author: GRAVES, Justice.

text:
    DICKSON et al. v. McLAUGHLAN.
    No. 10083.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 15, 1934.
    Rehearing Denied March 8, 1934.
    . Carlos Masterson, of Angleton, and W. C. Douglas, of San Antonio, for appellants.
    A. R. Rucks, of Angleton, for appellee.
   GRAVES, Justice.

This appeal — a repercussion from the same cause between these parties touching the custody of their minor child that was formerly before this court, the proceedings in which are reported in 51 S.W.(2d) 628—is from a later judgment of the trial court rendered on July 29 of 1933, whereby — in response to changed conditions that required the removal of the adoptive father to the state of Louisiana — the court’s prior vesting of the custody of the child on July 25 of 1932 was so modified as to permit the adoptive father to have the child with him in the place of his new residence in Louisiana during the times its control was vested in him by the prior decree— subject, however, to conditions that he should not remove her to any other states than Louisiana and Texas; that he should redeliver her to her adoptive mother in Houston, Tex., on December 23 of 1933, as well as at the succeeding times provided in such prior order of July 25 of 1932; that the mother should have the right of visiting the child when she was in Louisiana, and finally that the original decree fixing the custody of the child, entered on the 25th day of July, 1932, should “remain in full force and effect except as herein modified, and as herein modified said decree shall remain in full force and effect until further orders of this court.”

The appellants attacked the judgment as modified on the sole ground that it was beyond the jurisdiction ef the court, and, in conjunction with their appeal to this court, pending the determination thereof, sought a temporary injunction against the removal of the child from Texas, and on a final hearing a mandatory injunction preventing any further removal of the child from this state.

The cause was not reached for determination here until the 8th day of February of 1934, at which time the undisputed proof presented to this court showed that the child had been ■ delivered, in compliance with the trial court’s order, to the appellants in Houston on the 23d day of December of 1933; ■who had since that date and still did hold possession of her in the state of Texas; obviously, therefore, the cause of action for the temporary injunction has become, moot.

This left nothing before this court on appeal except the challenge of the trial court’s jurisdiction to make the appealed from change in its prior order whereby, in special circumstances found, it permitted the appel-lee to so take the child with him at such times as he had been before permitted to have her to his new residence in the state of Louisiana; in the opinion of this court, the plea was not well taken, as is held in the only case appellants cite to this court, Futch v. Futch (Tex. Civ. App.) 299 S. W. 289, it is true that ordinarily the courts do not award the custody of a minor child to one either living outside of or contemplating immediate removal from the state in whose courts the custody has been determined, but in special circumstances justifying that action it is well recognized that they have such power; in the Futch Case this principle, together with a reference to the authorities supporting it, is stated. Among these references, in 14 Cyc., page 809D, it is said: “On the other hand, it has been held that, if it is conducive to the best interest of the child, its custody may be awarded to a parent who resides without the state, or is about to depart therefrom and live elsewhere”; to the same purport is a like declaration in 19 Corpus Juris, page 348, par. 805; among the cases cited in both the texts referred to are those of Griffin v. Griffin, 18 Utah, 98, 55 P. 84; Stetson v. Stetson, 80 Me. 483, 15 A. 60; Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450; In re Krauthoff, 191 Mo. App. 149, 177 S. W. 1112.

In the Weatherton v. Taylor Case, 124 Ark. 579, 187 S. W. 450, at page 452, the Supreme Court of Arkansas says:

“We do not hold that it is beyond the power of a court to make such an order, for if the established facts justify the conclusion that the mother of the child is capable of giving proper care to the child, and that she will comply with the orders of the court, it would not be beyond the power of the court to permit her to take the child to her home in another state.”

See, also, in addition to the citations made in the texts, supra, 17 Century Digest, Divorce, § 789; 9 Second Decennial Digest, Divorce,

It would seem, therefore, from the quoted pronouncements of the courts that the best interest of the child being the paramount consideration as universally recognized, the matter of removal of the child from the state under such circumstances as here obtain is not one that goes to the power of the trial court but rather to its discretion, and, 'if that is not abused, there is no lack of authority to enter such an order when the justifiable conditions exist, 17 Cent. Dig., Divorce, § 806, 9 Second Decennial Digest, Divorce, in consonance with this principle, it has been suggested in many of the authorities herein instanced that the trial court might, in the exercise of its province, require the parent to whom such permission is given to remove'the child from the state, to give security, or other special assurance, that it would not be permanently taken from the jurisdiction.

If, therefore, the adoptive mother in this instance, as against the overriding consideration that the child’s best interest was necessarily paramount with the court, felt herself aggrieved by the possibility that this changed order might leave the court impotent to protect her yet - subsisting rights in its custody, she was not without the opportunity to so represent to the court below; neither would the court have then been, nor will it hereafter be — haring so retained general control over the child — without authority within the limits of a sound judicial discretion to hear and grant such relief in that respect, or in any other, whether it relates to a removal of the child from the state of Texas or not, as the showing at the time of such hearing justifies; nothing of that sort, however, appears to have been done at the trial here under review'.

These conclusions require an affirmance of the judgment; it will be so ordered.

Affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    STEINBERGER et al. v. LILES.
    No. 2535.
    Court of Civil Appeals of Texas. Beaumont.
    March 19, 1934.
    Rehearing Denied March 21, 1934.
    L. B. Moody, of Houston, for appellants.
    J. L. Pitts, of Conroe, for appellee.
   O’QUINN, Justice.

Appeííants brought this suit against appel-lee in the district court of Montgomery county, Tex., seeking to recover judgment on account of an alleged deficiency of 50 acres of land under an assignment of an oil and gas lease. The bonus paid for the lease was $6,-000 in cash, and $25,000 to be paid in oil. The amount sought to be recovered was $1,572.90 of the $6,000 cash paid, and a reduction of the $25,000 to be paid in oil to $18,446.92.

Appellee answered by general demurrer, special exceptions, general denial, and specially denied that he had made any representations to ^appellants as to the amount of the acreage in the tract of land, and that the extent of the acreage was unknown to him. He further specially denied that the sale was made on an acre basis, but that same was a conveyance in solido, and that there was no warranty in the assigned lease as to the acreage. He denied fraud, and alleged that appellants were estopped to claim shortage because of their failure to inform themselves as to the extent of the acreage included in the lease for in that they were in as good position as appellee to ascertain same, and had all the facilities and were possessed of all the knowledge relating to same as appellee. He further answered and said that appellants were not entitled to recover because since their purchase of the lease they had sold the property which they actually obtained under the lease for a sum in excess of the amount they paid to appellee, and hence had not suffered any injury.

The case was tried to a jury upon one special issue, which reads:

“At the time of the negotiations between plaintiff, Steinberger, and the defendant concerning the assignment by defendant to Stein-berger of the unsold portion of the lease from Robert Cartwright, Jr., to defendant, covering certain lands in the John A. Davis Survey, or at and prior to the execution of said assignment from defendant to Steinberger, did defendant represent or state to said Steinber-ger that the number of acres covered by the unsold portion of said Cartwright lease, and conveyed to Steinberger by' defendant, was as much as 190.75 acres.
“Answer yes or no as you may.find the facts to be.”

The jury answered, “No.”

Upon the answer of the jury, judgment was entered that appellants take nothing by their suit. Motion for a new trial was overruled, and the case is before us on appeal.

Appellants’ two assignments of error are in effect the same, and assert that the court erred in overruling their motion for a new trial because the answer of the jury to special issue No. 1 is against the undisputed evidence because, they say, the undisputed evidence proves conclusively that at the time of and prior to the execution of the assignment of the lease in question, appellee exhibited to appellant Steinberger the lease assigned to said Steinberger, and represented to said Steinberger that the undisposed of acreage covered by said lease was as much as 190.75 acres, and therefore the said verdict of the jury was without support in the evidence.

Appellants admit in their brief that the evidence was conflicting as to whether or not appellee made any verbal statements to Stein-berger as to the number of acres covered by the assigned lease, and that they do not complain of the answer of the jury that appellee did not state to Steinberger that the unsold acreage covered by the lease was as much as 190.75 acres, but they say that the finding' of the jury, to the effect that appellee did not represent to Steinberger that such number of acres was as much as 190.75 acres, is against the undisputed evidence.

December 8,1931, Robert I. Cartwright, Jr., of Dallas county, Tex., for a valuable consideration, executed to appellee, J. Robert Liles, of Montgomery county, Tex., an oil lease; the land leased being described as follows: “All land and interest in land owned by lessor in the John A. Davis Survey, Abstract.No. 188 in Montgomery County, Texas, and estimated for the sole purpose of computing the bonus and rentals due and that may become due under this lease, at two hundred eighty five (285) acres of land, whether there be more or less.”

The lease contained no field notes describing the land by metes and bounds.

The lease, clause 4, provided that if operations were not commenced on said land on or before one year from the date of the lease, the lease should terminate, unless on or before the expiration ■ of said period, one year, the lessee paid or tendered payment to the lessor the sum of $570. The lease could thus be kept alive for a term of five years, and carried the right to assign same.

January 30, 1932, appellee conveyed to W. N. Hooper 50 acres out of said Davis tract covered by said lease, and on March 12, 1932, assigned and conveyed to the Imperator Oil Corporation 44.25 acres out of said tract. On April 2,1932, Liles assigned the entire unsold portion of his lease from Cartwright to appellant Clint 0- Steinberger for a consideration of $6,000 cash, and $25,000 to be paid in oil.

The instrument by which appellee assigned to Steinberger the unsold portion of the Davis tract of land leased to him by Cartwright,after reciting the facts (Cartwright’s lease to Liles, Liles’ sale of 50 acres to Hooper, and 44.25 acres to Imperator Oil Corporation), continued: “And, whereas, it is the intention of the said J. Robert Liles, lessee, in the above described lease, to bargain, grant, sell and convey and assign by this conveyance all of the certain tract of land conveyed by said lease, save and except the two tracts above referred to, which have heretofore been conveyed, and * * * the undersigned, the present owner of said lease, and all rights thereunder or incident thereto, does hereby bargain, sell, transfer, assign and convey unto Clint O. Steinberger all the rights, title and interest of the original lessee and present owner in and to said lease and the rights thereunder so far as it covers the above described tract of land.”

There was no warranty other than that the ¡lessop Liles, was the owner of the lease from Cartwright, and had authority to assign same, and that the lpnd covered by the assigned lease was free from liens and incumbrances.

After Liles assigned to Steinberger the Cartwright lease, less the tracts of 50 and 44.25 acres he had sold, Steinberger .investigated.the extent of acreage in the Davis tract leased by Cartwright to Liles, and it was. found that it contained' only 235 acres. On the trial it was agreed by the parties that this was the correct acreage of the tract. It is contended by appellants that they acquired the lease from appellee on an acre basis, and •that the tract was represented to Steinberger as containing 285 acres, and as it actually contained only 235 acres, they are entitled to recover the pro rata part of the $6,000 cash paid for the lease to the extent of the shortage, 50 acres, or $1,572.90.

The contention is without merit. We think the lease on its face clearly shows that the land was not conveyed by the acre, but that it was a conveyance in solido. The description of the land- in the Cartwright lease to appel-lee reads: “All land and interest in land owned by lessor in the John A. Davis Survey, Abstract No. 188, in Montgomery County, Texas, and estimated for the sole purpose of computing the bonus and rentals due and that may become due under this lease, as 285 acres of land, whether there be more or less.”

This description was carried in the assignment of the unsold portion of the land to Steinberger by appellee. It says the amount of the acreage was an estimated one, and that the estimate was for the sole purpose of computing bonus and rentals, not for fixing the purchase price by the acre. Furthermore, it says that the amount of the acreage, for the purposes named, was estimated at 285 acres, “whether there be more or less.” That was a very plain and certain statement that the amount of the acreage was thus fixed for the purpose of lease dealing only, though there might be more or less than the number of acres estimated, and that the consideration for the lease was paid for the estimated acreage, and not upon any representation of any nature that there were actually 285 acres in the tract conveyed.

It is not contended that appellee Liles had any more knowledge of the actual acreage of the tract of land than did Steinberger, appellant. It is also undisputed that Steinberger had equal opportunity with appellee to investigate as to the facts relative to the survey. The John A. Davis survey, abstract No. 188, was of record in Montgomery county. Neither appellant nor appellee had made any investigation as to the actual acreage of the tract prior to the leasing by the parties. Appellant knew that the record existed. He could have investigated it if he desired. The jury found that appellee did not represent to appellant that there was 285 acres in the tract of land. Appellant admits the correctness of this finding, except he insists that the findings should be confined to verbal statements or representations, admitting that such were not made, but insists that when appellee showed his lease from Cartwright to appellant, and this ■lease contained the language that the extent of the acreage was estimated at 285 acres for the purpose of computing the bonus and rentals, that this was a representation by appel-lee that there was actually that amount of land in the tract. What we have said above disposes of this contention, but we again say that there is no force in this contention. The instrument spoke for itself. Its meaning was clear and as apparent to appellant as to ap-pellee,- who had acted upon it in acquiring the lease from Cartwright, and also upon assigning the unsold portion to appellant Steinber-ger. Appellant accepted this assignment with this description staring him in the face, putting him upon notice that the acreage was unknown, and that the amount of’acreage was estimated solely for leasing purposes, and that it was understood by all the parties, from Cartwright down to and including appellant Steinberger, that there might be more or less land than estimated, and that under the instrument in either case the estimate was binding for the purpose stated.

No fraud or mistake being shown, and the evidence supporting the finding of the jury that appellee made no statements or representations to appellant as to the acreage covered by the assigned lease, the judgment should be affirmed, and it is so ordered.'

Affirmed,


author: MARTIN, Justice.

text:
    AGRICULTURAL BOND & CREDIT CORPORATION et al. v. SHEPHERD et al.
    No. 4148.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1934.
    Rehearing Denied March 26, 1934.
    Sanders & Scott, of Amarillo, for appellants.
    Philip Wolfe, of Pampa, and Kinney & Ritchey, of Miami, for appellee Cal Shepherd. John F. Sturgeon, of Pampa, for appellee Lon Blanseet.
   MARTIN, Justice.

Appellee Cal Shepherd filed suit in the district court of Gray county, Tex., against Lon Blanseet, sheriff of said county, and the Agricultural Bond & Credit Corporation of Chicago, for the unlawful conversion of 717 bushels of wheat “of the reasonable market value of $400.00.” He sued further for exemplary damages in the sum of $1,000, alleging “that all of the acts in converting said wheat were willful and malicious and gross negligence on the part of said defendants and each of them.”

Agricultural Bond & Credit Corporation, hereinafter referred to as the credit corporation, filed answer, the nature of which sufficiently appears in the opinion.

Sheriff Blanseet filed a general demurrer and general denial and a cross-action against the said credit corporation as principal and the United States Fidelity & Guaranty Company as surety upon a certain indemnity bond, the nature of which will appear hereafter.

The present controversy grew out of the following facts: On July 1, 1931, N. W.' Shepherd, son of appellee Cal Shepherd, executed and delivered to said credit corporation his promissory note securing it by a chattel mortgage on “my %rds interest in 250 acres of wheat ⅜ * ⅜ on the Cal Shepherd place in the north half of Sec. 188, Block B2 of Gray County, same to be delivered to mortgagee at White Deer, Texas, free from any charge, liens, etc. * ⅜ ⅜ This mortgage ■covers any other crops that may be grown on the above described land in the year 1931.” Thereafter suit was filed against N. W. Shepherd on the above-described note and for a foreclosure of said chattel mortgage. In this suit a writ of sequestration was issued and levied upon 717 bushels of wheat on the place occupied by N. W. Shepherd, which was subsequently sold in part satisfaction of a judgment rendered in the aforesaid suit. The appellee Cal Shepherd claimed said 717 bushels of wheat as his own, alleging in his aforesaid suit that same was rent being held for seed wheat.

The trial was before .the court, who sus^ tained the claim of Cal Shepherd and entered judgment in his favor against the said sheriff and credit corporation for the sum of $168.81 actual damages and against the said credit corporation for the’ sum of $150 exemplary damages, and further rendered judgment in favor of Sheriff Blanscet against the United States Fidelity & Guaranty Company on his cross-action for the sum of $168.-81 together with $100 as attorney’s fees. The said credit corporation and the United States Fidelity & Guaranty Company alone have appealed.

There are a great many questions presented for consideration. Some of these are considered by us as being too trivial to consume space in their discussion. Others will pass out of the case by the disposition we make. We have concluded that this case must be reversed and remanded, and we discuss here only such controlling legal questions as we believe will enable the trial court to correctly dispose of the controversy herein.

We sustain appellant credit corporation’s contention that the court erred in rendering a judgment for exemplary damages against it. We find no evidence in this record that any officer in position to bind the company did any act concerning the matter complained of or that the corporation with knowledge of the wrong alleged to have been done ever adopted or ratified any act of any alleged agent. We quote:

“The rule of law that the master is not liable in exemplary or punitory damages for the torts of the servant unless he authorized the same, or with knowledge of the wrong and its nature has adopted or ratified it, so as to make it his act in fact, is too well settled in this state to be now questioned.
“No such authority is possessed by a local agent or a subordinate employee as a general rule, or at least we are not authorized to presume the existence of the authority upon their part in the absence of proof to that effect. * ⅜ *
“Where the act of the servant amounts to a crime, or is of a willful and malicious character, the law prima facie presumes that the perpetration of the wrong was not authorized before or sanctioned afterwards by the principal, and this presumption continues, until repelled by proof to the contrary.” Gulf, C. & S. F. Ry. Co. v. Reed, 80 Tex. 362, 15 S. W. 1105, 1106, 26 Am. St. Rep. 749.
“It is now the settled law of this state, that, to make a corporation liable for exemplary damages, the ‘fraud, malice, gross negligence or oppression’ which must authorize and justify the same, must have been committed by the corporation itself, or some superior officer representing it in its corporate capacity; or, if committed by a subordinate servant or agent, the act must have been either previously authorized, or subsequently ratified or approved by the company or such superior officer after knowledge of the facts.” Western Union Tel. Co. v. Brown, 58 Tex. 170, 44 Am. Rep. 610.

See, also, Samples v. W. R. Pickering Lumber Co. (Tex. Civ. App.) 291 S. W. 254; Wallace v. Finberg, 46 Tex. 50; 13 Tex. Jur. 250.

In this case a writ of sequestration was issued and served, but the record is bare of any proof as to who made the affidavit or whether any in fact was ever made. Ap-pellee Cal Shepherd claims that the appellant credit corporation knew that this wheat was his before the issuance and service of the writ of sequestration, but his proof consists merely of a statement purporting to have been made by his son N. W. Shepherd to one Terry or Berry, he does not know which, who had some connection with the Credit Corporation, probably as an adjuster; his exact status not being clearly shown. This same witness also testified to having talked to J. Laverty after the levy of the writ, but it, is testified to. by Laverty, and not denied, that his only authority was to collect accounts in cash for the said credit corporation; that he was only an adjuster with a limited au- . thority.

As we view the record, the credit corporation, under the rule stated above, has not been legally connected with any willful or malicious act nor any act of gross negligence, if any there was. Nor do we believe the opinion of Judge Nickels in the case of Chronister Lumber Co. v. Williams (Tex. Com. App.) 288 S. W. 402, changes the above rule. As we interpret this opinion, it iherely gives the rule a somewhat broader application. It is still the law that the burden is upon the plaintiff to show an authorization or ratification of acts claimed to be malicious or those constituting gross negligence and made the basis of - a claim for punitory-damages.

The court entered its judgment for the-market value of the wheat as of September 29, 1931. The wheat was subsequently sold and shows to have brought, about Becember 21, 1931, a gross sum of $221.81; that is, the • market advanced from the time this wheat was taken into the possession of the credit corporation to where the advance made it. The court entered its judgment for the-market value of the wheat as of September 29, 1931. The wheat was subsequently sold and shows to have brought, about Becember 21, 1931, a gross sum of $221.81; that is, the • market advanced from the time this wheat was taken into the possession of the credit corporation to where the advance made it.

The precise measure of damages for the conversion of chattels of a fluctuating value is involved in some confusion in Texas. We cite the following Texas cases upon this question: Stephenson v. Price, 30 Tex. 715; Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98; Early-Foster Co. v. Mid-Tex Oil Mills (Tex. Civ. App.) 208 S. W. 224, 226; Burmarsal Co. v. Lake (Tex. Civ. App.) 272 S. W. 582; Grimes v. Watkins, 59 Tex. 133; Hancock v. Haile (Tex. Civ. App.) 171 S. W. 1053; Empire Transfer & Storage Co. v. Simon (Tex. Civ. App.) 249 S. W. 885; Corrigan v. Shell Petroleum Corporation (Tex. Civ. App.) 62 S.W.(2d) 663.

These authorities may be,' perhaps, reconciled by keeping in mind the rule pointed out in the case of Early-Foster Co. v. Mid-Tex Oil Mills, supra. We quote from this case: “Where the conversion is not attended with fraud, willful wrong, or gross negligence, the measure of damages is the value of the property converted at the time of such conversion, with legal interest thereon to the time of trial. But where the conversion takes, place under either of these circumstances, and the property converted is of changing value, the measure of damages is the highest market value of such property between the date of conversion and the filing of the suit. Bayle v. Norris, [Tex. Civ. App.] 134 S. W. 773; Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98; Ripy v. Less, 55 Tex. Civ. App. 492, 118 S. W. 1084; Ry. Co. v. Starr, 22 Tex. Civ. App. 353, 55 S. W. 395.” See, also, 40 A. L. R. p. 1286, where a multitude of cases are cited.

Since the court apparently found in this case that the conversion was willful, his judgment should have been for the higher instead of the lower amount, under the rule just quoted.

The court correctly overruled the plea in abatement filed by appellant United States Fidelity & Guaranty Company. Under the statute, Sheriff Blanscet had a right to bring in the principal and surety on the indemnity bond given him. Stevens v. Wolf, 77 Tex. 215, 14 S. W. 29; Article 1988, R. S. 1925.

Nor do we think the court erred in allowing the sheriff $100 attorney’s fees as against appellant United States Fidelity & Guaranty Company, this because, in our opinion, such item was recoverable under the terms of the bond. The said indemnity bond stipulated, in part: “That the above, bound ⅜ * * shall well and sufficiently indemnify, save and keep harmless the said Lon L. Blanscet * * * from all costs, charges, damages and suits that he may become liable for in consequence of the levy of said writ of sequestration.”

It is believed that these terms are sufficiently broad to include attorney’s fees. Eller et al. v. Erwin (Tex. Civ. App.) 265 S. W. 595; Southwest National Bank v. Employers’ Indemnity Corporation (Tex. Com. App.) 12 S.W.(2d) 189.

The judgment is reversed, and cause remanded.


text:
    GOOCH v. SANDBOE.
    No. 9926.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 5, 1934.
    Rehearing Denied March 1, 1934.
    A. T. Norman, of Houston, for appellant.
   GRAVES, Justice.

This is an appeal by the plaintiff below from the following judgment of the trial court sustaining the plea in abatement of the defendant there to the petition of the plaintiff, which in the nature of a bill of review sought the setting aside of a default judgment entered at a preceding term of the same court in cause No. D-196747, between the. same parties, upon averments to the effect that such prior judgment had been entered without notice to him thereof or of the setting even of the cause for trial until too late for him to file a motion for rehearing therein or give notice of appeal therefrom:

“A. L. Gooch vs. P. J. Sandboe. No. A-205099.
“Be it remembered, that on the 17th day of August, 1932, came on to be heard in due order the defendant’s plea in abatement and/or to the jurisdiction in the above styled and numbered cause, and came the parties by their respective counsel and announced ready thereon; and such plea having been filed and presented to the court in due time, manner, and form, and with due notice, and the court having heard said plea, the record, and the argument of counsel thereon, and having duly considered the same and being fully advised herein, is of the opinion that the law is with the defendant.
“It is therefore ordered, adjudged, and decreed that said plea be, and the same is, here now in all things sustained, and that all part and portion of plaintiff’s alleged cause of action seeking, cancellation of the judgment therein complained of be, and the same is, here now in all things stricken and dismissed.”

The plea in abatement of the defendant below that was thus sustained contained, among other things, these averments:

“Defendant further alleges that plaintiff’s said allegations in reference to his attempted filing of a motion for a new trial and the refusal of the Court to entertain and hear the same because the legal time within which to file sam'e had expired are false and untrue and fraudulently made in an attempt to obtain and invoke the jurisdiction of this Honorable Court; that in truth and in fact, and contrary to plaintiff’s said allegations, the defendant in' said original cause (Plaintiff herein) filed therein his original motion for a, new trial and/or in arrest of judgment on February 24,1932; that thereafter, on March 29, 1932, leave was granted_said defendant to file an amended motion for a new trial, which said amended motion was on said date filed by said defendant, and that thereafter, on Saturday, April 16, 1932, the Court after hearing evidence on said amended motion overruled the same, to which action and ruling of the Court said defendant then and there excepted, all of which motions, orders and proceedings are reflected in the records of said Court and constituted a complete and sufficient basis for review, by appeal or writ of error, of the judgment now complained of and sought to be set aside in and by plaintiff’s said second amended original petition, and had plaintiff prosecuted such appeal or writ of error he could have secured full and adequate relief at law.
“By reason of all of which, defendant respectfully asserts that this Court is without jurisdiction in equity to hear or entertain plaintiff’s said alleged cause of action for the cancellation of said judgment, and here now prays judgment whether it can or will take further cognizance thereof.”

The cause comes here without a statement of facts, or other proper record of the trial below in any way attacking or impeaching the ^quoted finding of the trial court to the effect that the recitations of fact so contained in the plea referred to were true; wherefore, it is obvious in this state of the record that this court is bound by such finding of the trial court, and the appeal presents nothing for review here. Accordingly, the judgment has been affirmed.

Affirmed.


author: LESLIE, Justice.

text:
    GRAYBURG OIL CO. v. CORPUS CHRISTI GAS CO.
    No. 1231.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 16, 1934.
    Rehearing Denied March 16, 1934.

      Sawnie B. Smith and Ingrum & Morris, all of San Antonio, for appellant.
    Templeton, Brooks, Napier & Brown and Harper Macfarlane, all of San Antonio, for appellee.
   LESLIE, Justice.

. This suit was filed by appellant, Grayburg Oil 'Company, on March 12,1926, in the county court of Bexar county, and was based upon an itemized sworn account. Citation issued immediately, was forwarded to the proper county, hut returned not served. Other steps were taken to bring the defendant into court, but they were unsuccessful until after plaintiff’s second amended petition was filed. The suit was tried February 14, 1833, on appellant’s second amended original petition filed January 31, 1930, and appellee’s original answer filed March 3, 1830. The trial was before the court without a jury, and judgment was rendered in favor of the defendant be-lów upon the theory that the itemized sworn account was barred by the two-year statute of limitation. The appeal is prosecuted from this judgment.

After formal recitations in the judgment, which are here omitted, it is stated therein •that the court “is of the opinion, and so finds, that the plaintiff’s cause of action is a liquidated one based upon an itemized sworn account in all things verified, as required 'by law, to- which the defendant has interposed no denial, but that plaintiff’s cause of action here sued on is barred by the two years statute of limitation.”

No findings of fact and conclusions of law were requested, and the record contains none. Therefore, we do not have the benefit of the specific theory upon which the court entered ■his judgment, except as that theory is gathered from the record. By its propositions the appellant contends the suit was commenced in due time to toll the statute of limitation, and that the suit was prosecuted with due diligence. By reference to the propositions, the statements contained thereunder, and the statement of facts, we find that the plaintiff’s original petition, filed March 12, 1926, and its first amended petition, filed November 21, 1929, described the appellee, Corpus Christi Gas Company, as being a private corporation duly chartered and existing under and by virtue of the laws of the state of Texas, whereas, in truth and in fact, as shown in the appellant’s second amended original petition, filed January 31, 1930, the appellee, Corpus Christi Gas Company, was a corporation duly chartered and existing under and by virtue of the laws of the state of Arizona.

It is an undisputed fact that the cause of action accrued on the 24th day of March, 1924, and it is the contention of the appellee, defendant below, that, by reason of the foregoing allegations in the plaintiff’s original and first amended petition, it 'was not sued, or made a defendant at all, in this cause until the second amended original petition was filed January 31, 1930. If this be true, the judgment is correct and should be affirmed. Evidently the theory stated is the one upon which the court tried the case and rendered his judgment. That was the only theory reflected by the pleadings. The court’s ultimate' conclusion, however, is challenged by various propositions, the first one of which contends that, since the undisputed evidence showed that the plaintiff’s cause of action accrued the 24th day of March, 1924, that the plaintiff regularly and in good faith filed its suit on its cause of action March 12, .1926, less than two years after the accrual of the cause of action, the same was not barred by the two-year statute of limitation, as found by the court.

We sustain this contention. It conclusively appears from this record that, although the plaintiff alleged the defendant to be duly incorporated under the laws of Texas in its first two petitions, and thereafter, in its second amended petition, alleged that the defendant was duly incorporated under the laws of Arizona, nevertheless, the same cause of action was presented in each petition without any variation whatever, and the same defend-, ant, the Corpus Christi Gas Company, a pri-' vate - corporation, was sued throughout. In other words, there is no doubt that the identical cause of action was presented each time against the identical defendant. The allegation that the Corpus Christi Gas Company, a private corporation, was char-tered under and by virtue of the authority of the state of Texas, or the state of Arizona, was mere surplus-age and descriptive terms which could have been omitted. Such matters were no part of the cause of action itself. It was not necessary for the plaintiff to allege the authority under and by virtue of which the defendant was chartered as a private corporation. Our Supreme Court has so held in the case of Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S. W. 36. It is there held: “The appellant was alleged to be a corporation, but how incorporated was not stated. The sufficiency of the petition in this respect was questioned by a special exception, as follows: ‘Because it (the petition) fails to state by what authority this defendant was incorporated, or that it was incorporated by any authorized power.’ The exception was properly overruled. This matter is regulated by statute, which does not require, when a corporation is defendant, that the petition should set out the charter, or allege by what authority the defendant was incorporated.”

For other authorities in principle supporting the above conclusions, see Patton v. American Home Ins. Co. (Tex. Civ. App.) 233 S. W. 293; Houston & T. C. Ry. Co. v. Weaver (Tex. Civ. App.) 41 S. W. 846; J. L. Jones & Co. v. Darden (Tex. Civ. App.) 29 S.W.(2d) 479; Abilene I. T. & T. Co. v. Williams, 111 Tex. 102, 229 S. W. 847; Shepherd v. St. Louis Transit Co., 189 Mo. 362, 87 S. W. 1007; Brunswick-Balke-Collender Co. v. Kraus, 132 Mo. App. 328, 112 S. W. 20.

It is unnecessary for us to consider whether or not after the commencement of the suit due diligence was in fact shown on the part of the plaintiff in prosecuting the same under article 5526, R. S. 1925, which is a limitation statute requiring that certain causes of action “be commenced and prosecuted” within two years, etc. There was no pleading, or allegation whatever, challenging the diligence used by the plaintiff in this respect. There is some evidence bearing upon such an issue, but, without pleadings to support that phase of a possible bar of the action, such testimony would count for nothing. In fact, the only question of limitation presented by the defendant, appellee here, was alleged in this language: “That plaintiff’s cause of action, if any it had, accrued more than two years before the defendant Corpus Christi Gas Company, an Arizona corporation, was made a party to this suit, and the same is barred by limitation, and this it is ready to verify.”

By this plea, appellee assumed the. burden of showing that the action was barred at the time the suit was commenced against it, and no issue was tendered that it may subsequently have become barred by failure to prosecute. Clearly, the suit was commenced within two years from the time the cause of action accrued, but, as noted, the pleading stops short of any allegation of lack of diligence, etc., on the part of the plaintiff in- prosecuting the cause of action.

In this connection, it will be observed that article 5540, R. S. 1925, prescribes that “the law of limitation shall not be available in any suit unless it be specifically set forth by the party who in his answer invokes it as a defense.”' In view of this provision, limitation is not available to a litigant who does not specially allege it. It is firmly settled that the defense is waived if it is not interposed by a demurrer or plea. If the defense is not pleaded, evidence relative thereto is inadmissible. 28 Tex. Jur. § 191, p. 285, et seq.

The appellant’s propositions presenting the questions considered are hereby sustained, and, for the reasons assigned, the judgment of the trial court is reversed, and the cause remanded.


author: LOONEY, Justice. .

text:
    GARRISON v. GREAT SOUTHERN LIFE INS. CO.
    No. 11622.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1934.
    Motion to Certify Denied March 3, 1934.

      Smith & Smith, of Dallas, for appellant. .
    Vinson, Elkins, Sweeton & Weems, of Houston, for appellee.
   LOONEY, Justice. .

Appellee moves to strike out the statement of facts, on the ground that no notice was given it or its attorneys of the filing by the court reporter of the transcript of the evidence, before being approved by the trial court, as required by statute; that the first notice appellee-received of the statement having been approved by the court was from the clerk of this court, advising appellant’s counsel that the statement had been filed in this court by counsel for appellant. Appellee alleges that, if it had been given proper no.tice of the filing of the statement, objections ■would have been made thereto, because of its incompleteness, in that certain material matters were omitted that should have been included therein.

The controlling statute is article 2238, as amended in 1931 at the First Called Session of the 42nd Legisláture, c. 34, § 2 (Vernon’s Ann. Civ. St. art. 2238). As amended, the statute reads: “When any party to any suit reported by any such reporter shall desire a transcript of the reporter’s notes of the 'evidence in said suit, said party may apply for the same and such stenographer shall thereupon file an original and duplicate copy thereof in question and answer form among the papers in said cause, and it shall be made the duty of the court, if the transcript be found to be correct, to approve the same; provided, however, before approving same, notice ■of the filing shall be given to the interested parties, who may make objections thereto, and any objections, if found to 'be material and well-founded, shall be allowed. If said transcript is thus approved and signed by the judge, the same shall be filed among the papers of said cause and become a record therein, but not to be recorded.”

It is obvious that the statute placed no duty upon the party appealing to notify the adverse party of the filing, by the court reporter, of the “Q and A” transcript of evidence, but that, on its -being filed, it becomes “the duty of the court, if the transcript be found to be correct, to approve the same; provided, however, before approving same, notice of the filing shall be given to the interested parties, who may make objections thereto, and any objections, if found to be material and well-founded, shall be allowed.

Neither appellee nor its attorneys received prior notice of the filing or approval of the statement, because of the stress of circumstances, explained, by Honorable Towne Young, presiding judge, as follows: “The statement of facts in this case was brought to me by Mr. B. Ray Smith (attorney for appellant) on July 29, 1933, and he told me that he had to file it in the Court of Civil Appeals on that day, and that he did not have time to submit it to opposing counsel and stated th’at he would permit the attorneys for the Great Southern Life Insurance Company to make objections thereto after it had been filed in the appellate court. * ⅜ * ”

Appellee’s insistence that the statement of facts should be stricken out is based upon the following decisions, construing the statute in question: Corbett et al. v. Raymondville, etc. (Tex. Civ. App.) 52 S.W.(2d) 1116 (by the San Antonio court); Sanders Nursery Co. v. Engelman, Inc. (Tex. Civ. App.) 59 S.W.(2d) 954 (by the San Antonio court); Big Spring Mutual Aid Ass’n v. Moore (Tex. Civ. App.) 62 S.W.(2d) 387 (by the El Paso court). These decisions sustain .the contention of appellee; i. e., the rule is announced that, on motion of an interested party not notified as provided by statute, a statement of facts approved and filed under sucb circumstances will be stricken out, and this without regard to whether injury resulted or not.

Entertaining great respect for the ability of the courts rendering tírese decisions, yet we are unwilling to follow the strict construction given the procedural statute involved. The vital complaint of the motion is that the statement of facts, approved and filed under the circumstances, is incomplete, in that certain material matters were omitted. This is not an unusual situation; it has often occurred in the past, and the fact that it has arisen under a recently enacted statute does not, in our opinion, alter or change the applicable rule of procedure. The statement of facts is a part of the record made below; as an appellate court we are without authority either to take from or add to the same, such being peculiarly the province of the trial court; however, the rule is recognized that although a case may be on appeal an incomplete statement of facts, or one containing improper matter, may, under proper proceedings, be withdrawn from the appellate court and corrected in the trial court. 3 Tes. Jur. § 551, pp. 771, 772. Foty v. Rotchstein (Tex. Civ. App.) 50 S.W.(2d) 927, and authorities cited.

If the statute in question requires, as held in the cases cited, the elimination of the statement of facts, for no reason other than that the trial court failed to give the prescribed notice to an interested party, an exceedingly harsh rule has been enacted, for it is obvious that in a majority of instances to strike out the statement defeats the appeal. We do not think such was intended by the Legislature. The aggrieved party has an adequate remedy, as he is permitted to withdraw an imperfect or incorrect statement for correction or amendment in the trial court, and, in our opinion, a failure on his part to pursue this course waives the error of the court in failing to give the prescribed notice. '

In answer to the motion to strike appellant requests the court that, “If permitted to do so, to allow appellee to make any correction that appellee thinks would best suit its purpose, and which would be in keeping with the authenticity of such record.” So, in harmony with our view of the matter, the motion to strike is overruled, but in response to the request of appellant, permission is granted appellee to withdraw the statement from our files for correction by appropriate proceedings in the trial court; however, should appel-lee fail to avail itself of this privilege within ten days from the date of this order, aj> pellant may withdraw the statement for such amendment or correction in the trial court as the facts justify.

Motion to strike overruled; permission granted to withdraw statement for correction and amendment.

On Motion to Certify to Supreme Court.

On February 10th, we overruled ap-pellee’s motion to strike the statement of facts, based upon the ground that no notice of filing the transcript of evidence by the reporter was given appellee or its attorney, before being approved by the court. Our opinion filed at the time sets out in full reasons for our holding. We are now requested by appellee to certify to the Supreme Court the question of law presented by the motion to strike, in that our decision is in direst conflict with prior decisions of other Courts of Civil Appeals. That a conflict exists, as contended by appellee, is undoubted, as we refused to concur in the opinions of the other courts on the construction of the statute involved. These decisions are mentioned and the conflict recognized in the opinion heretofore filed. However, notwithstanding the conflict, we deny the motion to certify, because our decision of the question is not final. While it may be true, as contended by appellee, a writ of error will not lie alone from our holding on the motion to strike, yet, if our decision in that respect is incorrect, the holding, as well as other holdings on final disposition, may become the basis of an application for writ of error and be reviewed by the Supreme Court.

The motion to certify is denied.


author: BOND, Justice.

text:
    BERWALD’S, Inc., v. BROWN et al.
    No. 11707.
    Court of Civil Appeals of Texas. Dallas.
    March 3, 1934.
    Elihu E. Berwald and Emil Corenbleth, both of Dallas, for appellant.
    White & Yarborough, of Dallas, for appel-lees.
   BOND, Justice.

Appellant, Berwald’s, Inc., a private corporation, filed this suit in a district court of Dallas county, to enjoin a threatening levy upon its stock of goods and fixtures, asserting that such levy would ruin its business and thus cause irreparable injury, for which it would have no adequate remedy at law. The judge, in chambers, issued an ex parte restraining order, and set the application for a temporary injunction for a hearing. Appel-lees’ answer embraces a general denial and special allegations to the effect that appellees Margaret Turner and husband, Amsy Turner, are judgment creditors of Harry Berwald, Julius Berwald, Raul H. Berwald, and Ellis A. Rosengarten, and to effect a collection of their judgment sought a writ of execution and placed same in the hands of appellee Louis Brown, constable; that the corporation, Berwald’s, Inc., was organized and chartered for the sole purpose of defrauding creditors, to conceal the true owners of the business, and to hinder the collection of the Turner judgment ; that the judgment debtors Harry Ber-wald, Paul H. Berwald, and Ellis A. Rosen-garten are the owners of said business, and the property was transferred to the corporation for the sole purpose of placing it beyond the reach of their creditors; and, further, moved to dissolve the temporary restraining order and to deny a temporary injunction, which, on hearing, the court granted.

The question before us is: Did the court below err in refusing to hold the matter in controversy in statu quo pending a hearing on the merits? A temporary injunction is merely a provisional remedy allowed by tbe court before trial of tbe case on its merits, for the ■sole purpose of preserving the subject-matter ■of tbe controversy as it existed at tbe time' tbe suit was instituted. In other words, a temporary injunction merely preserves the statu quo until final hearing. It is a preliminary and ancillary writ to a suit for permanent relief, restraining tbe doing of an alleged unlawful and wrongful act, tbe consequence of which would be irreparable injury, for which the aggrieved party would have no .adequate remedy at law. Unless the record ■discloses, either by pleading or evidence, that •there exists a lack of law or equity', on which ■reasonable minds may not differ as to its effect, the petitioner is entitled to such ancillary writ, and the court would be unauthorized, in refusing to hold the matter in controversy, pending an ultimate determination of the issues. In this case, we are of opinion that the pleadings and evidence raise the issue as to the ownership of the property, threatened to be taken by a writ of execution, .and disclose equitable grounds for injunctive relief independent of all legal remedies. A discussion of the testimony involved in the contentions of the parties, as a basis for the ■court’s refusal to grant the temporary injunction and a discussion of the various fact findings and conclusions of the trial court, as finding no support in the testimony, might be pertinent, if this were an appeal from a final trial, but we cannot see its usefulness here, in view of the fact that the case is to be heard on its merits, so we pretermit a discussion of ■the assignments raising the issues.

Appellees contend that the in junction was properly refused, for the reason that there exists a complete, full, and adequate remedy at law, in that, under the statute (R. S. 1923, art. 7402 et seq.) providing a procedure for the trial of the right of property, .appellant is relegated to the provisional remedy of a claimant’s oath and bond. We are ■of opinion that, in a suit involving only the issue as to the ownership of, personal property, taken by writs of execution, attachment ■or other like writs, considered of itself and standing alone, a' statutory remedy is exclusive, but, where the taking of personal property by such writs is attended by circumstances that are, or may be, prejudicial to the claimant, for which he has no specific statutory remedy, but is left exclusively to a common-law action for'damages, then the statute •(article 4642 R. S. 1925) making the principles and practice of equity applicable is not in conflict with the statutory remedy. It was not the intention of the Legislature, in enacting the injunction statutes, that there should be two remedies, one at law and the other in. equity, but, .in our blended system of practice, both may be joined in the same cause of action, and the equitable jurisdiction of our courts extends to matters which might be otherwise beyond provisional statutory powers.

There is some uncertainty in the decisions on the question as to whether the adoption of the present injunction statutes changed the rule that injunctions will not issue so long as there is available an adequate legal remedy. In the case of Ferguson v. Herring, 49 Tex. 126, oun Supreme Court, in sustaining the action of the trial court, in dissolving an injunction, held that “there was no error, for the petition exhibited no good reason why the plaintiff did not resort to his legal remedy by affidavit and claim bond to try the right to the property levied on; or if the property was not in fact levied on by the sheriff, as it is alleged in the petition, he did not need, and was not entitled to, any remedy, either legal or equitable.” The case involved only the taking or the threat to take cotton, unattended by any other circumstance as to cause damage or hurt to the one in possession. Thei value of the cotton was the only element of damage which the applicant for injunction could have suffered. The applicability of the rule thus announced was made prior to the enactment of the injunctive statutes ; yet there are numerous decisions of recent date which follow the rule above quoted, and hold that injunctive relief is unauthorized if there is an adequate legal remedy. Woman’s Club of Ysleta v. Hutchins (Tex. Civ. App.) 40 S.W.(2d) 980 (denying mandatory injunction to replace a division fence on a disputed strip because of the adequacy of trespass to try title and sequestration); Smiley v. City of Graham (Tex. Civ. App.) 37 S.W.(2d) 289; Jowell v. Carnine (Tex. Civ. App.) 20 S.W.(2d) 1087; Head v. Commissioners Court (Tex. Civ. App.) 14 S.W.(2d) 86; Gates v. Pitts (Tex. Cix. App.) 291 S. W. 948 (injunction to prevent eviction from homestead by legal process). So, in the case at bar, if the only issuable fact presented by the record was the undisturbed possession of the personal property, and the damages, if any, which the possessor may suffer is only measured by its value, then we would be constrained to hold that the rule announced would be applicable; but such is not the case. The record shows that appellant is operating a business; thus the levy of the execution on its stock of goods and fixtures necessarily would involve not only the value of the property sought to be taken, by the writ of execution, but incidental damages for tbe closing of its Storehouse and tbe ruining of its business; tbus tbe damage flowing from tbe levy is not alone measured by tbe value of tbe property, but is based upon many contingencies, difficult of ascertainment in an action at common law, wbicb, in a strictly legal sense, may be adequate, but ofttimes inadequate.

In effect is tbe dictum of the Supreme Court in Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, cited and approved in Southwestern T. & T. Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1049; Republic Ins. Co. v. O’Donnell Motor Co. (Tex. Civ. App.) 289 S. W. 1064, citing many cases. In tbe Sumner-Crawford Case, tbe trustee bad a legal-remedy, as here, a proceeding for tbe trial of right of property, and also an incidental claim for damages, for which tbe provisional statutes afforded no redress. In tbe Southwestern, etc. — Smithdeal Case, tbe appellee bad an adequate legal remedy for damages, based upon the value of trees destroyed, also an incidental claim for sentimental and ornamental value of tbe trees for wbicb be had no such remedy; in the Re-pulblie-O’Donnell Case, tbe aggrieved party bad a legal right to try tbe issues involved in a pending suit, and also bad an equitable ground independent of bis legal remedy. Tbe pivotal question in these and many other cases is whether the available legal remedy is adequate, full, and complete for tbe entire relief sought? If any phase of tbe litigation involves a cause of action for which there is no specific legal remedy, then a court of equity has jurisdiction to grant injunctive relief.

It is no answer to say that appellant has an adequate remedy at law, in that be could have filed the proceedings for the trial of the right of property, and leave the element of damages, incident to the closing and ruining of his business, to a common-law action for damages, for the reason such would involve the bringing of separate and independent suits, productive of multiplicity and vexation.

Under the facts alleged, we cannot, with that sufficient degree of certainty that should control in matters of this kind, see that the equities require that the possession of the property should not be retained by appellant, pending the determination of the issues involved. The conclusion is based upon the proposition that the ownership of the property prima facie rests with the one who has possession, and where wrongfully taken such owner would be deprived of his possession and suffer damages, for which he would have no adequate remedy at law. The equities of the situation rest with him whose possession is thus wrongfully disturbed, and, in order to hold the matter in statu quo, a court of equity, in the exercise of its power to prevent a wrong, will, by a temporary writ of injunction, stay an execution, so that the status of the parties will rest until their ultimate rights are determined through a full hearing on the merits.

We therefore conclude that, because of the error in refusing the temporary injunction, the judgment of the district court should be reversed and the cause remanded, with instruction to issue a temporary injunction, until this cause shall have been fully determined agreeably to the rules of law applicable to the issues presented on the facts, and it is so ordered.

Reversed and remanded, with instructions.


author: HAUL, Chief Justice.

text:
    FERGUSON SEED FARMS, Inc., v. FORT WORTH & D., S. P. RY. CO.
    No. 4172.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1934.

      Dennis Zim.mermann, of Tulia, for appellant.
    Griffin & Aitchison and Williams & Day, all of Plainview, and Thompson & Barwise, of Fort Worth, ,for appellee.
   HAUL, Chief Justice.

The appellant company filed this suit against the appellee railway company to recover $40,000 alleged to be the damages resulting to the appellant by reason oí the wrongful act of the railway company in constructing two tracts of railway, variously called switch tracks, spur tracks, and industrial tracks along Grove street in the city of Plainview, upon which street the appellant’s gin property was situated.

It is alleged that in June, 1928, appellee constructed one of the tracks along the west side of - Grove street immediately west of appellant’s gin. That no condemnation proceedings prior thereto had been instituted by the railway company for the purposes of authorizing it to construct said west side track, nor had condemnation proceedings been instituted since its construction. That thereafter, in October, 1928, the railway company constructed another spur.track along the east side of Grove street within a few feet of appellant’s gin, office building, scales, and gin yard. That about sixty days after work was commenced on the east side track, the railway company instituted condemnation proceedings for the purpose of obtaining the right to construct the east side track.

The petition then attacks the validity of the condemnation proceeding, alleging that it was void for several reasons which, in view of the disposition we make of the case, are immaterial and will not be discussed.

The appellant claimed other and definite damages in addition to those usually incident to the proper construction of a railway track, alleging that the railway company had consumed an unreasonable length of time in constructing the east side track; that it was constructed above the grade level of the street; that appellee had failed to restore the street to its former level, as required by R. S., art. 6320, causing water to .accumulate and stand on the street, rendering it difficult and dangerous for the customers who patronized the appellant’s gin to enter its premises, resulting in great loss of patronage. The prayer is that the railway company be required to remove its tracks from the street, that plaintiff recover its damages, interest, costs, and all legal and equitable relief to which it may be entitled.

The railway company answered by general denial, and pleaded specially that the,matters complained of in plaintiff’s petition had been adjudicated, in that the defendant had instituted condemnation proceedings against the plaintiff in the county court of Hale county, resulting in an award by the commissioners appointed by the county judge, that the award had been excepted to, the cause had been tried in the county court by a county judge other than the one who had appointed the commissioners, that a trial in the county court resulted in condemning the right of way upon which one of the tracks had been laid, that the issue of the disqualification of the former Judge Mayfield, who had appointed the commissioners, was determined in the county court suit, that there had been no appeal from that judgment, and further alleged that Pru-die R. McClelland, under whom the plaintiff claimed title, had reserved the right to build, construct, and operate railroads in said Grove street, and that appellant took its title subject to such reservation so made. That ap-pellee had the consent of and a franchise from the city of Plainview to build and operate the tracks in question.

The sole issue submitted to the jury was the difference in the market value of appellant’s property immediately before and immediately after tbe construction of appellee’s track on tbe west side of Grove street. In response to tbe issue, tbe jury found in favor of plaintiff in tbe sum of $500, and judgment was entered accordingly.

'By its first proposition tbe appellant attacks tbe sufficiency of tbe condemnation proceedings, and by its second proposition asserts that tbe court erred in bolding that tbe judgment rendered in tbe county court of Hale county was valid and res juidicata as to all of tbe damages claimed by plaintiff in this suit.

In view of tbe disposition we make of tbe case, we deem it unnecessary to discuss tbe issues presented by these two propositions.

It appears that Mrs. Prudie E. Mc-Clelland and ber busband, as owners of the property which has been plotted into lots and blocks, in dedicating said property and tbe streets and alleys therein, used this language in tbe deed: “We do further dedicate all and each of tbe streets and alley ways as tbe same are indicated and shown upon tbe foregoing map, to which this dedication is attached, for the use of the public for foot travel and for wagon, buggy and other vehicle transportation, but we do expressly reserve all franchise and public utility rights to ourselves so that no person, corporation or con> pany shall hereafter, without our express permission, which permission must be evidenced by an instrument in writing, duly acknowledged and recorded in the deed records of Hale County, Texas, shall own or exercise any right or franchise upon any street so designated upon the above map or the ground of said Nob Hill, so that all rights and franchises to operate railways, street railways, electric light plants, electric light wires, water works, sewerage systems, telephone and telegraph lines and the wires thereof, and other public utilities, be and they are hereby completely and expressly reserved to us as though said streets had not been dedicated to public use in part.”

The land was tbe separate property of Mrs. McClelland, who died testate, appointing her daughter, Mrs. Annie 0. Lycan, executrix. It was shown that the will had been duly probated and empowered the executrix to “sell and dispose of any portion of my estate, either, real or personal, at public or private sale and in a manner as may to them seem best for tbe purpose of paying my just debts.” It was further shown that Mrs. Lycan, on the 15th day of June, 1931, as executrix, conveyed to the appellee herein: “The absolute right, privilege and franchise to construct, maintain and operate lines of railroad, railroad spur tracks and side tracks, in, along, through and over Grove Street, Sixth Street and Seventh Street in the town of Plainview, 1-Iale County, Texas, and especially to construct, maintain and operate spur and industrial railroad tracks along and or near the east side and along and or near the west side of said Grove street in the town of Plainview.”

The deed recites further that the executrix is making the conveyance for the purpose of paying the debts against the estate.

The railway company also introduced an ordinance of the city council of Plainview granting it a franchise to construct, maintain, and use its “industrial tracks, as many as two tracks on and in the. following described streets * * ⅜ Grove Street from Third Street to Seventh Street.”

No attack is made in this court upon the dedication deed, nor is the right of the executrix to convey to the railway company questioned.

The general rule is that a dedicator may impose such restrictions and reservations as he may see fit when dedicating his property to the use of the public subject to the limitation that the restriction or reservation be not repugnant to the dedication or contrary to public policy. Roaring Springs Townsite Co. v. Paducah Telegraph Co., 109 Tex. 452, 212 S. W. 147; Gibson v. Carroll (Tex. Civ. App.) 180 S. W. 630; 18 C. J. 70.

The record discloses that the city has accepted the dedication and has acquiesced in the reservation contained in the dedication deed. We are not called upon in this case to pass upon the validity of the reservation, except in so far as it applies to the two industrial tracks laid by the railway company upon Grove street.

While there is some authority to the contrary, we aré of the opinion, after a careful review of all the cases to which we have been referred and have been able to find in this and other jurisdictions, that the better reason and weight of authority favors the validity of the reservation. A Texas case in point is Oklahoma City & T. R. Co. v. Dunham, 39 Tex. Civ. App. 575, 88 S. W. 849, 851.

According to the facts in that case, one Dodge owned the tract of land upon which the city of Quanah was plotted. He executed a dedication deed containing this reservation: “And I, after reserving the right to grant to any railway or railway companies the right of way over Browning and McClelland Avenues, do hereby grant, give and dedicate to the public a highway such portion of each and all of the streets and alleys designated on said map as may be contiguous to or adjoining any lots ⅜ * * laid out on said map.” Tbe map with the deed attached was duly recorded. Afterwards, Dodge sold lot 9 to Dunham, who placed improvements thereon long prior to the time when Dodge conveyed to the railway company a strip 50 feet in width from the west side of McClelland avenue by a deed which recited: “Do grant, bargain, sell and convey and relinquish unto said Railway Company, its successors and assigns (for railroad, telegraph and telephone right of way purposes) the right of way upon, over and along said McClelland Avenue.” The railway company then obtained a franchise from the city of Quanah, permitting it to construct its tracks and depot upon and along McClelland avenue; whereupon plaintiff Dunham filed suit against the company alleging that its acts had diminished tbe market value of his property $759. The trial court recognized the absolute right of the railway company to build its lines along the street, and charged the jury to find damages for plaintiff if they should find that the company had placed a greater burden upon the street than was contemplated at the time of the grant by Dodge. Upon appeal, the Court of Civil Appeals at Fort Worth held such charge to be error, for the reason that it authorized a finding of damages “because of a mere extension in the use of the right of way beyond that originally contemplated.” Speaking through Judge Conner, the court further held that the deeds showing the use to be made, of the right of way spoke for themselves and conferred upon' the railway company the right to use the street for railway purposes, restricted only by the right of the public to the reasonable use of McClelland avenue and the right of all persons not to have a nuisance imposed. After stating that Dodge, at the time he executed the dedication deed with map attached, had full title to McClelland avenue and the lot afterwards conveyed to appellee Dunham, the court said: “He [Dodge] then had in such land every right or privilege that could be carved out of it. He could convey the whole absolutely, or such estate therein as he chose, upon any or no consideration, as he might desire. He in fact platted the land, and dedicated specified parts thereof to the public as passageways. The dedication of an easement or passageway over McClelland avenue, however, was not made absolute in the general public. Dodge reserved the right, which affected all lands then owned by him, to select one or more railway corporations to which he might also grant an easement or right of passage over this street. This reserved right, of course, should not be construed as giving Dodge power to thus enable railways to wholly occupy and use the avenue, to the entire exclusion of the general public, for to so construe the provision would constitute a repugnant clause, enabling Dodge to entirely defeat the dedication to the public, restricted though it was, and which therefore could not be upheld. In this case, however, the public right is not involved. It is not insisted that the use of the avenue as a passing way has been unnecessarily or unreasonably impeded.”

So in this case, the public is not complaining. According to the testimony of A. M. Ferguson, the ground of complaint is, that on account of the fact that the railway company in laying its tracks along Grove street, the grade of the track was raised above the grade of thi street, and that its customers, in bringing their cotton to appellant’s gin, were subjected to great inconvenience in crossing the tracks by the elevated roadbed and the water which had accumulated because of the manner in which the tracks had been constructed.

In Ayres v. Penn R. R. Co., 48 N. J. Law, 44, 3 A. 885, 888, 57 Am. Rep. 538, it appears ■that land was dedicated to public use as a highway, subject to the right of the dedicator to designate a portion thereof for railroad purposes. The court said: “A dedication of a highway to the public may be made cum onere. State v. Society, etc., 44 N. J. Law [13 Vroom] 502. From all the circumstances the plain intent was to dedicate to public use as a highway the whole width of 100 feet, subject to an easement for railroad purposes over a portion of the center, reserved to, and to be designated by, the grantor, Brown. When that portion should be designated, and devoted to railroad purposes, the easement of the public highway would be suspended over it, and continue suspended so long as it was devoted to such purposes. * * ⅜ By that deed [Brown’s deed to the railway company] the portion of the street to be used for railroad purposes was designated, and to that extent the railroad use became paramount to the public use, and will exclude it, so long as that portion of the street is so used.”

In Tallon v. Mayor, etc., of City of Hoboken, 59 N. J. Law, 383, 36 A. 693, 696, private owners who were charged with knowledge of reservations in a recorded plot and map dedicating to the public highways for passage by ordinary vehicles and foot passengers, reserving the right of the grantor to lay tracks for horse cars,.steam cars, etc., by suit challenged the validity of the reser'vation. The court said: “A dedication of a highway to the public may be made cum onere. * * * If the use of the soil as a way be offered by the owner under given conditions, and subject to certain reservations, and if the public accept the use under such circumstances, there can be no injustice in holding them to the terms on which the benefit was conferred.”

The general rule is declared in 1 Elliott on Roads & Streets (3d Ed.) § 103, in the following language: “An owner may grant whatever estate he sees fit, and may annex conditions and limitations to his grant at his pleasure ; provided that such limitations and conditions are not inconsistent with the dedication and will not defeat the operation of the grant. * * * Subject to the limitation we have stated, the dedication must, as the law phrase runs, be accepted ‘secundum for-mam doni.’ It is stated in general terms in some of the cases that there may be a partial acceptance, but it seems to us that this doctrine must be taken with some qualification. If the donor should consent that the public might accept part and reject part, then, doubtless, the acceptance, if for the public generally, would be valid: but if he should insist on a full acceptance, we think that on principle he would be sustained by the courts, since to hold otherwise would be, in effect, to compel him to part with his property on terms different from those prescribed in his grant.”

See, also, State v. Society, etc., 44 N. J. Law, 502; Village of Bradley v. N. Y. Cent. R. Co., 296 Ill. 383, 129 N. E. 744; Arn v. C. & O. Ry. Co., 171 Ky. 157, 188 S. W. 340, 342.

In this last case there was a written dedication of the streets to public use, reserving to the dedicator the right to control the location of any railroad upon such streets. The dedicator sold this right to a railroad company, whieh constructed its road in the streets. It was held that the public took the street subject to such reserved right, and in the course of the opinion, citing many authorities, it was said: “The authorities are unanimous, so far as we are aware, in upholding a reservation such as we are considering and in sustaining the right of' a railway company to locate its tracks under authority thereof.”

City of Noblesville v. Lake Erie & W. R. Co., 130 Ind. 1, 29 N. E. 484; Brunswick, etc., R. Co. v. Mayor of Waycross, 91 Ga. 573, 17 S. E. 674. See, also Lynchburg Traction & L. Co. v. City of Lynchburg, 142 Va. 255, 128 S. E. 606, 43 A. L. R. 752, and Annotations 766; Cane Belt R. Co. v. Ridgeway, 38 Tex. Civ. App. 108, 85 S. W. 496. For the reasons stated, the first and second propositions are overruled.

By its third proposition the appellant complains of the court’s refusal to submit the issues made by its pleading with reference to the track built along the east side of Grove street and its right to recover damages therefor, and because of the loss of profits by reason of the delay on the part of the railway company in constructing the spur tracks, the failure of the railway company to restore the street to its former condition as required by R. S., art. 6320, and its further failure to provide culverts to prevent the accumulation of rain water upon the street.

Some of these were affirmative grounds of recovery, and others were elements to be taken into consideration by the jury in estimating the appellant’s damages, if any. T. & P. Ry. Co. v. Mercer (Tex. Civ. App.) 58 S.W.(2d) 896; I.-G. N. Ry. Co. v. Reagan (Tex. Civ. App.) 36 S.W.(2d) 564; 51 C. J. 628 to 632. They could not properly have been considered in the condemnation proceedings. Ft. W. & D. S. P. Ry. Co. v. Gilmore (Tex. Civ. App.) 2 S.W.(2d) 543. It is settled law in Texas that each party has the right to have all of the material ultimate issues of fact made by its pleadings and proof submitted to the jury, and, in the event of the court’s failure to do so, the complaining party may, by objections properly filed, call the court’s attention to the omission, or present special issues with the request that- they be submitted to the jury. He is not required to do both, and should the trial judge fail to correct his charge or to submit the special issues requested, there is sufficient grounds upon which to base an assignment of error. K. C., M. & O. Ry. Co. v. Foster (Tex. Civ. App.) 54 S.W.(2d) 270; Dallas Ry. & T. Co. v. Garrison (Tex. Com. App.) 45 S.W.(2d) 183; Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517.

Because the court failed to submit the plaintiff’s ease as made by its pleadings, we sustain the third proposition, reverse the judgment, and remand the cause for another trial.

Reversed and remanded.

MARTIN, J., disqualified; not sitting.


author: MURRAY, Justice.

text:
    BLUE DIAMOND MOTOR BUS CO. et al. v. HALE et ux.
    No. 9264.
    Court of Civil Appeals of Texas. San Antonio.

    Feb. 14, 1934.
    Rehearing Denied March 14, 1934.
    Templeton, Brooks, Napier & Brown, C. R. Kenüon, and Harper MeFarlane, all of San Antonio, for appellants.
    Weber & Wolfe and Andrew M. Smith, all of San Antonio, for appellees.
   MURRAY, Justice.

Tills action was brought in the district court of Bexar county, Tex., Thirty-Seventh judicial district, by the appellees, R. L. Hale and wife, Paulyne Hale, against the appellants, Blue Diamond Motor Bus Company and Bo Wilson, as well as Roy Carson, Julia Ford, a feme sole, and Julia Ford, as executrix of the estate of Frank Ford, deceased, the said Roy Carson, Julia Ford, a feme stole, Julia Ford, as executrix of the estate of Frank Ford, deceased, not having appealed from the judgment rendered in the trial court. The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff R. L. Hale, and for personal injuries alleged to have been sustained by Paulyne Hale, the wife of R. L. Hale, as a result of a collision between an automobile operated by the appellee R. L. Hale and a motorbus owned by the Blue Diamond Motor Bus Company, and operated by the appellant Bo Wilson, said collision having occurred on the 9th day of January, 1930, on a public highway in the county of Burnet at a point approximately seven miles from Lampasas on the highway between Austin, Tex., and Lam-pasas, Tex.

After the close tof all the testimony, the court submitted the cause to the jury upon, special issues. A number of alleged separate acts of negligence were inquired about! in said charge as well as a number of issues on contributory negligence. The jury found, that the defendant’s motorbus was being operated on the left-hand side of the highway immediately prior to the acpident and that this was negligence .whicli was the proximate cause of the collision and injuries, and the jury further found 'that $3,-. 000 would compensate R. L. Hale for his injuries as the result of said collision and that $2,000 would Compensate Mrs. R. L. Hale for her injuries received as a result) of said accident, and that in addition the reasonable and necessary expense incurred by R. L. Hale as a result of the injuries sustained by plaintiffs amounted to $743.50.

Judgment was entered in favor of the plaintiffs on April 17, 1933, and thereafter the defendants filed a motion for new trial, which was Considered and overruled on April 28, 1933. An appeal and supersedeas bond was filed by the defendants Blue Diamond Motor Bus Company and Bo Wilson on1 May 15, 1933. In their amended motion for new trial the defendants based assignments thirteen and fifteen on- the ground of alleged misconduct of the jury, commit-' ted while deliberating on their verdict. All twelve jurors who sat in this ease testified on Uie hearing of the motion for new trial, and appellants contend that the court erred in refusing to grant the appellants a new trial on account lof the misconduct of the jury alleged in said amended motion for a new trial.

The first act of misconduct complained of by appellants is the mention, or discussion by the jury, of the fact that the bus) company was Covered by insurance. The jury deliberated for twelve hours and it was shown by the testimony of the jurors that insurance was mentioned several times during their deliberations. It is further shown that each time insurance was mentioned (with the exception of one 'occasion, hereinafter discussed), either the foreman or some other member of the jury would admonish the jury that insurance was not to be discussed nor considered by them. This casual mention of insurance, which was promptly rebuked, clearly does not present misconduct of the jury.

However, the testimony of the foreman, W. P. Rote, Jr., presents a more serious question. Rote testified on direct examination, as did the other jurors, that each time insurance was mentioned some one would speak up and say that insurance was not to be considered, but on cross-examination he testified as follows:

“One of the jurors said it was a shame to have a judgment hanging 'over that woman when she had not gotten anything. I said, that is not for us to discuss at all. ⅞ * « x said in all probability this thing is covered by insurance tor something like that, and that was the end of our argument. I said as far as that woman is concerned the case probably is covered by insurance. I don’t know.”

It is clear that his testimony on cross-examination is inconsistent, if hot contradictory of what he testified to on direct examination.

All of the jurors testified that their verdict was not influenced by the mention of insurance. The trial judge overruled the motion for a new trial, thereby resolving all questions of fact against appellants.

We conclude that the statement admitted by the foreman on cross-examination, under all the facts and the holding of the trial judge, was not such error as requires a reversal of this judgment.

The law requires bus companies to carry insurance. Section IS, art. 911b, Vernon’s Ann. Oiv. ^ St. The members of the jury would be presumed to know the law. The mention of insurance would be telling them nothing more than they would be presumed to know. Before we would be justified in reversing this cause, we would have to be convinced that the trial judge abused his discretion in overruling the motion for a new trial. We are not so convinced. Carter-Mullaly Transfer Co. v. Bustos (Tex. Civ. App.) 187 S. W. 396; Green v. Enen (Tex. Civ. App.) 270 S. W. 929; De Leon v. Longoria et ux. (Tex. Civ. App.) 4 S.W.(2d) 222; Hansen v. Ponder et al. (Tex. Civ. App.) 23 S.W.(2d) 787; Stockwell v. Snyder et al. (Tex. Civ. App.) 51 S.W.(2d) 812; Schoenfeld v. De Puy (Tex. Civ. App.) 58 S.W.(2d) 574; Moncada v. Garcia (Tex. Civ. App.) 62 S.W.(2d) 215; Bradley v. Texas & P. Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 861; Monkey Grip Rubber Co. v. Walton (Tex. Com. App.) 53 S.W.(2d) 770; Debes v. Greenstone (Tex. Civ. App.) 260 S. W. 211; Wolfe v. Ry. Co. (Tex. Civ. App.) 144 S. W. 347; Marshall Mill & Elevator Co. v. Scharnberg (Tex. Civ. App.) 190 S. W. 229; Galveston, H. & S. A. R. Co. v. Cook (Tex. Civ. App.) 214 S. W. 539; People’s Ice Co. v. Glenn (Tex. Civ. App.) 8 S.W.(2d) 735; Russell v. Adams (Tex. Civ. App.) 18 S.W.(2d) 189; Texas Cities Gas Co. v. Ellis (Tex. Civ. App.) 63 S.W.(2d) 717.

Appellants rely upon the decision by the! Commission of Appeals in the ease of Moore v. Ivey, 277 S. W. 106. This case lays down the rule that where misconduct is once shown, and there is a reasonable doubt as to its effect, that doubt must be resolved against the verdict. However, in the present ease the evidence is insufficient to show misconduct of such a nature that influence upon the verdict can be presumed or any reasonable doubt created.

There is no contention by appellants that the evidence is insufficient to support the findings of the jury. However, it is .pointed out that the evidence is quite conflicting on the question of negligence. We think it would be going a long way to presume that the mention of insurance would cause thqi jury to find that appellant was guilty of negligence, or that such mention of insurance probably influenced the jury in find- ' ing the appellants guilty of negligence. Especially is this true in view of all the testimony offered on the motion for a new trial.

The first assignment is overruled.

Appellants next complain of a statement by one juror to his fellow jurors, that ‘he had had an automobile accident in which his car skidded thirty or forty feet* •on a dry pavement, after being struck by another car. This statement was made while ;the jury was discussing the probability of appellees’ car skidding- some sixty feet after the impact. The evidence disclosed that at the time of the collision appellees’ car was •descending the north slope of an ice covered hill and appellees testified that both cars ■skidded down said hill and across the road ■some sixty feet. We conclude that this statement by the juror did nlot constitute misconduct. A jury, in weighing the evidence in a case, are bound to use their common knowledge and their experiences in life. Experiences with automobiles are daily experiences and a jury called upon to pass upon! the facts of a case involving an automobile accident are compelled to consider the. •evidence in the light of their own knowledge ■and experience with automobiles. Kuntz v. Spence (Tex. Civ. App.) 48 S.W.(2d) 413; Goode v. Ramey et al. (Tex. Civ. App.) 48 S.W.(2d) 719; Lancaster et al. v. Johnson (Tex. Civ. App.) 224 S. W. 207; McBride v. Hodges (Tex. Civ. App.) 200 S. W. 877; International & G. N. R. Co. v. Eckford, 71 Tex. 274, 8 S. W. 679; Merchants’ Life Ins. Co. v. Clark (Tex. Civ. App.) 256 S. W. 969; Deyo v. Detroit Creamery Co., 257 Mich. 77, 241 N. W. 244; 64 C. J., Trial, par. 813, p. 1023, note 76; p. 1024, notes 78, 79, 80.

This assignment is overruled.

The judgment is affirmed.