text:
    SKILLERN v. BROOKSHIRE et al.
    No. 2310.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1933.
    Rehearing Denied April 5, 1933.
    Seale & Thompson, of Nacogdoches, for appellant.
    Adams & McAlister, of Nacogdoches, and J. J. Collins and R. W. Fairchild, both of Luf-kin, for appellees.
   WALKER, Chief Justice.

This was an action for slander by appellant, A. B. Skillern, against appellees Bryan J. Brookshire and Everett B. McKay, doing business as partners under the firm name of Brookshire Bros. The case was tried to a jury and the judgment appealed from was upon a verdict instructed in favor of appellees. Appellant charged that appellee Bryan Brookshire addressed to him the following defamatory language: “You got that sugar here and you know it; because Bailey does not handle that kind of sugar.” The facts are these: Appellees .were operating a grocery store in the city of Nacogdoches, in Nac-ogdoches county, on the 2d day of May, 1931, under the name of Brookshire Bros. Their store room was so arranged that the customer could serve himself and have the goods, thus selected, checked for the purpose of payment 'by one of appellees’ employees; or he could have the services of a clerk in making his purchases. Appellant testified that, on the 2d day of Bfay, 1931, he was served by one of appellees’ clerks. After making his grocery purchases he stacked them in the rear of ap-pellees’ store, under the rules of the store, and left the store and went to Bailey’s Grocery Store and there bought the sack of sugar in question. He returned to appellees’ store with this sack of sugar and put it on top of the groceries he had selected from appellees’ stock. Appellee Bryan Brookshire went back with appellant to check the groceries thus selected by him. Appellant proposed to pay for his groceries and handed Bryan Brookshire the money to cover the amount of his bill.' Brookshire then said: “You haven’t paid for the sack of sugar.” Appellant replied: “I didn’t get it here; I got it from Mr. Bailey’s from John Varner.” Brookshire then walked away and came back in “five or six or seven minutes,” and resumed the conversation, saying : “You got that sugar here and you know it; Bailey does not handle that kind of sugar.” Appellant then said: “The hell they don’t.” Brookshire replied: “No.” Plaintiff then said: “Come on and I’ll prove it to you.” And Brookshire replied: “Are you sure of that?” And appellant said: “Let’s be going.” They then went to Bailey’s store and were informed by Mr. Varner that appellant had, in fact, purchased the sugar from him. These facts were testified to by appellant and by certain customers of appellees, who were in the store and heard Bryan Brookshire use the language charged by the petition. To give the attending facts more in detail, we quote as follows from appellant’s testimony:

“I talked to Mr. Brookshire that evening. As to how this conversation came up, well— I bought this bill of groceries from him and bought a sack of sugar from Mr. Varner, Mr. John Varner — worked at Mr. Baileys — Dutch Bailey’s, next door. And I started in and met Mr. Brookshire and I said I was about ready to ride, and I said, ‘Let me pay you my bill;’ and I handed him the bill, and he said, ‘You haven’t paid for the sack of sugar’; and I said, T didn’t get it here; I got it from Mr. Bailey’s from John Varner’; and I stood around there a few minutes, and directly he came back, in & few minutes — not over five or six or seven — and he says, ‘You got that sugar here; they don’t handle that kind of sugar down there’; and I says, ‘The hell they don’t!’ and he says, ‘No’. I says, ‘Come on- and I will prove it to you’ and he says, ‘Aré you sure of that?’ and I said, ‘Let’s be going.’ ”

Appellant alleged that by the use of the defamatory language appellees “undertook to and did charge this plaintiff with the theft of said sugar and being a thief.” He further alleged that by the use of the defamatory language appellees imputed to him the crime of theft. There was no allegation that the language charged him with being dishonest or untruthful or with cheating, or imputed to him that character of dishonorable conduct. The petition went no further than to allege the specific language quoted, with the attending facts and circumstances, and that it constituted a charge of theft against appellant or imputed to him the crime of theft. Appellant pleaded general and special damages and prayed for judgment in the sum of $10,-000 actual damages. Though he pleaded special damages, he offered no proof whatever raising any issue of special damages.

Opinion.

Appellant insists that his pleading and evidence raised the issue either that the defamatory language was slanderous per se or that it was slanderous per quod, that is,, that the words charged in his petition were actionable in themselves or, if in error in that contention, that they were actionable on his allegations of special damages. We think these contentions are without merit and that the verdict was properly instructed against him. To be slanderous per se, the defamatory words must be reasonably “capable of a defamatory meaning.” Hitzfelder v. Koppelmann, 30 Tex. Civ. App. 162, 70 S. W. 353, 354. Because words are susceptible of two meanings, one of which is slanderous per se and the other is-not, it does not necessarily follow that they are not actionable per se. Clark v. Bohms (Tex. Civ. App.) 37 S. W. 347. Where the language used is not necessarily defamatory upon its face, but, under the attending facts, is capable of that construction, the rule, as stated by the two cases just cited, is that the issue is for the jury. In Zeliff v. Jennings, 61 Tex. 458, Judge Stay ton ruled that words are slanderous per se when they charge an offense which, if proved, would subject the accused person to disgraceful punishment. Appellant tried to bring himself within the rule announced by that case, and cites it to us in support of his proposition that the language used against him by Bryan Brookshire was slanderous per se. Thus he alleged that by the use of the defamatory language appellees charged Mm with being a thief and imputed to him the crime of theft. Though Bryan Brookshire did not, in specific language, say that appellant was a thief, yet, if the words: “You got that sugar here and you know it; because Bailey does not handle that kind of sugar,” in their usual and natural significance, clearly and unambiguously charged appellant with the crime of theft, or if, construed in the light of the attending circumstances, they were reasonably capable of that construction, they were actionable per se. Where words have two meanings, they may or may not be actionable per se, according to the sense in which they were understood by those who heard them, which is generally a jury question: the test is what construction would be placed upon the language by the average person or the general public, and not the construction placed upon it by the plaintiff. Express Publishing Co. v. Isensee (Tex. Civ. App.) 286 S. W. 927; Koehler v. Sircovich (Tex. Civ. App.) 269 S. W. 812; Lehmann v. Medack (Tex. Civ. App.) 152 S. W. 438; Clark v. Bohms, supra; Hitzfelder v. Koppelmann, supra; Texas & Southwestern Digest, Libel and Slander, Fenn v. Kroger Grocery & Baking Co. (Mo. Sup.) 209 S. W. 885; Lemaster v. Ellis, 173 Mo. App. 332, 158 S. W. 904; 17 R. C. L. 312. However, after giving most careful consideration to the record, it is our conclusion that the defamatory words, construed in the lighj of all the attending circumstances, were not subject to the construction of two or more meanings, 'but were clear and unambiguous. It follows that the court did not err in refusing to submit to the jury the issue of their proper construction. Under the undisputed facts in the record, the proper construction of the defamatory language was a question of law for the court and by giving the instructed verdict the court correctly ruled that the language addressed by Bryan BrooksMre to appellant did not charge him with the crime of theft.

Theft is defined 'by the following articles of the Revised Penal Code, 1925:

“Art. 1410. ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.”
“Art. 1412. To constitute ‘taking’ it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete.”
“Art. 1413. The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means,' the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

The essential elements of these articles of the Penal Code were not invoked by the facts of this case. While asportation is not necessary to complete the crime of theft, yet the property, must be' in the possession of the thief, at least for the “moment” referred to by article 1412, and his possession must include the other essential elements of articles 1410 and 1413. Thus, there must be a fraudulent “taking” of the property from the owner or some one holding it for Mm, without his consent, with intent to deprive him of its value and to appropriate it to the use and benefit of the person taking it; to amount to theft, the “taking” must not only be fraudulent, but it must amount to an actual appropriation to ■his own use and benefit by the person taking it. In this case the attending facts were to the effect, without any dispute in the evidence, that Bryan Brookshire thought the sugar belonged to appellees, and that appellant was trying to appropriate it on the false pretext -that he had purchased it from another store. Under these attending facts, even if the sugar had belonged to appellees, it came into appellant’s possession by rightful means, for under the rules of the store, he had permission from appellees to take it off their shelves and stack it' with his other groceries for the purpose of checking it for payment. So, under any construction of the attending facts, the sugar was lawfully with appellant’s other grocery purchases. To constitute the crime of theft, the appropriation must become, for at least a moment, an accomplished fact. Had the sugar belonged to appellees, there was no appropriation. Appellant had tendered his purchases to Bryan Brookshire to be checked. Under the rules of the store, appellees retained control over these groceries until they were checked and paid for. Had the sugar belonged to appellees, under the rules of the store Bryan Brookshire had the right to replace it upon the shelves in the event appellant refused to pay for it. It thus appears that Brookshire thought, and the general public was compelled to give the attending facts the same construction, that he had the right to- retain control over the sugar and, in fact, exercised that right and did not permit appellant to have exclusive control and possession, until after the defamatory words had been uttered. Had the sugar belonged to appellees, there was never a moment when it was in the exclusive control of appellant, nor had lie for a moment appropriated it to his own use or benefit. It follows, we think, that neither “possession” nor “appropriation” were involved in the defamatory-language. It necessarily follows that the words used, construed in the light of the attending circumstances, did not charge appellant with the crime of theft; they amounted to nothing more than a charge that he was trying to steal the sugar, which is not a crime in this state and, therefore, not actionable. In their construction of defamatory words, the following cases are interestingly in point: York v. Mimms, 179 Ky. 525, 200 S. W. 918; Fenn v. Kroger Grocery Co., supra; Wooten v. Martin, 140 Ky. 781, 131 S. W. 783, Ann. Cas. 1912B, 407, and the many authorities reviewed in that case. In what we have said we are not in conflict with Perry Bros. Variety Stores v. Layton (Tex. Civ. App.) 7 S.W.(2d) 190, 191; Layton v. Hightower (Tex. Com. App.) 12 S.W.(2d) 110; Perry Bros. Variety Stores v. Layton, 119 Tex. 130, 25 S.W.(2d) 310; Id. (Tex. Civ. App.) 32 S.W.(2d) 863; Foley Bros. Dry Goods Co. v. McClain (Tex. Civ. App.) 231 S. W. 459; McDaniel v. King (Tex. Civ. App.) 16 S.W.(2d) 931. In each of these cases the defamatory words, construed in the light of the attending facts, involved every element of the crime of theft, as defined by the Penal Code. Thus, in the Layton Case, Mrs. Layton had been in ap-pellee’s store as a customer, and when she returned a few moments later the manager called to her, and with reference to her first visit to the store, asked her “Where are those bloomers you took from the store awhile ago?” thereby charging her with taking the bloomers from his possession, without his consent, with the intent to deprive his principal of their value, and with the intent to appropriate them to her own use and benefit, and with having so appropriated them. Without analyzing the other cases cited by appellant as being contrary to our holding, their facts invoked all the elements of the crime of theft. By his supplemental argument, appellant calls to our attention Dean v. Black & White Stores (Ark.) 55 S.W.(2d) 500. The facts of that case make it absolutely on all fours with the Layton Case.

On the issue of slander per se, appellant was not bound by his innuendo that the defamatory words charged him with béing a thief, since these words, in their ordinary meaning, do not sustain that charge, 3-7 O. J. 26; and we agree with him that this language was reasonably subject to the construction that Bryan Brookshire charged him with cheating or with dishonesty or with lying. Giving the words that construction, appellant invokes the definition of libel, as given by article 5430, R. S. 1925, and on the proposition that this definition “covers ’both libelous and slanderous cases in Texas,” asserts that the charge of cheating or dishonesty or lying was slanderous per se. Appellant is in error in this construction of the statutory definition of libel. Blander is no part of this definition. There is a distinction in law between slander and libel, thus recognized by 17 R. G. L. 263: “There is a well settled distinction between written or printed and mere oral defamation in respect to its actionable character. Much which if spoken would not be actionable without an averment of extrinsic acts or an allegation and proof of special damages, when written or printed is actionable. Defamatory words when spoken are not ordinarily actionable per se, unless they impute a crime.”

It is not necessary for us to determine whether or not the words charged in the petition were libelous per se under article 5430, for this is not a case of libel. But, as we understand the authorities, charges of cheating, dishonesty, and lying are not slanderous per se, unless they “impute a crime at common law or under a statute.” 36 C. J. 1199; 27 R. C. L. 290. Clearly these charges, that is, “cheating,” “dishonesty,” and “lying,” as deduced from the language in issue, did not impute to appellant either a common law or a statutory crime.

It follows that we must overrule appellant’s propositions that the defamatory language was slanderous per se.

We now come to the contention that the language, as charged in the petition, construed in the light of the facts alleged, was actionable on the allegations of special damages, that is, per quod. There are two answers to this contention. Though appellant alleged special damages, his proof wholly failed to raise that issue. But, if he had offered proof of special damages, it could have done nothing more than sustain the theory that the defamatory words charged him with dishonesty, cheating, or lying. 1-Ie can have no relief on this ground, on his proposition that the language was actionable per quod, because, by his innuendo, he limited the meaning of the words to that of theft. The rule is that “where the communication is not actionable per se and the innuendo is used to impute a defamatory meaning, plaintiff is bound 'by the construction which he has given to the words in the innuendo.” 37 C. J. 26. It follows that the defamatory words were not actionable per quod.

Our original opinion in this case was filed on the 9th of February, 1933. On rehearing, appellant assigns error against one of our fact conclusions which require a much fuller statement of the facts; also, the propositions assigned 'by the motion for rehearing require a more detailed discussion than was given in the original opinion; also, it was proper that we refer to the decisions with which appellant says we are in conflict. In order to dispose of all the issues in one opinion, we are withdrawing our original opinion and substituting in lieu thereof this opinion on rehearing.

Eor the reasons stated the judgment of the lower court is in all things affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    BLAKE v. B. F. DITTMAR CO.
    No. 9026.
    Court of Civil Appeals of Texas. San Antonio.
    March 15, 1933.
    Conger & Conger, of San Antonio, and J. Q. Henry, of Mission, for appellant.
    Leo Brewer and Olind H. Pitman, both of San Antonio, for appellee.
   MURRAY, Justice.

B. F. Dittmar Company, appellee, instituted this suit in the Forty-Fifth district court of Bexar county against Thomas W. Blake, appellant herein, and others. The suit was based upon a note signed by Thos. W. Blake and indorsed by W. E. Pope and Lucile S. Pope. Blake resided in Harris county, and W. E. Pope and Lucile S. Pope resided in Nueces county. The note was payable in Nueces county.

There is no theory on which this suit could be maintained in Bexar county as an original proposition. It is contended by appellee that, W. E. Pope and Lucile S. Pope having filed answers, it may now properly maintain suit in Bexar county against these two defendants, and, having gained venue over these two defendants, it is now entitled to retain venue in Bexar county over appellant by reason of the provisions of article 1995, subd. 29a, R. C. S. 1925, as added by Acts 1927,1st Called Sess., c. 72, § 2 (Vernon’s Ann. Civ. St. art. 1995, subd. 29a). This being appellee’s contention, it should have alleged these facts in its controverting affidavit, which was not done. Appellant’s exceptions should have been sustained. But, regardless of this defect in the controverting affidavit, appellant’s plea of privilege should have been sustained by the trial court.

Article 1995, subd. 29a, reads as follows: “Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein, under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

We construe this provision of the statute to mean that such suit must be lawfully maintainable in the county in which it is instituted as to at least one defendant under the law, and not as a result of the waiver of one such defendant.

The fact that W. E. Pope and Lucile S. Pope did not see fit to file a plea of privilege, but submitted themselves to the jurisdiction of the Bexar county court, could not divest appellant of his right to be sued in the county of his residence, which right he unquestionably had, up until the time the other defendants filed their answers.

Appellee points out that to grant appellant’s plea of privilege will cause a multiplicity of suits. This position is not well taken. The trial court should have granted this plea of privilege and transferred the entire cause of action as against all defendants to Harris county. The court could not grant a severance of this cause of action on his own motion. Masterson v. O’Fiel (Tex. Civ. App.) 219 S. W. 1117; Morrison v. Richards (Tex. Civ. App.) 207 S. W. 205.

The judgment is reversed, and the cause remanded, with instructions to the trial court to transfer this cause to the district court of Harris county, Tex.


author: BOND, Justice.

text:
    KOHFELDT et al. v. CITY OF DENISON et al.
    No. 11116.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 25, 1933.
    Rehearing Denied March 25, 1933.
    John T. Suggs, of Denison, for appellants.
    Hamp P. Abney, of Sherman, for appel-lees.
   BOND, Justice.

This suit is one involving the validity of a paving lien and its priority over a preexisting vendor’s lien on certain real estate in the city of Denison, Grayson county.

On November 14, 1921, by ordinance, the city council of Denison determined that a necessity existed for improving West Morton street, and to secure the payment of such improvement, a lien was created on the abutting property and against the owners thereof. At that time, Franz Kohfeldt was the owner and in possession of lot No. 8 in block No. 8, Stevens addition to the city of Denison, and said property abutted on said street. On December 1, 1921, Kohfeldt executed a deed to the property to Jim Young, and in said deed the vendor retained a lien on the property conveyed, to secure notes given as part of the purchase money, and, in addition thereto, Jim Young executed a deed of trust to secure said notes. The deeds were not recorded until February 22, 1922. In the meantime, the city council passed successive ordinances and entered into a contract with the Kaw Paving Company, in furtherance of said improvement, the completion of the assessments, the issuance of the certificate involved in this suit, for the payment thereof, and created a paving lien- against the abutting- property, and against the record owners thereof. All notices in reference to said improvéments and the assessments were in the name of Franz Kohfeldt, and all of such notices were served on him. On May 31, 1922, Jim Young, the then owner of the property, entered into a written contract with the Kaw Paving Company, in which he acknowledged the regularity of the ordinances of the city council, in compliance with the terms of chapter 11, title 22, R. 8. 1911, and the charter of said city; waived any invalidity in reference to the assessments, and obligated himself to pay the certificate provided by said ordinances. The said contract specially provided that, This instrument- is collateral to. and cumulative of said assessment and certificate issued thereon.”

By virtue of said ordinances and other proceedings incident to and in furtherance of the improvement and assessments, lien, and liability, said city council, on August 14,1922, issued to the Kaw Paving Company the special assessment certificate involved in this suit, in the sum of $333.74, against the said property and against Jim Young, the owner! Said certificate was made payable to said paving company in five equal installments: One within one day after the 1st day of September, 1922, and the other installments on or before September 1,1923,1924,1925, and 1926, respectively, together with 8 per cent, interest per annum, payable annually, on said installments from September 1, 1922, and with a reasonable’attorney fee.

On May 7, 1927,’ in default of payment of the vendor’s lien, and under the terms of the deed of trust, Eranz Kohfeldt repossessed the property in trustee’s sale, and thereafter conveyed it to Palmer Harbert, who is now the owner. This suit was instituted on September 15, 1926, by the city of Denison and for the benefit of the Kaw Paving Company, the owner and holder of said certificate, against Jim Young, Eranz Kohfeldt, Palmer Harbert and his wife, Juanita Harbert. Appellant answered and denied the superiority of the paving lien, pleaded the two and four-year statutes of limitation, and 'by special pleas sought its cancellation. The trial in the district court resulted in a judgment for appel-lees against Jim Young, for the debt represented by the certificate, and against Jim Young and appellants, for a foreclosure on the property, decreeing the superiority of the paving lien over the vendor lien above mentioned. Appellants appealed.

At the time the initial ordinance was passed, November 14, 1921, ordering the improvement and declaring a lien on the abutting property, to secure its payment, Eranz Kohfeldt was the owner and in possession of the property. He knew, at the time he conveyed the property to Young, thereby bringing into existence and reserving unto himself the vendor’s lien, the improvement had been ordered, and the assessment and lien were in process of being created on the property. He had actual and constructive notice of the initial step taken by the city of Denison. The initial step is just as essential to the validity of the paving lien as any other'requirement of the statute. The conveyance to Young, above mentioned, could not interrupt the improvement ordered, or impair the lien created. The lien was created against the property when the initial ordinance was passed. The succeeding requirements of the statutes — notices, assessments, contract, and certificate — are necessary prerequisites for the completion of the lien, which was brought into existence and attached to the property by the initial ordinance. Highland v. City of Galveston, 54 Tex. 527; Storrie v. Houston City Street Ry. Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716.

In the case of Anderson et al. v. Brandon et al. (Tex. Sup.) 47 S.W.(2d) 261, 263, a purchaser acquired property after the initial ordinance was passed by the city commission. Our Supreme Court said: “Neither can one who has purchased the property from plaintiffs in error sustain any injury by reason of the paving lien relating back to the date of the passage of the original resolution ordering the street improvement in front of this property. Spcih purchaser necessarily acquires the saíne with notice that a lien will be fixed against such property for the cost of the proposed improvements, to the extent that said property is benefited by reason thereof. In some jurisdictions it is held that such paving liens relate back to the date of the resolutions ordering the improvements, even though the law under which such improvements were made contained no relating back provision. [Citing authorities.]”

In the case of Whitham & Co. v. Gambrell (Tex. Civ. App.) 48 S.W.(2d) 347, 348, is a situation véry much like that in the instant case. The court said:

“The judgment of the trial court was evidently based on the theory that L. Kertz was not the owner, in view of the fact that he had contracted with Gambrell to sell to him the lot in 1925, prior to the enactment of the ordinance and the assessment levied, as shown in our statement of the evidence. So that we have only to determine whether or not he was, within the contemplation of the law, such owner upon the 8th day of March, 1926. In the case of Highland v. City of Galveston, 54 Tex. 527, it was held by our Supreme Court that the cost of improving a sidewalk attaches to the lot in the possession of any party having an interest therein. In 6 Words and Phrases, Eirst Series, p. 5135, we find a number of definitions of the term ‘owner.’ We quote but one, to wit: ‘By statute the term “owner,” with respect to condemnation proceedings, is defined to mean all persons having any interest, estate, or easement in the property to be taken, or any lien, charge, or incumbrance thereon, citing In re Opening of Oneida St., 22 Misc. 235, 49 N. Y. S. 828.’
“And the question would seem to be concluded by the recent decision of our Commission of Appeals, Section B, in the case of Nalle v. Eaves, 5 S.W.(2d) 500, 501. In that opinion, Judge Leddy had this to say: ‘It has been repeatedly held that the word “owners,” when used in special assessment, eminent domain, or condemnation statutes, embraces the holders of every kind of lien, claim, or equity in the property involved,’ citing in support thereof numerous cases.
“The contract of sale to J. L. Gambrell on the 27th day of June, 1925, did not divest the title of Kertz. Not only by our decisions but by the terms of the contract itself the legal title was reserved in Kertz to secure the payment of the purchase money in accordance with the terms of the contract.”

All of the proceedings, with reference to making said improvements, are regular and in' compliance with the terms of chapter 11, title 22, supra, and the charter of said city. No homestead being involved, Young, the owner of the property, was privileged to execute the contract above mentioned, in which he waived any invalidity in the proceedings, acknowledged the regularity of the assessments, and obligated himself to pay the certificate and to have the contractual obligation cumulative of and collateral to the statutory obligation, thus contracting while the debt created by statute was in esse, same must be construed together, and the rights of the parties must be determined by their contractual obligation in connection with their statutory obligation, and the statute of limitation applying to an action of debt created partly by statute and partly by contract. Article 5529, R. S., fixes four years as the period applicable for “every action other than for the recovery of real estate, for which no limitation is otherwise prescribed”; and article 5526, subd. 4, fixes two years as the period applicable for “actions for debt where the indebtedness is not evidenced by a contract in writing.” The paving debt is a statutory liability to pay the lien created, and is one to which, the two-year statute of limitation would apply. However, the owner of the land, Jim Young, having executed a written obligation, cumulative of and collateral to the statutory obligation, in our opinion, tanta-mounts to extending the period of limitation, and is an action for debt evidenced by a contract in writing, to which the four-year period is applicable.

It has been decided by the courts of this state that a purchaser of land charged with a lien to secure a debt is entitled to assert against the holder of the lien the statute of limitations barring the debt. Columbia Ave. Sav. Fund, Safe Deposit, Title & Trust Co. v. Strawn, 93 Tex. 48, 53 S. W. 342. The paving lien was created at a time when* appellant Kohfeldt owned the property and at the time he held the superior title, being the vendor, retaining an express lien for unpaid purchase money, and repossessed the record title by a transaction subsequent to the creation of the paving lien. He was therefore invested with all the rights of the obligor in invoking the statute of limitations.

We conclude that the paving lien holds priority over the vendor’s lien, and that the trustee’s sale of the property to appellant Kohfeldt, under the deed of trust, and the subsequent sale to appellant Harbert, was affected by the lien; that the installment due on September 1, 1922, is barred by the four-year period of limitation. The learned trial court erred in rendering judgment decreeing a foreclosure as to the said installment and interest thereon, and as to that, the judgment of the court below is reformed, by deducting the sum- of $66.74 and 8 per cent, interest thereon from September 1, 1922, and as reformed the case is affirmed. All costs on this appeal taxed against appellees.

Reformed and affirmed.

On Motion to Correct Fact Findings.

Appellants assail our fact findings in our original opinion wherein we said, “At that time [November 14,1921], Franz Kohfeldt was the owner .and in possession of lot No. 8 in block No. 8, Stevens addition to the city of Denison, and said property abutted on said street,” and petition that we withdraw said findings and find that Jim Young, at that time, occupied the property and was in possession thereof. We have again reviewed the record as presented and find: (1) An agreed admission of the parties, i. e., “prior to December 1, 1921, Franz Kohfeldt was the owner and was in possession of Lot #8 in Block #8 of Stevens Addition to the City of Den-ison, Grayson County, Texas,” and (2) the testimony of Franz Kohfeldt, i. e., “the initial transaction between myself and Jim Young was, the lot was bargained for by what we call a sales contract, on November 23, 1918. * * * Immediately after the trade, he moved on this place. I made the trade in 1918. During the time that he was paying on it, from then on till the deed was made and later, he rented a part of the house and lived in a part of it, two houses on the place, and he occupied the location at that time, and was still occupying it at the time I made the deed to him and continued to occupy it for some months afterward.”

We conclude, from the said admission and testimony, that appellant Franz Kohfeldt was the owner of the property and in possession thereof on November 14, 1921, and whatever possession Jim Young held by his occupancy as a tenant was the possession of Franz Koh-feldt through said tenancy.

Appellants’ motion to withdraw from our opinion the said fact finding, and to correct our conclusion to show that Jim Young was in possession and occupancy of the property, is overruled.


author: WALKER, Chief Justice.

text:
    DEAN et al. v. GROGAN-COCHRAN LUMBER CO. et al.
    No. 2304.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 16, 1933.
    Ed. R. Campbell, of Houston, and Foster, Williams & Nicholson, of Conroe, for plaintiffs in error.
    Vinson, Elkins, Sweeton & Weems, of Houston, and J. L. Pitts and Crawford & Crawford, all of Conroe, for defendants in error.
   WALKER, Chief Justice.

The appeal is by writ of error, but the parties will be referred to as appellants and ap-pellees. The action was in trespass to try title by appellants H. C. Dean, Mrs. Berta Dean, and her minor son, David Boyd Dean, as plaintiffs, to recover from appellees H. Frank Smith, Joe E. Smith, and Mrs. Ada Lee Read and her husband E. D. Read, the title and possession of 300 acres of land in the Robin George survey in Montgomery county, described in the petition by specific metes and bounds, and against appellee Grogan-Cochran Lumber Company, to recover damages for certain timber cut by it upon the land. Appellants also plead the statutes of limitations of three, ten, and twenty-five years. Appellee Grogan-Cochran Lumber Company answered by pleas of general demurrer, general denial, not guilty, limitation of two years, and certain other special pleas not necessary to mention, and by way of cross-action against the other appellees on allegations that it had bought the timber from them by warranty deed, and prayed for re-coupment against them for whatever amount appellants might recover against it. The other appellees answered by pleas of general demurrer, general denial, and not guilty. Upon trial to the court without a jury judgment was entered in favor of appellees that appellants take nothing against them, and that' they go hence without day, and appellee, Gro-gan-Cochran Lumber Company, was denied recovery upon its warranty. Conclusions of fact and law were filed in the lower court. .

The trial court found against all pleas of limitation, and as these findings are not challenged no further reference will be made to them. Briefly summarized, the facts are as follows: The Robin George survey of land, of which, the land in controversy is a part, was patented on the 22d day of July, 1861, to the assignees of Robin George. The patent was introduced in evidence by appellants. They also introduced in evidence, for the purpose of showing common source, a deed dated the 29th day of September, 1883, from Mrs. Elizabeth Hornberger, Miss Henrietta Steussy, Mrs. A. Pressler, and Mat Steussy, executor F. Steussy estate, hereinafter referred to as the Steussys, to H. F. Smith to a tract of land described in the deed as “also 300 acres out of the Robin George Survey along the line of Richards and wife to its northwest corner.” As to this deed the parties agreed upon the trial that at the time of its execution the Steussys owned all of the Robin George survey except a tract of sixty-four acres previously conveyed. Appellants also offered in evidence a deed dated July 10, 1888, by Mat Steussy, who purported to act as attorney in fact and trustee for H. F. Smith, joined in the execution by O. W. Arnold, who also purported to act as trustee for H. F. Smith, conveying to H. C. and D. Dean “300 acres out of the west part of the Robin George Survey.” The trial court found that this deed was void because of the defect in the description, and because no power was shown in Mat Steussy and O. W. Arnold for its execution, and these conclusions are not attacked by either party. The trial court permitted appellants to offer evidence to locate upon the ground the land described in their petition, and to identify it with the land referred to in the Smith deeds. As to this evidence, the trial court made the following conclusion, which is not attacked: “It is not permissible to resort to the extrinsic evidence introduced to aid the description in said deed. However, I conclude that, if it were permissible to resort to said evidence, it was sufficient to locate, and did locate, the land in controversy as the West 300 acres of the Robin George Survey in Montgomery County, described substantially as it is in plaintiffs’ pleadings.”

H. C. and D. Dean died before this suit was instituted. Appellants offered evidence showing that they owned all of the H. C. and D. Dean title to the land in controversy as their heirs and as purchasers under their other heirs. Appellees H. Frank Smith, Joe E. Smith, and Ada Lee Read owned the title of H. F. Smith as his heirs. The trial court found that appellants had .prior possession of the land in controversy, which should be construed as a finding that they had actual, peaceable, unabandoned, prior possession up to and immediately prior to their ouster by appellees in June, 1929, when ap-‘ pellee Grogan-Cochran Lumber Company entered upon the land under a warranty deed to it of that date from the other appellees, executed to it upon the consideration of $1,-000, and cut and removed from the land 393,-627 feet of timber, of the market value of $4 per thousand. The trial judge also made the following additional conclusions of fact and law material to this appeal:

“Conclusion of Fact.
“I find as a fact from the evidence introduced that the only prior possession of the plaintiffs, or those under whom they claim, or any other possessions, were under and by virtue of the deed dated July 10, 1888, from Mat Steussy attorney in fact for H. F. Smith and trustee and O. W. Arnold trustee to H. C. and D. Dean.”
“Conclusions of Law.
“No. 4: Plaintiffs showed such actual prior possession as would entitle them to a judgment but for the conclusion next to be stated.
“No. 5: I conclude that plaintiffs’ actual prior possession cannot he used as a basis for a judgment in their behalf, because of my further conclusion that the deed of July 10, 1888, under which they held such possession is a void instrument.”

Opinion.

Appellants make no assignment against the judgment appealed from, except to challenge the conclusion that they were not entitled to judgment upon their prior possession; that is to say, they make no contention that they were entitled to the land sued for, except upon the' theory of prior possession.

Appellees do not controvert the trial court’s fourth conclusion of law to the effect that appellants showed “such actual prior possession as would entitle them to a judgment but for the conclusion next to be stated.” It is the law of this state that the plaintiff shows a prima facie title “when * * * he shows * * * a prior possession to that under which the defendant claims with a regular chain of title connecting himself with such possession.” Keys v. Mason, 44 Tex. 142. See, also, Kinney v. Vinson, 32 Tex. 127; Hooper v. Hall, 35 Tex. 83; Duren v. Strong, 53 Tex. 383; Caplen v. Drew, 54 Tex. 495; House v. Reavis, 89 Tex. 626, 35 S. W. 1063; Watkins v. Smith, 91 Tex. 592, 45 S. W. 560; Burroughs v. Farmer (Tex. Civ. App.) 45 S. W. 846; Cook v. Spencer (Tex. Civ. App.) 91 S. W. 813, 814; Teagarden v. Patten, 48 Tex. Civ. App. 571, 107 S. W. 909, 912; Saxton v. Corbett (Tex. Civ. App.) 122 S. W. 75; Adels v. Joseph (Tex. Civ. App.) 148 S. W. 1154; Adels v. Wilson (Tex. Civ. App.) 148 S. W. 1156; Randell v. Robinson (Tex. Civ. App.) 172 S. W. 735; Thomas v. Calahan (Tex. Civ. App.) 229 S. W. 602. Tire authorities thus cited fully support the proposition announced by Keys v. Mason, supra, but none of these cases turned upon the issue that the prior possession was exclusively under a void deed.

As we understand appellants’ brief, they do not controvert the judgment of the trial court, denying them recovery on their theory of prior possession, except upon the proposition that the evidence does not sustain the conclusion that their possession was “only” under the void deed. In their brief and argument they concede the proposition that where it is shown that the only claim of title of the plaintiff is under a void deed, his prior possession is not sufficient to establish a prima facie title. The rule was thus stated by this court in McCarthy v. Houston Oil Co., 221 S. W. 307, 309, expressly approved by the Commission of Appeals in the same case, 245 S. W. 651, and cited with approval, by the Commission of Appeals in Buvens v. Brown, 290 S. W. 1086: “Plaintiffs’ possession, if any, was under a void deed. This negatived any presumption of title from the showing made by plaintiffs of prior possession. Robertson v. Kirby, 25 Tex. Civ. App. 472, 61 S. W. 967; Lynn v. Burnett, 34 Tex. Civ. App. 335, 79 S. W. 64; Corrigan v. Fitzsimmons [Tex. Civ. App.] 76 S. W. 68. Under these authorities, plaintiffs were not entitled to go to the jury on the issue of prior possession.”

See, also, Bates v. Bacon, 66 Tex. 348, 1 S. W. 256; March v. Spivy, 63 Tex. Civ. App. 449, 133 S. W. 529.

It thus appears that the controlling issue in this case is whether or not the trial court’s conclusion that appellants’ only clhim to and possession of the land was under the void .deed is correct. The following facts and-circumstances were in evidence in support of this issue: (a) H. C. and D. Dean received their deed from Smith in 1888. They asserted no claim to the land prior to the date of this deed. They continuously claimed the land and were in possession under this claim from the date of the deed to their death. Appellants, as their heirs, knew of their claim to and possession of the land, .and in claiming it upon the trial of this case referred their claim to the Dean title under the void deed. Though the description in the deed was void, appellants identified the land described in their petition as the land claimed under the void deed. By use of this deed and other deeds executed to and by H. E. Smith, and other facts and circumstances, appellants themselves offered evidence which identified the land sued for in appellants’ petition as the land I-L C. and D. Dean thought they were buying under the void deed, (b) Complying with the request of appellees that they file an abstract of their claim of title to the land in controversy, appellants filed their abstract, showing that they were claiming the land under the void deed to H. C. and D. Dean, and listed all the deeds referred to above as being in their chain of title, and stated further that they would prove heir-ship under H. C. and D. Dean; and that they “will also prove actual possession of the land described in plaintiff’s original petition by his predecessors in title and their agents, servants, employees and tenants, for a long period of time and that such possession was of such kind and character and of such duration as to perfect title under the limitation laws of the State of Texas.” (c) Appellants offered the void deed to prove common source of title with appellees under and through H. E. Smith, (d) D. Dean, under whose heirs appellants claim as purchasers, filed the void deed for record, and after it was recorded received it back from the county clerk and it was in possession of appellants during the trial, and offered by them in evidence, (e) Upon the trial, appellants agreed that at the time the Steussys executed their deed to H. E. Smith, on the 29th day of September, 1888, they bwned the title to the land in controversy. (f) There was no affirmative evidence that appellants had any other title or claim to the land.

We cannot escape the conclusion that the facts and circumstances, as we have summarized them, raised the issue that appellants were claiming “only” under the void deed, even if no weight is given to the agreement that the Steussys owned the title to the land in controversy at the time they executed their deed to H. E. Smith. Certainly the evidence was clear that they were claiming under the void deed. Its possession by them, and the fact that D. Dean had it recorded, and the further fact that it was in their chain of title and offered in evidence by them raised the issue that they were claiming under it. Stewart v. Crosby (Tex. Civ. App.) 26 S. W. 138, 141; Brinkley v. Bell, 126 Ga. 480, 55 S. E. 187, 189. The other circumstances raised the issue that they had no other claim except under the void deed. The facts of this case clearly distinguish it from Buvens v. Brown, supra, wherein the Commission of Appeals sustained the claim of prima facie title on the theory of prior possession. In that case, the Commission of Appeals found that no issue was raised against a claim under a title not directly referable to the deed in issue, which the appellants were claiming to be void. The facts in this case clearly raise an issue against the very theory recognized by the Commission of Appeals in that case, as distinguishing it from the McCarthy Case, supra.

In what we have just said, we did not consider the agreement of the parties that the Steussys owned the land in controversy on the date of their deed to H. F. Smith, because of the insistence of appellants that this agreement has no place in the record. We have carefully considered their argument on this point, and overrule this contention. The agreement was regularly made during the trial, as part of the trial record, and was never abrogated. It is affirmatively a part of the record. With this agreement before us, the facts of this case are absolutely on all fours with the McCarthy Case, supra. The agreement constituted a complete chain of title in the Steussys, from the original grantees to the date of their deed to H. E. Smith. Appellants then offered the deed from the Steussys to Smith, and from Smith to H. C. and D. Dean, and proved their heirship under the Deans. This chain of title constituted a complete exhibition by appellants of their title from the original grantees into themselves, and excluded, at least as a fact issue, the claim of any other title. This very showing was the basis of our holding in the McCarthy Case. In their efforts to distinguish the McCarthy Case from the facts of this case, appellants advance the following proposition, which fully sustains our conclusion on this issue: “That case, and the state of facts based thereon is clearly different and distinguishable from the case at bar. We will concede that if appellants herein had put in evidence a complete chain of title from the sovereignty to H. E. Smith, and had then put in evidence the deed from Smith, by his alleged attorney-in-fact, which the court held void, then we would say that the two cases would be similar, and the holding of Judge Walker in that case, would apply to this case.”

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


author: WAXiTHADL, Justice.

text:
    CITY OF WINK et al. v. R. B. GEORGE MACHINERY CO.
    No. 2799.
    Court of Civil Appeals of Texas. El Paso.
    March 9, 1933.
    Rehearing Denied March 30, 1933.
    A. T. Folsom, of Wink, for appellants.
    W. M. Harris, of Dallas, and W. H. Graham, of Houston, for appellee. .
   WAXiTHADL, Justice.

R. B. George Machinery Company, a Texas corporation, as plaintiff, brought this suit in the district court of Winkler county against the city of Wink, a municipal corporation, incorporated and acting under a commission form of government under the general laws of Texas, the mayor, commissioners, and clerk, who is ex-officio treasurer of the city of Wink, as defendants, to collect from the city of Wink the sum of $3,627, with interest, for certain road equipment consisting of a caterpillar tractor and accessories.

Upon a trial the court rendered judgment for the sum of $3,742.32, principal and interest, in favor of the plaintiff, R. B. George Machinery Company, and against the city of Wink; said judgment further provides that a peremptory writ of mandamus issue directed to the mayor of the city of Wink, g. D. Thedford, and to the commissioners of the city of Wink, Dr. J. B. Williams and H. M. Bodenhoff, and to the treasurer of the said city of Wink, Albert Rollins, commanding them and each of them to proceed with reasonable diligence and dispatch to the collection of all delinquent taxes due said city of Wink for the years 1929, 1930, and 1931, and after paying the reasonable and necessary expenses of making said collections, with lawful limitations, to pay the proceeds of such collections to plaintiff from time to time as collected, and as and when as much as $100 is available therefor at any one time for such purpose as in the judgment directed, and to continue such payments from time to time as funds are in hand from such collection until the whole of the judgment and all costs are paid. The judgment further ordered, adjudged, and decreed that the writ of mandapius to said officers command them to pay to plaintiff at once a stated sum of money then on hand in the city treasury to be applied as a credit on said judgment. The judgment enjoined and restrained the officers of said city of Wink and their successors in office from diverting any part of the proceeds of said delinquent taxes for said‘years to the payment of any claim or obligation of said city of Wink (other than collection expenses) until the said judgment and costs are paid.

The defendants filed a motion and an amended motion for a new trial, and a motion in arrest of judgment, which the court overruled, to which ruling the defendánts excepted.

The defendants, the city of Wink and the said officers of said city of Wink have filed in this court a statement of facts, transcript, and briefs. They have not filed a bond on appeal or writ of error, or supersedeas bond and plaintiff below, and appellee here, has filed a motion to dismiss appellants’ appeal for the reason that no appeal or supersedeas bond has been filed within the time provided by law.

The record discloses that the city of Wink has the commission form of government and is incorporated under chapter 12, title 28, R. S.

Article 2072, evidently is a “security for costs” article only. Articles 2067 and 2068 authorize the clerk and others mentioned to require from the plaintiff security for costs. The rule for costs may be entered at any time before final judgment, and until entered is not jurisdietional. Articles 2072 and 2072a (Vernon’s Ann. Civ. St.), exempt those mentioned from the¡ rule for costs.

Except as otherwise provided by statute an appeal to the Court of Civil Appeals is not perfected unless a proper bond or affidavit in lieu thereof is filed with the clerk of the lower court within the time required by law. Acts 1927, 40th Legislature, p. 21, now article 2253, Vernon’s Ann. Oiv. St.; Tex. Juris, vol. 3, par. 224 et seq.; Midland County v. Slaughter (Tex. Civ. App.) 118 S. W. 762. Those exempt from giving an appeal bond are stated in article 2276 of the statute, and an incorporated city or town is not included in such exemptions.

As we understand the statutes an incorporated town under the general statutes is exempt from the rule for costs. Article 2072. But we do not understand that an incorporated town under whatever statute it is incorporated or acting is exempt from giving an appeal bond except Home Rule Cities incorporated under chapter 13, title 28. See article 1174, R. S. In other words, as stated, article 2072, exempting incorporated towns, is a cost bond rule and has no application to exemption from bond upon appeals and writs of error.

Certainly the defendant officers of the city of Wink are not exempt’ from the statute requiring an appeal bond. The writ of mandamus applies directly and personally to them.

For the reason that no appeal or superser deas bond has been filed within the time provided by law, the court is without jurisdiction and the appeal is dismissed.


author: SMITH, Justice.

text:
    BUB et al. v. OLIVERA et al.
    No. 9036.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1933.
    Goodhue Weatherly, of Falfurrias, for appellants.
    J. F. Clarkson, of San Diego, for appellees.
   SMITH, Justice.

This appeal is from a judgment in effect denying an application for.an injunction to restrain the appropriate officials from levying and collecting “any tax assessment under, or as a result of” a “pretended election of December 18,1930, against * * * property” in common school district No. 25, in Duval county. It 'seems that an amended petition was presented to the trial judge, who sustained a general exception thereto and decreed that defendants “go hence without day” and with their costs. The plaintiffs below, Wilbert Bub and others, have appealed. Ap-pellees have filed no reply to appellants’ brief.

It is possible, if not probable, that the order appealed from is in legal effect nothing but an interlocutory order denying a temporary injunction, requiring the perfection of appeal within twenty days therefrom; whereas, the appeal undertaken is as from a judgment on the merits. If such is in fact the case, then this court is without jurisdiction. But, we have assumed there is a doubt and, resolving that doubt in favor of jurisdiction, have considered the appeal on its merits.

Appellants allege in their trial petition that in 1928 the trustees of the school district procured the construction of a school building and in payment therefor issued three vouchers in the aggregate sum of $1,500 in favor of a lumber company; that said vouchers have not been paid off, and the district has no funds for that purpose; that in November, 1930, the county commissioners’ court ordered and held an election “for the purpose of voting on the proposition as to whether or not the duly qualified voters of said District should vote a tax of Fifty Cents on the One Hundred Dollars valuation of taxable property in said school district, for the purpose of supplementing the State School Fund apportioned to said District, and tliat tlie officers presiding at said election made a return of the count of the votes cast thereat showing that a majority of qualified voters voting at said election voted in favor of said tax.”

Appellants further alleged:

“Plaintiffs allege that said election was not for the purpose of voting a supplemental tax for said school maintenance but was for the sole purpose of increasing the taxes of said district in order to pay for the erection of said school house, or the vouchers issued in payment therefor.
“Plaintiffs allege that Mrs. Henry Meyer, wife of the said Henry Meyer, trustee of the said District, posted notices of said election and was named as presiding officer at said election and acted and served as such presiding officer at said election, and E. D. Busse, one of the trustees of said district, served as a clerk at the voting place during and for said pretended election.
“Plaintiffs allege that it is provided by the laws of Texas that an election shall be called pn the written petition of twenty tax paying voters of said district or a majority of the tax paying voters of said district, and that, in this instance said petition asking for said election was not signed by twenty tax payers nor by a majority of the tax payers residing in said district.
“Plaintiffs further allege that as a result of said election and the alleged majority therein returned in favor of the imposition of a tax of Fifty Cents on the One Hundred Dollar valuation of taxable property in said school district, for the purpose of supplementing said school fund apportioned to said district ; that the defendants herein threaten to levy a tax assessment against all tdxable property in said Common School District, No. 25, including property of plaintiffs, and unless the said'defendants are restrained by an order of this Court from levying said tax assessment, they will levy such tax assessment against all taxable property in said district, including the taxable property of your plaintiffs and will thereby create a lien against said property and put a cloud upon the title thereof, unless such taxes are paid, and that the said Jesus Olivera (tax collector) threatens to collect and will undertake to collect, and collect said tax from yqur petitioners and plaintiffs, as well as from all other property holders in said District, unless restrained by an order of this Court.”

We are of the opinion that the petition failed to allege a cause of action with sufficient definiteness and certainty to warrant the extraordinary remedy prayed for, and that the trial judge properly denied such remedy. The affirmative allegations of wrongdoings on the part of appellees are, obviously, but mere conclusions of appellants, unsupported by allegations of specific facts warranting such conclusions.

The judgment is affirmed.


author: LESLIE, Justice. FUNDERBURK, Justice

text:
    TEXAS & PACIFIC RY. CO. v. FOSTER et al.
    No. 1037.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 27, 1933.
    Rehearing Denied March 31, 1933.

      H. C. Shropshire, of Weatherford, for appellant.
    Turner, Seaberry & Springer, of Eastland, for appellees.
   LESLIE, Justice.

The plaintiff Minnie L. Foster, for herself and as next friend of four minor children. filed this suit against the Texas & Pacific Railway Company to recover damages by reason of the death of the husband and father, J. D. Foster, who was run over and killed by the defendant’s train at a country public road crossing. The deceased was in a Ford car driven by his son, and, as they attempted to make the crossing, the car was centrally struck by a passenger train traveling at approximately the rate of 65 miles per hour. Negligence is alleged to consist in running at an excessive rate of speed at the time and place of the injury, failure to maintain a watchman or some warning device at the crossing, alleged to be extrahazardous and dangerous, and discovered peril. Among other defenses, the company alleged general and special denials, contributory negligence, and that the facts generally alleged by the plaintiff did not warrant a recovery against it, as it was at the time of the accident engaged in interstate commerce, etc. Trial was before the court and jury, and, upon the answers to numerous special issues, a judgment was rendered in favor of the wife and minor children aggregating the sum of $12,392. As to the other plaintiffs, judgment was in favor of the company. The defendant appeals and predicates error on sixty-eight assignments and as many propositions.

The many propositions, when grouped, relate to about five controlling questions. Briefly these questions are: (1) Does the evidence support the verdict of the jury in finding that the crossing was more than ordinarily hazardous and dangerous? (2) Does it support the verdict to the effect that the company was guilty of negligence in failing to keep a watchman or maintain some device other than a signboard for the purpose of warning persons about to use the crossing of the approach of trains ? (3) Does the testimony support the verdict to the effect that the company was guilty of negligence in operating its train at a dangerous rate of speed at the time and place of the accident? (4) Whether or not the evidence supports the verdict of the jury upon the question of discovered peril. And (5) whether or not the jury was guilty of misconduct.

At the conclusion of the testimony, the defendant requested a peremptory instruction on the ground that the uncontradicted evidence convicted deceased Foster of contributory negligence in attempting to make the crossing with full view and knowledge of the approaching train. To set out the testimony on this issue would unduly lengthen the opinion. We have, however, carefully considered the same, and conclude that the proposition should be overruled. Undoubtedly the testimony as a whole presents a jury ease, and the remaining issues will be considered on that theory.

Since tie case was submitted to the jury on special issues, and the defendant’s specially requested charges 4, 7, and 11 were general charges on the law of the case, the court did not err in refusing to give them. Wichita Valley Railway Co. v. Brown (Tex. Civ. App.) 274 S. W. 305; Texas & N. O. Ry. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188; Fort Worth & D. C. Ry. Co. v. Morrow (Tex. Civ. App.) 255 S. W. 674; Solo Serve Co. v. Howell (Tex. Civ. App.) 35 S.W.(2d) 474; Texas & P. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Id. (Tex. Civ. App.) 29 S.W.(2d) 835.

By proposition 5, complaint is made that the trial court erred in refusing to give the defendant’s special charge 24, instructing the jury not to consider certain testimony alleged to be prejudicial; in that it impeached the defendant’s witness Bowles, on “a collateral and immaterial issue.” No objection was made to the testimony when given. We doubt that the testimony was improper¡ but, if it were, the objection in the nature of a charge to the jury came too late. Such is the holding of our Supreme Court in Missouri Pac. Ry. Co. v. Mitchell, 75 Tex. 77, 12 S. W. 810, followed in Missouri, K. & T. Ry. Co. v. Edling, 18 Tex. Civ. App. 171, 45 S. W. 406.

The sixth proposition is based upon the refusal of the court to give special charge No. 25, designed to withdraw certain testimony, to the admission of which no objection had been made. As to this point, the record is in the same condition as noted in disposing of proposition 5. Further, the transcript does not disclose that the court gave or refused special issue No. 25. The charge bears no indorsement of the trial judge, and his ruling is in no way authenticated. Article 2188, R.. S. 1925; Farmers’ & Merchants’ State Bank v. Guffey (Tex. Civ. App.) 255 S. W. 462; Walker v. Hirsch Cooperage Co. (Tex. Com. App.) 236 S. W. 710; Medford v. Kimmey et ux. (Tex. Civ. App.) 298 S. W. 140; Hawkeye Securities Co. v. Cashion (Tex. Civ. App.) 293 S. W. 664 (11); 3 Tex. Jur. p. 234, § 161, p. 587, § 410.

The defendant’s specially requested issues 21 and 22 were substantially covered by the main charge, and there was no error in refusing them. Texas & .P. Ry. Co. v. Baldwin (Tex. Civ. App.) 25 S.W.(2d) 969; Harding-Gill Co. v. Borchardt (Tex. Civ. App.) 285 S. W. 698; Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260; Dallas Ry. & Terminal Co. v. Fuchs (Tex. Civ. App.) 52 S.W.(2d) 685; American Asphalt Co. v. O’Rear (Tex. Civ. App.) 41 S.W.(2d) 322; Id. (Tex. Civ. App.) 36 S.W.(2d) 779.

The defendant has presented propositions 9, 10, 14, 15, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, and 66 in several groups, and the plaintiff replies to them as a single group and on the theory that they are but repetitions of the points raised by the defendant’s first assignment of error and relating merely to matters of pleading and testimony. Omitting propositions 23, 24) 25, 26, and 27, which relate to the liability on the ground of discovered peril, we believe the plaintiff’s assumption to be substantially correct. Each of these propositions predicates error on the part of the court in making certain rulings without pleading or evidence to justify the same. Since such contentions involve elementary principles of law, we shall not lengthen this opinion by a restatement of the same and their application to this record. Such would not be of interest to others than the litigants, and in their behalf we content ourselves by making specific rulings to the effect that we find the pleadings and testimony sufficient in each respect complained of.

We omitted propositions 23 to 27, both inclusive, from the above grouping, for the reason that we are not in accord with the plaintiff’s contention on the question of discovered peril. The jury found that the deceased (1) was in a perilous position prior to the collision; (2) that the operators of the train discovered this perilous position; (3) that they discovered it in time to have avoided the collision by the use of all the means at hand consistent with the safety of the train and its occupants; (4) that, under such circumstances, the operators of the train, in the exercise of ordinary care “failed to use all the means at hand' consistent with the safety of said train and its occupants to prevent the collision and injuries in question”; and (5) that such failure was the proximate cause of the collision and injuries. The sufficiency of the pleadings and the evidence to sustain these findings is challenged. We sustain the propositions on the question of evidence. We will make no extended statement of the testimony, but refer to some of its important features which have a bearing, not only on this particular question, but also on the closely related one of excessive and dangerous rate of speed at the time and place of the collision.

The train on this occasion was the well-known Sunshine Special, made up of five Pullmans and three coaches, each about 90 feet in length. The locomotive was of the 900 class, and one of the largest for passenger trains. It was 95 feet in length, including the tender, and weighed 820,000 pounds. It was capable of running 110 miles per hour, but the operators were limited to 65 miles per hour. The locomotive was 12 feet from the cab to the ground, equipped with modern appliances enabling the engineer to stop the train, as in the present case, in a space of about 400 yards from the time the brakes were properly applied. From the point of collision to the east, the track was practically straight for one and a quarter miles, with a 1 per cent, down grade in the direction the train was running. The automobile was approaching the crossing from tiie northeast, or at' an angle of about 40 degrees, rather than in a line perpendicular to the railroad track. The approaching train was thus "to the rear of the left shoulder of the deceased and the driver of the automobile, which was a model T Ford. The engineer testified that he saw the autonlobile approaching when it was 75 to 100 feet from the' crossing, at which time the engine was also 80 to 100 feet from the same; that he blew the whistle and the automobile slowed down' to 2 dr S miles per hour near the crossing, possibly in 10 feet of it; that somewhere neár the crossing the automobile suddenly speeded up,'at which time (the train being in about 100 feet of the crossing and running approximately 65 miles per hour), he threw on' the brakes, which, as applied, brought the train to a stop in about 400 yards. These circumstances, in connection with the further finding of the jury, in answer to special issue No. 1 requested by the defendant, that the deceased, in approaching the crossing and at a point not nearer than 30 feet of the track, reduced the speed-of the automobile to a speed not exceeding 6 miles per hour, lead us to the conclusion that we would not be warranted in holding that deceased was in a perilous position, or that the operators of the train discovered him in such position until after it was too late for them, by the use of the means at hand, to prevent the collision. To hold otherwise would, in effect, require the, operators of such trains to slow UP or stop, every time they saw an automobile approaching a railroad track in the manner of, this one, and that quite without regard to its speed when discovered, or its proximity to the- crossing. Texas & N. O. Ry. Co. v. Wagner (Tex. Civ. App.) 262 S. W. 902; Crews v. Schaff (Tex. Civ. App.) 250 S. W. 749; Pillow v. Texarkana & Ft. S. Ry. Co., 55 Tex. Civ. App. 597, 119 S. W. 128; Houston & T. C. Ry. Co. v. O’Donnell, 99 Tex. 636, 92 S. W. 409; Texas & P. Ry. Co., v. Breadow, 90 Tex. 26, 36 S. W. 410.

In connection with the foregoing testimony and upon the question of liability of the defendant by reason of excessive speed at the time of' the collision, the testimony as a whole discloses that the public road and crossing in question were commonly used. In approaching this crossing from the east, the undisputed testimony is that the train emerged from a cut in close proximity to the crossing. The distance from the crossing to the nearest end of the cut and the depth of the cut are variously stated by the different witnesses. In fact there is a great variety of testimony concerning the cut, the nature of the road as it approaches the crossing; and the obstructions possibly preventing those in the automobile from discovering the approaching train; and vice versa. There is testimony that the - west end of the cut is within' 10 steps of the crossing and 4 feet deep. There is other testimony that the west end of the cut extends “to about 10O feet from the crossing” and is 5 or 6 feet deep. Others give the distance between the two points as still greater. One witness testified that the cut was 20 to 30 feet deep; another, 25 feet deep; another, 7 feet deep; another, almost deep enough to hide the train, etc. There was considerable testimony that live oak trees and brush obstructed the view between the approaching train and the automobile immediately before reaching the crossing. Some of the testimony was to the effect that, standing on the crossing, the train could be seen approaching from the east for a mile or two, while, standing in 15 or 20 feet -of the track to the north of the same, the train could not be seen coming “more than 125 or 150 steps.” Others testified it as much as 250 yards away, and the testimony varied as much on this point as on the depth of the cut. The testimony relating to the rocks, rough places, and mudho-les at the crossing, and especially in close proximity to the right of way, vaTied likewise. Of like nature was the testimony pertaining to the nature of the ground surrounding the crossing, the alleged dangerous rate of speed, and the circumstances rendering the crossing hazardous. Such testimony supports the verdict of the jury finding the defendant guilty of negligence in operating' the train at a high rate of speed at the time of the collision. Smith v. Galveston-Houston Elec. Ry. Co. (Tex. Com. App.) 277 S. W. 103; Galveston, H. &. S. A. Ry. Co. v. Wells (Tex. Sup.) 50 S.W.(2d) 247, and authorities therein cited.

Further, there is some testimony to support the finding of hazardous crossing and the alleged negligence upon the part of the defendant in not maintaining some device, other than a signboard, -for the purpose of warning those about to pass over the crossing of the approach of trains.

Propositions 41 and 42 raise the question of the excessiveness of the verdict. It was - for $12,000, apportioned $6,000 to the widow, $400 to 19 year old boy, $1,200 to 14 year old daughter, $2,000 to 12 year old son, and $2,400 to 5 year old boy. We have reviewed the testimony. The deceased was a man 52 years of age, had an expectancy of 18 years, combined the occupations of a farmer and carpenter, was in good health and industrious. He left a wife and four minor children, ranging in ages from 5 to 19 years. He evidently supported the family in the usual and customary manner of a citizen in that station of life. The question of excessiveness of a verdict in this kind of a case is always a difficult one. It cannot be known that any conclusion is exactly correct. There is much left to the judgment of the jury upon an issue of this nature, and, believing the verdict of the jiu-y ⅛> be amply supported by the testimony, these propositions are overruled. Chicago, R. I. & G. Ry. Co. v. Carter (Tex. Civ. App.) 250 S. W. 192; Baker v. Harmon (Tex. Civ. App.) 254 S. W. 517; International Great Northern Ry. Co. v. Smith (Tex. Civ. App.) 269 S. W. 886; Texas & N. O. Ry. Co. v. Crow (Tex. Civ. App.) 300 S. W. 93.

By the sixty-fifth proposition the defendant contends that there is such conflict in the jury’s findings in response to issues 25 and 26, prepared and submitted by the defendant, that there is no basis in, the verdict for a judgment in favor of the plaintiff, and that the case at least should be reversed and remanded for another trial. Issue 25, requested by the defendant, reads: “Do you believe from the evidence j. D. Foster, deceased, in approaching the railroad crossing and before driving thereon, by the exercise of ordinary care under all the then existing circumstances,' could have seen or heard the train as it approached said crossing, in time to have stopped his automobile, and thereby have prevented the accident? Answer Yes or No. Answer Yes.”

Special issue 26, likewise requested, reads: “If you have 'answered Special Issue No. 25, 'requested by the defendant, in the affirmative, then you will answer: Was J. D. Foster, deceased, guilty of negligence as defined by' the court in failing to see or hear the approaching train in time to stop his automobile before going upon the track and crossing? Answer Yes or No. Answer No.”

Issue 26 being answered in the negative, the jury was instructed not to answer 27, which called for a finding on proximate cause in connection with issue 26.

. Issue 25 and its affirmative answer clearly mean that, under the circumstances, it would be negligence for the deceased not to have seen and heard the train in time to stop and prevent the accident. Issue 26 and its answer mean, under the same circumstances, it would not be negligence on the part of the deceased in failing to see and hear the train in time to stop, etc. Obviously these findings are in conflict and are mutually destructive of each other. Texas & N. O. Ry. Co. v. Houston Undertaking Co. (Tex. Civ. App.) 218 S. W. 84 (writ refused). The answer to issue 25 convicted the deceased of contributory negligence, and the answer to 26 acquitted him thereof. This left the verdict without a finding on that phase of the case.

In deciding this question of conflict, we understand the rule to be that all the issues must be considered together as a whole, and if, when so considered, they admit of more than one reasonable construction, the trial court has power to apply that construction which he deems proper. Southwest Bitulithic Co. v. Dickey (Tex. Civ. App.) 28 S.W.(2d) 264, 266 (4). In such a case it would be the duty of the court to uphold the judgment. It is also well understood that it is the court’s duty to reconcile apparent conflicts in the answers of the jury to special issues, if it can be reasonably done in the light of the pleadings and the evidence. Graham v. Hines (Tex. Civ. App.) 240 S. W. 1015. To uphold the judgment, we have endeavored to apply these rules, but the record forbids their application with that result.

Issues 25 and 26, with their respective answers, do not find that the deceased in fact saw and heard the train, and they can only be reconciled on the theory that the deceased, in approaching the crossing, heard and saw’ the approaching train. If he did so see and hear the train, as he approached the crossing, there would remain the open question as to whether or not an ordinarily prudent person, situated-as he was, would not have attempted to make the crossing under all the circumstances, and especially in view of the condition of the crossing, proximity and speed of the train, as well as his own nearness thereto, etc. Trochta v. M., K. & T. Ry. Co. (Tex. Com. App.) 218 S. W. 1038 (5 and 6); Freeman v. G., H. & S. A. Ry. Co. (Tex. Com. App.) 285 S. W. 607-609.

However, the theory that the plaintiff saw and heard the approaching train cannot be adopted, since it is in conflict with the theory of negligence upon which plaintiff seeks to fix the defendant’s liability; that theory being that the deceased did not and could not see and hear the approaching train in time to prevent the accident, since the train approached the crossing at an excessive speed through a deep cut, which, together with obstructions, etc., near the track, prevented his seeing and hearing the approaching train. The plaintiff alleged, among other things, “that a train approaching from the east cannot be seen until one is upon the defendant’s right-of-way.” Paragraph 6. “That due to-the location of said public road and the surrounding terrain it would be difficult for persons passing over said crossing to observe the approach of fast moving trains.” Paragraph 8. “That said train approached John D. Foster slightly to his rear; that as said train approached it passed through a cut approximately 600 yards in length and 20 feet deep that the west end of said cut is approximately 300 feet from said crossing; that to-the east of said highway at the intersection of the public road and the right-of-way of said railroad there are some large liveoak trees; that the vision of said John D. Foster was obstructed as lie looked toward the east by said cut and the earth that was removed from said cut and piled along defendant’s right-of-way, as well as said liveoak trees. * * * That said John D. Foster’s vision was obstructed so that he could not see the approach of said train until after he had reached the defendant’s right-of-way and was in the act of crossing said railroad track; that as a result thereof he could not see defendant’s locomotive and- know and realize the danger that he was in.” Paragraph 9.

Considered aside from the question of discovered peril, these excerpts indicate plaintiff’s theory of recovery, and the allegations in another portion of the pleadings that the defendant’s track was straight for one and a half miles and “vision unobstructed” is, if anything, a conflict in the allegations, the effect of which we need not here consider. Further, the pleadings are not in the alternative.

Therefore, since the case does not proceed' on the theory that the deceased saw and heard the approaching train, and since the findings in response to issues 25 and 26 cannot be reconciled in any other way, it follows that that portion of the verdict fails, and, as stated, there remains no finding on contributory negligence.

Further, if it be conceded that the deceased saw and heard the approaching train, there would at once be eliminated from further, consideration negligence based upon (1) failure of operators of the train to blow the whistle; (2) to keep lookout; (3) maintain signal, other than crossing signs, at the crossing; (4) .extrahazardous crossing; and (5) possibly dangerous and high rate of speed. It is elementary that it avails nothing to warn of such a situation fully known and comprehended by the injured party.

The defendant insists there are numerous other conflicts and much confusion resulting from the jury’s verdict in response to other issues specially requested by it and given to the jury. The defendant has, by its brief and in connection with its discussion of the conflict resulting from the answers to 25 and 26, directed our attention to the answers of the jury to such issues and answers. We have carefully examined the contentions. Undoubtedly there are several conflicts and more or less confusion resulting in the answers given to these issues. In each instance the reason is obvious, for, as was the case with issues 251 and 26, other issues presented to the jury either the same or substantially the same issue, couched in different language, thus making it easy for conflict and confusion to creep into the verdict. Many of the defendant’s specially requested issues were multifarious. Many of them called for a finding in one issue (1) on the existence of the facts upon which* negligence is predicated; (2) whether such facts constituted negligence; and (3) whether such negligence was proximate cause of injury. Some of these issues assumed as true controverted and material facts. Except on matter of conflict alleged, some of these observations are not in response to questions raised, but they are suggested by the record and are made in the interest of accuracy on another trial.

Proposition 67 presents a question of misconduct of the jury in four different respects: (1) That the jury first determined to decide the case for plaintiff and then answer the issues accordingly; (2) that during the deliberations of the jury one of the jurors gave the jury the benefit of his personal knowledge of the crossing with reference to its being a dangerous one, and that such information influenced the decision of the jury; (3) that the question of attorney’s fee was discussed and considered by the jury and the amount of the judgment improperly influenced thereby; and (4) that the amount of damages was arrived at by lot. Four of the twelve jurors were called by the defendant to give testimony in support of such allegations. A thorough examination was given the witnesses, and, while it is believed that some of the contentions are without any support in the testimony, nevertheless the most that can be said in respect to each issue is that the testimony is conflicting. The trial court has resolved the testimony against the occurrence of any such misconduct, and it is the duty of this court to sustain the ruling. The following authorities illustrate the application, of the rule where the evidence conflicts as .to the existence of misconduct. One or more of these authorities have application to the particular contentions above made. Monkey Grip Rubber Co. v. Walton (Tex. Com. App.) 53 S.W.(2d) 770; Bradley v. T. & P. Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 861; Goodrich v. Pandem Oil Corp. (Tex. Com. App.) 48 S.W.(2d) 606; Harwell v. Reed (Tex. Civ. App.) 50 S.W.(2d) 415; Dallas Ry. & Terminal Co. v. Garner (Tex. Civ. App.) 42 S.W.(2d) 665; St. Louis, B. & M. Ry. Co. v. Cole (Tex. Com. App.) 14 S.W.(2d) 1024; Bradshaw v. Abrams (Tex. Com. App.) 24 S.W.(2d) 372; Galveston, H. & S. A. Ry. Co. v., Cook (Tex. Civ. App.) 214 S. W. 539; Estep v. Bratton (Tex. Civ. App.) 24 S.W.(2d) 465. This proposition is overruled.

For the reasons assigned, the judgment of the trial court is reversed, and the cause remanded.

On Rehearing.

In the appellees’ motion for rehearing, they make the point that issue 25, given at the request of appellant, embraced no finding of proximate cause, as held by us, and they cite for support of that contention Houston & T. C. Railway Co. v. Kelley, 13 Tex. Civ. App. 1, 34 S. W. 809, 46 S. W. 863; Missouri, K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S. W. 956; Gulf, C. & S. F. Ry. Co. v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80; Galveston, H. & S. A. Ry. Co. v. Pendleton, 30 Tex. Civ. App. 431, 70 S. W. 996; San Antonio & A. P. Ry. Co. v. Votaw (Tex. Civ. App.) 81 S. W. 130; Texas Portland Cement Co. v. Lee, 36 Tex. Civ. App. 482, 82 S. W. 306; Gulf, C. & S. F. Ry. Co. v. Melville (Tex. Civ. App.) 87 S. W. 863.

We have examined these authorities. Gulf, C. & S. F. Railway Co. v. Melville lends most support to appellees’ contention, but, if that opinion should be considered in point, then we think the later case of Texas & N. O. Ry. Co. v. Houston Undertaking Co., 218 S. W. 84, by the same court, and in which a writ of error was refused, should be held to rule this case. No writ of error seems to have been applied for in the Melville Case. We think that the opinion in Texas & N. O. Ry. Co. v. Undertaking Company requires the construction which we have placed in our original opinion upon the jury’s findings in response to issues 25 and 26, respectively.

On the question of discovered peril, we ádhere to the views originally expressed. A careful consideration of the testimony, which comes mainly if not entirely from the appellees’ witnesses, establishes, we think, that the appellant or its agent, after discovering the peril of the deceased, did all that an ordinarily prudent person could have done under the circumstances to avert the collision. This necessarily implies that the engineer, after the discovery of the peril, made such use of the means and facilities at hand to avert the collision as the law required.

We are requested to make additional conclusions of fact from the record. We are of the opinion that we have stated a conclusion upon every fact material to the issues, as the jury were warranted by the evidence in finding them, and do not think it would be proper to incumber the record with the evidence in detail. Such findings would not be controlling, but merely evidentiary. 3 Tex. Jur. p. 1120, § 785.

The motion for rehearing is overruled.

FUNDERBURK, Justice

(concurring).

I concur in the opinion of the majority. The import of the jury’s verdict upon special issue No. 25 as including the element of proximate cause can better be seen by abbreviating the issue, as follows: “Do you believe * * * J. D. Foster, deceased, in approaching the railroad crossing and before driving thereon, by the exercise of ordinary care, under all the existing circumstances, could have seen or heard the train as it approached said crossing * * * and have prevented the accident?” But, if we should be mistaken in the view that said issue included a finding of proximate cause, then nevertheless the issue as answered, when supplemented by what must be regarded as an undisputed fact, since it was alleged by plaintiffs and was the basic fact upon which the findings of the defendant’s negligence was found, namely, that deceased did not see or hear the train in time to stop and thereby have prevented the accident, constitutes a finding of negligence of such nature under the undisputed facts of the case as to be the proximate cause as a matter of law. Proximate cause, like any other fact, is an issue for a jury only when there is a dispute as to the facts or reasonable minds may draw different inferences from the facts. I am of opinion that if, as found by the jury, in addition to the undisputed fact that deceased did not see or hear the train, and did not stop and prevent the accident, the deceased was guilty of negligence, then reasonable minds cannot differ upon the proposition that such negligence was the proximate cause of the accident. Texas & P. Ry. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36; Gulf, C. & S. F. Ry. Co. v. Rowland, 90 Tex. 365, 38 S. W. 756; Culpepper v. I. & G. N. Ry. Co., 90 Tex. 627, 40 S. W. 386; Parks v. S. A. Traction Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100; St. Louis S. W. Ry. Co. v. Harrell (Tex. Civ. App.) 194 S. W. 971; Chicago, R. I. & G. Ry. Co. v. Coffee (Tex. Civ. App.) 126 S. W. 638; Coffee v. C., R. I. & G. Ry. Co., 104 Tex. 127, 134 S. W. 1174; Dowlen v. T. P. & L. Co. (Tex. Civ. App.) 174 S. W. 674; St. Louis S. W. Ry. Co. v. Missildine (Tex. Civ. App.) 157 S. W. 245.


author: MARTIN, Justice.

text:
    PANHANDLE & S. F. RY. CO. v. WILLOUGHBY.
    No. 3956.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 8, 1933.
    Rehearing Denied April 5, 1933.

      Terry, Cavin & Mills, of Galveston, Hoover, Hoover & Cussen, of Canadian, and Lackey & .Lackey, of Stinnett, for appellant.
    G. C. Harney and K. H. Dally, both of Borg-,er, G. G. McBride, of Oklahoma City, Okl., and Works & Bassett, of Amarillo-, for appel-lee.
   MARTIN, Justice.

Appellee was injured at a loading dock belonging to appellant in the town of Borger. She and three companions were out riding on ,the Sunday night of the accident. Appellee .and her uncle occupied the front seat of the .automobile. Returning from Panhandle to their home at Whittenberg, northeast of Borger, they turned from Main street and .followed Grand avenue due east, intending .to later take a street leading north toward their home. The streets of Borger. run at right angles to each other, north and south and east and west. The line of the Panhan-dle & Santa ES Railway Company extends .in a southwesterly and northeasterly direction, intersecting diagonally the streets of Borger. Grand avenue runs into, but not across, appellant’s property at a point about where its depot is located. From about the point of its intersection a gravelled roadway had been constructed and was maintained by appellant for a distance of 789 feet in a northeasterly direction and ended on a loading dock where the accident occurred. About 330 feet northeast of where Grand avenue intersects with the property of appellant, Harvey street, running in a due northerly direction therefrom, intersects with said property and said gravelled roadway. Two 75 watt electric lights were kept burning at night, situated on the outside- of the depot just opposite the Harvey street intersection situated about 57 feet north of these lights. It is shown that the public generally used that part of the gravelled roadway on appellant’s property lying between Grand avenue and 'I-Iairvey street, with the knowledge and acquiescence of appellant. Harvey street was the one the parties intended to take on the night Of the accident, but missed same, and continued in a northeasterly direction along the gravelled roadway and upon and off the unloading dock, where the car fell a distance of about four feet to the ground, severely injuring appellee. A line of telephone poles extends along and across this gravelled roadway, one of which was almost in the middle of same and at a point a few feet from the unloading dock. The top of the unloading dock was gravelled with the same material and had about the same appearance as the balance of the roadway. A telephone pole stood near its northwest corner with a guy wire extending down to the front of said dock. The unloading dock was not apparently floored with wood, but the material was held in place by heavy wood timbers at the edge. A slight depression existed in front of this dock, so that an automobile coming up on it traveled slightly upward to the top. The entire gravelled roadway from the intersection of Grand avenue to the unloading dock extended along the side of the depot and the right of way of appellant.

Appellee alleged, in part:

“Under the circumstances and on account of the position and the lay of said driveway and said street south thereof and which separated therefrom by said small angle defendant owed the traveling public, and especially this plaintiff, the duty of placing and maintaining a railing or warning at the north end and edge of said dock or platform giving notice that said driveway ended at that point and could not be further pursued without danger, which duty defendant failed to discharge and which was negligence under the circumstances.
“It was also the duty of defendant to the traveling public, and especially to the plaintiff, owing to the position, location and condition of said driveway, as aforesaid, and its said separation from said street next soutli thereof by such small angle, as above shown, to place and maintain warnings or signals at or near the point where said driveway separated from said street indicating that same was not a public street or public driveway which might not safely be used as such, and its failure to discharge this duty was negligence under the circumstances; that defendant knew, or by the exercise of ordinary care, would have known that said dock and driveway was so constructed that it constituted an invitation to drive thereon to the general public who used such driveway, and especially this plaintiff.”

Defensive issues were, in substance, a denial of the existence of actionable negligence and that appellee was guilty of contributory negligence in respect to various acts not necessary to here set out.

The findings of the jury were in favor of appellee upon all questions of negligence submitted and against appellant upon its defensive issues.

Many assignments of error appear in the record, but the only real questions amount, in substance, we , think, to two propositions: (1) That no actionable negligence was proven; and (2) that appellee was shown to.be guilty of contributory negligence as a matter of law, and that the findings of the jury acquitting her of such are without support in the evidence.

Precedents are of little value in the determination of fact questions, as there usually exists a distinguishing difference. They must be solved by the application of general principles to the facts of the particular case.

Regarding the questions presented here, Judge Brown has said in Lee v. International & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 63, 65: “Negligence, whether of the plaintiff or defendant, is generally a question of fact and becomes a question of law, to be decided by the court, only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question. In other words, to authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.”

The following statement is taken from the case of Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963, 966, opinion by Judge Stayton: “The inference of one fact from the existence of others is for the jury, and not for the court, in all cases in which the fact to be inferred or presumed is to be believed or rejected as the application of reason and common experience to the facts proved may justify. This involves a weighing of evidence. * * * In all cases the existence or nonexistence of the facts * * * to be inferred from other facts, must be left to the determination of the jury.”

The solution of the first question turns upon whether or not appellee was an invitee. If she was a trespasser upon the premises of appellant, it owed her no further duty than not to intentionally or willfully injure her. It-is the contention of appellee that the evidence raised a jury question of an implied invitation to her to use the driveway in question by reason of the peculiar facts and circumstances, some of which have been adverted to. A well-traveled street, leading from the main part of town, entered the driveway in question, which continued and was used by the public as such, at least up to the point where Harvey street went north from it. The testimony for appellee showed that this driveway had the same appearance over its entire length, and that the dock in question resembled a culvert. It further appears that in approaching this dock the lights of the automobile failed to reveal the end of it, due to the upward incline of the surface toward the dock. We are of the opinion that the testimony was sufficient to raise the issue that appellant might have reasonably foreseen that an injury might probably occur to persons using the roadway in question, and that constructing a driveway into which travel led directly, so as to give it the appearance of a street over its entire length, and leaving the dock open without warning, - were such acts as would support a finding against it of actionable negligence.

“If its situation with reference to the known general uses of the road were such that the appellant might have foreseen by the exercise of reasonable care that some injury would probably result to persons traveling the road • * * then appellant would be' guilty of negligence.” Athens Electric Light & Power Co. v. Tanner (Tex. Civ. App.) 225 S. W. 421, 423.

The question of contributory negligence mentioned in the second proposition above presents to our minds a somewhat more serious question. It appears that the driver Smith slackened the speed of the car and shifted to second gear due to his uncertainty of the road, just before ascending the incline to the dock; that he was directed by appellee to proceed; that none of the occupants of the car saw the telephone pole, nor the lights on the depot, nor the intersection of Harvey street; that both parties on the front seat were looking; that the night was dark, their automobile lights good, the streets unfamiliar to them; that they believed they were on a public street; that the gravelled roadway had the appearance along its entire course of a street; and that they failed to discover the presence of the dock, though they were looking. This, very briefly, summarizes, the evi-denee believed to control this proposition. In determining such question, the inquiry is not whether there is a mere “scintilla” of evidence, but whether there is any that ought reasonably to satisfy a jury that the fact sought to be proved is established. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. In response to issues requested by appellant, the jury acquitted appellee of contributory negligence. We are not able to say that these findings were without evidence to support them or that the evidence conclusively established contributory negligence as a matter of law. Its existence was an inference to be drawn from all the facts and' circumstances in evidence, and there is, under the facts here, a question of the credibility of witnesses and the weight to be given to their testimony, concerning which the jury’s findings bind us. The findings on this question are in our opinion very meagerly supported by the evidence. Without the right to pas® on the weight to be given to the testimony of witnesses, we feel compelled, under the law, to overrule this assignment. Some of the cases which directly or by analogy appear to support our conclusions are as follows: Duron v. Beaumont Iron Works (Tex. Com. App.) 7 S.W.(2d) 867, 869; City of Beaumont v. Kane (Tex. Civ. App.) 33 S.W.(2d) 234; Blakesly v. Kircher (Tex. Com. App.) 41 S.W.(2d) 53; Stewart v. Schaff (Tex. Civ. App.) 269 S. W. 135; 3 Tex. Jur. § 767.

The judgment is affirmed.