text:
    CHRISTIAN v. STATE.
    No. 15423.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    C. C. Small, of Amarillo, T. H. McGregor, of Austin, and David Fitzgerald, of Mem-' phis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for^the State.
   MORROW, Presiding Judge.

The indictment charges extortion as defined by article 365, P. C. 1925; penalty assessed at confinement in the penitentiary for two years.

The substantive averment upon which the prosecution is based is that in October, 1929, the appellant willfully demanded, received, and collected from the state of Texas the sum of $279 in money as fees and expenses for arresting and transporting Tol Smith from Galveston county to Hall county, Tex., which money was in excess of the amount due him.

The following is a synopsis of the evidence adduced by the state: By indictment No. 1478, Tol Smith was accused in the district court of Hall county of the offense of theft of property over the value of $50. On September 12, 1929, a capias for the arrest of Smith was issued, which was returned executed on September 16, 1929, with the sheriff’s return attached showing the arrest of Tol Smith on •the 14th day of September, 1929, with costs aggregating $109, signed S. A. Christian, sheriff, Hall county, Tex. The judge’s trial docket showed that Smith’s case was continued on the 30th day of September, 1929, and was dismissed on March 17,1930.

On the 15th of October, 1929, S. A. Christian presented to the district judge his fee and expense account, which was approved by the judge on the 14th of October, 1929, upon which, on the 25th day of October, 1929, a state warrant was issued to S. A. Christian, sheriff of Hall county. The warrant contained an item as follows:

J. D. May, deputy sheriff of Hall county, arrested Tol Smith in Brownfield, Terry county, Tex., about the 12th of April, 1929. May was with Baskeville, head deputy sheriff under the appellant, who was then sheriff of Hall county. D. H. Arnold, district clerk of Hall county, at the time of the trial, had also served in that position during the administration of the sheriff’s office by the appellant. Arnold obtained from the sheriff’s office all the papers in the case of Tol Smith, No. 1478, including the indictment, the original capias for the arrest of Tol Smith issued September 12, 1929, and returned September 16, 1929, also the original docket sheet taken by the witness Arnold from the judge’s docket, showing entries made by the trial judge, including a memorandum showing a continuance of the case against Tol Smith and the subsequent dismissal of the ease. There was introduced in evidence a fee bill containing the following item:

No. 1478 The State of Texas vs. Tol Smith Charged with offense of Theft over Fifty Dollars Disposition of case: continued
Dollars Cts
To 1 Arrest at Galveston on 12 day of Sept 1929 in Galveston County in a * southern Direction from County seat, same being 620 miles distance from County seat of Hall County, @ $3.00 each. $ 3.00
To 620 miles going to arrest @ 15⅜! per mile in a * south direction from County seat_ 93.00
To 620 miles returning with prisoner by private conveyance @ 30(! per mile. 186.00

J. M. Telford, who assumed the duties of sheriff of Terry county on January 1, 1929, testified that he arrested Tol Smith in Houston, Tex., took him to Brownfield, in Terry county, and there delivered him (Smith) to two officers from Hall county. The witness collected for himself the fees for the arrest and transportation of Tol Smith, as stated above. The process held by Telford is not described, nor is the offense with which Smith was charged named in Telford’s testimony. No felony charge in Galveston county against Tol Smith was described. Upon examination of the records in Galveston county, subpoenas for Tol Smith had been in the hands of the officers of that county.

The state’s reliance was upon circumstantial evidence, and the jury was so informed and instructed.

Among the items of evidence on behalf of the appellant, the following are found: By several witnesses, including Arnold, the district clerk of Hall county, the opinion was expressed that the signature on the return on the process showing the arrest of Tol Smith in Terry county was not that of the appellant. By some such witnesses it was shown that very much of the sheriff’s business during the term of the appellant was conducted by his deputies, notably Baskeville.

The good reputation of the appellant for honesty was vouched for by several witnesses.

In certain bills of exception appellant complains of the reception in evidence of some of the items mentioned above.

The court committed no error in receiving in evidence the capias and return described above, coming from the proper custody and being a part of the papers in the case against Tol Smith awarding the appellant fees not controverted in this appeal.

The fact that the signature upon the return was not in the handwriting of the appellant did not justify the exclusion of the document in evidence. The circumstances attending that transaction warrant the inference that the appellant was cognizant of it. The arrest was made by his deputies, and the fees for that arrest accrued to his benefit, See Powell v. State, 49 Tex. Cr. R. 276, 269 S. W. 443; Rogers v. State, 11 Tex. App. 608. See, also, Wigmore on Evidence (2d Ed.) vol. 5, § 2450; also volume 2, §§ 1217 and 1346.

On the issue presented by the record as to whether the appellant arrested Tol Smith in Galveston and transported him to Memphis in Hall county, it is thought that the testimony of Telford showing that he transported Smith from Houston to Brownfield, in Terry county, where he was delivered to officers representing the appellant as sheriff of Hall county, was not improperly received. Particularly is this regarded sound in view of the testimony of Deputy Sheriff May showing that he obtained possession of Tol Smith in Brownfield at a time substantially coinciding with the statement of Telford.

Bill of exception No. 3, dealing with the remark of state’s counsel, to which objection was made and sustained, is not regarded as reversible error. However, in the event of another trial, the repetition of the remark should not be made.

Appellant excepted to the charge of the court upon the ground that the term “wil-fully” was not properly defined. In the statute (article 365; P. G. 1925), it is said:

“If any officer or person authorized by law to demand or receive fees of office, shall wil-fully collect for himself or for another any fee or fees not allowed by law, or any money as a purported fee for a service or act not done, or any fee or fees due him by law in excess of the fee or fees allowed by law for such service, he shall be confined in the penitentiary not less than two or more than five years for each offense.”

The fifth and sixth subdivisions of the court’s charge contain the following language:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, S. A. Christian, on or about October 25, 1929, in the County of Travis and State of Texas, was then and there the duly qualified and acting sheriff of Hall County, Texas, and as such officer was then and-there by reason of his said office authorized by law to demand, receive and collect the fees of said office and the said S. A. Christian did then and there unlawfully, extorsively and wilfully, as such officer, demand, receive and collect for himself and from the State of Texas certain money as a purported fee for a service and act not done in this to-wit: etc.”
“You are instructed that the word ‘wilfully’ as used in this charge is defined as follows:
“ ‘Proceeding from a conscious motion of the will; intending the result which actually comes to pass; designed; intentional; malicious.’ ”

In the case of Thomas v. State, 14 Tex. App. 200, it was said: “When used in a penal statute the word ‘wilful’ means more than it does in common parlance. It means with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful.”

In the case of Trice v. State, 17 Tex. App. 43, it was said: “When the word wilful is used in a penal statute to characterize the forbidden act, it means evil intent or legal malice, or without reasonable ground to- believe the act to be lawful; and the court charging a jury upon a case involving this question, should, as an essential part of the law of the case, instruct the jury in the legal meaning of the term wilful.”

Other judicial expressions to the same effect as those above mentioned will be found in the case of Townsend v. State (Tex. Cr. App.) 51 S.W.(2d) 696.

The statute penalizes the willful collection of unearned fees. The intent of the. statute is not to penalize an officer who, by mistake, inadvertence, or miscalculation, collects fees to which he is not entitled. Much of the business of the sheriff is performed by his deputies. The account presented in the instant case represents not only the work of the sheriff, but the work of his deputies. Necessarily, in making an account, the sheriff must act, at least in part, upon information from others who perform the work for which the sheriff is to be paid. The account of the sheriff must have the approval of the district judge before it is presented to the comptroller for warrant. In inserting in the statute the term “wil-fully,” the lawmakers were cognizant of the conditions and circumstances under which the account for fees of the sheriff was to be prepared and verified. His ci'iminaiity, therefore, is based not upon the collection of the fees alone, but upon the “wilful” collection of fees that did not-belong to him. The rulings of this court have uniformly insisted that, in instructing the jury, there should be left no confusion in their minds as to the meaning of the term “wilfully.” In the absence of a clear announcement in the law upon the subject, there is danger of confusion regarding the term synonymous with intentional. As stated in the definitions in the cases cited above, the word “wilful,” as used in the statute, means with evil intent or legal malice; without reasonable ground for believing the act to be lawful. Legal malice has been defined as meaning a wrongful act done intentionally, without just cause or excuse.

The instruction on the subject given the jury is not deemed sufficient, particularly as it omits any definition of malice and fails to include in the definition of willfully the words “without reasonable ground to believe the act to be lawful.”

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: LATTIMORE, Judge. HAWKINS, Judge.

license: Public Domain

text:
    BLACK v. STATE.
    No. 15629.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Rehearing Denied April 26, 1933.

      Alvin M. Owsley and Baskett & DeLee, all of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for arson; punishment, two years in the penitentiary.

Appellant was charged in the count submitted to the jury with burning a house belonging to Sadie Black. The testimony shows without contradiction that appellant and his wife, Sadie Black, had been divorced some time prior to the fire in question, and that at said time appellant had deeded all of his property over to his wife. Two of the children of appellant testified orally to the fact that the property in question belonged to their mother. .

Appellant has some complaint based on the proposition that oral testimony as to the ownership of the .property was erroneously received. He cites Goldsmith v. State, 46 Tex. Cr. R. 558, 81 S. W. 710. The Goldsmith Case was expressly overruled in Nash v. State (Tex. Cr. App.) 51 S. W.(2d) 689. See, also, Clay v. State (Tex. Cr. App.) 51 S. W. (2d) 693. In the above cases we said that oral testimony regarding ownership and possession of property was receivable in arson cases such as this.

We are of opinion that the testimony in this ease was sufficient to support the judgment of guilty. As a motive for the alleged arson, it was permissible to prove that appellant had taken out a large quantity of insurance on said property, which was in force at the time the fire occurred. While there was some testimony from appellant and his family that he and his wife did not live together, there seems other testimony indicative of the fact that they did so live. Appellant testified that he collected all the rents and took out the insurance, and generally managed the property that had formerly been his but which he turned over to his wife. He said he did it for pay from her — that she paid him 10 per cent, for collecting the rent, and paid him for other work that he did in regard to said property.

There are eight bills of exception. /The first complains of the testimony of the investigator for the fire marshal’s department of Dallas who testified that when he arrived at the scene of the fire a short time after the alarm was turned in he found the house burning, and that the fiercest part of the fire appeared to come from a closet in which he found later a quantity of excelsior and paper that appeared to have about it the odor of kersosene. Referring to this paper the witness said that after it had been hit with a line of water in putting the fire out, it had been scattered around pretty much. This last mentioned testimony was the subject .of the bill of exception under discussion. We fail to see the force of the objection or the possible injury of the testimony. The firemen testified that the fire was burning vigorously in the closet mentioned and that they turned the hose on the fire. Whether the water from the hose scattered the paper by the time the investigator got there, would seem to be a matter of little importance. That it was scattered by water and not by some person, would seem favorable to appellant.

There is complaint in another bill of exception of the testimony of said investigator in regard to efforts made by him to locate the owner of the building. He testified that after having found out from tenants and people living near by that the property was looked after by a Mr. Black, he called the telephone number of Mr. Black on Lenway street about 2 o’clock, and not getting any response he went to 1605 Lenway, and that there he went up on the porch and knocked at the door and rang the bell and called Mr. Black’s name several times in a loud voice but got no response. He said he stood there pounding on the door, ringing the bell, and yelling and trying to rouse somebody for two or three minutes. It appears from the testimony of appellant and the various members of his family that they were at home at said 1605 Lenway at the time this witness was trying to attract attention or arouse somebody in said house. We think the testimony admissible. There is other testimony suggesting that not only appellant was at the burned house a few minutes before the fire in question, but that his son who lived with his wife at 1605 Lenway was also with him at the house which caught fire, just a short time after they were seen at same.

We pay no attention to the bill of exception complaining of the introduction of the deeds introduced by the state showing a conveyance of certain property on Oak street to Sadio Blaak. It appears to be true that the state failed to specifically connect up by any testimony the property described in the deeds introduced in evidence, but as indicated above, we regard the oral testimony of appellant and his children as sufficient to show that the property burned was the property of Mrs. Sadie Black as alleged in the indictment.

There is complaint of the fact that, while appellant was on the witness stand, the state’s attorney was permitted to ask him if he was mad at his wife. We fail to see the cogency of the testimony, or its possible injury. There is also complaint of the refusal of a peremptory instruction asked by appellant. We think the. same properly refused. We entertain the same opinion regarding a special instruction for a verdict of not guilty, which was refused.

Inasmuch as the count submitted to the jury did not charge that appellant burned a house which was insured, appellant sought a special charge asking that the jury be told that the testimony showing the house was insured be withdrawn from their consideration. This charge was refused, and we think properly so. We think the testimony that the house was insured was admissible for the purpose of showing motive on the part of appellant, who at most was divorced husband and business manager for the owner.

The last bill of exception complains of the refusal of a special instruction telling the jury that appellant had the right to go upon the premises for the purpose of collecting rents, repairing, etc., and that his presence upon said premises at times before said house was burned, if it was burned, could not be used as a circumstance against him. Said charge would be manifestly on the weight of the testimony and improper. It was leveled at the presence of the appellant at 11 o’clock at night shortly before the fire as well as at his presence any other time.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

The court charged on principals. In making application thereof he instructed the jury in substance that, if Soloman Black set fire to the house, and appellant was present and knew the unlawful intent of Soloman Black to set the house on fire, and appellant aided therein by acts or encouraged by words, he would be guilty as a principal. Appellant objected to the charge on principals on the ground that the issue was not raised by the evidence. In his motion for rehearing appellant calls attention to the point, urges that it should be sustained, and that a reversal should result for the erroneous submission of such issue. We have examined the facts before us with the particular point in mind. It occurs to us that there is evidence in the record sufficient to warrant the trial court in submitting the issue.

The other matters presented in the motion were considered in our original opinion and we think were correctly disposed of.

The motion for rehearing is overruled.


author: HALL, Chief Justice.

text:
    HOLMES v. KLEIN et al.
    No. 3996.
    Court of Civil Appeals of Texas. Amarillo.
    April 5, 1933.
    Rehearing Denied April 26, 1933.
    W. I. Gamewell, of Canyon, for appellant.
    Cooper & Lumpkin, of Amarillo, and Carl Gilliland, of Hereford, for appellees.
   HALL, Chief Justice.

On and prior to May 9, 1930, appellant Holmes owned a certain section of land in Randall county, and on that date leased the entire section to appellee Klein, and by the terms of the lease Holmes was entitled as rent to one-third of all the wheat to be raised upon said farm. As part of the transaction Klein executed to Holmes his two promissory notes in the sum of $1,161.25 each, due July 15, 1930 and 1931, respectively. As security for the payment of said notes, Klein also executed and delivered to Elolmes a chattel mortgage on a tractor, a drill, a John Deere disc plow, and other farming implements. The mortgage also covered Klein’s two-thirds interest in all crops to be planted for the harvest of 1930 and 1931. Wheat was the only crop grown and harvested from the land in 1931. Klein sold a portion of the crop during that summer to the Farmers’ Elevator Company, for which said company still owed a balance of $182.17. During the month of July, 1931, there was stored in the Great West Mill & Elevator Company 2,739 bushels of wheat, two-thirds of which belonged to Klein. The elevator paid plaintiff for his one-third interest. On May 5, 1931, the Panhandle Mutual Hail Association issued to Klein a policy insuring the wheat crop from damage and loss by hail, for which Klein executed to the association his promissory note in the sum of $275, with interest and attorney’s fees, and at the same time executed and delivered to the association a chattel mortgage on the wheat then growing on the land. Klein harvested all of the wheat except approximately 145 acres and then abandoned the premises. Appellant Elolmes harvested this 145 acres and had it hauled to the eievator at a total expense of $275.78.

Holmes’ mortgage contained a power of sale, and on July 24, 1931, he posted written notices that the property described therein, including both wheat and farming implements, would be sold at the.courthouse door in the city of Canyon. One of these notices was posted at the courthouse door in Canyon, another at the corner of Fourth avenue and State Highway No. 9 in said city, 2,500 feet from the courthouse, and the third notice at Taylor’s Store in the town of Umbarger, 12 miles west of Canyon. The property was sold under the power of sale on August 4, 1931, at the courthouse door in the city of Canyon, at about 11 o’clock a. m. The property was dot present at the sale. Holmes became the purchaser for the price of $1,209. Prior to the sale, Klein had made some payments on the two notes due Holmes, aggregating $875, leaving a balance due at that time of principal and interest, $1,583.01 on both notes.

Thereafter Holmes filed this suit against Klein, the Farmers’ Elevator Company, J. I. Case Company, Brumley Chevrolet Company, Walker Implement Company, the Panhandle Mutual Hail Association, and the Great West Mill’ & Elevator Company, to recover the amount due from Klein, and alleging that the other defendants were claiming- some interest in and to the wheat described in the mortgage. Appellant also sought in the alternative to foreclose his chattel mortgage lien.

The appellant’s petition is unusually long, and we state the purpose of the suit as therein reflected, as follows: He sought first to recover of the defendants in the capacity of owner of the wheat which he alleged was in the possession of the two elevator companies at Umbarger; in the alternative he sought to recover as a mortgagee entitled to possession against the elevator companies, who had converted the mortgaged property. In the third place, he sought a foreclosure of his chattel mortgage lien upon the property, including the wheat held by the defendants and owned by Aubrey Klein.

The Farmers’ Elevator Company answered that it had purchased the wheat in controversy from Klein and paid him one-third of the price thereof and had the remaining two-thirds on hand, the proceeds of which it tendered into court.

The Great West Mill & Elevator Company answered, alleging that it had stored in its elevator 164,350 pounds of wheat in the name of Holmes who, as landlord, was the owner of one-third interest therein, for which he had been paid. That it had not been able to pay the remaining two-thirds because of the controversy between the parties as to the ownership thereof and priorities of liens claimed thereon. It set up a claim for storage and charges for receiving and turning the wheat and alleged that it was willing to return the wheat in kind upon the payment of its charges or to pay the market price, less the charges due against it.

The Panhandle Mutual Hail Association alleged that the sale made by appellant under the power contained in his chattel mortgage was invalid for the reason that the property was sold for charges not covered by the chattel mortgage, amounting to $361.53, and further pleaded that the Panhandle Mutual Hail Association had a valid, subsisting chattel mortgage upon the wheat to secure the note in the sum of $275 which Klein had given it, and prayed for judgment for the amount due, for foreclosure of its lien, and that if appellant’s lien be held to be prior and superior to the lien of the hail association, that appellant be required to marshal his securities, selling the farm implements and machinery first, leaving the wheat, if any, to be applied to its note of $275.

During the trial the hail association filed a trial amendment setting up that appellant had converted the farm machinery belonging to Klein, which was worth $1,600, and had also converted a two-thirds interest in 980 bushels of wheat of the value of $213, which was sufficient to overpay the indebtedness due from Klein.

The case was tried to the court without a jury, who held that the sale by Holmes under the power contained in the mortgage was void on account of the failure to post notices as required by law and the terms of the mortgage. The court further found that the value of the property which had been converted by appellant by reason of the wrongful sale thereof was more than sufficient to satisfy his indebtedness against Klein and denied appellant a recovery against anyone in the case. The court further found that the Panhandle Mutual Hail Association “be and it is hereby adjudged to have and hold a valid subsisting debt against Aubrey Klein in the sum of $307.-60, and that it be and is hereby entitled to have the same discharged by the payment to it of such funds as may be due and owing by the defendants Great West Mill & Elevator Co. and the Farmers Elevator Company from the wheat upon which it had such valid lien.” The court further finds that the appellant was not entitled to recover any sum against the defendant Klein on account of charges made for harvesting and handling the grain from the 145 acres which Klein had abandoned. Both elevators were permitted to retain sufficient funds in their hands to satisfy their warehouseman’s lien for the storage of the wheat. The judgment recites that the defendant Aubrey Klein, “though duly cited to appear and answer plaintiff's suit, came not and wholly made default.”

It seems that no judgment has been rendered against Klein for any amount nor does the judgment decree a foreclosure of the lien upon his property, and it is questionable Whether the language used by the court constitutes a final judgment between the Panhandle Mutual I-Iail Association and Klein. A “final judgment” is one which expressly or by necessary implication disposes of all issues of fact raised by the pleadings and fully determines the rights and liabilities of all parties with reference to the matters in controversy. It determines the whole matter in litigation as to all parties and issues and awards the judicial consequences which the law attaches to the facts and decrees all the relief authorized by law in the particular class of proceedings.

R. S. art. 2218, relating to judgments where liens are foreclosed, applies both to foreclosures upon real and personal property and provides that the judgment shall be that the plaintiff recover his debt, damages, and costs, with a foreclosure of the plaintiff’s lien on the property subject thereto; that an order of sale shall issue to the sheriff or any constable of the county where such property may he, directing him to seize and sell the same as under execution in satisfaction of the judgment, and if the property cannot he found, or if the proceedings of such sale he insufficient to satisfy the judgment, then to make the money or any balance thereof remaining unpaid out of any other property of the defendant as in case of ordinary execution. The judgment in the instant case fails to comply with the statutory requisites in several important particulars.

Upon the filing of his petition by Holmes, citation was duly issued and served upon Klein. The answer of the Panhandle Mutual Hail Association to Holmes’ petition also included a cross-bill against Klein praying for a recovery upon the note for $275 and a foreclosure upon the property described in its mortgage. No citation or notice of any character was ever issued or served upon Klein, and the judgment recites that Klein did not appear or answer. It is settled law that a judgment rendered in favor of a defendant upon his cross-action against the plaintiff, or upon a cross-bill against a codefendant with-cut an appearance by either the plaintiff or defendant by answer or otherwise, is void unless the defendant in the cross-action has been -duly cited to appear and answer. Ruby v. Davis (Tex. Civ. App.) 277 S. W. 430; Twichell v. Askew (Tex. Civ. App.) 141 S. W. 1072; Crain v. Wright, 60 Tex. 515; Leach v. City of Orange (Tex. Civ. App.) 46 S.W.(2d) 1047; Gulf, C. & S. F. Ry. Co. v. Hathaway, 75 Tex. 557, 12 S. W. 999; Roller v. Reid, 87 Tex. 69, 26 S. W. 1060; Simon v. Day, 84 Tex. 520, 19 S. W. 691.

As held by these cases and others, Klein was a necessary party in so far as the cross-bill of the Panhandle Mutual Hail Association was concerned and no judgment by default could be rendered in favor of the association without service of process upon him. This is also true in so far as the elevators sought to recover storage charges against the wheat which belonged to Klein. Because Klein was a necessary party and did not appear or answer, the judgment will have to be reversed.

There is no statement of facts in the 'record, but the court filed findings of fact, and it appears therefrom that the elevators were given preference over the mortgage liens held by Holmes and the Panhandle Mutual Hail Association. In view of another trial, we suggest that R. S. arts. 5604 and 5641 apparently give warehousemen a lien for charges, but such lien has not been made prior to and superior to pre-existing contract liens. 9 Tex. Jur. 159, § 63.

The court failed to give the appellant judgment for the reasonable charges and expenses in harvesting and disposing of the wheat from the 145 acres which Klein had abandoned. The rule is that when a farm tenant abandons his crop, the landlord may take charge of the premises, gather the crops, market them, and apply the proceeds to the tenant’s indebtedness. Taack v. Underwood (Tex. Civ. App.) 266 S. W. 618; Cunningham v. Skinner (Tex. Civ. App.) 97 S. W. 509. And Holmes’ lien to secure him for such expenditures is superior to the mortgage lien of the hail association or to the liens for storage asserted by the elevators. Frith v. Wright (Tex. Civ. App.) 173 S. W. 453; Harvey v. Geo. Wilder & Co., 62 Tex. Civ. App. 618, 131 S. W. 851.

The court’s findings do not disclose whether the chattel mortgages asserted by Holmes and by the hail association were duly recorded, but in what we have said we assume this to be a fact.

The sale by Holmes was illegal because notices had not been posted as required- by the mortgage and by law. Phipps v. Fuqua (Tex. Civ. App.) 32 S.W.(2d) 660; National Loan & Investment Co. v. Dorenblaser, 30 Tex. Civ. App. 148, 69 S. W. 1019.

The appellant Holmes urges thirty-five propositions, most of them based upon the theories of the case upon which his action was brought in the alternative, and we do not find it necessary to consider them in detail. In its final analysis as shown by the pleadings and the findings of the trial judge, Holmes’ right of action is for a judgment against Klein upon his notes, a foreclosure of his mortgage lien upon all of the property, and a foreclosure of his landlord’s lien for the purpose of reimbursing him for the expenses incurred in harvesting and storing the wheat from the 145 acres.

Because the judgment is not final and insufficient and because Klein was a necessary party to the cross-actions by the hail association and by the elevators and was not cited, the judgment is reversed, and the cause is remanded.


author: FUNDERBURK, Justice.

text:
    MAGNOLIA PETROLEUM CO. v. GUFFEY.
    No. 1080.
    Court of Civil Appeals of Texas. Eastland.
    March 10, 1933.
    Rehearing Denied April 28, 1933.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, and W. H. Prancis and A. S. Hardwicke, both of Dallas, for appellant.
    Scarborough, Ely & King, of Abilene, for appellee.
   FUNDERBURK, Justice.

On December 24, 1930, Bob Lawson, who had charge of a filling station belonging to the Magnolia Petroleum Company, and was engaged in selling oil and gas for said company and collecting and remitting the proceeds, drew a pistol upon Grady Guffey, and by putting him in fear of death or serious bodily injury restrained him of his liberty for several hours. An hour or so previously Guffey had driven into the station, purchased a small guantity of oil and gas, left a tire to be repaired, and gave his check for four or five dollars more than the price of the oil and gas and received the difference in cash. According to the testimony of Guffey, when, on the occasion in question, he had returned for the tire, Lawson drew the gun on him and informed him that the check was no good, refused, for a time, to let him step across the street to get the money, held him in the station with the gun for an hour or longer, then permitted him to cross the street and get the money, which he did, but meanwhile being watched by Lawson with the gun in his hand. When Guffey returned, paid the money, and started to leave, he was further forbidden to do so, and, under threat to shoot him if he attempted to do so, was thus detained for an hour or so longer. The reason given for holding him after the money was paid was that certain officers of the law wanted him and he was being held for them upon another charge of giving a cold check.

This suit was brought by Guffey against the Magnolia Petroleum Company, claiming damages for false imprisonment on the theory that Lawson was its agent and his acts complained of were within the scope of his authority as such agent. Among other defenses pleaded by appellant were that Lawson was not the agent of defendant; that he was an independent contractor; that, even if he was its agent, his acts complained of were not within the scope of his employment; that he was acting for himself and for certain officers of Taylor county who claimed to have a warrant for Guffey’s arrest, and had requested Lawson to hold Guffey for them.

The jury to whom the case was submitted on special issues found the fact of the false imprisonment; that Lawson was acting within the scope of his authority as the agent of the defendant; that he forcibly detained plaintiff on the occasion in question before the latter paid off and redeemed the check; and that plaintiff suffered damages in the sum of $4,625. From the judgment for plaintiff defendant has appealed.

By appellant’s first proposition it is contended that there was no evidence that Lawson had authority, express or implied, unlawfully to detain appellee, and hence the court erred in refusing a peremptory instruction for appellant. By the second proposition it is contended that the undisputed evidence showed that Lawson was acting in his own behalf and that of the constable of precinct No. 1 of Taylor county, who had a warrant for the arrest of' appellee on a matter entirely disconnected from the transaction at the filling station, and hence the court should have directed a verdict for appellee.

The undisputed evidence shows, we think, that Lawson was the servant and agent of appellant, and was not an independent contractor. Spears Dairy v. Bohrer (Tex. Civ. App.) 54 S.W.(2d) 872. The filling station and the oil and gas belonged to appellant. In selling the oil and gas, and in collecting and paying over the proceeds, Lawson acted for appellant. The nature of these duties was such, we think, as to imply the right of control by appellant over him within the definition of agent as heretofore approved by this court. Tarver, Steele & Co. v. Pendleton Gin Co. (Tex. Civ. App.) 25 S.W.(2d) 156; Baldridge v. Klein (Tex. Civ. App.) 56 S.W.(2d) 897.

Unless Lawson had other authority than such as he possessed as the agent of appellant, the act complained of was a criminal offense. There exists no presumption that, because Lawson was the agent of appellant, the commission of such offense was within the scope of his employment. The false imprisonment included, as shown by the undisputed evidence, an assault. Principles relative to the liability of the master for assaults of his servant are therefore deemed applicable. The undisputed evidence showed, we think, that it was a part of the duties of Lawson’s employment to collect the sales price of oil and gas sold. The money, when collected, was the money of appellant. “According to some decisions, where a servant is intrusted with the duty of collecting money due the master, an assault made by the servant to enforce payment is within the scope of his authority and the master is liable.” 89 C. J. p. 1309, § 1509, note 26. Cited as supporting the text is the recent case of Taylor v. Esparza (Tex. Civ. App.) 8 S.W(2d) 288. On the same point, C. J. further says: “Other decisions hold the contrary. And a fortiori is the master not liable for an assault made by the servant where the servant is himself accountable to the master for the price of goods delivered without collecting the charge and the assault is made by the servant after delivery of the goods without collecting the amount due, to enforce payment thereof.”' 39 C. J. 1309, § 1509, notes 27 and 28; McDermott v. American Brewing Ass’n, 105 La. 124, 29 So. 498, 52 L. R. A. 684, 83 Am. St. Rep. 225; Steinman v. Baltimore Antiseptic Steam Laundry, 109 Md. 62, 71 A. 517, 21 L. R. A. (N. S.) 884; Contra: Craven v. Bloomingdale, 54 App. Div. 266, 66 N. Y. S. 525.

Appellant’s contention would, in principle, call for application of that part of the text last quoted. It is argued, in effect, that the undisputed evidence showed that Lawson had no authority to accept checks, and that, when he did so, the checks belonged to him and he became liable to account to appellant for the cash, whether the checks proved good or not; that therefore, in attempting to collect the check, Lawson was acting for himself and not the appellant. Without determining whether, if such was the case, there would, under the undisputed evidence, be no liability of appellant as a matter of law, we are of opinion that the undisputed evidence does not show that appellapt had no interest in checks or that Lawson was without authority to accept checks. Lawson as a witness was asked:

“Did your contract state anything with reference to your taking checks for products sold?, A. Well, nothing only I was responsible for the checks. If I took a check and it was cold it was mine. I had to pay for it.
“Q. How did they go about collecting them, the company? A. Why just come down and made me pay it. The company has a man to go around and take up the money. If I turned, in a cheek and it was cold, he brought it back to my station and if I never collected it I never got anything. It was my check.
“Q. You lost it? A. Yes, sir.
“Q. Then that cheek belonged to you if it was cold? A. Tes sir.”

The undoubted purport of his testimony, which was all there was on the question, is that, as between Lawson and appellant the former was guarantor of the payment of checks which he accepted. His conclusion that the check, if cold, was his, does not alter that fact, nor show that even cheeks were not the property of appellant. Besides, while the witnesses frequently alluded to payment of the particular check in question, it is quite clear that it was the money which Lawson sought to have paid and not the check. The transaction involved a repudiation and rescission of the check, and was in no sense an effort to collect the check as such. It is our conclusion that, if Lawson, after satisfying himself that the check was not good, assaulted and falsely imprisoned appellee to enforce payment for the oil and gas sold him, such was within the scope of his employment. Cameron Compress Co. v. Kubecka (Tex. Civ. App.) 283 S. W. 286; G., C. & S. F. Ry. Co. v. Cobb (Tex. Civ. App.) 45 S.W.(2d) 323; Guitar v. Wheeler (Tex. Civ. App.) 36 S.W.(2d) 325; Burnett v. Oechsner, 92 Tex. 588, 50 S. W. 562, 71 Am. St. Rep. 880; Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Lancaster v. Carter (Tex. Com. App.) 255 S. W. 392; Buck v. Standard Oil Co., 249 N. Y. 695, 164 N. E. 597. We are not prepared to hold that there was no evidence to support a finding to that effect. We are also of opinion that, although there was ample evidence to support a finding that Lawson, in detaining ap-pellee, did so for certain officers of Taylor county, we cannot say that the undisputed evidence was to that effect. Propositions 1 and 2 are therefore overruled.

By its sixth proposition appellant contends, in effect, that, there being evidence raising an issue of fact as to whether or not Lawson detained the plaintiff for the constable upon instructions of the latter to Lawson and Dees, his assistant, therefore the court erred in refusing to submit its requested special issue No. 2 calling for a finding of such fact. If Lawson was acting for the constable, then his acts complained of were not within the scope of his authority. It is wholly beside the question whether the constable had authority to arrest him, or to authorize Lawson to do so. Lawson, as to the particular transaction in such a case, was not the agent of appellant. That is the material question, and not whether he was properly authorized to arrest Guffey upon the request of the officer. A finding of such issue in favor of appellant would have entitled it to a judgment. Under the authority of Colorado & S. Ry. Co. v. Rowo (Tex. Com. App.) 238 S. W. 908, and the numerous cases following it, we are forced to hold that the court erred in refusing to submit the issue as requested.

By its seventh proposition appellant complains of the admission in evidence, over its objection that same was immaterial and prejudicial, the testimony of appellee to the effect that his father and brothers were well fixed financially. “Testimony as to the financial condition of the plaintiff is inadmissible in a personal injury action.” 17 Tex. Jur. 418, § 151; M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 348, 43 S. W. 608; St. L. S. W. Ry. Co. v. Kimmey (Tex. Civ. App.) 189 S. W. 550; Northern Texas Traction Co. v. Jenkins (Tex. Civ. App.) 266 S. W. 175. We see no reason why the principle of this rule would not include testimony as to the financial condition of plaintiff’s father and brothers. This proposition is also sustained.

In its eighth proposition appellant contends that the court erred in admitting in evidence, over its objection to the effect that such evidence was immaterial and calculated to awaken the sympathy of the jury and increase its verdict, the testimony of appellee to the effect that he made his living as a day laborer and that work in which he was engaged was scarce. This proposition is also sustained as being supported by the same authorities cited in support of the one next above discussed.

Appellant’s ninth proposition in substance complains that the court erred in excluding the testimony of Bob Lawson to the effect that, in detaining appellee, he was acting under instructions of the county attorney. What we have said in disposing of the sixth, proposition is deemed applicable to this. It is sustained upon the authority of Colorado & So. Ry. Co. v. Rowe, supra.

We deem it unnecessary to discuss other propositions. They are either controlled by what we have already said, or, if not, are rendered immaterial by reason of the disposition of the appeal made necessary by the conclusions herein stated.

Being of opinion that the judgment of the court below should be reversed and the cause remanded for a new trial, it is accordingly so ordered.

On Rehearing.

Both parties have filed motions for rehearing. Appellant earnestly and ably contends that, if it be conceded Lawson was the agent of appellant and that he was authorized to accept checks in payment of oil and gas sold to customers and that he falsely imprisoned the plaintiff, including an assault upon him, as a means of enforcing payment for oil and gas or making good the check, nevertheless, as a matter of law, there was no evidence to show that in doing so he was acting within the scope of his authority as agent so as to bind the appellant, and hence a peremptory instruction should have been given, and that this court, instead of remanding the cause, should render judgment for appellant. The gist of the argument is that, since the authority of the agent, if it existed, must be implied, there being no express authority, and since a false imprisonment or assault is not a usual means of collecting a'debt, authority to falsely imprison the appellant, or to make an assault upon him to accomplish "such purpose, cannot be implied from the authority to collect the debt. If it were necessary to imply authority to do the very act in question, namely, to falsely imprison or assault the plaintiff, this argument would be unanswerable. But such is not the case.

The principal is liable “for all the torts which his agent commits in the course of his employment.” 2 C. J. 848, § 533, note 19; Sec. Life Ins. Co. v. Stephenson (Tex. Civ. App.) 136 S. W. 1137; Grand Temple, Etc., v. Johnson (Tex. Civ. App.) 135 S. W. 173; Seffel v. Western Union Tel. Co. (Tex. Civ. App.) 65 S. W. 897. “The phrases ‘scope of authority’ and ‘course of employment’ used to express the test of a principal’s liability for the acts of his agent are generally used synonymously, although a distinction has been attempted. Much of the confusion and conflict in cases is due to the gradual extension of the rule of liability so as to impose liability for acts not authorized and even forbidden [italics ours] but nevertheless committed in the transaction of the principal’s business, and also for a failure to note the distinction between acts done by an agent within the scope and course of his employment and acts done merely during his employment. In order to render the principal liable for his agent’s torts they must have been committed while carrying out the principal’s business and it may be stated broadly that the tort of an agent is within the course of Ms employment where the agent in performing it,is endeavoring to promote his principal’s business within the scope of the actual or apparent authority conferred upon him for that purpose." (Italics ours.) 2 C. J. p. 853, § 536. The rule applies alike to all torts. The only difference between a tort consisting of the negligence of an agent and a tort consisting of the willful, and even malicious, act of the agent, such as an assault and false imprisonment, lies in the difference in the degree of probability or improbability that the act is within the scope of the agent’s authority and the resultant and corresponding ease or difficulty of making proof of such fact.

With reference to the liability of the principal for the willful torts of his agent, the decisions in this state are interpreted in Tex. Jur. as establishing the following propositions: “A principal is ordinarily liable for the wilful tort of an agent acting within the general scope of his employment for the principal’s benefit, regardless of the fact that the agent was actuated by personal malice and regardless of the fact that the agent disobeyed orders or instructions. [Italics ours.] Thus a principal, whether an individual or a corporation, is liable to the extent of actual damages for trie wilful trespass of his agent committed in the course of his agency, even if done against the principal’s orders. Again a principal may be liable for slanderous words spoken by a duly authorized agent in the scope of his duty. But liability in any case is dependent upon whether the agent was acting within the scope of his authority.” 2 Tex. Jur. 553, § 159.

Eor the sake of brevity in listing the cases supporting the text, we will note parenthetically the character of agent, his authority, and the act held to be within the scope of his authority, as follows: Wells-Fargo & Co. Express v. Sobel, 59 Tex. Civ. App. 62, 125 S. W. 925, error refused (clerk in express office, held to have acted within scope of authority in assaulting plaintiff because he had written, in connection with a claim of shortage, a letter accusing clerks of theft and one of being a shyster); Producers’ Refining Co. v. Frazier (Tex. Civ. App.) 283 S. W. 880 (an auditor charged with duty of checking salvage after a fire, held to have acted within scope of his authority in slandering plaintiff by accusation that he had burned oil plant to cover shortage); Houston Printing Co. v. Jones (Tex. Civ. App.) 282 S. W. 854 (managing editor of paper charged with duty of maintenance and advancement of principal’s office discipline held to have acted within scope of authority in libeling plaintiff in bulletin posted on board); Texas & Pacific Railway Co. v. Parker, 29 Tex. Civ. App. 264, 68 S. W. 831, error denied (station agent having cars and property of defendant in his charge to look after and protect from trespassers held to have acted within scope of authority in falsely imprisoning plaintiffs by locking in box car while asleep and calling officers to arrest them); American Free Land Mortgage Co. v. Brown (Tex. Civ. App.) 191 S. W. 856 (president of defendant company acted within scope of authority in conspiring with others to injure plaintiff’s business by circulating false and slanderous statements); S. W. T. & T. Co. v. Long (Tex. Civ. App.) 183 S. W. 421 (manager of telephone company, with power to discharge employees, held to have, acted within the scope of employment when in discharging an employee he slandered her); North Texas Gin Co. v. Thomas (Tex. Civ. App.) 277 S. W. 438 (manager with authority to represent principal in the operation and management of a gin, and in the purchase of cotton and cotton seed on local market in town, held acting within scope of employment in entering into an unlawful conspiracy in restraint of trade).

Numerous out-of-state authorities may be cited bolding the principal to liability for willful torts, of which may be mentioned Davenport v. Burke, 30 Idaho, 599, 167 P. 481 (fraud); Kirk v. Montana Transfer Co., 56 Mont. 292, 184 P. 987 (assault); Mansfield v. W. J. Burns I. D. Agency, 102 Kan. 687, 171 P. 625, L. R. A. 1917D, 571 (beating plaintiff); U. S. F. & G. Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A. L. R. 520 (coercion by threat to cancel policy); Wilson v. Singer Sewing Machine Co., 184 N. C. 40, 113 S. E. 508 (cursing plaintiff, throwing her property on floor and attempting to foreeably take a sewing machine because of nonpayments thereon); Waldron v. N. Y. Cent. Ry. Co., 106 Ohio St. 371, 140 N. E. 161 (accidently killing third person with gun used in business); Mitchell v. Finnell, 101 Cal. 614, 36 P. 123 (threatening unlawful imprisonment); Dunn v. Hartford, Etc., Horse Ry. Co., 43 Conn. 434 (agent received third person’s property from principal’s debtor and sold to pay debt); Field v. Kane, 99 Ill. App. 1 (floor walker followed customer suspected of theft into the street and foreeably compelled return); Strader’s Adm’rs v. Lexington Hydraulic & Mfg. Co., 146 Ky. 580, 142 S. W. 1073 (killing party in attempting to remove him peaceably from premises as a trespasser); Penn. Iron Works v. Vogt Machine Co., 139 Ky. 497, 96 S. W. 551, 29 Ky. Law Rep. 861, 8 L. R. A. (N. S.) 1023, 139 Am. St. Rep. 504 (office manager wrote libelous letters); Bank of Commerce v. Hoeber, 88 Mo. 37, 57 Am. Rep. 359 (secret preference to a creditor to effect compromise); Dupre v. Childs, 52 App. Div. 306, 65 N. Y. S. 179 (agent managing restaurant followed diner into street and caused his arrest).

The ruling principle in all of these cases is precisely the same as that discussed in I. & G. N. Ry. Co. v. Cooper, 88 Tex. 607, 32 S. W. 517; I. & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; I. & G. N. Ry. Co. v. Yarbrough (Tex. Civ. App.) 39 S. W. 1096; Magnolia Petroleum Co. v. Winkler (Tex. Civ. App.) 40 S.W.(2d) 831. To contend that the principal is as a matter of- law not liable for a false imprisonment and assault of an agent because there was no authority given by the principal to the agent to falsely imprison or assault is precisely on a parity with the proposition that the principal is not liable for the negligence of the agent because he had not given the agent authority to perform his work negligently.

The final and conclusive test in all cases without any distinction as to negligent torts and willful torts is whether or not the act or omission of the agent constituting the tort, although itself not authorized, and even if in violation of instructions, was an act done or omitted in pursuance of the principal’s business, and within that particular part of such business, if less than all, committed to the agent.

The filling station belonged to appellant. The oil and gas belonged to it, as well as the proceeds of the sale of oil and gas. The business of appellant was the selling of oil and gas. Lawson had charge of that business at the particular place. That fact implied his duty to protect and preserve the property.in his care and control. The act of Lawson in running oil or gas into appellant’s car was the act of the appellant. Had he negligently lighted a match and destroyed the car or injured appellee, it would hardly be contended that appellant would not be liable. If appellant’s liability in this case is any the less certain, it is not because of any difference in the rule or principle of liability, but because it is not so apparent that the act committed, of which 'complaint is made was an act done for the principal rather than to serve some motive or purpose of the agent, or to carry out a reguest of the officers of-the law, having no relation to appellant’s business. If it were admitted, or the undisputed evidence had shown that the acts complained of were done by Lawson to enforce payment for the oil and gas, we are of opinion that it would have been the duty of the court to instruct a verdict for appellee on the issue of liability. I. & G. N. Ry. Co. v. Cooper, supra; Magnolia Petroleum Co. v. Winkler, supra.

We think- the evidence was not undisputed, and that “the question of authority or not is one of fact to be determined by the jury like any other issue, and not a matter of law to be decided by the court.” G., H. & S. A. Ry. Co. v. Zantzinger, 93 Tex. 64, 53 S. W. 379, 381, 47 L. R. A. 282, 77 Am. St. Rep. 829.

What has just been said constitutes, we think, an almost sufficient answer to the motion of appellee. We cannot take as an established fact that Lawson was acting within the scope of his authority just because the jury so found and upon that premise hold that there was no error in refusing to admit the evidence offered by the appellant and refusing to submit issues requested presenting appellant’s theory of the ease. ’ Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517. The issues made by the evidence were such that, had the special issue been given and answered favorably to appellee, it is doubtful if the evidence would have been sufficient to support a finding that Lawson was acting within the scope of his authority conferred by appellant.

It is true that, if it were conceded or conclusively established that Lawson was acting within the scope of his authority, it would be immaterial that he was also, by his act, subserving some purpose of his own, or of a third party, but the appellant had the right to have any competent evidence introduced to establish that the agent was not acting for appellant, and, since it had a definite theory pleaded as to whom he was acting for and which was supported by some evidence, it had the right, we think, to have the jury pass upon same.

Both motions are accordingly overruled. '


author: MURRAY, Justice.

text:
    FIRST NAT. BANK OF MATHIS v. DICKSON et al.
    No. 9039.
    Court of Civil Appeals of Texas. San Antonio.
    March 29, 1933.
    Rehearing Denied April 26, 1933.
    Johns, McCampbell & Snyder, and Kleberg & Eekhardt, all of Corpus Christi, for appellant.
    Beasley & Beasley, of Beeville, for appel-lees.
   MURRAY, Justice.

The First National Bank of Mathis, appellant, sued the First National Bank of George West, appellee, for the sum of $875. J. H. Dickson, Mrs. L. P. Reed, and L. P. Reed, originally defendants below, were dropped from this cause by amended pleadings.

Mrs. L. P. Reed presented to J. R. Nelson, cashier of the Mathis bank, a cheek for $875, signed by J. H. Dickson, payable to the order of Mrs. L. P. Reed and drawn on the George West bank, asking the Mathis bank to cash the check.

Nelson called the George West bank over the telephone and talked to one McCreary, a teller. Nelson informed McCreary that he had the above-described check, and asked if the George West bank would pay the check. The reply was, “Yes, if it bore the genuine signature of J. H. Dickson.” McCreary at the time of the trial was insane and confined in an institution for demented persons. The check bore the genuine signature of J. H. Dickson, but was filled in for the sum of $875 without authority from Dickson, and' was therefore a forgery. The Mathis bank cashed the check and paid Mrs. L. P. Reed the $875. Its cashier would not have cashed the check had it not been for the telephone conversation referred to. The check was sent through ordinary channels for collection, but was not paid by the George West bank; Dickson having “stopped payment” thereon.

The promise of the George West bank was a verbal promise to answer for the debt of J. H. Dickson and not to subserve some purpose of its own; the intention of the George West bank being to convey to the Mathis bank the information that J. H. Dickson had on deposit with it a sufficient sum of money to cover said check.

The above statement of the case is taken from the trial judge’s findings of facts. These findings are not attacked in any way. The trial was before the court without a jury.

Article 5941, § 132 (Rev. St. 1925), reads as follows: “The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money.”

It is clear from this provisioni of the Uniform Negotiable Instruments Act, adopted by this state in 1919, that an acceptance of a check or bill of exchange must be in writing to be valid and binding.

Appellant contends that this is not a suit on the check but is a suit on breach of contract. In other words, that the George West bank had contracted to accept this check and breached that contract. We do not concur in this fine distinction. If this contention could be upheld, the statute which provides that an acceptance must be in writing would be rendered meaningless.

Appellee cites First National Bank of O’Donnell v. Citizens’ National Bank of Lubbock (Tex. Civ. App.) 38 S.W.(2d) 648. We distinguish, this case from the case at bar, in that there the bank cashed a draft and not a cheek. The draft was drawn by the party to whom the money was paid. There was no third person involved as there is here. In other words, this is what happened in the O'Donnell case: Bank No. 1 called bank No. 2 over the telephone and said in effect: “We have your man Hamilton here in our bank. He is a stranger to us. 1-Ie says you will credit him. He wants to borrow $275.00. We will let him have the money for you if you want us to. What shall we do;?” Bank No. 2 replies: “Go ahead and let him have, the money.” In this way an original obligation was created on the part of bank No. 2.

In the case at bar a third person was presenting the check of Dickson. Both banks were charged with knowledge of the fact that Dickson had a right to “stop payment” on the check until it was paid by the George West bank or certified to or accepted in writing by such bank. Under such circumstances an oral acceptance was invalid.

The trial court’s findings of facts, paragraph 9, read as follows: “The promise made by the defendant bank was a verbal promise to answer for the debt of J. II. Dickson and not to subserve some purpose of its own. The intention of the defendant bank being to convey to plaintiff bank the information that J. II. Dickson had on deposit with defendant bank a sufficient amount of money to cover said check.”

Where the facts are as above found, the courts of this state and many other states, since the adoption of the Uniform Negotiable Instruments Act, have held that such an oral acceptance is void and that the accepting bank could not be held either upon the "bill” or the “promise.” Elyria Savings & Banking Co. v. Walker Bin Co., 92 Ohio St. 406, 111 N. E. 147, L. R. A. 1916D, 433, Ann. Cas. 1917D, 1055; Baltimore Ry. Co. v. Alexandria First Nat’l Bank, 102 Va. 753, 47 S. E. 837; Lewin v. Greig, 115 Ga. 127, 41 S. E. 497; Ballen & Friedman v. Bank of Kremlin, 37 Okl. 112, 130 P. 539, 44 L. R. A. (N. S.) 621; Van Bushkirk v. State Bank, 35 Colo. 142, 83 P. 778, 117 Am. St. Rep. 182; Seattle Shoe Co. v. Packard, 43 Wash. 527, 86 P. 845, 117 Am. St. Rep. 1084; Huffman v. Farmers’ Nat. Bank (Tex. Civ. App.) 10 S.W.(2d) 753; Womack v. Durrett (Tex. Civ. App.) 24 S.W.(2d) 463.

If the case of First National Bank of O’Donnell v. Citizens’ Nat’l Bank of Lubbock, supra, is to be construed as holding that an oral acceptance of an inland bill of exchange is valid, or that suit may be maintained upon tlie breach of promise to accept, we do not agree with that opinion. It makes no difference whether the suit is upon the acceptance, the breach, or upon estoppel, the effect is to compel the bank to make good its oral promise to pay the bill, and, under the provisions of article 5941, § 132, this cannot be done. To hold otherwise would be to set at naught this provision of the Uniform Negotiable Instruments Act.

The judgment is affirmed.


author: DUNKLIN, Justice.

text:
    BOWIE SEWERAGE CO. v. VANN et al.

    No. 12722.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 22, 1932.
    Rehearing Denied March 11, 1933.
    J. W. Chancellor, of Bowie, for appellant.
    Donald & Donald, of Bowie, for appellees.

       Writ of error granted.

   DUNKLIN, Justice.

On January 25, 1925, P. B. Vann and wife, Emma E. Vann, purchased a tract of 100 acres of land near the town of Bowie. Immediately thereafter the purchasers established their home upon the land, which was then improved, for themselves and family, and proceeded to use the same for farming and dairying purposes. The land was traversed by a creek on which the Bowie Sewerage Company had established a sewerage system which served the inhabitants of the city of Bowie. As a part of the sewerage system, a septic pool was established, in which the sewage from the city of Bowie emptied. The septic pool was so situated that the overflow therefrom passed into the'creek and the flow of the creek from that point passed down its channel across the Vann land.

This suit was instituted by Vann and wife against the Bowie Sewerage Company to recover damages for the depreciation in the market value of their land and also for injury to their health while occupying the property by reason of the pollution of the creek, caused by filth and other matter, which rendered the air so offensive to the smell and carrying germs of disease that they were thereby forced to abandon the property on October 28, 1928, and move into the city of Bowie and there rent a home as their dwelling place.

Following numerous exceptions to plaintiffs’ petition and a general denial of the allegations- therein contained, the defendant pleaded specially as follows: “Further answering herein, the defendant says that it is true that it has a septic tank located at a distance north and northwest of the premises described in plaintiffs’ petition, and further it says that it had and maintained such septic -tank at exactly the same place, and in exactly the same manner, for many years prior to the time plaintiffs purchased the premises described in their petition, and that when plaintiffs purchased said land that they knew the condition existing therein and bought such premises subject thereto, and are stopped from claiming damages invited by themselves.”

The trial was before a jury, to whom were submitted special issues, preceded by definitions of the terms “nuisance” and “proximate cause”; and the following is the substance of the findings of the jury in answer to those issues: The sewerage disposal plant as operated by the defendant at the times complained of by plaintiffs constituted a permanent nuisance, and as a proximate result thereof which reasonably should have been anticipated by the defendant, the market value of plaintiffs’ land was depreciated to the extent of $4,000; and plaintiff P. B. Vann sustained injuries to his health in the sum of $2,250; and plaintiff Mrs. Emma E. Vann sustained injuries to her health in the sum of $1,750. Upon the verdict so returned, judgment was rendered in plaintiffs? favor for the sum of $8,000, from which the defendant has prosecuted this appeal.

The evidence shows without contradiction that the septic pool was constructed in the year 1916, some nine years before the plaintiffs’ purchase, and that it has been operated as originally constructed, in the same manner and with the same flow of sewage matter therefrom, ever since. The finding of the jury that the nuisance complained of was a permanent nuisance was based on that evidence and the award of damages for depreciation of the market value of the property was by reason of that permanent nuisance.

Indeed, in their briefs, in support of the contention that the sewerage system was a permanent nuisance, plaintiffs have stressed testimony offered by them showing that M. A. Joy, president and chief owner of the sewerage plant, in reply to plaintiffs’ complaint to him of the offensive odors from the flow of sewage across their land, coupled with a request that the same be abated, stated that it was impossible to so change the system to avoid that complaint, and that statement of Joy was also alleged in plaintiffs’ petition to show the permanency of the nuisance. Furthermore, when tested by the authorities, we believe the facts recited above were sufficient to sustain the finding of permanent nuisance, at all events; nor has that finding been challenged for lack of sufficient supporting evidence.

The ease of Rosenthal v. Taylor, Bastrop & Houston Ry. Co., 79 Tex. 325, 15 S. W. 268, 269, was a suit for damages by the owner of lots in the city of La Grange upon which the plaintiff resided with his family, and the damages sought were alleged to result: First, from a faulty construction of the embankment upon which the track was laid, by reason of which water was caused to stand in pools upon the lots; and, in the second place, from .noise, dust, and smoke, and cinders caused by the operation of defendant’s trains. In that case, in an opinion by Associate Justice Gaines, the following was said:

“When the consent of the -municipal authorities of La Grange for the construction of the road was procured, the contract was performed, so far as the street and the holders of abutting property were concerned; and the plaintiff was not estopped to claim damages for a depreciation in his property resulting from noise, smoke, cinders, and dust created by passing trains. The operation of the road, tinder the circumstances complained of, if done without authority of law, would have been a nuisance. The company lawfully acquired the right to operate the road along the street, subject, however, to that provision of the Constitution which secures indemnity to those whose property is damaged for a public use. [G., H. & W.] Railway v. Hall, 78 Tex. 169, 14 S. W. 259 [9 L. R. A. 298, 22 Am. St. Rep. 42],
“But the act of the defendant in so constructing its roadbed as to obstruct the flow of the water was contrary to the provisions of our statute, and when the water so obstructed became stagnant and offensive, so as seriously to discommode the plaintiff and his family in the enjoyment of their residence, the obstruction! became a nuisance, and the defendant liable to him for the damages resulting from it. * * *
“The controlling rule in actions for injuries resulting from similar nuisances would seem to be to adopt in each case that measure of damages which is calculated to ascertain in the most certain and satisfactory manner the compensation to which the plaintiff is entitled. When the injury is liable to occur only at long intervals, or when the nuisance is likely to be removed by any agency, the damages which have accrued'only up to the time of the action will be allowed; but if the nuisance is permanent, and the injury constantly and regularly recurs, then the whole damage may be recovered at once. In a case like this the resulting depreciation in the value of the property is the safest measure of compensation. Here it may be inferred from the evidence that the injury recurs upon each considerable rain-fall, and continues during a stage of offensive stagnation until the water evaporates. The defendant seems to have treated the work as permanent, since they have failed upon application, to make a culvert for the passage of the water; and we are of opinion the depreciation in the value of plaintiff’s property is the most certain measure of his damages for the injury.”

In 20 R. C. L. p. 465, the following is said: “If a private nuisance is of such a character that its continuance is necessarily an injury, and it is of a permanent character, that will continue without change from any cause but human labor, and dependent for change on no contingency of which the law can take notice, then the damages are original, and according to the weight of authority a right of action at once exists to recover the entire damage, past and future, and onei recovery will be a bar to any subsequent action.”

See, also, City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62 (writ refused); Kellogg v. City of Kirksville, 132 Mo. App. 519, 112 S. W. 296;, Id., 149 Mo. App. 1, 129 S. W. 57; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 P. 899, 50 L. R. A. (N. S.) 388; Coneste Mills v. Greenville, 160 S. C. 10, 158 S. E. 113, 75 A. L. R. 519, and notes of decisions in that report, beginning on page 529; Hayes v. St. L. & S. F. Ry. Co., 177 Mo. App. 201, 162 S. W. 266; 46 C. J. pp. 650, 685; 37 C. J. § 251, p. 886; Williams v. City of Dallas (Tex. Civ. App.) 52 S.W.(2d) 373, and authorities there cited.

The conclusion therefore is unavoidable that if the nuisance was a permanent nuisance while plaintiffs occupied their property as found by the jury, it was so when the water in the creek, which passed over the property, was first polluted in the year 1916.

The question then arises as to whether or not plaintiffs can recover for the depreciation in the market value of their land caused by the permanent nuisance which had existed nine years before their purchase; and the determination of this issue is unaffected by the failure of the defendant to present a plea of limitation to plaintiffs’ suit.

If the nuisance was permanent, then a cause of action accrued to plaintiffs’ predecessor in title who owned the land when the pollution of the stream by reason of the flow of sewage from the septic pool across the land was first apparent. 17 O. J. 716, and authorities cited above. Whether or not he was ever compensated for that right of action does not appear from the record before us. But even if he was not, that right of action was never acquired by plaintiffs by subsequent conveyances of the land to them, since it was a personal right in him. 46 G. J. 737. It follows, then, that plaintiffs acquired the property with its market value already depreciated by reason of the permanent nuisance and therefore they are in no position to claim damages to which such former owner alone was entitled, if any, the measure of which was the depreciation in the market value of the property, in the determination of which personal discomforts resulting from noxious odors and germs of disease emanating from the sewage could bo taken into consideration. And in this connection it is to be noted that plaintiffs’ suit was not based on any allegations of negligence in the manner the sewerage system was operated, nor was there any allegation of any change in the original construction of the septic pool; and the verdict did not include a finding of any of those issues. The cause of action presented in plaintiffs’ pleadings was for damages for the permanent depreciation in the market value of the land and personal discomforts through its use as an incident to their ownership, caused solely by the permanent nuisance.

From the "foregoing conclusions it follows that the judgment of the trial court must be reversed and judgment he here rendered for appellant, without discussing other questions presented in appellant’s brief, a determination of which becomes unnecessary, and is accordingly so ordered.


author: CONNER, Chief Justice.

text:
    WICHITA COUNTY WATER IMPROVEMENT DIST. NO. 1 v. PEARCE.
    No. 12788.
    Court of Civil Appeals of Texas. Fort Worth.
    March 18, 1933.

      A. H. Britain, of Wichita Falls, for appellant.
    Luther Hoffman and Otis E. Nelson, both of Wichita Falls, for appellee.
   CONNER, Chief Justice.

In 1924 a number of enterprising and forward-looking citizens of Wichita Falls organized, in accord with the terms of title 128, Rev. Civ. Statutes of 1925, what is known as “Water Improvement District No. 1,” and for the purpose of furnishing water for irrigation to lands within its district constructed two large dams on the Wichita river, one known as Lake Kemp and the other as Diversion Lake. From the latter lake the district constructed an irrigation ditch extending in an easterly direction on the north side of the river along the foothills or higher ground of the valley so that the water therefrom could be distributed on the lower irrigable lands to the south by gravity flow.

About a year later, to wit, in the early part of 1925, M. H. Pearce, appellee, acquired a tract of land on the south side of the ditch, in rectangular form, containing 11 acres. The irrigation ditch crossed the northwest corner of the Pearce tract and thence extended in an easterly direction on or near its north boundary. At about where the ditch crossed the corner of the Pearce tract a water gate was constructed through which, when elevated, water from the ditch was caused to flow into a lateral ditch extending in a southeasterly direction, from which the Pearce and other lands to the east were irrigated.

On March 26, 1931, Pearce, as plaintiff, filed this suit in the district court of Wichita county against water improvement district No. 1. I-Ie alleged that prior to the year 1930 he had planted on his land a peach orchard, alfalfa, and had been able to raise potatoes, com, rye, peanuts, and every kind of crop; that about the late spring or early summer of that year the vegetation began to die and in a short time did die completely; that seepage waters from the canal and borrow pits and dam constructed by the district drained into and under his land to such an extent that water rose and saturated it, thus bringing up mineral deposits and water-logging his land sufficiently to destroy all of its productiveness and all growth thereon; that before his land was water-logged the tract was reasonably worth in cash $12,000; that it was permanently damaged and not now worth in excess of $2,000; and that he had been thus damaged in the sum of $10,000, which he sought to recover.

Plaintiff. alleged that the damage so suffered was proximately caused by the negligence of the district. He alleged five, grounds of negligence in the construction of the canal, namely: (a) Construction of an earthen canal; (b) failure to line inside of the canal with concrete, tile, or other impervious substance; (c) construction of gates from canal into lateral ditches; (d) failure to drain borrow pits; and (e) in damming up. a small draw above the canal.

Each of these acts of negligence is alleged to have been the proximate cause of plaintiff’s damage.

Plaintiff further alleged five grounds of negligence in the operation and maintenance of the canal, namely: (a) That defendant learned after the construction of the canal that water was leaking therefrom and defendant was negligent in failing to install concrete, tile, or other impervious substances in the bottom and sides of the ditch; (b) that gates from the canal to the lateral ditches leaked; (c) that during the years 1929 and 1930 defendant permitted the water in the ditch to flow at a level of from six to twelve inches higher than was reasonably necessary to irrigate the land surrounding the ditch; (d) failure to properly provide drainage for said borrow pits; and (e) failure to construct culvert and drain tank above canal — all of such acts of negligence were alleged to be the proximate cause of plaintiff’s injury.

The case was submitted to a jury upon special issues, to many of which assignments of error have been urged. At this point of our conclusions, however, we will notice but two of them, to wit, the first and second, which, together with the answers of the jury thereto, read as follows:

“1. Do you find from a preponderance of the evidence befare you that the irrigation District failed to exercise ordinary care in the construction of its canal- on and in the vicinity of the plaintiff’s land under all the circumstances of the case? Answer: Yes.
“2. Do you find from a preponderance of the evidence that the District failed to exercise ordinary care in the maintenance of said canal, so as to prevent seepage and leakage from said canal on and in the vicinity of the Pearce land, after the same was constructed? Answer: Yes.”

We have concluded that each of these issues are erroneous. The distinction between permanent and temporary injuries of the character now under consideration has been pointed out and defined by this court in an opinion by Associate Justice Dunklin in the case of Bowie Sewerage Company v. Vann, 59 S.W.(2d) 180. It may be clearly seen from the authorities in that opinion discussed, as well as from authorities hereinafter cited, that the irrigation ditch or canal, as we shall hereinafter term it, as constructed by the district, is of a permanent character ; indeed, the plaintiff has not alleged the canal to be a nuisance and abatable as such. On the contrary, as presented, it is a permanent structure authorized and encouraged by statutory enactment intended to promote the public and private interests of the citizens of the territory served and affected, and as such is not a nuisance per se. In such cases damages approximately resulting from a faulty construction accrue to the owner of the land at the time of the original construction and not to a subsequent purchaser.

In 20 R. C. L. p. 45, § 40, it is said: “To constitute an act or omission the foundation of an action at law it must appear that a duty was due from the actor to the person claiming to have been injured by the Act.” And in section 42 of the same volume it is said: “If, while in the possession of either real or personal property, an injury is done to that property, the right of action is alone in the then owner, and not in any successor in the title. And hence a purchaser of cattle which are at the time suffering from a disease communicated to them through the negligence of a third person acquires no right of action against the latter.” See, also, Mansfield Const. Co. v. Gorsline (Tex. Com. App.) 288 S. W. 1067; City of Dallas v. Maxwell (Tex. Com. App.) 248 S. W. 667, 27 A. L. R. 927; Crump v. Hellams (Tex. Civ. App.) 41 S.W.(2d) 288; Decatur Land, etc., Co. v. Rutland (Tex. Civ. App.) 185 S. W. 1064; 45 C. J. 639, § 16.

In connection with issue No. 1 as given by the court, we have considered the first paragraph of special charge No. 6, as submitted by the court. This reads in part as follows: “The defendant would not be liable for any injury resulting from natural and ordinary seepage from an earthen canal, unless it failed to exercise ordinary care in its construction or maintenance.”

This charge, viewed in connection with issue No. 1, at least authorized the jury to consider as actionable negligence the seepage from the canal if they found that the district had failed to exercise ordinary care in its construction, and the affirmative answer of the jury may have been founded on such consideration. Whereas, as we have seen, the plaintiff was not entitled to rely, as a basis of his recovery, upon negligence in the construction of the canal. We do not wish to be misunderstood on this point, however. As we have seen from authorities already noted, it was the clear duty of the district to operate and maintain the canal with due care to prevent injury and damage to users of its waters, and proof of defects resulting from a want of an exercise of ordinary care in the original construction of the canal would be admissible, as evidence merely, in determining whether under all the circumstances due care had been exercised in its maintenance and in the use of its waters, as submitted in the second issue above quoted. We therefore pass to a consideration of the objections to the court’s special issue No. 2.

In the interest of clearness we will here again quote issue No. 2: “Do you find from a preponderance of the evidence that the District failed to exercise ordinary care in the maintenance of said canal, so as to prevent seepage and leakage from said canal on and in the vicinity of the Pearce land, after the same was constructed? Answer: Yes.”

It is to be noted that in the consideration of that issue the jury was not limited, as should have been, to the specific acts of negligence alleged in plaintiff’s petition, as constituting a want of ordinary care in the maintenance of the canal. See Speer’s Laws of Special Issues, p. 239, § 182. Moreover, the plaintiff in this case should not be permitted to recover damages for any injury to his land caused by seepage necessarily incident to the operation of the irrigation system, but should be confined to damages resulting alone from some subsequent act or omission in maintaining or operating this particular kind of irrigation system. See Dew v. American Rio Grande Land & Irrig. Co., 25 S.W.(2d) 603, by Section B of the Commission of Appeals, especially approved by the Supreme Court. Indeed, the court instructed the jury, as shown in the quotation herein-before made from charge No. 6, that the defendant district would not be liable for any injury resulting from natural or ordinary seepage from the canal. But we are unable to say that the jury in the consideration of the issue excluded all want of an exercise of ordinary care on the part of the district, if any, that appears in the 580 pages of the statement of facts in this ease, which only resulted in preventing the natural and necessary seepage of a canal of the kind. In other words, the charge is susceptible of the construction which may have been given to it by the jury, that if the evidence was sufficient to show a want of ordinary care on the part of the district to prevent seepage altogether, their answer should be in the affirmative, regardless of the question of whether the care shown in the maintenance was such as to prevent unnatural, unnecessary, or wasteful seepage, yet the finding of the jury on the issue is made a basis of plaintiff’s recovery.

What we have just said we think sufficient to call attention to the fact, as we conclude, that the court’s special issues 3 and 4 are too broad, as indicated by Speer’s Laws on Special Issues, § 182, above quoted. These issues are as follows:

“3. Do you find from a preponderance of the testimony that the District failed to exercise ordinary care in the maintenance of its gate leading to the lateral on plaintiff’s land in order to prevent leakage at said gate? Answer: Yes.
“4. Do you find from a preponderance of the evidence that the defendant failed to exercise ordinary care in respect to the drainage of the borrow pits, or any of them, on and adjacent to plaintiff’s land? Answer: Yes.’’

In connection with issue No. 4, we wish to add that the borrow pits, if excavated by the district as alleged, are in character different from that of the canal, and if left in such form and capacity as to retain material bodies of water from heavy rains, seepage, or otherwise, and to overflow or otherwise spread such waters upon the land of the! plaintiff in damaging quantities, they would constitute nuisances, and as such abatable, and the district would be liable for such proportionate part of the injuries to plaintiff’s land as the evidence might show were so caused. In other words, we think it was the duty of the district in the construction of its canal to leave and maintain such borrow pits in a form that will prevent them from being nuisances that will contribute in any material degree to the elevation of the water table beneath plaintiff’s land and of which he complains. What we here say, however, will have no application to the borrow pit near the water gate, of which plaintiff complains, inasmuch as the evidence seems to show without dispute that this pit was dammed by the plaintiff himself a-nd used as a fishpond.

The' court in his charge in appropriate order gave definitions of the terms “maintenance,” “proximate cause,” “independent cause,” and “adjacent,” to which appellant has assigned errors, and also complains of the court’s refusal to give a number of supplementary explanations of several terms defined. As to these assignments, we think it sufficient to say that the definitions as given by the court are in forms many times approved in the authorities, and that the specially requested explanations were properly rejected as in the nature of general charges. To illustrate, we copy the following: “Now comes the defendant Wichita 'County Water Improvement District No. 1, and after the court had overruled defendant’s motion for a peremptory instruction and after the court had prepared his special issues to submit to the jury, and after overruling defendant’s exceptions to said special issues, and before the submission thereof, and requests the court in connection with the court’s definition of ‘negligence’ to give to the jury the following further definition and explanation, to wit: ‘Irrigation ditch owners are not insurers against damages which may result from the operation of nor to leaks or seepage from such ditch not due to any negligence and the mere fact that such leaks or seepage may have occurred from the ditch of defendant in the vicinity of plaintiff’s land, if' such did occur, would not constitute negligence on the part of -the defendant, unless you further find from a preponderance of the evidence that in the construction or maintenance of said ditch defendant failed to exercise ordinary care and that such leaks or seepage resulted by reason thereof.’ ”

Appellant assigns error to the refusal of the court to give the following special issues requested:

“1. Has water from rainfall and run-off water produced by rainfall seeped into or underneath plaintiff’s land? Answer: -
“2. Has water from irrigated lands above or in the vicinity of plaintiff’s land seeped into or underneath plaintiff’s land? Answer:
“3. Has water from the water table or other sources above the irrigation canal seeped into or underneath plaintiff’s land? Answer:
“4. Has water from the plaintiff’s fish pond seeped into or underneath plaintiff’s land? Answer: -
“5. Has water from the service lateral leading from the Pearce gate seeped into or underneath plaintiff’s land? Answer: -
“If you have answered all or any'of the above requested special issues ‘yes,’ then .you will answer the following requested special issue, but if you have answered all of them ‘no’ you need not answer this special issue.
“6. Would plaintiff’s land have been water logged, if it has been water logged, had no such seepage occurred from the above sources so found by you? Answer: -.”

As will be seen by a consideration of requested issue No. 6, it is inferable that tbe preceding issues were propounded with a view of establishing tbe facts wbicb would sustain appellant’s contention and specially pleaded defense that tbe elevation of tbe water table under plaintiffs land, if any, was wholly caused by excessive rains and tbe irrigation of plaintiff’s land and other lands in tbe vicinity. There was undoubtedly cogent evidence in behalf of appellant tending to show such to be the case, and while we recognize the right of appellant to have submitted in appropriate form its defense of sole proximate cause, we doubt that the requested issues above are sufficient to show reversible error.

Appellant also insists that the plaintiff’s cause of action is barred by limitation. Plaintiff testified that he first discovered the dying condition of his orchard, vineyard, alfalfa, etc., less than two years prior to the institution of his suit, and his action is based alone, as we think it must be, upon negligence in a want of an exercise of ordinary care on the part of the district in the maintenance of its canal and borrow pits.

The following is said in 37 Corpus Juris, p. 891: “Where obstructions erected by the defendant or other acts or omissions by him, not of themselves unlawful as to plaintiff, cause water to overflow plaintiff’s land, a cause of action accrues and the statute begins to run when the plaintiff sustains damage from the overflow, not when the obstructions are erected or the other acts or omissions occur; and this is true, although the cause of the overflow is an obstruction of gradual growth not causing damage until the lapse of the statutory period after it first began.”

Austin & N. W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S. W. 484, 23 Am. St. Rep. 350, was a ease in which a railroad and its culverts were constructed in 1881 and the damage was alleged to have been done in 1886, 1S87, and 1888. Appellants complained of the court’s refusal to sustain exceptions based on the two years’ statute of limitation, and in ruling upon it the court said: “The question is, when did the cause of action accrue, — at the time of the erection of the embankment and culverts, or at the date of the injury? Chief Justice Stayton, in the case of [Houston] Water-Works v. Kennedy, 70 Tex. 233, 8 S. W. 36, discusses the question and gives us a rule. He says: ‘When the act is in itself lawful as to the person who bases an action on injuries subsequently accruing and consequent upon the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of plaintiff’s right, then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damage resulting from the act, although these may not have been fully developed until within a period of less than necessary to complete the bar.’ * * * The building of the embankment and the culverts * * * was not of itself a nuisance. It was no invasion of plaintiff’s rights. They were not put on his land. They became a nuisance only at intervals — by diverting water from rain-falls from its usual flow upon plaintiff’s land. The embankment and the culverts were permanent, hut the nuisance was not.” See, also, Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061.

We overrule the contention that the action is barred.

Appellant also urges that the verdict and judgment cannot be sustained because of a want of certainty in the extent of the damage, if any, caused by a want of due care on the part of the district. The evidence undoubtedly tends to show that the waterlogged condition of the plaintiff’s land, if any, was caused, in part at least, by unusual heavy rains in the fall of 1929 and during the years 1930 and 1931 and by the condition of the service ditch, the duty of caring for which did not rest upon the district, and also by seepage from adjacent irrigated lands. While it may be difficult to determine the extent, if any, that negligence on appellant’s part in maintenance contributed thereto, yet the rule in such cases does not preclude all relief against a wrongdoer, if one.

Little, Schuylkill, etc., Co. v. Richards’ Adm’r, 57 Pa. 142, 98 Am. Dec. 209, is a case in which suit was brought for damages caused by dirt thrown from several collieries and there was no evidence as to the exact amount of damage or injury caused by each one. The court there said: “True, it may be difficult to determine how much dirt came from each colliery, but the relative proportion thrown in by each may form some guide, and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand.”

In Farnham on Water (2d Ed.) 1716, it is said: “A person polluting a water source is liable in damages only for his own act and not for that of any others who may contribute to the injury. If others have contributed his deposit must be separated by means of the best proof the nature of the case affords and his liability ascertained accordingly.”

In the case of Woodland v. Portneuf-Marsh Valley Irrigation Company, 26 Idaho, 789, 146 P. 1106, the irrigation company contended that the water wrongfully discharged from its canal was not sufficient by itself to cause the injury. The court, in holding this position untenable because it was liable for its proportionate injury, said: “But this is not a good defense, even though, true, because where one contributes as an independent tort-feasor toward causing an injury, he will be liable for the injury done by him, although his acts or negligence alone might not have caused any injury. In this case the evidence tends to prove that there were at least six sources from which the water came that injured Woodland’s hay, and it is not contended by him that the company was responsible for more than one. And, while the evidence is very indefinite as to the relative and specific amount of water from each source, it is sufficient to show that considerable water from the company’s canals wrongfully ran into the creek that overflowed its banks and flooded Woodland’s property. And every one who permits water to waste onto the land of others without right is liable for his proportionate share of the injury caused or the harm resulting therefrom, even though the water allowed to run down by each would do no harm if not combined with that of others, and the injury is caused by the combined' flow, wherein the waters of all are mixed and indistinguishable.”

With reference to the amount of evidence which would justify the award of damages and as to the proportionate amount caused by the act of the several tort feasors, this court further said: “Exact and definite measurements of such waters are not essential to sustain the verdict of a jury in determining what amount of damages a company should pay under such circumstances as compensation for the injury caused by its part of such waters, although some evidence in that respect is essential.”

We conclude, therefore, that the district is liable in damages for such proportionate part, if any, as found by the jury, as was proximately caused by its negligence in the maintenance of the canal and borrow pits. It is perhaps to be inferred that the jury in assessing the damages had the principle in mind, for the plaintiff had testified that the total value of his land, exclusive of the improvements of the estimated value of $1,500, prior to the injuries complained of, was $1,000 an acre, and the jury’s finding of damage was for $2,500. One witness testified that in his opinion 85 per cent, of the waterlogged condition of plaintiff’s land was due to seepage from the canal and borrow pits, and the court had instructed the jury in assessing damages to limit them to such only as was directly and proximately caused by the negligence of the district. To the professional mind the charge may seem to be sufficient, but we suggest that upon another trial there should be, as a basis for the court’s judgment, an express jury finding on the proportionate part, if any, that the district contributed to the damages to be assessed, and that if the jury should find the water-logged condition of plaintiff’s land was not wholly due to causes other than seepage from the canal and borrow pits, a special issue should then be submitted as to the proper proportionate part, if any, of the injuries caused by negligence on the part of the district.

The court charged the jury that: “The measure of damage is the difference in market value of the land between a time just before and a time just after such damage, if any, accrued * *

It is insisted that the court gave an erroneous measure for the assessment of the damage. While, as we have seen, the basis of plaintiff’s right to recovery, if any, arises from the district’s negligence in maintaining its canal and borrow pits and hence not necessarily of a permanent character, yet the rule is not inflexible and no evidence is pointed out to show the rental value of the land or the practicability and cost of restoring the land to its former condition by means of drainage, ditches, etc., and it seems to be the holding of our courts that in cases where the injury is to trees, vineyards, and crops having roots which are destroyed, the measure of damages is generally as given by the court.

For instance, in Jones v. Ry. Co., 189 Mo. App. 6, 176 S. W. 465, it is said: “The measure of damages for destruction of an orchard, the injury being to the inheritance, is the difference in the value of the land before and after the destruction.”

In the case of Missouri, K. & T. R. Co. v. Fulmore (Tex. Civ. App.) 29 S. W. 688, it is said: “The measure of damages for the destruction of sod by fire is the difference in the market value of the land immediately before and after the fire, including the value of the grass destroyed.”

In the case of Texas & N. O. R. Co. v. Smith, 35 Tex. Civ. App. 351, 80 S. W. 247, it is held that, in an action for an injury to an orchard, the measure of the damages was the difference in the market value of the land before and after the injuries to the orchard.

In the case of Galveston, H. & S. A. R. Co. v. Warnecke, 43 Tex. Civ. App. 83, 95 S. W. 600, the court held: “Where an orchard is destroyed by the act of a tort-feasor, the owner is entitled to recover for the injury to his realty, and the wrongdoer will not be heard to say that the land, if used for other purposes, will produce as much revenue; the owner being entitled to use his property for any lawful purpose and when its value for that purpose is decreased by file wrongful act to another he is entitled to recover as damages the difference between its value for the purpose for which he desired to use it before and after the commission of the wrong.”

See, also, Missouri, K. & T. R. Co. v. Malone, 59 Tex. Civ. App. 254, 126 S. W. 936; 13 Texas Jurisprudence, p. 53; Windfohr v. Johnson, 57 S.W.(2d) 215, by this court.

Without further discussion, for the reasons stated, we conclude that the judgment below should be reversed, and the cause remanded for another trial not inconsistent with this opinion.