Corpus Christi, for appellant.
    Sidney P. Chandler, of Corpus Christi, for appellee.
   FLY, O. J.

This suit originated in the justice’s court where appfellee sued appellant for $150, the value' of a horse alleged to have received an injury resulting in death,' through the negligence of appellant in having a defective fence about its pound in which it had confined the horse. A jury returned a verdict for the sum of $142.50 in favor of appellee, in the county court, to which the case had been appealed from a judgment for $150. The cause was submitted on six special issues, the jury finding that the horse had been cut on the left hind leg under the knee while in the city pound, and died from the injury received in the pound, that the pound was not a safe place in which to confine the horse, and that the failure to provide a safe place was negligence, and that such negligence was the proximate cause of the injury.

Harry Lawrence, who, in spite of his real English name, is described as a Mexican boy and a son of Mrs. Lawrence, the “pound mistress,” testified that he impounded the injured horse with others, and that he was lame in a hind leg when he placed him in the pound. The only testimony to contradict the testimony of Lawrence Elders, Mrs. Lawrence, and Harry, to the effect that the horse was lame when put in the pound; was testimony by Johnson to the effect that Harry told him, when he went after his horses; “Maybe so they break out, maybe so I put them back, maybe so they break out again, maybe so I put them back again.” Appellee and another witness swore that the pen was not as strong as it should have been, and that it hkd been patched in probably more than one place. Mrs. Lawrence stated that some time before the injured horse was placed in the pound the fence had been broken and mended with new lumber. The horse was put in the pound at night and appellee went there next morning. If the horse broke out, it must have been in the night, and he would not have been in the pen next morning. “Maybe so, he did not break out.” The evidence was utterly insufficient to show that the horse was hurt in the pen; the only evidence to show negligence of any kind being the “maybe sos” of the boy Harry Lawrence. There is an utter lack of testimony to establish negligence upon the part of appellant.

The case has evidently been fully explored and evidence exhausted, and the judgment will be reversed and judgment here rendered that appellee take nothing by this suit and pay all costs expended in the several courts in which it has appeared.

Reversed and rendered.


author: GRAVES, J.

text:
    GUESS v. TEXAS & N. O. R. CO.
    No. 9790.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 9, 1932.
    J. W. Ragsdale, of Victoria, for appellant.
    Baker, Botts, Andrews & Wharton, of Houston, Marcus Schwartz and Sam Devall, both of Hallettsville, and Sewell, Taylor, Morris & Garwood, of Houston (Walton D. Taylor, of .Houston, Marcus Schwartz, of Hallettsville, and Calvin B. Garwood, of Houston, of counsel), for appellee.
   GRAVES, J.

This statement is substantially taken from the appellee’s brief: The appellant, O. E. Guess, instituted this suit as plaintiff in the district court of Lavaca county, Tex., asking for damages for alleged personal injuries claimed to have been sustained 'by him on June 21, 1930, while working as a laborer for appellee in its roundhouse at Yoakum, Tex. He alleges that he and two other laborers were instructed to move an electric welding machine from one part of the roundhouse to another; that the welding machine was mounted upo’n a four-wheeled vehicle, having at its front end an iron or steel tongue, by which it was both pulled and guided; that the end of this tongue was oval-shaped so that it could be grasped by hand by any one either in front of or on the sides thereof. Plaintiff pleaded and testified that he was on the left side of the tongue, having the oval-shaped end in front of him and his right side, and was pushing it (not pulling it), and another laborer was on the other side of the tongue pushing in the samé manner as he was, and that a third laborer, a negro, was behind the whole machine pushing it from the rear. In the roundhouse were a number of sets of tracks, over which locomotives were moved into the roundhouse to the places where the locomotive engines were stopped and remained for repair. These places with the tracks leading to them were referred to as stalls.

Plaintiff alleged that he and others had been ordered to move the welding machine to stall No. 2, and that the defendant was guilty of negligence in not exercising ordinary care to furnish him a reasonably safe place in which to perform his work, alleging specifically that there was not sufficient dirt or gravel between the rails of the track entering stall No. 2 to he flush with the tops of the rails; his sole ground of negligence, in his verbis, being this: “That said injuries to plaintiff were the direct and proximate results of defendant’s negligence in failing to exercise ordinary care to provide plaintiff with a reasonably safe place in which to perform the labors required of him by it, in this, that the defendant failed to exercise ordinary care in keeping the space approaching its rails and between its rails on said track in said shops across which plaintiff was required, on said date, to move said electric welding-device, properly filled so as the same would be flush with the floor over which said track was laid, and in leaving such rails protruding above the level of such floor space. And that but for such negligence on the part of the defendant such injury would not have occurred.”

Defendant answered by general demurrer, special exceptions, and general denial that the injuries complained of were sustained in the manner and to the extent claimed, asserting that they were not sustained at the time and place alleged, but were in fact the result of a condition of long standing. Defendant likewise pleaded that plaintiff was guilty of contributory negligence in a number of respects, each of which it alleged was the sole proximate cause of the accident and resulting injury, if any; it also pleaded the defense of assumed risk.

The plaintiff was the only witness introduced by whom; he attempted to show negligence. The other three witnesses introduced were the wife of the plaintiff and the doctors; their testimony having to do with the nature and extent of his injury, 'but in no wise relating to the. question of negligence, or the cause of the accident and resulting injuries, if any. At the conclusion of such testimony in his behalf, the court peremptorily instructed a verdict for defendant; hence this appeal.

This court finds no fault with the holding below, being of opinion that the evidence so presented fails to point out any negligence of the appellee in the respect alleged that reasonably, in the circumstances otherwise exhibited, could have constituted a proximate cause of the unfortunate injury suffered.

Even if it was a dereliction toward appellant not to keep the rails and intervening space of the track the welding device had to cross flush- with the floor over which it was laid,, that became at most a mere dam-num absque injuria and gave him no right of action, in the absence of the further indispensable showing that it at least had some causative effect toward bringing about the cbmplained-of mishap, Taber v. Smith (Tex. Civ. App.) 26 S.W. (2d) 722; Harris v. T. & P. Ry. Co. (Tex. Civ. App.) 28 S.W.(2d) 1093; Missouri Pacific v. Horner, 179 Ark. 321, 15 S.W.(2d) 994; St. Louis Southwestern R. Co. v. Smithhart (Tex. Civ. App.) 9 S.W.(2d) 146; and this latter sine qua non he himself conclusively negatives the existence of.

The sole act of omission toward him he testified to was that this track “wasn’t filled in” — that is, “it was not level with the rails.” He then shows his complete prior familiarity with that and all other material surroundings in the roundhouse, including the equipments and proper operation of the welding machine itself for the movement he sought to subject it to when hurt, and admitted seeing all the conditions ahead of him as he and the other laborers started toward that track with the welding machine, notwithstanding which he got on the inside of its tongue, back of the oval handle at the end, with one of the other workers on the right-hand side, and undertook to push it across the track, with the third employee pushing from behind, knowing full well in advance that, if both its front wheels did not strike the raised rail at the same time it would throw the tongue around either to the right or the left, when, according to his own statement of it, the accident was caused in this way:

“Q. When you pulled this machine up there, tell the jury whether both front wheels went against the rail at the same time, or whether one wheel struck the rail in advance of the other front wheel? A. Both wheels struck the rail.
“Q. Did they strike at the same time? A. I couldn’t say that. I don’t know.
“Q. You were guiding that .machine? A. There may have been a hole in there, I don’t know.
“Q. One wheel on this electric welding machine hit the rail stick up and caused this tongue here to swerve around and hit you? A. Yes, sir.
“Q. You know, don’t you, that if you pulled this machine up there so that one wheel would hit the rail before the other wheel it would throw this tongue either to the right or to the left, depending upon which wheel first hit the rail, don’t you? A. X suppose so; yes.
“Q. You say you tried to guide it so both wheels would come in contact with the rail at the same time? A. So we could get over, yes, sir.
“Q. Did you do that? A. No, sir, we didn’t do that.
“Q. The way it came, one wheel actually hit the rail in advance of the other? A. Yes. sir.
“Q. That is what caused the tongue to swerve around? A. Yes, sir, that is what throwed the tongue out.
“Q. Now, if you had succeeded in your intention to have both wheels come in contact with the rail at the same time, the tongue would not have swerved? A. If it had hit right, it wouldn’t have swerved.
“Q. Whether it hit right depended upon how it was guided? A. No, sir. You might hit it at the same time, and that rail may have grease on it, and it would skid.
“Q. You tried to guide it so that both wheels would strike at the same time? A. Yes, sir.
“Q. You did that, knowing if one wheel struck it in advance of the other it would cause the tongue to swerve? A. Yes, sir.”

It thus, not alone admittedly hut conclusively as well, appears that the appellee’s mere failure to keep the track filled in flush with the floor, assuming that omission to have occurred, did not in reason bring about this accident, hut that it must have and did proximately result from the way in which the appellant and his associates, with their eyes fully open at the immediate time to the precise conditions they were encountering, handled the welding machine in so undertaking to push it, with its front wheels askew, over the protruding rail of the track.

This conclusion is emphasized by the further considerations, also undisputedly disclosed, that, to the knowledge of appellant, the machine could not only have been gotten safely across at that same place by his standing in front of its tongue and pulling rather than getting beside it and pushing, but also that he was not confined to that particular route; there being another one that was commonly in use for the purpose.

The peremptory instruction having been properly given, the judgment has been affirmed.

Affirmed.


author: FLY, C. J.

text:
    SETHMAN et al. v. LIBERTY NAT. BANK OF OKLAHOMA CITY, OKL.
    No. 8937.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Rehearing Denied Jan. 4, 1933.
    H. L. Faulk, of Brownsville, for appellants.
    Cunningham & Rabel, of Harlingen, and Seabury, George & Taylor, of Brownsville, for appellee.
   FLY, C. J.

This is a suit instituted by appellee against Roy C. Sethman, Nina R. Sethman, his wife, Lumbermen’s Acceptance Corporation, Keith Tuggle, C. R. Tuggle, O. R. Tuggle & Son, Chamberlain Metal Weather Strip Co., Inc., Gertus D. Sutton, Roy C. Sethman Company, Dennett Motor Sales Company, Incorporated, and A. Wayne Wood, trustee. The suit sought a recovery on a' promissory note for $24,000, with interest coupon notes attached thereto. Appellee recovered judgment for $28,007.48 against Roy C. Sethman, against Gertus D. Sutton for one half of $27,954.13, and judgment against Roy O. Sethman the other half of the same sum, and a foreclosure as against all the parties on two lots in an addition to the city of Brownsville. .The cross-actions of defendants were denied. A jury in the case was instructed to return the verdict on which the judgment is based.

The first proposition presents as error the action of the court in denying Sethman and wife the right to swear to an affidavit to be appended to their answer in which they claimed to have denied the execution of the instrument claimed to have fixed a lien on the property claimed to be a homestead. The answer was as follows: “These defendants deny that they ever at any time executed or gave any valid lien or encumbrance against said homestead or executed any instrument by which a lien could be fixed upon said homestead in any manner authorized by the Constitution or laws of the State of Texas.”

The defense of Sethman and wife to the action for foreclosure of the lien on an apartment occupied by them in the city of Brownsville was an attempted plea of non est factum to such lien and designation of a homestead. The answer was not sworn to, and just before announcement of ready for trial appellants asked that they be allowed to attach their affidavit to the petition, and that request was denied.. This was undoubtedly error upon the part of the court. Milan v. Williams, 119 Tex. 60, 24 S.W.(2d) 391, 392. But it is contended, and we.uphold the contention, that no possible injury resulted to appellants by the ruling of the court, in view of their admission in their testimony that they executed the instrument, and their efforts to show that the officer who took the separate acknowledgment of the wife was disqualified •by interest to take such acknowledgment. The admission and acts of Sethman and wife was an admission that the so-called plea of non est factum was not true. It will be noted from the plea herein copied that they made no direct denial of having executed the instrument but merely that they had not signed any valid instrument. The plea was to all intents and purposes one of homestead rights and not one of nonexecution. We overrule the proposition.

Sethman swore that the money borrowed and for which the note and lien were given to the Braniff Investment Company was used in erecting the apartment house. The land was the property of Sutton, and was conveyed to Sethman by Sutton in order that Sethman might give a lien on the property. One-half of the property and improvements and land was to be conveyed to Sutton after the money was obtained. The Sethmans in writing designated another homestead and bound themselves not to claim any homestead interest in the apartment lot and building. The whole of the property, after the lien had been made and the house built with the proceeds therefrom, was conveyed to Mrs. Seth-man by Sutton and the Sethman Company, to whom the property had been conveyed by Sethman. These conveyances were rather sinuous methods, which seemed to be in entire harmony With the elusive plans of Seth-man to defeat payment of the money he had borrowed and used in acquiring the property. He admitted that he had never thought of claiming any homestead rights in the apartment until after he had failed to pay any further installments on the debt due by him. He did not intend to make a homestead of the apartment when he moved into it. At the time the lien was given on .the property, Mrs. Sethman could not have had any but a community interest in the property because she obtained her deed to it long afterwards, and, being community property, her signature to the deed of trust was not necessary and added nothing to the validity of the instrument. Of course the validity or invalidity of her acknowledgment would therefore be of no importance. We do not think, however, that the notary public, who was in the employment of the company, was thereby incapacitated to take the acknowledgment. N.o (fraud, deceit, or concealment was attempted to be shown in connection wtih the taking of the acknowledgment. There is no denial that the acknowledgment was taken and an explanation of the instrument, signed made to her. The notary public was not required to enter into minute details and circumstances concerning the transaction. She knew the purport of the instrument, and that was sufficient.

The impression is made by the facts that the debt was one honestly due by the Seth-mans, and that there is a manifest desire and intention to defeat its collection by a resort to technicalities without foundation in law or fact. The homestead idea was undoubtedly evolved after a failure to meet payments on the note. No homestead right in the apartment was shown.

The judgment is affirmed.


author: LOONEY, J.

text:
    RUSS v. MOTOR FINANCE CO.
    No. 11079.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 19, 1932.
    Rehearing Denied Dec. 17, 1932.

      Geo. Clifton Edwards, of Dallas, for appellant.
    John H. Thomas, of Dallas,- for appellee.
   LOONEY, J.

Mrs. Marguerite Russ ~sued C. L. Mahaney, a loan broker doing business as Motor Finance Company, to recover penalties and reasonable attorney’s fee authorized by statute for the collection of usurious interest. The defendant urged, and the court below-sustained, an exception to plaintiff’s petition (fifth amendment), and dismissed her suit, from which this appeal is prosecuted.

The exception, while special in form, is general in scope, and reads: “Because it affirmatively appears from paragraph- 3 of said petition (i. e., Plaintiff’s Fifth Amended Original Petition) that all of the matters and things of which she complains are fully barred by the two years statute of limitation in that said petition sets up a new cause of action against this defendant, showing her claim to be barred, because plaintiff’s original petition and her first amended petition, both on file in this cause, based her cause of action upon a transaction had by the plaintiff and her husband, F. A. Russ, on the one side, and this-defendant on the other, whereas her second amended petition based her cause of action against this defendant upon a transaction between herself on the one side and this defendant on the other, and in which the said F. A. Russ was not a party, and her third amended petition, filed herein on the 26th day of August, 1930, and her fourth amended petition, filed herein on the &th day of April, 1931, and her fifth amended petition, to which this exception is levelled, based her cause of action upon a transaction had by the plaintiff and her husband, E. A. Russ, on the one side, and this defendant on the other side, and, therefore, sets np and pleads a different and a new cause of action against this defendant, and which canse of action is shown upon the face of said petition to be fully barred by the two years statute of limitation.”

As indicated in the exception, the question decided below, and presented here, is whether the. statutory action properly brought by the wife alone, on allegations in the original and first amended petitions to the effect that she and her husband acted jointly in borrowing money and executing the contracts upon which usurious interest was collected from plaintiff, was changed in the second amended petition and a -new cause of action set up, by reason of the omission therefrom of all allegations in regard to the husband’s participation in the borrowing of money and execution of contracts.

It is conceded that the suit was filed in time to arrest the statute of limitation, and there is no serious contention that the cause of action set up in the original and first amendment was not substantially reiterated in the third and subsequent amendments, but it is contended that the second amendment, by omitting all reference to the husband, as a participant in the transactions, set up an entirely new cause of action, so that, when the third, and subsequent amendments were filed, the bar of two years’ limitation was complete; hence the court-did not err in sustaining the exception and dismissing the cause; this, as we gather from the record, presents the decisive question.

No recovery being sought upon contract, it is obvious that the suit is not ex contractu in nature, but is purely statutory; the contracts pleaded, upon which the alleged usurious interest was collected, are only collaterally involved, furnishing in part the surrounding or predicate facts, from which the asserted cause of action for the recovery of penalties arose. See Dean v. Maxfield (Tex. Civ. App.) 209 S. W. 466, 467. Although in the second amended petition the description of the contracts involved varies somewhat from that contained in the original pleadings, nevertheless we are of opinion that the cause of action continued in all material respects the same throughout; that is, it begun and remained an action by Mrs. Buss to recover statutory penalties for usurious interest collected from her by the defendant. The liability of defendant was the same, whether, as alleged in the original and first amended petitions, the borrowing of money and the execution of contracts were participated in jointly by Mrs. Buss and her husband, or as alleged in the second amended petition, the transactions were with Mrs. Buss alone; the cause of action asserted in each pleading being the same. Warnock v. Mills (Tex. Com. App.) 291 S. W. 850, and authorities cited.

This is not a question of variance between the allegata and probata, but simply the effect to be given a change in the description of certain contracts collaterally involved wrought by an amendment that omits the name of one of the makers, which, if not corrected by a later amendment, would doubtless present a fatal variance, but we do not think the failure to properly describe the contracts in the amended pleading would change or result in the abandonment of the original cause of action declared upon. See Thompson v. Swearengin, 48 Tex. 555; Rabb v. Rogers, 67 Tex. 335, 339, 3 S. W. 303, 305; Mo. Pac. Ry. Co. v. Smith (Tex. Sup.) 16 S. W. 803, 804; Texas & P. R. Co. v. Johnson (Tex. Civ. App.) 34 S. W. 186, 188.

Appellee also attempts to sustain the action of the court in dismissing the case upon grounds other than those urged in the exception; that is, it is argued that plaintiff, in her original and first amended petitions, alleged a cause of action different from the one set up in her second and subsequent amendments, in that, in the original and first amended petitions, the dates of contracts, the amounts of loans, and.the damages claimed, differ from the corresponding allegations of the second and subsequent amendments.

In the original and first amended petitions, plaintiff begins the history of the transactions by alleging that on February 1, 1927, she and her husband borrowed $150 from defendant, evidenced by their note for $207, payable within less than one year, etc.; in the second and subsequent amendments, a somewhat different history of the transactions is detailed,, in that, it is alleged that in the latter part of December, 1925, $250 was borrowed from defendant, for the use of which for a period less than one year he exacted $75 interest, etc.; however, the allegation is made in each pleading that, on June 10, 1927, a certain note was executed (description of the transaction being substantially the same in each), into which all accumulated usurious interest was brought forward, which was subsequently paid by plaintiff from her own separate means.

The cause of action alleged in each amendment did not differ in any material sense from the case made in its antecedent, and, under the well-settled doctrine in this state, a different cause of action from the one originally pleaded was not set up in either subsequent pleading. After an exhaustive review of the authorities in point, Judge Powell, in Fuller v. El Paso Times Co. (Tex. Com. App.) 236 S. W. 455, 459, announced the following : “It is only essential that the amended pleading, upon which the trial was had, was not substantially different from some portion of the former pleading. If each of the amended petitions herein contained, even as part of the cause of action therein asserted, substantially similar allegations, there was no new cause of action. This is well settled by our Supreme Court in the case of Bigham v. Talbot, 63 Tex. 271.” Also see Warnock v. Mills (Tex. Com. App.) 291 S. W. 850; 855.

Defendant had notice from the beginning and throughout the proceedings that plaintiff was seeking recovery in her own right - of statutory penalties for usurious interest collected ; that being the gravamen of the complaint in each of the pleadings filed by her. In a like situation, the United States Supreme Court, through Judge Holmes, in New York Central & H. R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 123, 67 L. Ed. 294, used the following language: “Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.”

Accordingly, the ease will be reversed, and, as the same will'be tried anew, attention is called to the following matters: We gather from plaintiff’s allegations that on June 10, 1927 (date of-execution of the final note) she paid defendant $121.50, on the immediately preceding note of the series, and, as the amount was sufficient to extinguish the balance of principal ($74.50) unpaid at that time, $47 was left to be applied on the accumulated usurious interest; the balance remaining unpaid on the note, together with additional money borrowed at the time, made up the amount for which the new and final note was executed. Thus it appears that defendant collected from plaintiff $47 usurious interest June 10, 1927, more than two years before the institution of the suit July 30, 1929; hence her right to recover, based upon and measured by such payment is clearly barred. The controlling statute, article 5073, R. S. 1925, provides that; “Within two years after the time that a greater rate of interest than ten per cent shall have been received or collected upon any contract, the person paying the same or his legal representative may by an action ■ of debt recover double the amount pf such interest from the person, firm or corporation receiving the same. * ” It is obvious that each collection of usurious interest constitutes a matured cause of action in favor of the person paying against the recipient, which must be asserted within two years after the date of payment.

Again, it appears that plaintiff is seeking, in the alternative, to recover of defendant, as penalty, four times the amount of the alleged usurious interest collected, on the theory that the statute enacted by the 40th Legislature, 1st O. S., p. 30, c. 17, now article 6165a, Vernon’s Ann. Civ. St., regulating loan brokers, authorizes the- imposition of such penalty. Justification for this position is found in the provision that authorizes suit against a loan -broker collecting usurious interest “in double the amount now provided by law”; the contention being that this provision authorizes recovery of double the penalty provided in the general usury statute, article 5073, R. S. 1925.

We cannot adopt this construction of the statute. Its language, in our opinion, is not of doubtful meaning, but, even if so, we could not assume that the Legislature would attempt to impose upon loan brokers violating the statute against usury penalties double, those visited on the rest of mankind for the same offense; such classification would be without good reason, and the penal provisions of the statute unequal, discriminatory, hence violative of the Constitution. •

The judgment of the court below is reversed, and cause remanded for further proceedings, in harmony with the views here expressed. '

Reversed and remanded.

On Motion for Rehearing.

Appellant contended that, in view of the provisions of the loan broker statute (article 6165a, Vernon’s Ann. Civ. St., enacted by. the 40th Legislature, chapter 17, First Called Session, page 30, Session Acts) she was entitled to recover four, times the amount of the alleged usurious interest collected by defendant. In denying this contention, we gave to the loan broker statute a construction in harmony with the general statute on the subject (article 5073).

Appellant also seeks to recover an attorney’s fee as provided in article 6165a, and, as this phase of the case was not discussed by us on original submission, appellee challenges the right of appellant to recover the same.

The statute in question regulates the business of a loan broker at great length, requiring those pursuing the business to execute a bond in the sum of $1,000 payable to the county judge of the county where the business is located, conditioned that the broker shall comply with all provisions of the act, and authorizing suit on the bond by any person injured or damaged by reason of its breach; also authorizing recovery of a reasonable attorney fee to be allowed by the court, not to exceed the sum of $50. Appel-lee contends that the attorney fee provisions of the statute is void, or at least that it has no application to the case. We sustain the latter contention; the suit not being up-. on the bond, we do not think appellant is entitled in any event to recover an attorney’s fee, and, in view of the language of the' statute, it is doubtful if the bond was intended to do more than protect against the violation of the regulatory provisions of the statute in respects, other than the collection of usurious interest, as that subject was at the time well regulated by other statutes. See title 79, arts. 5069 to 5074, R. S. 1925; however, we leave the point undecided, as the action is not upon the loan broker’s bond, and sustain the contention of appellee that an attorney’s fee, under .the circumstances, is not collectible. Appellee’s motion for rehearing is overruled.

Overruled.


author: ALEXANDER, J.

text:
    CITY OF WACO v. ROOK et al.
    No. 1279.
    Court of Civil Appeals Of Texas. Waco.
    Nov. 17, 1932.
    Rehearing Denied Dec. 29, 1932.

      John McGlasson, Allan McDonnell, and McClellan, Lincoln & Williams, all of Waco, for appellant.
    John McNamara, H. S. Beard, and W. 1⅛ Ea.son, all of Waco, for appellees.
   ALEXANDER, J.

This action was brought by Urban Rook and others against the city of Waco to recover certain damages alleged to have accrued to them as the result of the building of Lake Waco. In 1929, the city of Waco erected what is known as the Lake Waco dam across the Bosque river near Waco in McLennan county for the purpose of providing a water supply for the city of Waco. It was alleged that the dam is about 60 feet in height, one mile in length, and backs the water up the river for a distance of more than five miles and thus impounded more than thirteen billion gallons of water. It is further alleged that plaintiffs’ farm is situated on the north side of the Bosque river in the valley thereof about 500 yards below said dam, and that much of plaintiffs’ land is more than 30 feet below the ordinary -water level in Lake Waco, that said dam is an earthen dam, and part of it was built on a gravel base, which base allows the water to continuously seep through and under the dam from the lake, and that the plaintiffs, some of whom reside on the farm, have a well-founded apprehension that said dam will break and flood plaintiffs’ land and damage the same, and that an ordinarily prudent person would have a like apprehension. Plaintiffs further allege that the city has constructed two broom gates and sixteen large floodgates about 15 feet high and 25 feet long in said dam for the purpose of providing a spillway for said lake, and has changed the natural channel of the river below sqid dam by constructing an artificial channel insufficient in size to carry the overflow water from said lake, which new channel enters the old channel near plaintiffs’ land, and, instead of running parallel to' plaintiffs’ land, as did the old channel, this artificial channel strikes plaintiffs’ land almost perpendicularly, and that, by reason of the diversion of the water into the new channel, a whirlpool has been created at the intersection of said channel with plaintiffs’ land, and the soil on several acres thereof has been completely washed away, and the remainder of said land is in constant danger of being overflowed and washed away. The plaintiffs further allege that, by reason of the manner of the construction -of said channel, 4 acres of plaintiffs' land has been washed away, to plaintiffs’ damage in the sum of $800; that 10' more acres will be washed away in the future'to plaintiffs’ damage in the sum of $2,000; that the value of plaintiffs’ entire tract of land (118 acres) has been depreciated $17,100; and that, by reason of the negligent manner in which the floodgates were operated in 1930, growing crops of the value of $200 and a fence <of the value of $75 have been washed away, making a total damage in the sum of $23,175.

The city of Waco answered by general demurrer, certain special exceptions, general denial, and affirmatively alleged that it was a municipal corporation, charged with the duty of providing an adequate water supply for its citizens, and that under lawful authority granted it by the state <of Texas it has impóundfed the waters of the Bosque river, a navigable 'stream, by the construction of a dam for such purpose, that said dam has been carefully and properly constructed on property acquired and owned by the city for such purpose, and that the construction of the dam and its operations have in no manner injured the plaintiffs.

The case was submitted to the jury on special issues; said issues and the findings of the jury thereon being, in substance, as follows: (a) That the dam and its appurtenances were so constructed as to occasion physical injury to plaintiffs’ land; that 2 acres of said land of the value of $90 per acre were actually physically injured: (b) that the reasonable market value of plaintiffs’ land immediately before the construction of the dam and its appurtenances was $125 per acre, and that immediately after its construction it was of the reasonable market value of $90 per acre; (c) that the market value of plaintiffs’ land had been depreciated by the construction of said dam and its appurtenances in the sum of $4,130; (d) that plaintiffs’ cotton of the value of $200 and a fence of the value of $75 were washed away during the year 1930 as the proximate result of the negligence of the defendant’s caretaker in failing to raise the gates of said lake before the water rose above the gates.

Upon such verdict, the court entered judgment for the plaintiffs for the sum of $4,515. The defendant appealed.

The appellant contends that the court has allowed a recovery for the depreciation in the market value of appellees’ land occasioned by a mere fanciful apprehension or fear that the dam might break at some time in the future and injure appellees’ land, without proof or a finding of a reasonable probability that the dam will in fact break in the future, and without proof or a finding that the dam was negligently constructed, and it presents the proposition that the appellees are not entitled to recover anything for the depreciation in the market value of their land on accotmt of the construction of the dam unless the dam was negligently constructed or unless it is reasonably probable that the dam and its constructions would probably injure appellees’ land.

We agree with appellant that appel-lees are not entitled to recover anything for the depreciation in the market value of their land occasioned by the erection of the dam and its appurtenances unless it is reasonably probable that as a result thereof injury will actually result to said land. In other words, even though the market value of ap-pellees’ land has actually depreciated as the result of the erection of the dam and its appurtenances, appellees are not entitled to recover if such depreciation has been brought about by a mere fanciful unfounded fear that the dam will break at some future date. Every one has a right to use his property as he sees fit, so long as he does’not injure the rights of- others. A dam which impounds water is not a nuisance per se. The city of Waco had a lawful right to erect the dam on property of its own for the purpose of-impounding water for its citizens, and unless, on account of the manner in which the dam and its appurtenances were erected, there is a real danger of injury to appellees’ land, ap-pellees have no right to recover. It is not infrequent that one in the use of his own property in a perfectly lawful manner may bring about a depreciation in the market value of his neighbor’s property, as by the erection of unsightly -buildings, business houses, excavation, or manufacturing plants, or the location of a railroad in close proximity thereto; yet, if there is no real danger of injury t-o the property or of an interference with the use thereof, such neighbor cannot recover damages for such depreciation in the market value of -his property. Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S. W. 119, 27 L. R. A. (N. S.) 237; Dunn v. City of Austin, 77 Tex. 139, 11 S. W. 1125; Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387; Sanders v. Miller, 52 Tex. Civ. App. 372, 113 S. W. 996.

We do not agree, however, that the court has allowed a recovery herein for depreciation in the market value of appellees’ land produced solely by an unfounded fanciful fear that the dam in question will bréale. It is true that there was no finding by the jury that the dam would likely break, and there was büt little, if any, evidence to support such an issue, but there was evidence that, on account of the manner in which the floodgates and the new channel leading therefrom were constructed, appellees’ land is endangered. It appears that before the dam was constructed the old channel of the Bosque river ran parallel to appellees’ farm, and said land was protected by a high embankment. It was seldom that the land overflowed, and, when this did occur, the water did not flow across the land, but merely backed up onto the land and caused very little injury. When the dam was built, a new channel' was constructed. The upper end thereof is about one-half mile south of the old channel, and the lower end thereof enters the old channel at a sharp angle on the line of appellees’ farm. The floodgates are large enough that, when operated at full capacity, they release far more water than the channel will carry. This water when released is thrown against the south line of said farm at such an angle as to create a whirlpool, which has already washed away a part of appellees’ land, and with such force and volume as to overflow appellees’ land. In this way the water is caused to flow rapidly across appellees’ land and to wash the soil away. The appellees not only charged that there was danger that the dam would break and injure the land, but they alleged that the dam and its appurtenances, -which included the new channel and the floodgates, were so constructed as to create a menace and hazard to the land and to cause injury thereto. The evidence above referred to was. sufficient to authorize a jury to find that the dam. and its appurtenances were so constructed as to ere-ate a hazard and to occasion physical injury to appellees’ land and thus depreciate the value thereof. With such evidence before it, the court submitted to the jury, and the jury answered, certain material issues, as follows:

“Defendant’s special requested charge No. 6 — 1: ' Do you find from a preponderance of the evidence that the dam and its appurtenances are so constructed as to occasion any physical injury and loss to the plaintiffs’ land?” to which the jury answered, “Yes.”
“Defendant’s special requested charge No. 6 — 2: How much, if any, do you find from a preponderance of the evidence that the plaintiffs’ land was actually physically injured?” to which the jury answered, “2 acres ($90.00 per acre).”
“Special issue No. 1: Do you find from a preponderance of the evidence that the market value of plaintiffs’ land was depreciated toy the construction of the dam and its appurtenances?” to which the jury answered, “Yes.”
“Special issue No. 2: How much, if any, do you find from a preponderance of the evidence that plaintiffs’ land depreciated in market value by reason of the construction of said dam and its appurtenances?” to which the jury answered, “$4,130.00.”

At the request of the defendant, the court submitted the following special issues:

“What was the reasonable market value of the plaintiffs’ lands immediately prior to the construction of the dam and its appurtenances, which construction, according to the evidence, began in December of 1928?” to which the jury answered, “$125.00 per acre.”
“What was the market value, if any, of plaintiffs’ land immediately upon the beginning of the construction of said dam and its appurtenances and after the erection and construction thereof became a certainty?” to which the jury answered, “$125.00 per acre.”
“What was the reasonable market value of the plaintiffs’ land immediately upon the completion of the dam and its appurtenances in May of 1930?” to which the jury answered, “$90.00 per acre.”

If said dam and its appurtenances were so constructed as to occasion physical injury and loss to appellees’ land, as found by the jury, the appellees were entitled to recover the depreciation in the market value of said land as the result thereof even though there was no danger of the ddm. breaking. The appellant, upon request, would have had. the right to have had the jury instructed not to consider any ' depreciation brought about by an unfounded fear that the dam might break, but it neither objected to the court’s charge for the failure to so instruct the jury, nor requested the submission of such an instruction. The jury was instructed specifically, by appellant’s requested special charge No. 7, not to take into consideration any depreciation in the market value of the land which was not solely occasioned by the construction of the dam and its appurtenances.

The appellant objected to the submission of special issues 1 and 2 above quoted, as follows: “Because the issues as framed permit the jury to find that the market value of the plaintiffs’ land was depreciated by the construction of the dam and its appurtenances without any finding by the jury that the said dam and its appurtenances as constructed constituted any hazard, menace or threat to the plaintiffs’ land and thereby eliminates from the consideration of the jury the material issues of the case as joined between plaintiffs and defendant by their respective pleadings.”

We do not think that the charge as a whole, when considered in connection with the defendant’s special issue No. 6 — 1, was subject to the above objection. In answer to the defendant’s special requested issue No. 6 — 1, above quoted, the jury found that the dam and its appurtenances were so constructed as to occasion physical injury and loss to the plaintiffs’ land.

■ The appellant further objected to said special issues 1 and 2, as follows: “Because the said issues as framed do not permit the jury to find specifically what amount of damages, if any, have been suffered by repson of actual physical injury to the plaintiffs’ land separate and apart from the damages for the alleged menace and hazard of the dam, but permit the jury in response thereto to bring in damages for both actual physical injury to the lands of the plaintiffs and damages for depreciation of the value of the lands as a whole, thereby making it impossible for the court and for the defendant to test the sufliciency of the verdict in the light of the evidence offered.”

We do not think that the charge as a whole is subject to the above objection. The jury not only found that the dam and its appurtenances had been so constructed as to occasion injury to the land and that the market value thereof had thereby been depreciated, but found that the value of the land had been depreciated $4,130 by reason of the construction of such improvements. There were 118 acres of land, which, according to the finding of the jury, had a! market value of $125 per acre before the construction of the improvements and $90 per acre after the construction of the improvements. The depreciation amounted to $35 per acre on 118 acres or $4,130 as found by the jury. The jury found that 2- acres of land of the value of $90 per acre had been physically injured or washed away. It is clear, therefore, that the jury carefully separated the depreciation in the value of the land occasioned hy the construction of the dam and its appurtenances—the anticipated damages resulting from danger of actual injury to the land—from the damages awarded by them for subsequent actual physical injury to the land.

The appellant further complains because the court did not give its special requested issue No. 2, as follows: “Do you find from a preponderance of the evidence that it is reasonably probable that the dam in question will break?” The court did not err in refusing to give this charge. The appellees were not dependent for a recovery on their ability to show that there was danger that the dam would break. They alleged that the dam and its appurtenances, which included the floodgates and the new channel, threatened and endangered the land and thus depreciated the value thereof. The above issue did not include the danger created by the construction of the appurtenances. Such issue submitted a mere evi-dentiary fact, for, even though the jury had found that there was no reasonable probability that the dam in question would break, yet, if the dam and its appurtenances, as found by the jury, were so constructed as to endanger plaintiffs’ land, the plaintiffs had a right to recover for the depreciation in market value brought about thereby.

The appellant complains of the refusal of the court to give its special requested issue No. 4, as follows: “Do you find from a preponderance of the evidence that defendant was negligent in the manner and method of constructing the dam in question?” The court did not err in refusing to give this charge. It did not include the appurtenances to the dam, and consequently submitted a mere evidentiary issue, for, even though the jury had found that the defendant was not negligent in the manner and method of the construction of the dam in question, still, if the appurtenances to the dam, including the channel, were so constructed as to actually endanger plaintiffs’ land, the plaintiffs were entitled to recover. Moreover, whether or not appellant was negligent in the construction of the improvements in question is immaterial. Our Constitution, art. 1, § 17, prohibits the taking or damaging of one’s property without just compensation, and, if appellant did damage appellees’ property, as found by the jury, it was liable for the consequences thereof even though it exercised precaution and was not guilty of negligence in the construction of the improvements complained of. 46 C. J. 663; .,20 R. C. D. 381, § 3; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.(2d) 57, par. 6; M. K. & T. Ry. Co. of Texas v. Perry, 46 Tex. Civ. App. 374, 102 S. W. 1169-1171; Western Texas Compress Co. v. Williams (Tex. Civ. App.) 124 S. W. 493; Hamm v. Briant, 57 Tex. Civ. App. 614, 124 S. W. 112; Olivas v. El Paso Electric Co. (Tex. Civ. App.) 38 S.W. (2d) 165, par. 4; T. & P. Ry. Co. v. Mixon (Tex. Civ. App.) 21 S.W. (2d) 1098, par. 1, and cases there cited.

The appellant complains of the action of the court in refusing to give its special requested charge No. 9, as follows: “You are. instructed that in answering special issues Nos. 1 and 2, you should not take into consideration any depreciation which might arise by the mere construction of the dam and its appurtenances, but you should only consider such depreciation, if any, as might have been occasioned by the negligent construction, if it was negligently constructed, of said dam and its appurtenances, and in this connection you are instructed that the dam in question having been erected pursuant to lawful authority granted by the State of Texas that the plaintiffs are not entitled to recover any damages arising from its mere construction, but are entitled to recover damages in the event that said dam has been negligently constructed, or so constructed as to cause actual injury to the plaintiffs’ lands, and in answering said issues, you will confine yourself solely thereto.”

Aside from the fact that this charge is objectionable because it is a general charge in a case that was submitted to the jury on special issues, we do not think that it correctly states the law. 'The effect of this charge was to tell the jury that they should take into consideration only such damages as were occasioned by the negligence of the appellant. This is not the law. See authorities heretofore cited.

The appellant complains of the action of the court in allowing a recovery for (the value of 2 acres of said land at $99 per acre which was washed away after the completion of the dam and its appurtenances. The appellees alleged that a part of said land had been washed away as the direct result of the construction of said improvements. It was not alleged, however, that this was due to any act of negligence on the part of the appellant. This injury is alleged to have been the result of the original wrongful act and not the result of any subsequent act. There was evidence that 2 acres of the land had been washed away as the result of the whirlpool caused by the new channel. The 2 acres of land at $99 per acre, as found by the jury, would have amounted to $180, but, in figuring the judgment, for some reason only $110 was included for this item. The court allowed a recovery for this item in addition to,the sum of $4,130 allowed for the depreciation in the value of the entire tract. The appellant contends that this constituted a double recovery. We are of the opinion that this contention is correct. The appellees’ action was for the permanent injuries caused by the construction of the dam and its appurtenances, and the rule is that, where the injury to the land is permanent, as was contended for in this case, the measure of damages is the depreciation in the value of the land brought about by the construction of such improvements. The amount of such depreciation is ordinarily ascertained by taking the difference between the value of the land immediately before the construction of the improvements and its value immediately after the completion thereof. In such case the injured party can have but one cause of action and one recovery, and he must recover therein for all damages accrued or to accrue in the future as the result of such act. The damages allowed — the depreciation in the value of the land — compensates him for all present as well as all future anticipated injury. It is elementary that he could not recover for the anticipated injury, and then when the injury occurs, as was anticipated, recover again for such injury. T. & P. Ry. Co. v. Ford, 54 Tex. Civ. App. 312, 117 S. W. 201; M., K. & T. Ry. Co. of Texas v. Anderson (Tex. Civ. App.) 194 S. W. 662, par. 5; Rosenthal v. T., B. & H. Ry. Co., 79 Tex. 325, 15 S. W. 268; St. Louis S. W. Ry. Co. v. Long, 52 Tex. Civ. App. 42, 113 S. W. 316; Denison B. & N. O. Ry. Co. v. Barry, 98 Tex. 248, 83 S. W. 5; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.(2d) 57; Hutchinson v. I. & G. N. Ry. Co. (Tex. Civ. App.) 111 S. W. 1101-1105; Lyles v. T. & N. O. Ry. Co., 73 Tex. 95, 11 S. W. 782. The injury to the 2 acres of land was á part of the anticipated injury fully compensated for in the allowance of the $4,130 for depreciation in the value of the land. The court should not have allowed the recovery of $110 for the 2 acres of land subsequently washed away.

The appellant complains of the action of the court in allowing a recovery for the value of a certain cotton crop and a fence destroyed by an overflow of said land during the fall of 1930, through the alleged negligence of appellant’s agents. The appel-lees alleged that in the fall of 1930 appellant’s agent in charge of the operation of the floodgates negligently allowed said gates to remain closed during a heavy rain until the water in the lake had risen to 2 feet above the top of said gates, and then negligently opened eleven of said gates to full capacity, and as a consequence the channel was caused to overflow and appellees’ cotton crop and fence were washed away. The jury found that said agent was negligent in failing to' raise the gates before the water rose above them, aiid that as the proximate result thereof appellees’ cotton crop of the value of $200 and fence of the value of $75 were washed away. The court allowed a recovery for these items in addition to the recovery of $4,130 for permanent depreciation in the value of appellees’ land. The appellant contends (a) that this constituted a double recovery; and (b) that the city was under no obligation to furnish flood control to appellees, and that liability herein is based on the failure of the city to furnish such flood control. The rule which confines the injured party to one action and requires him to recover therein for both present and anticipated injuries applies only to such injuries as result from the original wrongful act, and does not apply to injuries brought about by subsequent tortious or negligent acts of the wrongdoer. When the dam and its appurtenances were erected, although erected in a prudent and cautious manner, a hazard was created which, without the anticipation of any future negligence on the part of the city, actually depreciated the market value 'of appellees’ land to the extent as found by the jury of $4,130. In estimating this damage, it was contemplated that the city and its agents would conduct themselves in an ordinarily prudent manner, and no allowance was made for damages that might be caused by future negligence. If, after the hazard had been created, the city’s employees were guilty of negligence which caused additional damages other than that which would have resulted from such original act, then the appellees were entitled to recover for such additional damages caused by such negligence. While the city, strictly speaking, was not obligated to furnish flood control to appellees, yet, having interfered with the natural flow of the water and having undertaken to impound and discharge the water in.an unnatural way, it was under obligation to exercise ordinary care not to injure the rights of others, and, having failed to do so, it is liable for the consequences. The appellees had the right to join their action for such additional damages in one suit with their action for the depreciation in the market value in order to prevent a multiplicity of suits. The court did not err in allowing a recovery for the value of the cotton and fence so destroyed.

The appellant contends that, since the jury found in answer to its special issue No. 6 — 2, that only 2 acres of appellees’ land of the value of $90 per acre had been physically injured, the appellees should be limited in their recovery to the value bf said 2 acres of land, or $180, plus $275 for the value of the cotton crop and fence washed away, making a total of $455. Appellant apparently interprets the finding that 2 acres of said land of the value of $90 per acre had been physically injured, as a finding that this was the Fotal damage actually sustained hy appellees both present and prospective as the result of the hazard and menace created by the construction of said improvements. We do not so interpret the verdict of the jury. The appellees were suing to recover, and the court submitted to the jury, two different items of damages, first, the depreciation in the value of the land caused by the construction of the improvements, and, second, the value of a number of acres of land actually washed away after the completion of the dam and before the trial. The first included all damages, both present and prospective, that would result to the land as the result of the menace and hazard actually created by the original act, and the jury found this item to be $4,130; while the latter included only the value of the land that had been actually physically injured by being washed away after the improvements were completed and prior to the trial, and the jury -found this item to be $180. Such interpretation must necessarily be given to said special issue 6 — 2 when it is considered in connection with the pleadings and evidence and the remainder of the court’s charge. The jury evidently so interpreted said issue, for, •after finding that the land had a value of $125 per acre prior to the construction of the improvements and a value of $90 per acre after the completion of such improvements, they found that the 2 acres which had been subsequently physically injured was only of the value of $90 per acre, thus indicating that they were assessing the value of said 2 acres of land at the value which it had after the depreciation brought about by the construction of the dam and its appurtenances. We overrule this contention.

The appellant complains of certain alleged improper argument by attorneys for the appellees before the jury. This argument consists of statements by said attorneys to the effect that they were acquainted with certain witnesses who had testified on behalf of appellees and that said witnesses were high-class citizens, worthy of belief, and that such witnesses would not falsify, etc., and of a statement made by one of said attorneys that he did not believe that the jury was going to “swallow” the testimony of a certain witness who had been paid a fee of $10 by the city for his time consumed while examining the land in question and testifying in the case as an expert as to the value of the land in question. Appellant also complains of a statement by one of said attorneys that, so long as there was a reasonable fear that the dam in question would break, this would cause a depreciation in the market value of the land even though the dam actually stood until “Gabriel blew his horn.” The bills of exception show that no objection was made nor exception taken to this argument at the time it was made and no request was made to have the jury instructed not to consider same. The objection was raised for the first time in the motion for new trial. While some of this argument was probably improper, it was not so prejudicial or inflammatory that an instruction from the court would not have corrected the error, if any. The general rule is that, where the argument is so prejudicial or inflammatory that an instruction from the court would not cure the error, it is not incumbent on the complaining party to object thereto and request the court to instruct the jury not to consider the improper argument, but, where the argument is such that an instruction from the court would cure the error, the complaining party must object to the argument and request the court to instruct the jury not to consider it; otherwise the error is waived. City of Pampa v. Todd (Tex. Civ. App.) 39 S.W.(2d) 636; G., C. & S. F. Ry. Co. v. Greenlee, 79 Tex. 553, 8 S. W. 129; In Re Ramon’s Estate (Tex. Civ. App.) 20 S.W.(2d) 351, par. 4; American Freehold Land Mortgage Co. v. Brown, 54 Tex. Civ. App. 448, 118 S. W. 1106-1109; Ware v. Jones (Tex. Com. App.) 242 S. W. 1022. We do not think that the error herein complained of requires a reversal of the case. .

We have considered all other assignments, and consider them without merit.

The judgment of the court will be reformed so as to reduce the principal of the judgment $110. As reformed, the judgment of the trial court is affirmed.


text:
    METROPOLITAN CASUALTY INS. CO. OF NEW YORK v. CITY OF JUNCTION.
    No. 8959.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1932.

      Collins & Houston, of Dallas, for appellant.
    Stevenson, Baker & Knetseh, of Junction, for appellee.
   FLY, O. J.

The city of Junction sued the insurance company on a bond given by John S. Munn, as principal, and appellant as surety. Munn was described in the policy as city secretary, tax assessor, and tax collector. The holder of the three offices, the Foobah of Junction city, in the language of the comic opera Mikado, became a defaulter, it was alleged in the petition in the sum of $2,089⅛6. It was also alleged that certain papers and documents belonging to appellee of the value of $2,500 were lost or destroyed by said Munn, and appellee also sought a recovery of said sum in addition to the sum of $2,089.56 prayed for as embezzled money. The court rendered a judgment against Munn and the insurance company. The judgment was rendered on February 29, 1932, being on Monday of the third week of the court. Appellant had filed an answer in the suit on February 19, 1932. On February 9, 1932, appellant’s counsel wrote the attorneys of appellee as to a setting of the case and received the following letter from them:

“Junction, Texas. February 12th, 1932. "Collins & Houston, 1214 Fidelity Union
Building, Dallas, Texas.
“Gentlemen: In re: City of Junction vs. Munn, et al. Replying to your letter of February 9th, addressed to our firm, with reference to the above styled case, will say that we are very anxious to try this cause at the February term of the District Court of this place. Our .court convenes on February 22nd, and continues for three weeks. As a usual thing the first week is used in the trial o'f criminal cases and a portion of the second week. For your convenience, we might agree on a setting toward the latter part of the second week.
“You may let us hear from you.
“Yours very truly,
“Stevenson, Baker & Knetseh
“By Weaver H. Baker.”

On February 18th, appellant’s attorneys, in answer to that letter, suggested that the case be set on Friday, March 4th, which was in the latter part of the second week of the court, which began on February 22d. The reguest for setting the case for March 4th was in line with the letter of appellee’s attorneys’ letter that the case be set for the latter part of the second week of court. Appellee’s attorneys claimed that they did not receive the letter of February 18th, which one of the attorneys for appellant swore that he mailed in Dallas on that date at the same time that he mailed a letter containing the answer of appellant to the district clerk of Kimble county, who received and filed the answer on February 19th. On February 29th, not hearing from appel-lee, appellant’s attorneys telephoned appel-lee’s attorneys to ascertain the date on which the cause would be set for trial and was informed that the case was being tried at that time. The case had been placed on trial; no notice of any kind was given of the trial of the case’ at a date earlier than that suggested by appellee.. It was too late for appellant’s attorney to reach Junction in time to participate in the trial of the case after the trial had-begun. The attorneys for appellee must have known that the case would be called for trial on February 29th for they lived in Junction, and were thoroughly acquainted with the docket. We infer that preparation was made to try the- case because the witnesses must have been notified, and we know from the statement of facts that six witnesses testified, two of whom lived in San Antonio, more than one hundred miles away. While making these preparations for trial on a certain date, the attorneys for appellant might have been notified, and justice demanded that notice should have been given the Dallas attorneys. Appel-lee could not control the setting of cases, as is contended in the brief, but its attorneys could have notified the attorneys for appellant, or, as a last resort, continued the case to another term, rather than to prematurely have tried the case under the representations made to the Dallas attorneys. Appellant, through no fault of its own, has not had a day in court, and the circumstances demand that it should have that day.

The judgment is reversed and the cause remanded.