author: PELPHREY, C. J.

text:
    RIO GRANDE, E. P. & S. F. R. CO. et al. v. LUCERO et al.
    No. 2732.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 10, 1932.
    Rehearing Denied Dec. 8, 1932.
    Turney, Burges, Culwell & Pollard, of El Paso, for appellants.
    McKenzie, Walthall & Gamble, of El Paso, for appellees.
   PELPHREY, C. J.

This suit was brought by Santos Lucero and Mariana R. Lucero, the surviving parents of David Lucero, against the Rio Grande, El Paso & Santa Fé Railroad Company and the Atchison, Topeka & Santa Fé Railway Company to recover damages for his death which occurred at what is commonly known as the Vinton Crossing about sixteen miles north of El Paso, Tex. His death resulting from being struck by a train at said crossing.

Appellees alleged negligence on the part of appellants in the following particulars: (a) That the operatives of the train failed to blow the whistle on the engine at a distance of at least eighty rods from the crossing; (b) that they failed to ring the bell on the engine at a distance of at least eighty rods from the crossing, and failed to keep the bell ringing until the train had passed over the crossing; (c) that they operated the train at a rapid, dangerous, and excessive rate of speed, under the circumstances; (d) that they failed to keep a proper lookout to discover persons approaching the crossing; (e) that appellants failed to keep and maintain the crossing in a safe condition; (f) that the operatives of the train failed to blow the whistle on the engine at frequent intervals, both at a greater and lesser distance than eighty ’ rods from the crossing; (g) that appellants failed to have an adequate signal bell at the crossing, which would ring loud enough to warn persons approaching the crossing of the approach of their trains; and that the operatives of the train saw and discovered the peril of David Lucero in time for them to have, by the use of the means at hand, reduced the speed of the train, stopped it, or have warned him by blowing the whistle or ringing the bell, and thereby have avoided the collision.

Appellant Atchison, Topeka & Santa Fé Railway Company pleaded a misjoinder of parties plaintiff, in that the mother of David Lucero was neither a proper or necessary party. Further pleaded a general denial, contributory negligence on the part of David Lucero, and that, it being an interstate common carrier for hire with all of its activities being regulated by the Transportation Act it was entitled to have its liability determined under the rule laid down by the Supreme Court of the United States as to the liability of railroads for injuries inflicted at railroad crossings.

Appellant Rio Grande, El Paso & Santa Fé Railroad Company’s answer was to the same effect. ,

Appellees filed exceptions to appellant’s pleas of misjoinder and to that portion of the answers setting up their nonliability because of their interstate character. These exceptions were by the court sustained. At the conclusion of the testimony, appellants requested the court .to instruct the jury to return verdicts in their favor. These were refused, and the causevwas submitted to the jury on 'special issues. In response thereto, the jury found that the person in charge of the engine did not fail to blow the whistle at least eighty rods from the crossing; that the .bell was not, rung continuously from at least .eighty rods from the crossing until the crossing was passed; that the fact that it was not so rung was a proximate cause of the death of David Lucero; that the operatives of the train did not fail to blow the whistle on the engine at frequent intervals at a lesser distance than eighty rods from the crossing; that the train was being operated at a high and dangerous rate of speed, in view of the- conditions that obtained at and around the place .of the accident; that such was negligence and a proximate cause of the death of David Lucero; that David Lucero failed to use ordinary care to keep a lookout for the approaching train; that such failure was negligence, but was not a proximate cause of bis death; that the collision complained of was an avoidable accident; that Mariana Lucero suffered pecuniary loss by reason of the death of her son amounting to $2,000; that the.deceased, by the use of reasonable care for his own safety before going onto the place he was struck, could not have discovered the approach of the train in time to avoid the accident;. and that .the vision of the deceased was impaired due to the atmospheric conditions.

The court, upon the above ''findings, • rendered judgment in favor, of Mariana Lucero for - $2,000,. against appellants jointly and, severally, and that Santos Lucero take nothing. - ■

This appeal- is from, that judgment.

Opinion.

Appellants’' twenty-fifth assignment reads: “The'court erred in entering'judgment herein in favor‘of the plaintiff Mariana Lucero; for the reason that it definitely appeared that she was at all times eomplainéd of in this action,, and is now; a married woman; that the father of the 'deceased' is living, and as such, head of the family, and the recovery, if any, being, community property, .should have been in his name. No reason appears why the recovery should not have been entered in that behalf.”

Under this assignment, appellants argue that the father was the only necessary party in the suit; that the proceeds arising from a recovery are community property, over which the husband has exclusive management and control; that the proceeds of the recovery could not be the separate property of the wife; therefore the court erred in rendering judgment that she should recover and that such recovery should be as of her own right and as for herself, her separate property and estate.

The record here discloses that the parents of the deceased had been separated for about two years; that deceased lived with his mother, Mariana Lucero; that he gave her all his earnings which, except for the amount used by her to purchase his clothes and 50 cents per week which she gave him for spend- , ing, money, was all used by her for the support of herself and his younger brothers and sisters; and that he had promised to continue to support her as long as they both lived.

There is no evidence that he had ever contributed anything toward the support of his father or that he had ever expressed any intention of so doing. Under this statute (Vernon’s Ann. Oiv. St. art. 4675), only those named who have suffered some pecuniary injury by the death can recover. St. Louis, A. & T. Ry. Co. v. Anna Johnston et al., 78 Tex. 536, 15 S. W. 104; Missouri Pac. Ry. Co. v. Henry, 75 Tex. 220, 12 S. W. 828; Texas & N. O. R. Co. v. Mills (Tex. Civ. App.) 143 S. W. 690.

It follows that the only person entitled to recover for the death of David Lucero, under the evidence here, was his mother.

In the case of Missouri Pac. Ry. Co. v. Henry, supra, the parents were separated; as in the present case, the son was living with and supporting the mother; the mother brought the suit, setting up the separation, and asking that she be permitted to prosecute the suit alone.

The railway company leveled an exception at her petition on the theory that the father was not made a party plaintiff.

The Supreme Court held that the trial court did not err in overruling the exception and affirmed a judgment in favor of the mother alone. •

1 The above holding, we think, is a sufficient answer to the contentions made by appellants here.

Appellants’ first, second, and third propositions, are:

“First: It affirmatively appears, that deceased approached a railroad crossing with which he was entirely familiar, and did nothing to ascertain whether such crossing could be made in safety, and in these circumstances he was guilty of such negligence as should preclude recovery in behalf of the appellee.”
“Second: Where there is no substantial dispute as to the facts, and these facts clearly show contributory negligence, it is .the duty of the court, as a matter of law, to construe the same and hold that there can be no recovery.”
“Third: Where, as here, it appears without dispute that before attempting to cross railroad tracks one approaching neither stopped, looked nor listened, nor took any precaution looking to his safety, and that had any reasonable precaution been taken the approach of the train could have been discovered in time to avert the accident, it was the duty of the court to hold, as a matter of law, that resulting accident was the fault of one so approaching the tracks and deny recovery for injuries resulting in death.”

The sixth proposition reads: “Sixth: Where the jury finds that one approaching a railroad crossing was guilty of negligence, there can be no recovery, although the defendant itself may be negligent.”

Under these propositions, appellants argue that, the jury having found that deceased was guilty of negligence in not exercising ■ordinary care before he undertook to cross the tracks, there could, as a matter of law, be no recovery, and that the jury’s finding that such negligence was not a proximate cause was surplusage, and could not change the effect of their finding that he was negligent; and that, it being the duty of a person attempting to cross a railroad crossing to use ordinary care for his safety, and that •one who fails to use such care is guilty of negligence, then it follows as a matter of law that his failure to use such care was the proximate cause of any resulting injury.

Appellees counter with the argument that, in the absence of evidence to the contrary, it will be presumed that a person killed at a crossing took whatever steps were necessary for his own safety, and that, there being no evidence in the record as to what deceased did .or did not do before going on the crossing, the issues on the question of contributory negligence should not have been submitted, but that, the issues having been submitted, then the question of whether or not deceased was guilty of contributory negligence depended ■upon the finding as to whether such negligence was a proximate cause of the death of deceased.

Appellees cite several cases both from this and other jurisdictions defining contributory negligence to be an act or omission on the part of plaintiff which an ordinarily prudent man would not do or suffer under similar cir-■eumstanees, and which, concurring with a negligent act or omission of the defendant, becomes the proximate cause of the injury. International & G. N. Ry. Co. v. Garcia, 75 Tex. 583, 13 S. W. 223; Baltimore & O. S. Ry. Co. v. Young, 153 Ind. 163, 54 N. E. 791; St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520, 94 S. W. 617; Kansas City Southern Ry. Co. v. Prunty, 133 E. 13, 66 C. C. A. 163; Brown v. Rockwell City Canning Co., 132 Iowa, 631, 110 N. W. 12; Lewis v. Barton Salt Co., 82 Kan. 163, 107 P. 783; Parramore v. Denver & R. G. W. R. Co. (C. C. A.) 5 F.(2d) 912; Chicago M. & St. P. R. Co. v. Youngers (C. C. A.) 5 F.(2d) 784, and from the definitions there given contends that an ■ essential element of contributory negligence is a causal connection between the negligence and the injury. We agree with such contention. In Pearson v. Texas & N. O. Ry. Co. (Tex. Com. App.) 238 S. W. 1108, 1109, the railway company requested charges which, in effect, told the jury that if they believed the plaintiff in error could have ascertained the approach of the train in time to have avoided the accident by looking, or listening, or both, and that a failure to do so was negligence, to. return a verdict for defendant in error, unless they found for plaintiff in error on the issue of discovered peril.

. The Court of Civil Appeals sustained the assignment challenging the court’s action in refusing the charges, but the Commission of Appeals reversed their holding and used this language: “It will be observed that these charges utterly ignore the question of whether such negligence, if any, contributed to the injury. That was an important issue of fact, and one which the jury was rightfully entitled to decide.”

After quoting from the case of Galveston, H. & S. A. Ry. Co. v. Pendleton, 30 Tex. Civ. App. 431, 70 S. W. 996, 998, the court further said:

“Charges similar to the ones now under review, instructing the jury that if they find plaintiff’s acts or omissions under certain circumstances constituted negligence, to return a verdict for defendant, which charges contained no reference as to whether such negligence contributed to the injury have been reviewed by the appellate courts of this state, and have been, without exception, con•demned because of--the failure to have this important qualification included . therein”— citing numerous cases.

In Galveston, H. & S. A. Ry. Co. v. Pendleton, supra (writ refused), the court said: “To make want of ordinary care on the part of plaintiff a defense to a claim of damages based upon defendant’s actionable negligence, it must appear that there was such a relation between plaintiff’s fault and the injury that ' such injury was a natural and probable result thereof, and that the accident and consequent injury to the plaintiff might naturally and reasonably have been expected under the circumstances. [International & G. N.] Railroad Co. v. Culpepper, 19 Tex. Civ. App. 182, 46 S. W. 922; [Gulf, C. & S. F.] Railway Co. v. Moore, 28 Tex. Civ. App. 603, 68 S. W. 559, 561; Mauch v. City of Hartford, 112 Wis. 40, 87 N. W. 816. The question as to whether the negligence of the plaintiff proximately contributed to his injury is as much a question of fact for the jury as the one of negligence itself. And unless the evidence shows it, though it may be sufficient to show negligence on the part of the plaintiff, there is a complete failure of the defense of contributory negligence.”

We also agree with appellees that there is no evidence showing that deceased failed to use ordinary care for his own safety before going upon the track. No witness who appeared testified to having seen him just before or at the time he went on the crossing. There being no evidence to show that he did not use ordinary care, it will be. presumed that he did. The assignments raising this question must be overruled.

The further contention is made by appellants that the evidence fails to show" any negligence on their part.

As above set forth, the jury found that the operatives of appellants did not ring the bell on the engine continuously from at least eighty rods from the crossing until the crossing was passed; that they operated the train at a high and dangerous rate of speed, in view of the conditions that obtained at and around the place of the accident; that this was negligence; and that both these acts of negligence were the proximate causes of the death of the deceased.

If the 'evidence is sufficient to support the jury’s finding on either of these issues, then the judgment should not be disturbed.

The record reveals that the place where this accident occurred was a much-used crossing, and that on the morning in question there was an extremely heavy fog. Appellants in their answer allege that the train was being operated at a speed of 45 miles per hour, and there is evidence from which the jury could have concluded that it was going even faster. Under the conditions prevailing at the crossing in question on this particular morning, appellants did not perform their whole duty to persons on the highway by giving the statutory signals, but they owed the additional duty to such persons to pass the crossing at a reasonable rate of speed, proportioned to the danger, 22 R. O. L. § 244, p. 1013; Baylor University v. Bradshaw (Tex. Civ. App.) 52 S.W.(2d) 1094, and the fact that the train was being operated on the customary schedule would not alter their duty where conditions arose which caused the crossing to become dangerous.

Under facts such as we have here under consideration, we have concluded that the evidence was sufficient to support the jury’s finding on the issue of negligence based upon the speed of the train.

We have heretofore held against appellant’s contention that they should have their liability determined under the federal rule, and see no reason to depart from such holding in the present case.

We have considered the many questions pre. sented by appellants, but find no reason to reverse the judgment rendered.

The judgment is affirmed.


source: Caselaw Access Project

author: LESLIE, J.

license: Public Domain

text:
    STEPHENS COUNTY v. J. N. McCAMMON, Inc.
    No. 673.
    Court of Civil Appeals of Texas. Eastland.
    March 21, 1932.
    Rehearing Denied Dec. 9, 1932.
    T. B. Ridgell, W. J. Arrington, and B. D. Hawkins, all of Breckenridge, for appellant.
    Goggans & Allison, of Dallas, for appellee.
   LESLIE, J.

In this cause the appellee, J. N. MeCam-mon, Inc., plaintiff below, sued appellant, Stephens county, defendant below, for damages growing out of the alleged breach of a contract, by the terms of which it is alleged the plaintiff was employed by the defendant as an architect to prepare plans and specifications for, and to superintend the proper construction of, a combination courthouse and jail in said county. On motion of plaintiff, the defendant’s plea in abatement was stricken out and trial proceeded under a general denial and special answers, one of which presented in bar the same matters sought to be presented by the plea in abatement. The trial was before the court and jury, resulted in a judgment in favor of the plaintiff, and the defendant has appealed. The parties will be referred to as in tbe trial court.

The suit was filed December 14, 1928; the original answer, December 31, 1928; the first amended answer, February 11, 1929; the plea in abatement, March 22, 1929, at 3:10 o’clock p. m. The defendant’s petition to withdraw its answers, filed December 31, 1928, and February 11, 1929, was filed March 27, 1929. In this petition to withdraw the defendant alleged that, since filing the answer of February 11, 1929, it discovered, March 8, 1929, that the plaintiff, MeCammon, Inc., on July 2, 1927, forfeited its right to do business in the state of Texas, by failing to pay its franchise tax, as required by law, and thereby had no right to seek affirmative relief in the courts of the state. Article 7091, It. S. 1925. It is further alleged that the secretary of state, in accordance with law, and by reason of such default in payment of taxes, had consummated the forfeiture by entering upon the margin of the record k,ept in his office re lating to such corporation the words, “Eight to do business forfeited,” and the date of such forfeiture, to wit, July 2, 1927.

Other relevant facts are: The Mid-West Company, Inc., was chartered May 17, 1924. September 22, 1924, it made with Stephens county the contract herein alleged to have been breached. By amendment, the name of the corporation was changed July 29, 1925, from the Mid-West Company, Inc., to J. N. MeCammon, Inc., and thereafter, as noted, on July 29, 1927, its right to do business in Texas was forfeited. These matters the defendant sought to present to the trial court (1) by ordinary plea in abatement, and (2) as a special defense, or plea in bar. At the time the alleged contract was entered into, and at the time of the alleged breach thereof, plaintiff corporation was in good standing, with the right to transact business contemplated by its charter. Further, there is no dispute about the plaintiff’s having failed to pay its franchise tax, and thereby forfeited its right to do business in the state, long prior to December 14, 1928, the date it instituted this suit, seeking affirmative relief in the courts of the state.

The plea in abatement rests upon the provision of article 7091, E. S. 1925, which is as follows: “Any corporation, either domestic or foreign, which shall fail to pay any franchise tax provided for in this chapter when the same shall become due and payable under the provisions of this chapter, shall thereupon become liable to a penalty of 25 per cent, of the amount of such franchise tax due by such corporation. If the amount of such tax and penalty be not paid in full on or before the first day of July thereafter, such corporation shall for such default forfeit its right to do business in this State; which forfeiture shall be consummated without judicial ascertainment by the Secretary of State entering upon the margin of the record kept in his office relating to such corporation, the words, ‘right to do business forfeited,’ and the date of such forfeiture. Any corporation whose right to do business shall he thus forfeited shall he denied the right to sue or defend in any court of this State, except in a suit to forfeit the charter of such corporation. In any suit against such corporation on a cause of action arising before such forfeiture, no affirmative relief shall he granted to such corporation, unless its right to do business in this State shall he revived as provided in this chapter.” (Italics ours.)

Thus we have before us the situation of a private domestic corporation, defaulting in the payment of its franchise tax, but still in existence as a legal entity, without the right to sue or seek affirmative relief in our courts, as appears from the above statute and the following authorities: Texas Packing Co. v. St. Louis S. W. R. Co. (Tex. Com. App.) 227 S. W. 1095; Canadian Country Club et al. v. Johnson (Tex. Civ. App.) 176 S. W. 835-843; Maloney Mercantile Co. v. Johnson County Savings Bank, 56 Tex. Civ. App. 397, 121 S. W. 889; Harvey v. Provident Investment Co. (Tex. Civ. App.) 156 S. W. 1127; Bunn v. City of Laredo (Tex. Civ. App.) 213 S. W. 320.

Further, it will be observed that the case before us does not present one involving the rights or powers of the directors and managers of a legally dissolved corporation to settle the affairs thereof. Article 1388, E. S. 1925. The failure to pay the franchise tax has repeatedly been held not an act of dissolution. Fox v. Robbins (Tex. Civ. App.) 62 S. W. 815; Id. (Tex. Civ. App.) 70 S. W. 597; Rippstein v. Haynes Medina Valley R. Co. (Tex. Civ. App.) 85 S. W. 314; Maloney Mercantile Co. v. Johnson County Savings Bank, supra.

This observation is made in view of the fact that there seems to be a contention presented here that the plaintiff’s default in payment of taxes forfeited its charter.

The foregoing predicament of the plaintiff corporation was not actually discovered by the defendant or its attorney until March 8, .1929. To tliis the litigants agree, and they further agree that the defendant had no notice whatever of the legal status of the plaintiff', unless said entries in the office of the secretary of slate charged it with the constructive notice of the existence of such fact. ■The plaintiff, in instituting this suit, presented the usual allegations of incorporation and right to do business in Texas.

The defendant, in making the actual discovery of the plaintiff’s forfeiture of its right to do business, filed thereafter, on March 22, 1929, at 3 p. m., its plea in abatement, which, of course, was. subsequent to the amended answer of February 11, 1929. The case was called for trial March 27, 1929, and, following a conditional announcement of ready for trial by the plaintiff, the defendant informed the court that it had a plea in abatement on file among the papers of the cause and requested a hearing on that matter. Upon being thus apprised, the attorneys for the plaintiff asked and obtained permission to file a motion to strike out said plea. -By agreement, the contents of such motion (same to be reduced to writing and filed of that date) being placed before the court, both sides announced ready on the motion to strike out defendant’s plea in abatement. At this point a question arose which prompted a request by the attorneys for time to return to their respective offices for the purpose of investigating the authorities pertaining to such motion to strike. The request was granted, and, at the time appointed by the court to resume consideration of the matters in controversy, the court returned to the bench and sustained the motion to strike out the plea in abatement. As stated in the court’s bill of exceptions, “shortly” after this order of the court, the attorney for the county (who was tardy at the time of the ruling) came into court, and for the first time suggested that he desired to file a motion requesting permission to withdraw the answers previously filed for the purpose of allowing and permitting the plea in abatement to take its place in due order of pleadings, and be considered by the court. At this juncture the attorneys for the plaintiff objected, for the following reasons: “That the plea in abatement had been filed without any permission of the court, and while those answers are yet on file, and that the court had already entered an order striking. out defendant’s plea in "abatement. It was further suggested to the court by the plaintiff that such motion to withdraw said' answers should in fact have been filed before the plea in abatement was filed, and in all events prior to the time the defendant announced ready upon said plea, arid upon the motion asking that said plea be stricken.”

The above excerpt is taken from the bill of exceptions prepared by the court, and constitutes the reason prompting the court to refuse the defendant the privilege of withdrawing its answer and presenting its plea in abatement grounded upon the above statute. As we interpret the record, we do not believe the aboye considerations afford any substantial or sufficient reasons for denying the defendant the right to withdraw its answers and present its plea for consideration. The objections urged by the plaintiff and adopted by the court as grounds for denying the defendant’s request are of a technical nature, and, although the attorney for the defendant exhibited confusion in the manner in which he sought to bring before the court the plaintiff’s incapacity to seek affirmative relief therein, nevertheless we are of opinion that the ends of justice would have been better subserved by permitting defendant the privilege of withdrawing its answers and presenting its dilatory plea in due order of pleading. The delay involved in • granting the request would have been inconsequential when compared with the substantial rights of the defendant, and in view of the situation that the plaintiff was seeking affirmative relief in a court to which it had no access under the) plain provisions of the statute in existence at the time it procured its charter rights.

The facts involved and presented 'by way of plea in abatement have been regarded as constituting a defense to be pleaded in abatement, as indicated by the foregoing authorities, and especially Texas Packing Company v. St. Louis S. W. R. Co. The disposition we make of the case renders it unnecessary for us to determine whether such a state of facts might not be effectually urged as a plea to bar, a proposition that seems not to have been directly considered by any case cited or falling under our observation.

The above is the controlling proposition, which we sustain, and it renders unnecessary further consideration of other assignments in the record. The questions will evidently not arise upon another trial.

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

On Rehearing.

The original opinion by this court reversed the judgment of the trial court on the ground that it refused to permit the filing of a plea in abatement, based upon the fact that the plaintiff corporation had not paid its franchise tax to the state of Texas. On motion for rehearing, we were asked to reverse this holding to view of the fact that the tax had been paid subsequent to the .’trial and appeal of the case. The fact of such payment was evidenced by a certificate to that effect incorporated in said motion for rehearing, and to that way called to our attention for the first time. Considering this, and other points, we certified certain questions to the Supreme Court, one of which involved our right to give any effect whatever to the fact evidenced by said certificate of the secretary of state. The questions propounded and the answers thereto will be found in Stephens County v. J. N. McCammon, Inc. (Tex. Sup.) 52 S.W.(2d) 53.

Upon the authority of that opinion, and after due consideration of the other questions presented by the motion for rehearing and the supplemental motion for rehearing, said motions are in all respects overruled.


author: ALEXANDER, J.

text:
    CITY OF WACO v. CRAVEN.
    No. 1261.
    Court of Civil Appeals of Texas. Waco.
    Nov. 17, 1932.

      John McGlasson, Allan McDonnell, McClellan, Lincoln & Williams, all of Waco, for appellant.
    Weatherby & Rogers and Tom P. Scott, all of Waco, for appellee.
   ALEXANDER, J.

This is a companion case to the case of City of Waco v. Rook (Tex. Civ. App.) 55 S. W.(2d) 649, this day decided. This suit was brought by Mrs. Mattie L. Craven against the city of Waco for damages occasioned to her land by reason of the building of Lake Waco. She alleged that during the years 1929 and 1930 the city of Waco, for the purpose of providing an adequate water supply for its citizens, erected a large dam across the Bosque river, and that the plaintiff owned a farm of about 77 acres of land located a short distance below the dam; that said dam is about one mile in length, and is 60 feet high, is equipped with a large number of floodgates, and impounds more than thirteen billion gallons of water. Plaintiff further alleged that said dam is an earthen dam, and that the north end thereof was built on a gravel base, which allows the water to seep through under the dam, and, on account of the enormous pressure caused by the impounding of the water said dam is liable to break.

Plaintiff further alleged that the city changed the course of the water below said dam by the erection of a new channel and levees which caused the water which flows through said flood gates to overflow and flood plaintiff’s land; that plaintiff’s land prior to the building of the dam was set with pecan trees, and was subirrigated by an underflow of water; that the south end of the dam, which is the part thereof immediately upstream from plaintiff’s land, was built on a rock base, and as a result the underflow of water has been cut off, causing her trees to die. It was alleged that the land was damaged in many other ways, not necessary to here mention, as the result of the erection of the dam and its appurtenances. The plaintiff prayed for damages for the permanent injury to her land in the sum of $38,500.

The defendant directed a general demurrer and numerous special exceptions to plaintiff’s petition, entered a general denial, and alleged specifically that it was a municipal corporation, charged with the duty of providing an adequate water supply for its citizens, and that under lawful authority granted it by the state of Texas it had impounded the waters of the Bosque river, a navigable stream, by the construction of a dam for such purpose, that said dam had been carefully and properly constructed on property acquired and owned by the city for such purpose, and that the construction of the dam and its operation had in no manner injured the plaintiff.

A trial by jury resulted in a verdict and judgment for the plaintiff for the sum of $7,-700. The defendant appealed.

It is shown by one of the bills of exception in the record duly approved by the trial judge that, after the jury had retired to consider their verdict, and after they had had the matter under consideration for about twenty-four hours, the jury, through a deputy sheriff, informed the trial judge of their desire to have him come to the jury -room. The trial judge, out of the presence, and without the knowledge or consent, of. the parties or their attorneys, entered the jury room and discussed with the jury for a period of from three to five minutes the probability of the jury reaching a verdict in the case. The appellant, immediately upon learning of such conduct on the part of the trial judge, moved for a mistrial, and, after the jury had returned its verdict into open court, moved for a new trial. It is not contended that the trial judge was actuated by any improper motives, nor does it appear that anything was said by him that influenced the jury in reaching their verdict. However, this does not appear to be material. It is well settled that the trial judge may communicate with the jury with reference to the case only in open court. When the trial judge violates these statutes by so communicating with the jury at a place not in open court, error is committed, and reversal must follow, regardless of the question of injury. This requires a reversal of the case. Revised Statutes, art. 2197; Gerneth v. Galbraith Foxworth Lumber Co. (Tex. Com. App.) 38 S.W.(2d) 775-777; Texas Midland R. R. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137; Parker v. Bailey (Tex. Com. App.) 15 S.W.(2d) 1033, 1035 (opinion approved); Corn v. Crosby County Cattle Co. (Tex. Com. App.) 25 S.W.(2d) 390; Lorenzen v. Keenan (Tex. Civ. App.) 266 S. W. 839; Smith v. Harris (Tex. Civ. App.) 252 S. W. 836.

There are certain other assignments which we deem it proper to discuss in view of another trial. The appellant excepted to the allegations in plaintiff’s petition that the dam as constructed by the city was in danger of breaking and was liable to break at any time, and that as a consequence thereof said dam presented a constant menace and danger to plaintiff’s land. It is appellant’s contention that these allegations present mere conclusions of the pleader, and that the appellee by such allegations was attempting to recover for depreciation in the value of her land brought about by mere fanciful unfounded fear. ■ We do not think the petition is subject to this objection. The petition alleged the size and kind of the dam that had been constructed and the amount of water that it impounded. It alleged that a part of the dam was erected on a gravel base, and was liable to break at any time. It also further alleged that the dam was equipped with a number of large spillway gates, and, that a new channel had been constructed to carry off the overflow from the lake, that said channel was not sufficient in size to carry such overflow water, and that on account of the manner in which such overflow water and the levees in connection therewith had been constructed the overflow water from such spillway was caused to flow over appellee’s land and damage the same. We think this was sufficient to present the plaintiff’s contention that there was a real probability, not only that the dam might break, but that appellee’s land would be overflowed by the water passing through such new channel, and that such dam presented a constant menace to appellee’s property. If in fact the city had erected a dam of the size and kind described, and there was a real probability of its breaking, it would present a constant menace to appellee’s land, and the appellee would have a right to recover for any depreciation in the value of her land brought about thereby. City of Abilene v. McMahan (Tex. Com. App.) 292 S. W. 525, par. 4.

The appellee, in addition to alleging that there was danger in the dam breaking, and that it constituted a menace to her land, alleged that the channel of the Bosque river below the dam had been changed by the city, so that, instead of running along the north side of her land as it had done prior to the construction of the dam, the new channel and levees in connection therewith had been so constructed as to force the water during flood times directly over the center of appellee’s land, and that in October, 1930, after the dam had been completed, the city and its employees allowed the gates on the spillway to remain closed until the water was flowing over the top of such gates, and then opened eleven of such gates and allowed the water to overflow such new channel and to run over appellee’s land with great force and violence, and as a consequence her land was greatly injured. Appellant excepted to that part of the petition wherein appellee alleged the injury caused by such overflow in October, 1930, because, as it contends, appellee was not seeking to recover special damages as the result of negligent acts committed subsequent to the erection of the dam and its appurtenances, and her damages, if any, would be the difference between the value of the land immediately before and immediately after the erection of the dam, and appellee should not be permitted to allege and prove what damages were actually caused by the overflowing of the channel after the dam was completed. It is true that, where the injured party sues for the depreciation in t the value of his land caused by a permanent nuisance, he can have but one recovery therefor, and he must recover therein for all anticipated injury; and .the amount of such injury is usually ascertained by taking the difference between the value of the land before the creation of the nuisance and its value immediately after the creation of the nuisance, but in this case, in order to demonstrate that the dam and its appurtenances did constitute a menace to her land and thus depreciate the value thereof, appellee had a right to allege and prove that, since the completion thereof, actual injury had resulted to the land. City of Amarillo v. Ware (Tex. Com. App.) 40 S.W.(2d) 57, par. 10. The court did not err in overruling this exception.

The appellee sued for the damages caused by the erection of the dam and its appurtenances to a 77-acre tract of land owned by her. The "appellant in its answer alleged that, at the time the erection of the dam was begun, appellee owned 100 acres of land, all in one tract, a portion of which being the 77 acres described in 'appellee’s petition; that 23 acres of said 100-acre tract was upland, overlooking the lake; that, on account of the building of the lake, the value of said 23 acres was greatly enhanced, and as a result thereof the appellee was enabled to sell said 23 acres about the time the dam was completed at a greatly enhanced price. The appellant sought to have the 100-acre tract treated as a unit and to offset the benefits accruing to ap-pellee by reason of the enhancement in the value of the 23 acres as the result of the erection of the dam, against the damages caused to the remaining 77 acres. The appellee excepted to the answer on the ground that the two tracts were separate and the benefits accruing to one could not be offset against the damages to the other, and because appellant was undertaking to offset the damages caused by it by alleging and proving general benefits common to all property in the vicinity of the lake. The trial court sustained the exception.

The general rule is that, unless the circumstances render a division necessary, the logical and proper method of computing damages for injuries to a part of land is to treat the estate as a whole, especially where the entire acreage is used and treated by the owner as one tract. Texas Pipe Line Co. v. Higgs (Tex. Civ. App.) 243 S. W. 633, par. 4 (writ refused) ; Burton Lumber Corp. v. City of Houston, 45 Tex. Civ. App. 363, 101 S. W. 822, 825 (writ denied). It is likewise well settled that, where the dominion of the owner over the property is not invaded, but the land is damaged by the construction of public improvements, the special benefits accruing to a part of the land brought about by such public improvements can be considered as an offset against any damage so caused to the remainder of the tract; but,general benefits accruing to the land and enjoyed in common with the public at large cannot be so used as an offset. Burton Lumber Corp. v. City of Houston, 45 Tex. Civ. App. 363, 101 S. W. 822, 825; Goldforb v. G., C.. & S. F. Ry. Co. (Tex. Civ. App.) 243 S. W. 707, par. 1, and cases there cited. Since the trial court sustained the exception to the appellant’s answer, we are unable to determine whether the 77-acre tract and the 23-aere tract were used and treated by the owner as a unit, nor whether ■the benefits accruing to the 23 acres as the result of the erection of the dam were special benefits peculiar to the property in question, or whether such benefits were general and were such as were received and enjoyed by the public at large. It is apparent that, if the 23-acre tract was rural property, useful only for farming purposes prior to the erection of the dam, but on account of the location of the lake and its proximity thereto it became lakeside property, and was useful for the erection of lakeside residences, its owner would receive a special benefit not enjoyed by the public at large. In such case it would be similar to property that has become trackage property by reason of the location of a railroad. A hearing of the facts would be necessary to determine whether or not the benefits accruing to the 23 acres were special and peculiar to the tract; or whether they were such benefits as were enjoyed by the public generally. 20 O. J. 824; 10 R. O. L. 179; Goldforb v. G., C. & S. F. Ry. Co. (Tex. Civ. App.) 243 S. W. 707, par. 2, and cases there cited. We are of the opinion that the trial court erred in sustaining the exception.

Appellant complains of the manner in which the measure of damages was submitted to the jury. By special issue No. 1 the court inquired whether the land in question had a market value “immediately preceding the construction of the dam.” By special issue No. 2 the court inquired whether or not the land had an actual value “immediately preceding the construction of the dam.” By special issue No. 3 the court inquired whether the land had a market value “immediately after the flood waters referred to as having occurred in October, 1930.” By special issue No. 4 the court inquired whether the land in question had an actual value “immediately after the flood waters referred to as having occurred in October, 1930.” By special issue No. 5 the court inquired whether the plaintiff’s land “was permanently injured as a direct result -of the construction of the dam.” By special issue No. 8 the court inquired what amount, if any, plaintiff’s land was permanently injured by the construction of the dam. In connection with special issue No. 8, the court gave the following instruction: “In determining this issue, you will consider the difference, if any, between the reasonable actual value, if any, of said land immediately before the injuries, if any, complained of and the reasonable actual value, .if any, of the same land immediately after the injuries, if any, complained of, which you find was caused by the construction and operation of the dam in question, and excluding all other causes.”

The jury found that the land had no market value either before the construction, of the dam or after the flood in October, 1930, but that it had an actual value on each of such dates, and that the land was permanently injured as the direct result of the construction and operation of the dam in the sum of $7,700.

Appellant’s first contention is that the court allowed the jury in estimating the damages to take the difference in the value of the land before the construction of the dam and its value after the flood in 1930. Ordinarily, where it is alleged that the injury to the land is permanent, the injured party is entitled to recover the depreciation in the value of the land brought about by such injury. There is no hard, and set rule for measuring such depreciation. Such depreciation may ordinarily he properly measured by taking the difference between the value of the land immediately before the construction of the hazard which brought about the depreciation and the value of such land immediately after the completion of such hazard. T. & P. Ry. Co. v. Ford, 54 Tex. Civ. App. 312, 117 S. W. 201 ; M. K. & T. Ry. Co. of Texas v. Anderson (Tex. Civ. App.) 194 S. W. 662, par. 5; Rosenthal v. Taylor, B. & H. Ry. Co., 79 Tex. 325, 15 S. W. 268; St. Louis S. W. Ry. Co. v. Long, 52 Tex. Civ. App. 42, 113 S. W. 316; Dennison, B. & N. O. Ry. Co. v. Bai'ry, 98 Tex. 248, 83 S. W. 5; City of Amarillo v. Ware (Tex. Com. App.) 40 S.W.(2d) 57; Hutchinson v. I. & G. N. Ry. Co. (Tex. Civ. App.) 111 S. W. 1101, 1105; Lyles v. T. & N. O. Ry. Co., 73 Tex. 95, 11 S. W. 782. If this measure of damages is to be applied in this cáse, it would be the difference between the value of the land immediately before the construction of the dam and its appurtenances and such value immediately after the completion of such improvements, and not the difference between such value immediately before the construction of the dam and its appurtenances and such value after the October flood, as submitted by the court. However, evidence of the damages actually caused by floods after the completion of the dam would be admissible to show that appellee’s anticipation of damages was well founded and the probable amount of damages that would result in the future. Where the time consumed in the construction of the improvements which brought about the injury covers a long period of time, and there is a probability of an enhancement in the value of the land due to natural conditions, or of a depreciation in the value of the land due to depressed ,financial conditions, the jury by an appropriate charge should be instructed to take into consideration only such depreciation, if any, as was brought about by the hazard complained of, and that they should not take into consideration any de-jn-eciation brought about by natural causes.

The appellant next contends that at least a part of the depreciation in the value of the land wa§ brought about by an unfounded fear that the dam would break and that the court improperly allowed the jury to consider same as an element of damages. . The appellee would not be entitled to recover for the depreciation brought about by fear that the dam would break, in the absence of a real danger that the dam would in fact break. In such case it is true the owner of the property would suffer a loss, but the appellant should not he held responsible therefor. Appellant had a right to construct a dam on its own property, and, if in doing so it constructed a dam that in nowise endangered appellee’s property, it would be guilty of no wrong. In order for an injured party to recover damages, there must not only be an injury to the plaintiff, hut a wrong by the defendant. If the city was guilty of no wrong, there could be no recovery. The fact, however, that there was no real danger that the dam would break would not prevent a recovery for the depreciation brought about by the manner in which the floodgates and the channel and other appurtenances were constructed, nor for the depreciation brought about by the cutting off of the underflow or by other causes alleged in plaintiff’s petition. The court, by appropriate instruction, should tell the jury that, if in fact there was no real danger that the dam would break, they should not take into consideration any depreciation brought about by such unfounded fear.

The appellant next contends that the appellee should be confined in her recovery to the damage between the market value of the land before and after the injury and not to the difference between its actual value on such dates. The appellee alleged that the land had no market value either before or after the injury, and the jury so found. There was evidence to support such finding. Where the injured property has no market value, the actual value of the property may he taken as the criterion for measuring the damages. Texas Power Corp. v. Kuehler (Tex. Civ. App.) 34 S.W.(2d) 381, par. 7. It would he inequitable to say that, because there is no established prevailing market for the particular kind of property so injured, the injured party must go without his relief. The rule here announced is applied in assessing damages for injuries to personal property, and we see no reason why it should not apply in assessing damages to realty. 13 Tex. Jur. 153-160; Sydney Webb & Co. v. Daggett, 39 Tex. Civ. App. 390, 87 S. W. 743; Ft. Worth & D. C. Ry. Co. v. Hapgood (Tex. Civ. App.) 201 S. W. 1040; Id. (Tex. Civ. App.) 210 S. W. 969; Ft. Worth & D. C. Ry. Co. v.,Amason (Tex. Civ. App.) 239 S. W. 359; G. H. & S. A. Ry. Co. v. Harris (Tex. Civ. App.) 216 S. W. 430; Ft. Worth & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; Shell Pipe Line Corp. v. Svrcek (Tex. Civ. App.) 37 S.W.(2d) 297.

On account of the errors hereinabove pointed out, the judgment of the trial court is reversed, and the cause remanded for a new trial.


text:
    SOUTHERN SURETY CO. OF NEW YORK v. FIRST STATE BANK OF MARQUEZ et al.
    No. 1254.
    Court of Civil Appeals of Texas. Waco.
    Oct. 27, 1932.
    Rehearing Denied Dec. 8, 1932.

      John T. Suggs, Jr., and E. E. Hurt, both of Dallas, for appellant.
    J. E. & B. L. Bradley and Mr. & Mrs. C. S. Bradley, all of Groesbeek, for appellees.
   ALEXANDER, J.

This suit was brought by the First State Bank of Marquez against B.‘F. Brooks Construction Company, Southern Surety Company, H. G. Lanier, and others in the district court of Leon county to recover on a release bond for certain funds claimed to be due by the state highway department to the Brooks Construction Company for the construction of a road in Leon county. In December, 1928, Brooks Construction Company entered into a contract with the state highway department for the construction of a part of state highway No. 2, known as job 145b in Leon county. Brooks Construction Company sublet a part of the work to H. G. Lanier. It was alleged that during the course of the work, Lanier entered into a contract with the First State Bank of Marquez by the terms of which the bank agreed to and did make advancements to Lanier from time to time by paying the material and- labor bills incurred by Lanier in such work, and Lanier agreed to and did orally -assign to the bank as security for the funds so advanced, all funds coming to him from Brooks Construction Company and the state highway department for the performance of his contract, together with all rights and liens to which he might be entitled under his contract with Brooks Construction Company. Lanier failed to repay the funds so advanced by the bank and in consequence the bank filed its claim in writing with the state highway department and requested that department to withhold the amount due and unpaid to Brooks Construction Company on its contract, as provided in Vernon’s Ann. Civ. St., art. 5472a. The state highway department accepted the claim and withheld from Brooks Construction Company the sum of $2,122.65. Brooks Construction Company, in compliance with the provisions of Acts 1929, 41st Leg., 2d Called Sess., p. 154, c. 78 (Vernon’s Ann. Civ. St. art. 5472b — 1), executed and delivered to the state highway department a release bond with Southern Surety Company as surety, and the funds then due Brooks Construction Company were released. This suit was by the bank against Lanier for its debt and against Brooks Construction Company and Southern Surety Company on the release bond. The bank claimed a lien on so much of the funds due by the state highway department to Brooks Construction Company as would be sufficient to pay the balance due by Brooks Construction Company to Lanier on his contract.

The case was before this court on a former occasion and was reversed as to the Brooks Construction Company and the Southern Surety Company because there was no evidence of an agreement between Lanier and the bank that the bank should be subrogated to his rights and liens. See Brooks Construction Company v. First State Bank of Marquez (Tex. Civ. App.) 39 S.W.(2d) 83. The second trial was had before thq court without a jury and resulted in judgment in favor of the bank against Brooks Construction Company and Southern Surety Company on the release bond for the sum of $1,659.12. Southern Surety Company alone appealed.

The evidence shows that Lanier agreed with the bank that, if it would advance the money and pay the bills incurred by him for labor and material for the construction of the road in question, the bank should be sub-rogated to all the rights and liens to which he was entitled, and for this purpose he assigned ■ to the bank all his rights and liens in the premises. In keeping with this agreement, the bank paid the bills of the laborers and materialmen and took Lanier’s notes for the amounts so expended by it. At the same time Lanier wrote Brooks Construction Company a letter requesting that all checks coming to him for work on the job be delivered directly to the bank. This the Brooks Construction Company agreed to do and payments were by it so made to the bank up to and including the sixth estimate. Thereafter in November, 1929, the Brooks Construction Company ceased to make payment to the -bank and Lanier was unable to make further payments. The bank immediately presented its claim in writing to the state highway department for the sum of $2,334.91 and requested that department to withhold the amount due and unpaid to Brooks Construction Company on its contract. The state highway department accepted the claim for the sum of $2,122.65 and withheld from Brooks Construction Company said amount. Brooks Construction Company secured a release of the funds by executing a release bond, as provided by the statute. At the time notice was served on the state highway department, Brooks Construction Company was indebted to Lanier on the job in question in the sum of $1,659.12.

Since Lanier, through the bank, had paid for and furnished the labor and material for the construction of the road, he was entitled to fix a lien on so much of the funds in the hands of the state highway department and owing to Brooks Construction Company as was necessary to pay the amount due him by the Brooks Construction. Company. He could have fixed his lien on such funds by filing written notice thereof with the state highway. department. Texas Company v. Schriewer (Tex. Civ. App.) 38 S.W.(2d) 141. If he had so perfected his lien he could have assigned same, together with his debt, to the bank and the bank could have enforced same. The evidence shows, however, that neither the materialmen nor laborers, whose claims were paid by the bank, nor Lanier ever undertook to perfect their liens on the funds owing by the state highway department for the construction of the road in question either by filing same with the county clerk, as provided in Revised Statutes, art. 5160, as amended in 1929 (Vernon’s Ann. Civ. St. art. 5160), or by filing same with the highway department, as provided in Yemen’s Ann. Civ. St. art. 5472a. The bank, after it had purchased Lanier’s right, undertook to perfect the lien by filing claim with the highway department.

Appellant’s proposition is that the assignment of a laborer’s or materialman’s claim prior to the perfection of the lien, by compliance with the terms of the statute creating it, confers upon the assignee no right to have or perfect the lien to which the assignor was entitled. In other words, it' contends that the assignment of a claim carries no lien unless the mechanic or materialman has previously proceeded to acquire or perfect a lien as provided by the statute. Vernon’s Ann. Civ. St. art. 5472a, provides: “That any person * ⅜ * furnishing any material * ⅜. ⅜ or labor to any contractor for any public improvements in this State, shall have a lien on the moneys * * * due or to become due to such contractors for such improvements; provided, such person * * ⅜ shall, before any payment is made to such contractor, notify in writing the officials of the State * * ⅜ whose duty it is to pay such contractor of his claim.”

Whether or not the bank, as the assignee of Lanier, had a right to perfect the lien created by the statute by filing the claim with the state highway department, is a question on which the courts are not agreed. Some courts hold that the right to perfect the lien is personal to the materialman or laborer mentioned in the statute and that his assignee who purchases the claim prior to the perfection of the lien cannot fix the lien; while others hold that the assignment of a lienable claim carries with it the right to the lien and clothes the assignee with the authority to take the necessary proceedings to perfect and enforce the lien. The authorities presenting the two views are correlated in 21 Ann. Oas. at p. 962. See, also, 40 O. J. 309, § 407.

.We are inclined to the view that the authorities supporting the theory that the as-signee acquires the right to perfect and enforce the lien present the better reasoning. The general policy of the law in creating the lien is to protect the laborer or materialman to the end that he may receive full compensation for the labor or material so furnished and which has gone into the construction of the road. To allow the assignee to perfect the lien does the debtor no harm. He owes the debt and the funds are held by him subject to the right to fix the lien. It is of no concern to him who fixes it. On the other hand, it is of material advantage to the laborer or materialman that he be allowed to collect his claim as quickly as possible and that he receive full value therefor. If he be denied the privilege of assigning his equitable right to fix the lien along with his debt, it will often result that he must, either suffer the delay and expense incident to fixing the lien or else' assign his claim at a discount and suffer the loss. He should be permitted to avail himself of the security which the statute gives him in the way most beneficial to himself, and, if he can better himself, without injury to the debtor, by giving his assignee the right to perfect the lien, he should be permitted to do so. Murphy v. Adams, 71 Me. 113, 36 Am. Rep. 299; Kinney v. Duluth Ore Co., 58 Minn. 455, 60 N. W. 23, 49 Am. St. Rep. 528; Smoot v. Checketts, 41 Utah, 211, 125 P. 412, Ann. Cas. 1915C, 1113, par. 7; Sprague Investment Co. v. Mouat Lumber & Investment Co., 14 Colo. App. 107, 60 P. 179, 180; McDonald v. Kelly, 14 R. I. 335, 338; Bristol Iron & Steel Co. v. Thomas, 93 Va. 396, 25 S. E. 110. Under our blended system a very liberal policy is recognized in the assignment of both legal and equitable rights. If a laborer can perfect his lien and assign it with his claim, we know of no reason why he should not be permitted to assign his right to perfect his lien along with his debt. This is particularly true where the statute, as in this case, does not require the one filing the claim to swear that the account is correct. So far as we have been able to ascertain there are only two Texas cases in which the question has been discussed. First National Bank v. Campbell, 24 Tex. Civ. App. 160, 58 S. W. 628; Carlile v. Harris (Tex. Civ. App.) 38 S.W.(2d) 622. In each of these cases the court held that the-lien could not be perfected by the as-signee. However, such holding was not necessary to a decision of the case. In each of these cases a homestead was involved and the husband and wife had not executed the statutory mechanic’s lien contract prior to the time the labor bad been performed and tbe material furnished. It is apparent, therefore, that the laborer or materialman could not have perfected the lien prior to the assignment, and, of course, the assignee acquired no better right. In the case at bar, the hank, by paying the laborer’s and materialmen’s claims with the understanding between it and Lanier that it should be subrogated to all his rights, acquired Lanier’s right to perfect the lien. Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273; 25 R. C. L. 1374. We are of the opinion that the bank as the assignee of Lanier had the right to perfect the lien by filing the ■claim with the state highway department.

The appellant next contends that the notice served on the state highway department was not sufficient to impound the funds held by that department and owing to Brooks Construction Company. The claim as filed did not recite that Lanier had assigned to the bank his lien or his right to the lien on the funds in question nor did it recite specifically •that the bank was entitled to be subrogated to Lanier’s lien on the funds. It is appellant’s contention that since the bank would not have been entitled to a lien for money advanced to Lanier in the absence of an assignment of his lien, or an agreement that the bank should be subrogated to Lanier’s rights, ■as held }>y us -on a former hearing [Brooks Construction Company v. First State Bank of Marquez (Tex. Civ. App.) 39 S.W.(2d) 83], and since the claim did not recite an assignment of the lien to the bank or a subrogation agreement, the claim was insufficient. The claim was filed by R. P. Carrington as cashier of the bank and was in writing and duly verified by him. The Brooks Construction Company had previously been notified by Lanier to pay all funds due him for such work on the job directly to the hank and must have known that the bank was claiming some interest in the funds. The claim set out the amount thereof and recited that the bank had furnished the funds evidenced thereby to Lanier, a subcontractor under Brooks Construction •Company, for the purpose of paying for certain labor and material used in the construction of the road in question. There was attached to the claim notes signed by Lanier and payable to the bank for the amount due the bank. These notes showed that they were given for money advanced to pay for labor and material. The claim recited that it was filed with the highway department in order to protect the bank against any payment to Brooks Construction Company. The state highway department accepted the claim for the sum of $2,122.65 and withheld such payment from the Brooks Construction Company. The release bond executed by Brooks Construction Company recited that the claim had been filed on account of merchandise furnished to Lanier as a subcontractor under Brooks Construction Company pursuant to the provisions of Vernon’s Ann. Civ. St. art. 5472a, and that the bond was given to insure the payment of such claim as provided by article 5472b — 1 (Acts 1929, 41st Leg., 2nd C. S., p. 154, e. 78). The statute authorizing the impounding of such funds by filing the claim with the state highway department does not prescribe the form nor the terms of such claim. It merely provides that “such person ⅝ * * shall * * * notify in writing the officials of the State * * * of his claim.” Vernon’s Ann. Civ. St. art. 5472a. It was evidently the intention of the Legislature to make the filing of such claim as simple as possible in order to accommodate the class of people who might have a right to file such claim. In the absence of some clear and specific statutory requirement as to the contents of such a claim, we are inclined to exercise liberality as to the form thereof. The claim filed in this case was sufficient to inform all those concerned therein of the nature of the rights asserted by the bank, and actually accomplished the purpose of inducing the state highway department to withhold the funds. The highway department recognized and accepted it and withheld the money from Brooks Construction Company and the construction company and its surety on the release bond recognized the purpose of the claim by executing a bond in which it was recited that the claim had been filed pursuant to the provisions of the very statute (article 5472a) creating the lien for merchandise furnished to Lanier as a subcontractor under the construction company. We think the claim as filed was sufficient under the statute.

Appellant’s next contention is that the bank’s claim is barred by limitation, and that the court erred in failing to sustain a plea of -limitation. The act in question provides that no action shall be brought on such release bond after the expiration of six months from the date of the filing thereof. Similar statutes have been held to be statutes of limitation and are governed by the same rules of construction. State Banking Board v. Pilcher (Tex. Com. App.) 270 S. W. 1004; Edwards Mfg. Co. v. Southern Surety Co. (Tex. Civ. App.) 283 S. W. 624. The case went to trial on an amended petition. Within six months after the filing of the release bond the bank filed its original petition and sought a recovery on the bond. The original petition alleged the contract by Brooks Construction Company to construct the road and that Lanier was a subcontractor thereunder; that at the request of Brooks Construction Company and Lanier the plaintiff had furnished them certain materials, etc., in that it had furnished the sum of $2,122.65 in money, which money was used by the bank at the request of Lanier and Brooks Construction Company to pay labor and material bills, which labor and material was used in the construction of the road and that it was agreed between them and the bank that the bank should be subrogated to all the rights of each and all persons furnishing labor and material for such work. The bank in such petition claimed and sought to enforce a lien on the funds in question. By trial amendment filed within such six-month period, the bank set out an itemized list of the labor and material claimed to have been paid for and funds furnished by it for the construction of the road. The plaintiff, however, did not allege that Brooks Construction Company was indebted to Lanier in any sum for work done by him under his contract and it did not allege specifically that Lanier had assigned to it any lien that he had on the funds. By an amended petition filed by the bank moré than six months after the execution of the release bond, the bank alleged for the first time that Brooks Construction Company was indebted to Lanier for work done and material furnished by him under said contract and that Lanier had set over and assigned to it all his rights in the premises. It is appellant’s contention that since more than six months elapsed after the filing of the release bond before plaintiff filed its amended petition in which it alleged for the first time that Brooks Construction Company was indebted to Lanier and that Lanier’s lien had been assigned to the bank, the plaintiff’s suit was barred by limitation. We think the original suit was sufficient to prevent the running of limitation. The plaintiff’s original petition not only alleged that plaintiff had furnished the material, etc., for the construction of the road, but it expressly alleged that it did so at the special instance and request of the construction company, Lanier and each and all of the several persons who had furnished labor and material used in the work and that all 'such persons agreed that plaintiff should be subrogated to all the rights of each and all of such persons. The original petition alleged that the bank had a valid claim against Lanier and' Brooks Construction Company for the amount sued for; that the bank was subrogated to the rights of the said Lanier and Brooks Construction Company, and that it was entitled to a lien on the funds due by the state to -Brooks Construction Company; that it had filed its claim with the state highway department attempting to fix a lien on said funds under and by virtue of the provisions of the statute in question; that the Brooks Construction Company had filed a release bond as provided by-statute and secured a release of such funds, in which bond it was recited that the bank had attempted to fix a lien in the amount of $2,122.65 against the contract so performed by Brooks Construction Company; and that the bank was entitled to the full benefit of said bond and was entitled to recover thereon. .

It is- apparent from the allegations of the original petition that the plaintiff was claiming a lien on the funds due by the state to Brooks Construction Company on the contract in question on account of having furnished the money with which labor and material bills were paid and that it was seeking to recover on the release bond on account of a subrogation agreement between it and Lanier and Brooks Construction Company. It is true that the word “assignment” was not exjpressly used', but the allegation of an agreement for subrogation to the rights of each and all of the parties concerned, was at least equivalent to an allegation of an equitable assignment of any right such parties or either of them had to fix a lien.

The object of a statute of limitation in requiring the complaining party to assert his claim within a reasonable time is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the other party after the evidence which would sustain a defense has been lost. 37 C. J. 6S4. A petition which advises the defendant of the nature of the claim asserted is sufficient to toll the statute of limitation even though it fails to allege some essential element necessary to a recovery, and as a consequence is subject to a general demurrer. Fuller v. El Paso Times Co. (Tex. Com. App.) 236 S. W. 455; M.-K.-T. Ry. Co. v. Johnson (Tex. Civ. App.) 25 S.W.(2d) 956, par. 2; McCamant v. McCamant (Tex. Civ. App.) 203 S. W. 118; Kauffman v. Wooters, 79 Tex. 205, 13 S. W. 549. It is only necessary that the amended petition filed after the running of limitation state a cause of action which is substantially. the same and not materially different from that advanced in the pleading filed during the period of limitation. Cochran v. Carruth (Tex. Civ. App.) 12 S.W.(2d) 1078; Fuller v. El Paso Times Co. (Tex. Com. App.) 236 S. W. 455. Tested by the above rules, we think the original petition filed before the action was barred was sufficient to stop the running of limitation on the cause of acfion on which recovery was had. City of San Antonio v. Reed (Tex. Civ. App.) 192 S. W. 549; Mann v. Mitchell (Tex. Civ. App.) 241 S. W. 715; McCamant v. McCamant (Tex Civ. App.) 208 S. W. 118; Townes Texas Pleading (2d Ed.) 456, 457.

The court rendered judgment for the amount found to be due Lanier by Brooks Construction Company at the time the claim was filed. Appellant contends that the evidence was insufficient to show that Brooks Construction Company was indebted to Lanier in an amount equal to the judgment herein rendered at the time the bank filed its claim. The case -was tried before the court without a jury. No findings of fact were requested or filed. We think there is sufficient evidence in the record to support the judgment and since we must indulge all reasonable presumption in favor of the judgment, we overrule this contention.

The judgment of the trial court is affirmed.


author: O’QUINN, J.

text:
    SOUTH TEXAS LUMBER CO. et al. v. NICOLETTI.
    No. 2241.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 25, 1932.
    Rehearing Denied Nov. 30, 1932.
    Platt, West & Stevenson, of Houston, for appellants.
    Adams & Moore and Morris & Bennett, all of Beaumont, for appellee.
   O’QUINN, J.

This is a garnishment suit, ancillary to the suit of P. Nieoletti v. J. G.' Berwick. October 16, 1929, Nieoletti recovered judgment in the county court at law of Jefferson county, against J. G. Berwick, for the sum of $260, together with costs of suit, and interest from the date of the judgment until paid at the rate of 6 per cent, per annum.

May 30; 1931, Nieoletti caused a writ of garnishment to'be issued by the clerk of said court to the Beaumont Building & Loan Company, one of the appellants, which writ was duly served on same day. July 19, 1931, said garnishee filed its answer, in which it impleaded the South Texas Lumber Company and J. G. Berwick, defendant in the original cause. Por convenience and brevity we shall refer to the Beaumont Building & Loan Company as the loan company and the South Texas Lumber Company as the lumber company.

In its answer, the loan company alleged that on January 28, 1931, L. W. Nelms and wife entered into a certain building contract with J. G. Berwick, as contractor, for the construction of certain improvements on land in the city of Beaumont in which they agreed to pay Berwick for said improvements the sum of $3,000, evidenced by a note of even date with the contract, payable to said Berwick on or before 60 days with 8 per cent, interest, secured by a lien created by said contract; that by an unrecorded assignment dated January 28, 1931, Berwick transferred and assigned said note and lien to the lumber company; and that it, said garnishee, was informed and believed that thereafter said lumber company claimed it was the legal •owner and holder of said indebtedness and note and lien securing the payment of same. That about March 31, 1931, said Nelms applied to said loan company for a loan, which was approved for $2,500, with which to take up the balance of said original indebtedness and lien; that in order to carry out the loan, inasmuch as the transfer to the lumber company had not been recorded, a transfer was taken direct from said Berwick to the loan company, said transfer being dated May 28, 1931, but that said loan company was then notified and informed that said lumber company was the owner of said original note and lien by virtue of said unrecorded transfer from Berwick, dated January 28, 1931, and that said lumber company was entitled to the proceeds of said loan of $2,500; that about said date, May’28,1931, said lumber company delivered to said loan company said unrecorded transfer dated January 28, 1931, and the original note for $3,000 of said date, but that before payment was made of the proceeds of said loan, a writ of garnishment was served on it, said loan company, on May 30, 1931, whereupon it, said garnishee, retained in its possession said funds pending the termination of the cause.

June 29, 1931, Berwick answered the plea •of the loan company, disclaiming any interest whatever in the funds held by the garnishee, and admitted that said funds and the proceeds of said loan belonged to the lumber company, and that he (Berwick), had long prior to the issuance of the garnishment writ, parted with his interest in or to said funds.

June 29, 1931, the lumber company filed its original answer to the pleading of-the loan , company, and on October 6, 1931, filed its amended answer duly verified. In said an•swer the lumber company alleged that it had purchased the original note from Berwick January 28, 1931, and had long prior to the issuance of the writ of garnishment fully paid Berwick the full consideration thérefor .and had been in the possession of said note since the date of its execution as the sole •owner and holder thereof, and that Berwick had no interest in the note or the proceeds of the loan being made by said garnishees. That about August 20, 1931, $1,900 of said fund was paid to it, said lumber company, by said loan company under an agreement with the plaintiff, Nicoletti, but that the remainder, $600, was being withheld from said lumber company by said loan company, and prayed for judgment against plaintiff Nicol-etti and said loan company for the said $600, attorney’s fees, interest, and costs of suit.

Subsequent to the service of the writ of garnishment on the loan company, on June 25, 1931, plaintiff Nicoletti caused a writ of garnishment to be issued against appellant lumber company, which was duly executed the same day. June 27, 1931, said lumber company answered said writ denying that it was indebted to said Berwick in any amount whatever, and denied that it had in its possession any effects belonging to said Berwick, and denied that said Berwick was the owner of any shares of stock in said lumber company, and that it did not know of any person who was indebted to Berwick, and prayed that it be discharged with its costs and attorney’s fees.

On motion of Nicoletti the' two garnishment suits were consolidated, and the cause proceeded under the style P. Nicoletti v. J. G. Berwick, Defendant, and South Texas Lumber Company, Garnishee.

October 8, 1931, Nicoletti filed his answer to the pleadings of the two garnishees and defendant Berwick. In his answer he alleged that there was no transfer from Ber-wick to the South Texas Lumber Company of the original Nelms note and lien; that if there was such transfer, the same was not recorded and was, therefore, void as to gar-nishor, who had no notice, actual or constructive, of said transfer; that if such transfer was actually made, it was an assignment of an interest in land, subject to the registration statutes of frauds, and subject to the lien given any judgment creditor who abstracts, records, and. indexes his judgment; that prior to the giving of the note and lien by Nelms, he (Nicoletti) had caused his judgment against Berwick to be duly abstracted, recorded, and indexed in the office of the county clerk of Jefferson county, Tex., which gave to plaintiff a lien against the interest of Berwick under the mechanic’s lien contract made by Berwick with Nelms and wife; that the South Texas Lumber Company knew of the judgment which plaintiff had against Berwick; and that it, said lumber company, became the transferee of said note and lien without recording same, with intent to hinder, delay, and defraud the creditors of said Berwick, and that said lumber company was trustee for the benefit of the creditors of Berwick, and, but for said fraudulent scheme and plan, plaintiff could have known that said note and lien were transferred to said lumber-company, and could have garnisheed said company. He further alleged that said lumber company had recon-veyed said note and lien to Berwick and that Berwick was the owner thereof on May 28, 1931, when he (Berwick) assigned same to the loan company; that said lumber company knew of plaintiff’s claim and was not a bona fide purchaser of said note and lien.

October 12, 1931, the lumber company filed supplemental answer to plaintiff Nicoletti’s pleading mentioned above, consisting of a general demurrer, numerous special exceptions, again denied that it was indebted to Berwick or had effects in its possession belonging to him, or that Berwick was the owner of any shares of stock in the company, and . by cross-action,- the particulars of which need not here be stated, prayed for judgment against Nieoletti for the sum of $600, with attorney’s fees, interest, and costs of suit.

All the exceptions of garnishee lumber company were overruled, and the causes, as consolidated, were tried to the eourtnvithout a jury, and judgment entered in favor of plaintiff Nieoletti against garnishees Beaumont Building & Loan Company and South Texas Lumber Company, for the sum of $260, with interest thereon at the rate of 6 percent. per annum from October 16, 1929, and all costs, including those in the garnishment proceedings, and that South Texas Lumber Company recover nothing by its cross-action against Nieoletti, but that it recover of the Beaumont Building & Loan Company the remaining amount due out of the $600 after the judgment of plaintiff Nieoletti had been paid. By its judgment the court found that the Beaumont Building & Loan Company was indebted to the defendant Ber-wick in the sum of $600 at the time the writ of garnishment was served upon it, and that garnishee South Texas Lumber Company, at the time the writ of. garnishment was served upon it, had in its possession effects of defendant Berwick and was attempting to dispose of said effects which belonged to the creditors of said Berwick.

Both garnishees, South Texas Lumber Company and Beaumont Building & Loan Company, excepted to the judgment above mentioned, gave notice of appeal, and each perfected its appeal by filing supersedeas bond, and the' ease is before us for review.

The court filed his findings of fact and conclusions of law. There is also in the record a complete and full statement of the facts prepared by the stenographer who reported the case, which is agreed to by the parties and approved by'the court.

Many assignments of error, propositions, and counter propositions are found in the briefs of the parties, raising various and numerous questions, many of which we do not think are material to the disposition of the appeal, so we shall not discuss them seriatim, but only those deemed pertinent and necessary to a determination of the ease.

Briefly stated, the facts show that on October 16, 1929, plaintiff Nieoletti recovered a judgment in the county court at law of Jefferson county, Tex., against J. G. Berwick for $260 and costs of court. March 28, 1930, he caused said judgment to be abstracted, recorded, and indexed in the county clerk’s office of said county. January 28, 1931, L. W. Nelms and wife contracted with said Berwick to build for them a five-room residence on lot 10 in block 10 of the Calder Highlands addition to the city of Beaumont, in Jefferson county, Tex., for which they agreed to pay him the sum of $3,000, and executed and delivered to said Berwick their note in the sum of $3,000, together with a mechanic’s and materialman’s lien on said property to secure the payment of said note, dated January 28, 1931, and payable in sixty days. On said date, January 28, 1931, by written assignment, Berwick transferred said note and lien to the South Texas Lumber Company. On the back of this transfer were these indorsements: “Loan No. 840. Hold — do not record. The note should be.delivered to Beaumont Building & Loan Co.”' May 28,1931, Berwick executed and delivered to the Beaumont Building & Loan Company a transfer of said $3,000 note and lien, for which said loan company was to pay the sum of $2,500. This transfer was filed for record the same day. Before the jponey was paid, Nieoletti had writ of garnishment served on said loan company. That was the beginning of this suit. In discussing the questions passed upon, further statement of the facts will be made.

We think the undisputed facts show that at the dates the writs of garnishment were served on garnishees the South Texas Lumber Company was the owner and holder of said note and lien, and held same free from any claim or right of appellee by reason of his garnishment suits. Appellee makes several contentions why this is not so.

(a) It is first contended that in fact there was no transfer from Berwick to Sopth Texas Lumber Company of the note and lien. As above stated, the note and lien were executed by Nelms and wife and delivered to-Berwick on January 28, 1931, and on said date Berwick, by written assignment, transferred and delivered same to South Texas-Lumber Company. The undisputed evidence-shows that said lumber company furnished to Berwick material with which he built the-house for Nelms, and money to meet the; pay rolls for labor, and long before the writ of garnishment was served on either of the garnishees had fully paid Berwick for said note. But it is contended by appellee that ownership of and title to the note and lien did not pass to the lumber company because-Berwick, by written transfer, conveyed the note and lien to the Beaumont Building & Loan Company at a later date, to wit, on May 28, 1931, and so it could not theretofore have been the property of the lumber company. This contention is not sound. The undisputed evidence shows that the transfer from Berwick to the lumber company was merely a matter of convenience and to save delay and costs in negotiating a loan with the loan company. The loan company had full notice that Berwick had • theretofore transferred the note and lien to the lumber company, and that Berwick was making no claim to any interest in the note. The transfer from Berwick to the lumber company, not having been placed of record, at the suggestion of the attorney for the loan company and with the consent of the lumber company and the statement in writing of Berwick that he had no interest in the note and made no claim to same, the transfer of the note and lien to the loan company to obtain a loan was made directly by Berwick to the loan company as d short cut to closing the matter. In this there was nothing illegal nor fraudulent, and the transaction thus made did not in any manner affect or lessen the lumber company’s ownership of or rights in the note or the proceeds of the loan thus secured; The statement on the back of the transfer (in pencil), “Hold — do not record. The note should be delivered to the Beaumont Building & Loan Co.,” was placed there by the attorney of yie loan company when the loan was negotiated.

(b) It is insisted by appellee that conceding that Berwick intended to and did transfer the note to the lumber company, said transfer was void, as to appellee, because appellant lumber company failed to put its transfer on record. The trial court, in his conclusions of law, so held. This contention cannot be sustained. The fact that the transfer was not placed of record in no wise affected appellants’ rights in the premises. The transaction was not such as entitled appellee to notice. “The general rule is that garnishment, like other proceedings in invitum, affects only the property, money, credits and effects of the debtor in the hand's of the garnishee, and the rule relating to bona fide holders or purchasers without notice has no application. And so it is likewise immaterial whether plaintiff has notice of the assignment before he brings his action.” 28 O. J. § 153, pp. 110, 111. This is the rule in this state. 20 Tex. Jur. § 82, p. 810; Adams v. Williams, 112 Tex. 469, 478, 248 S. W. 673; Amarillo Nat. Bank v. Panhandle Telephone & Telegraph Co. (Tex. Civ. App.) 169 S. W. 1091.

(c) But appellee says that article 6627, R. S. 1925, requires that the transfer in question must have been recorded or it would be void as against “all creditors and subsequent purchasers.” This upon the theory that the said instrument (the transfer of the note and lien) was a conveyance of land or an interest in land. Registration statutes are for the purpose of supplying notice. We have already held that the transaction in question was not such as that lack of notice of same would affect appellee’s rights. While the assignment by Berwick to the lumber company was such as was permitted to be recorded, still it is not one that was required to be recorded in order to protect the rights and equities of the lumber company against garnishing creditors of Berwick. The transfer was not of land, but of a promissory note secured by a lien on land. The lien was but incidental to the note.' The .transfer of the note to the lumber company carried with it the lien. The assignment or transfer of the note and! not the lien determined the ownership of the property. Moreover, though an instrument be entitled to registration, still it is not required to be recorded in- order to protect equitable title evidenced thereby against attaching creditors. Johnson v. Darr, 114 Tex. 516, 272 S. W. 1098; Sugg v. Mozoch (Tex. Civ. App.) 293 S. W. 907 (writ refused); Gamer v. Love (Tex. Civ. App.) 41 S.W. (2d) 356. Rights acquired by judgment liens, attachment liens, and garnishment proceedings are restricted to the actual interest of the judgment debtor, at the time of filing and recording the judgment or acquiring the lien, except as modified by the registration laws. Appellee here seeks to invoke the aid of the registration statutes because at the time its writ of garnishment was served appellant lumber company’s transfer of the note from Berwick was not of record, and that he had no notice of it. His exact contention is that he occupies the position of a judgment creditor without actual or constructive notice of an unrecorded transfer of the judgment debtor’s interest in the property sought to be subjected to his debt, and, therefore, his judgment lien and garnishment cannot be defeated by the unrecorded transfer under the force of the registration laws. But appellee does not occupy that position. Berwick never owned the property on which the lien was given, but merely a lien on the property to secure the payment of the note. It is well settled that vendor’s lien notes and mechanic’s lien notes are personal property. In relation to such liens, the registration statutes have no application. Sugg v. Mozoch (Tex. Civ. App.) 293 S. W. 907, 909 (writ refused); First State Bank of Amarillo v. Jones, 107 Tex. 623, 630, 183 S. W. 874.

(d) It is insisted that as appellee had caused his judgment against Berwick to be duly abstracted, filed, recorded, and indexed, the lien thus claimed attached to the note and lien in the hands of Berwick at the time he acquired same and was superior to that acquired by the South Texas Lumber Company by transfer from Berwick. This contention is based upon articles 5448 and 5449, R. S. 1925.

Article 5448 provides that county clerks shall keep what is termed a “judgment record,” wherein he shall immediately record all abstracts of judgment when presented to him for record, etc.

Article 5449 reads: “When any judgment has been so recorded and indexed, it shall from the date of such record and index operate as a lien upon all of the real estate of the defendant situated in the county where such record and index are made, and upon all real estate which the defendant may thereafter acquire situated in said county. Said lien shall continue for ten years from the date of such record and index; hut if the plaintiff fails to have execution issued upon his judgment within twelve months after the rendition thereof, said lien shall cease to exist.”

It is seen that the statute makes the judgment lien to operate only upon real estate— land. Since Berwick at no time became the owner of the real estate upon which the lien in question rested, the judgment lien was without. force and has no hearing on the case.. Sugg v. Mozoch (Tex. Civ. App.) 293 S. W. 907 (writ refused); Gamer v. Love (Tex. Civ. App.) 41 S.W.(2d) 356.

Aside from and independently of the matters above discussed, appellee was not entitled to recover. The effect of garnishment is merely to impound such debt as the garnishee may owe the garnishor’s debtor, and the effects in the hands of the garnishee belonging to the debtor. If at the time the writ of garnishment is served the garnishee does not owe the debtor, and has none of the debtor’s effects in his possession, no judgment against him can be had. Berwick was the original payee of the note. For valuable consideration fully paid he had transferred the note to garnishee South Texas Lumber Company before maturity of the note and long before being served with the writ in garnishment. Owing Berwick nothing, and having no effects of Berwick in its possession, judgment should have been for garnishee appellant South Texas Lumber Company.

■ The judgment is reversed and here rendered for appellant South Texas Lumber Company, that appellee Nicoletti take nothing as against it by his suit in garnishment, but that said lumber company do have and recover of said Nicoletti and the Beaumont Building & Loan Company, jointly and severally, the sum of $600, the funds remaining in the hands of said garnishee Beaumont Building & Loan Company. It appearing that the garnishment proceedings were wrongfully instituted by Nicoletti, it is the further judgment of the court that the South Texas Lumber Company have judgment against Nicoletti for interest on said sum of $600 at the rate of 6 per cent, per annum from May 28, 1931, to November 10, 1932, the date of this judgment, amounting to the sum of $58.20, and it further appearing that $1,-900, a portion of the funds in the possession of the Beaumont Building & Loan Company belonging to the South Texas Lumber Company, was held under said Nieoletti’s writ of garnishment from May 28, 1931, to August 20, 1931, before payment of same was made to said lumber company, it is the judgment of the court that said lumber company recover from said Nicoletti interest on said sum at the rate of 6 per cent, for said time, amounting to $25.65. It is the further judgment of the court that said Beaumont Building & Loan Company, South Texas Lumber Company, and J. G. Berwick recover of P. Nicoletti all costs in this behalf expended. It is further adjudged that garnishee Beaumont Building & Loan Company have judgment for $25 as attorney’s fees for answering, it having prayed for such fee, and the court having found that same is reasonable, and that same be taxed as costs against plaintiff Nicoletti.