author: ICRUEGE®, Judge.

text:
    MALLEY et al. v. STATE.
    No. 16563.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    H. H. Sagebiel, of Fredericksburg, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ICRUEGE®, Judge.

This is an appeal from a final judgment on a forfeiture of a bail bond.

Henry A. Malley was charged- by a complaint and information filed in the district court of Gillespie county, Tex., 'on the 25th day of January, 1933, with the offense of practicing medicine without a license. On the 27th of January, 1933, he filed in said court his bail bond, which required the defendant to appear in said court for trial on the 20th day of February, and there remain, etc. We do not deem it necessary to set forth the bond inasmuch as it appears to be in legal form.

The trial on said chargfe was had in said court on the' 4th day of March, 1933, before a jury which found the defendant guilty and assessed a fine against him but failed to impose any jail sentence. The court received and accepted the verdict of the jury. Thereafter, the defendant filed a motion for new trial calling the court’s attention to the error in the Jury’s verdict. Thereupon the court entered the following order:

“The State of Texas v. Henry Malley, No. 14,441. This day came on to be heard the defendant’s motion to set aside the verdict herein returned and arrest the judgment of the court thereon, and it appearing to the court that on the trial of this cause the jury rendered an informal verdict in that while it assessed a fine there was n'o jail sentence assessed, both of which were required. The verdict of the jury is set aside for the aforesaid informality and all prosecution against the defendant is dismissed and he is hereby discharged.”

By an Act of the 43d Legislature (1933) Special Laws, p. 84, c. 64, effective May 6, 1933 (Vernon’s Ann. Civ. St. art. 1970—312), jurisdiction of misdemeanor cases was conferred on the county court of Gillespie county, and the ab'ove styled and numbered cause was thereafter duly transferred to the county court of said county. The county court of said county convened on July 3d, and on the 5th of July, said cause was called for trial in the county court, but the defendant failing to appear, the bail bond was forfeited and judgment nisi entered thereon. Citation was duly issued to the sureties on said bond and the same was served on the 31st day of July. On October 13, 1933, the ■cause to make final the judgment nisi came ■on for trial. The court rendered and entered a final judgment against the appellants for the penal sum specified in said bond.

The appellants’ first contention is that the district court, after entering his order setting aside the verdict of the jury and rendering a judgment dismissing the prosecution and discharging the defendant, had no legal authority to reinstate the same. In- Order to determine this question it becomes necessary to determine whether the •court of his own motion had the legal authority to dismiss the prosecution and discharge the defendant. Eor authority in the exercise of judicial functions we must look, first, to the Constitution and statutes, and, second, to the common law, and where no such authority is conferred by the Constitution, the statute, or common law, either by express provision or necessary implication, none exist. Article 577, C. C. P., reads as follows:

“The district or county attorney may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding, judge.”

From said article it appears that the court has no authority to enter a judgment of dismissal in any criminal action unless a written statement is filed with the papers in the case 'by the prosecuting attorney, setting out his reasons' for such dismissal, which shall be incorporated in the judgment of dismissal. This article of the C. C. P. evidently was not complied with because there is nothing in the record showing that a written statement was filed with the papers in the case by the prosecuting attorney, setting out his reasons for such dismissal, nor is the same incorporated in the judgment of dismissal. Hence, we are forced to the conclusion that no such proceeding was had and in the absence of such a proceeding the judgment will be null and void unless we can find some authority for the same at the common law. At common law the matter of entering a-nolle pros-equi rests entirely within the discretion of the prosecuting officers and leave Of the court is not necessary, and by the weight of authority this is still the rule in the absence of a statute where the entry is made before the trial begins. In the absence of a statute, the court has no power to enter or direct the prosecuting officer to enter a nolle prose-qui. In Corpus Juris, vol. 16, p. 452, we find the following rule announced: “At common law only the Attorney-General could exercise the power to enter a nolle prosequi upon an indictment, and where there is no statute upon the subject, this power is still imposed in the Attorney-General or the several public prosecutors.” In Yol. 20, p. 56, Standard Gyc. of Procedure, we find the following rule announced: “The authority to enter a nolle prosequi rests usually in the prosecuting attorney alone. It cannot be entered by the court on its own motion unless authorized by statute.” Again, it lays down the rule on page 657 in the same text: “That the defendant’s attorney cannot originate the motion for a dismissal.” In Wharton on Criminal Procedure (10th Ed.) vol. 2, p. 177, § 1310, it is said: “A nolle prosequi is the voluntary withdrawal by the prosecuting attorney of present proceedings on a particular bill, and at common law is. a prerogative vested in the executive by whom alone it can be exercised.” Therefore, it is clearly apparent to our minds that the court in the case under consideration exceeded its legal authority in dismissing the cause and discharging the defendant. The court had the legal authority to set aside the verdict of the jury and to grant a new trial, but the act of dismissing the cause and discharging, the defendant without a written motion by the prosecuting attorney setting out his reasons for such dismissal and -without incorporating the same in the judgment of dismissal was without legal authority and without effect, and in support of the views herein expressed we refer to the case of State v. Anderson, 119 Tex. 110, 26 S.W.(2d) 174, 69 A. L. R. 233, where a similar question was thoroughly discussed by the Supreme Court of this state. The trial court not having legal authority upon its own motion to dismiss the case and discharge the defendant, the appellants were not by the order of dismissal released from the bond. Article 582, C. C. P., reads as follows:

“Where the accused is on bail when the trial commences, sucli ’bail shall not thereby be considered as discharged until the jury shall return into court a verdict of guilty or not guilty. He shall have the same right to have and remain on bail during the trial of his case and up to the return into court of such verdict as under the law he has before the trial commences; but immediately upon the return into court of a verdict of guilty, he shall be placed in the custody of the sheriff, and his bail considered discharged. Where the accused is convicted in a/nis-demeanor case and is on bail when the trial commences, such bail shall not thereby be considered discharged until the defendant’s motion for a new trial has been overruled by the court.”

It will be observed from said article that in a misdemeanor case when the defendant is on bail at the time the trial commences, such bail shall not thereby be considered discharged until the defendant’s motion for new trial has been overruled by the court. Therefore, inasmuch as the court had no legal power on his own motion to dismiss the ease and discharge the defendant, the bail bond remained in full force and effect, and when the defendant in said ease failed to appear on the 5th day of July, 1933, in said court, it was clearly within the power of the court to enter a forfeiture of said 'bond. The defense interposed by the appellants that the case had been dismissed by the court on the 4th day of March, 1933, and the defendant discharged was of no avail, and constituted no real defense to the rendition of a final judgment against the appellants. The appellants seem to take the position, and we believe correctly so, that a new trial can in no case be granted where the verdict or judgment has been rendered for the accused, but in the case under consideration there was no verdict or judgment rendered for the accused. The purported judgment dismissing the case and discharging the defendant was void because the court had no legal power on his own motion to dismiss the ease.

By bills of exception 1 and 2 the appellants complain of the action of the trial court in permitting the state to introduce in evidence the following portion of the docket of the district court of Gillespie county on the trial of the criminal case then pending against the defendant, Henry A. Malley, to wit-:

“March 4, 1933. On the trial of this cause the jury rendered an informal verdict in that while it assessed a fine there was no jail sentence assessed, both' of which were required. March 7, 1933: The verdict of the jury is set aside for the aforesaid informality and all prosecution against defendant is dismissed and he is hereby ordered discharged. Defendant’s counsel is granted leave to withdraw his application for a new trial. Before reading the announcement dismissing this cause, it was called to the court’s attention that there was no authority to do more than to set aside the informal verdict of'the júry herein and grant defendant’s motion for new trial. Accordingly, the court of his own motion hereby sets aside the verdict of the jury and grants defendant a new trial”

—to all of which the appellants objected for the reason that the docket entries made by the court in the trial of the case are not the best evidence of the proceedings of the court, but that the minutes of the court are the best evidence, which objections were by the court overruled and the appellants then and there excepted. While it is true that the minutes of the court are the best evidence, yet the duty devolved upon the appellants, in order to support the allegations in their answer, to show a legal order of dismissal of the case. The appellants realized that if the order of dismissal was valid, it was a good defense as against the forfeiture of the bond. Hence, they interposed the same as a defense to the state’s cause of action and sought under the judgment of dismissal to avoid the binding force and effect of their obligation. Therefore, it was incumbent upon them to make the proof, and if they failed to do so, they failed to sustain their allegations in their answer. We therefore conclude that the introduction of said orders by the state was in no way prejudicial to-the appellants.

Having reached the conclusion that the case was properly disposed of and no errors appearing in the record, the judgment of the trial court is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


source: Caselaw Access Project

author: MORROW, Presiding Judge.

license: Public Domain

text:
    PUEBLO v. STATE.
    No. 16666.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    Coleman Cline, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty'., of Austin, for the State.
   MORROW, Presiding Judge.

Conviction is for robbery; penalty assessed at confinement in the penitentiary for ninety-nine. years.

It is charged in the indictment that the appellant, on April 3, 1933, by assault and violence, robbed Vernon Gray of certain property, including a suit of clothes and a small sum of money. It is also charged that appellant, on June 20, 1928, was convicted in the district court of Ward county, in cause No. SIC, of a felony of like character; namely, robbery. The jury was authorized by the charge of the court to impose the enhanced penalty permitted by article 62, P. C. 1925, if their finding was that the appellant was guilty of the robbery of Gray and if they also found that appellant, as alleged in the indictment, had been previously convicted of an offense of like character. On the finding by the jury that appellant was guilty in both particulars charged in the indictment, the court assessed the penalty above mentioned, acting under the authority of article 62, P. O. 1925, which reads as follows: “If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

The record is void of a statement of facts or bills of exception, in consequence of which the sufficiency of the evidence is assumed, and the procedure not violative of any substantial right of the accused.

A motion to continue was made and overruled, but no bill of exception was prepared and approved by the trial judge complaining of the ruling, and, moreover, this court cannot, in the absence of the facts before the trial court, appraise the motion for continuance, especially in view of the controverting affidavit of the district attorney.

No written exceptions appear in the record assailing the court’s charge, nor is there fundamental error revealed in the instructions to the jury.

The motion for new trial does not reveal any fault in the trial that would authorize this court’s interference with the result.

The judgment is affirmed.


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    McClendon v. state.
    No. 16413.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1934.
    On Motion to Reinstate Appeal March 14, 1934.

      Nat Patton and O. W. Kennedy, Jr., both of Crockett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for five years.

The caption fails to show the date of the adjournment of the trial court. Under the decisions of this court the appeal must he dismissed. Howle v. State, 119 Tex. Cr. R. 17, 43 S.W.(2d) 594.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion to Reinstate Appeal.

KRUEGER, Judge.

At a former day this court dismissed this ease because of a defective caption in the record. Since then the record has been perfected, and, upon a motion duly made, the case will be reinstated and considered on its merits.

The appellant was tried and convicted of the offense of unlawfully transporting intoxicating liquor, and his punishment assessed at confinement in the state penitentiary for a term of five years. '

The testimony adduced by the state shows that on the 5th day of August, 1933, George A. Chaney, a deputy sheriff, searched the appellant’s automobile while it was parked on Camp street in the city of Crockett and found therein three one-half pint bottles of whisky. The appellant was not at the car at the time of the search but was down at the corner. The state then introduced a judgment of conviction entered against the appellant on the 5th of November, 1930, on a charge of unlawfully transporting intoxicating liquor. The appellant offered no evidence.

The appellant contends that the evidence does not warrant his conviction. After a careful consideration of the state’s testimony, we are inclined to agree with the appellant’s contention. The testimony shows that the car was parked on Camp street at the time it was searched, but that the appellant was not in or at the car. Just how long the car had been parked or by whom it was driven when parked is not disclosed by any testimony, nor when or by whom the whisky was placed in it. Hence, it failed to show a transportation of said liquor by the appellant. In the case of Payne v. State, 120 Tex. Cr. R. 230, 46 S.W.(2d) 310, 317, this court said: “Proof, to justify a conviction, would have to go further than to show merely the presence of the appellant at the place of the commission of the offense. This seems to be as far as the state’s evidence went in this case.” Again, this court in the case of Hammers v. State, 59 S.W.(2d) 162, 163, said: “But, in order to convict under a charge of transporting intoxicating liquor, it must be shown that there was a transportation of said liquor within the contemplation of our statute.”

Having reached the conclusion that the evidence fails to measure up to the requirements of the law which would justify a conviction on the charge of unlawfully transporting intoxicating liquor, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: CHRISTIAN, Judge. CHRISTIAN, Judge.

text:
    ROGERS v. STATE.
    No. 16046.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1933.
    Appeal Reinstated March 21, 1934.

      Searcy & Hodde, of Brenham, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

It is not made to appear that the statement of facts was filed in the trial court. This court is not authorized to consider a statement of facts which fails to show that it has been filed in the trial court. Davis v. State, 119 Tex. Cr. R. 200, 45 S.W.(2d) 1101, and authorities cited.

In the absence of a statement of facts, we are unable to appraise the bills of exception found in the record.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

It is now made to appear that the statement 'of facts was filed in the trial court. Hence the appeal will be considered on its merits.

The indictment charged ordinary theft, it being averred that one head of cattle was fraudulently taken by appellant from the possession of H. W. Buck. In our opinion the state’s evidence shows that H. W. Buck was not in possession of the animal alleged to have been stolen. Mr. Buck testified that he 'bought a yearling from appellant on August 12, 1932, paying him therefor $5 in cash and the balance in merchandise from his store. The animal he purchased was with appellant’s cattle in Kenny Bowen’s pasture. At the time the sale was made appellant stated to Mr. Buck that he would look after the yearling. At no time did Mr. Buck see the animal he bought. He testified: “He (appellant) didn’t deliver it to me; he left it there where it was when I bought it. Yes, it was where he said his other cattle were.” The arresting officer, Who was a witness fof the state, testified that appellant stated to him at the time he made the arrest that he killed the animal he had sold Mr. Buck, but that he intended to give him a larger yearling in place of it. It appears that the yearling was killed approximately two and one-half months after appellant sold it to Mr. Buck. The hide was found in the possession of Ben Hutchinson, who testified for the state that appellant owed him $5, and turned the yearling over to him to kill, and he and appellant killed the animal and divided the meat. He testified, further, that appellant told him he had three head of cattle, and that, going to Mr. Bowen’s pasture, they got the animal they killed. Again, he testified that appellant kept his cattle in Mr. Bowen’s pasture. It appears from his testimony that it was after 9 o’clock in the morning that the animal was taken from Mr. Bowen’s pasture and that the parties killed it in the afternoon. Mr. Bowen, who was in charge of the Bowen pasture, testified that he had no character of control over Mr. Buck’s cattle. Appellant did not testify in his own behalf.

We think it is clear that Mr. Buck, in whom possession was alleged, had permitted appellant to retain possession of the alleged stolen animal. The state’s proof showing appellant ¡himself was in possession of the animal alleged to have been stolen, he cannot be convicted of the offense of ordinary theft.

Appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: CHRISTIAN, Judge.

text:
    HERNDON v. STATE.
    No. 16378.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    Geo. S. McCarthy, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is the possession for the purpose of sale of a potable liquor containing in excess of 1 per cent, of alcohol by volume; the punishment, confinement in the penitentiary for one year.

A quantity of home-brew was discovered by officers in the living quarters of appellant. An analysis disclosed that some of the liquor contained approximately 7 per cept. of alcohol by volume. There was no proof that appellant had ever sold or offered to sell liquor of any kind. Appellant did not testify.

The count of the indictment under which appellant was convicted charged that appellant possessed for the purpose of sale a potable liquor containing in excess of 1 per cent, of alcohol by volume. The court, in substance, instructed the jury that the possession of more than one quart of liquor containing in excess of 1 per cent, of alcohol by volume would be prima facie evidence of possession for the purpose of sale. Article- 671, P. G., which authorizes a charge in an appropriate case to the effect that possession of more than one quart of intoxicating liquor may be taken as prima facie evidence of the fact that such possession is for the purpose of sale, is not applicable to a ease in which the indictment charges the possession for the purpose of sale of potable liquor containing, in excess of 1 per cent, of alcohol by volume. Shaw v. State, 113 Tex. Cr. R. 646, 21 S.W.(2d) 1049, 1050; Johnson v. State, 112 Tex. Cr. R. 528, 17 S.W.(2d) 1074. In the case of Shaw v. State, supra, the indictment charged a sale of potable liquor containing in excess of 1 per cent, of alcohol by volume. The provisions of article 671, supra, were embraced in the charge of the court. No exception was taken thereto. Reaching the conclusion that the matter presented fundamental error, this court called attention to the fact that the state relied entirely upon possession of the liquor; there being no proof that the accused had sold or offered to sell any of said liquor. In reversing the case, Judge Latti-more, speaking for the court, used language as follows:

“We have held that in such case it is erroneous to give in charge to the jury the provisions of article 671, Pen. Code, which authorizes a charge in an appropriate case to the effect that possession of more than a quart of intoxicating liquor may be taken as prima facie evidence of the fact that such possession is for the purpose of sale. Johnson v. State, 112 Tex. Cr. R. 528, 17 S.W.(2d) 1074; Leming v. State, 112 Tex. Cr. R. 563, 17 S.W.(2d) 1075. The giving of said charge in this case was not excepted to, nor was the proposition that giving same was erroneous advanced in the motion for' new trial.
“We are constrained to the view that the giving of the charge under the facts of this case was fundamentally erroneous. While appellant did not admit his possession of the potable liquor described in the indictment, the state’s testimony was sufficient to justify the jury in believing him in possession of same. No witness testified to any sale of liquor by appellant, and the inference of possession for sale rested solely upon the quantity of liquor possessed, aided by slight circumstances otherwise. It being then established by the state’s testimony that appellant possessed 100 bottles of said potable liquor, a quantity considerably in excess of one quart, the court’s instruction to the jury that possession by the appellant of more than a quart of such liquor would be prima facie evidence of the fact that he possessed it for purposes of sale appears to us to be a misstatement of the law of such materiality as to render it exceedingly probable that the rights of the accused were affected injuriously thereby. So believing, the motion for rehearing will be granted, the judgment of conviction set aside, and the judgment will now be reversed and the cause remanded.”

The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined 'by the judges of the Court of Criminal Appeals and approved by the court.


text:
    CRISP v. STATE.
    No. 16544.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    L. W. Shepperd, of Groesbeck, and E. G. Aycock, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Under an indictment charging him with assault with intent to murder R. L. Smith, appellant was convicted of an aggravated assault and his punishment assessed at a fine of $25 and confinement in jail for .three months.

Monroe Crisp, brother of appellant, was standing on the street talking to Will Morgan when R. L. Smith walked by. Following Smith, Monroe Crisp attacked him with a knife, and inflicted several severe wounds upon him. During the difficulty a pistol, which had been in the possession of Smith, fell to the sidewalk. As appellant reached the scene Smith called to bystanders to pull Monroe Crisp off of him. Appellant was not present when the difficulty began, but was. across the street. Upon seeing the fight, he ran across the street with a hammer in his hand. It appears that one Briggs made a movement indicating that he was going to separate Smith and Monroe Crisp. Appellant being near him with the hammer raised, said: “Stand back.” Until the parties were finally separated appellant stood near them with the hammer raised.

The court gave an abstract charge on the law of principals, but made no application thereof to the facts. The only instruction submitting the law of aggravated assault was as follows:

“If you believe from the evidence beyond a reasonable doubt that the defendant * * * with a deadly weapon did unlawfully assault the said R. L. Smith, but not with the intent to murder, then you will find the defendant guilty of an aggravated assault, and assess his punishment at a fine of not less than twenty-five nor more than one thousand dollars, or by imprisonment in jail not less than one month nor more than two years, or by both such fine and imprisonment, as you may determine and state in your verdict.”

Appellant made no attack on R. L. Smith with a knife. When he arrived at the scene of the difficulty, his brother, Monroe Crisp, was attacking Smith. Appellant’s only participation in the difficulty was to raise a hammer and say, “Stand back.” This being true, the testimony makes inapplicable the charge above quoted. The case should have been submitted to the jury under the law of principals with a proper application of the law to the facts. In other words, as appellant did not actually commit the offense, the jury were not warranted in finding him guilty, unless they believed beyond a reasonable doubt that appellant, knowing his brother’s unlawful intent, aided him by acts or encouraged him hy words or gestures in the assault he made on Smith. Manifestly, the court should have applied this phase of the law of principals to the facts, and charged on the converse thereof. The matter was timely and properly brought to the attention of the court by written exceptions to the charge.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    JONES v. STATE.
    No. 16534.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    H. D. Payne, of Floydada, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the. State.
   CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for four years.

The proof on the part of the state was to the effect that appellant burglarized the place of business of Glad Snodgrass and took therefrom a quantity of merchandise.

Appellant entered a plea of guilty, and filed his application for a suspended sentence. He placed on the witness stand a number of witnesses who testified that his general reputation for honesty and fair dealing was good. Over appellant’s objection the district attorney then questioned the witnesses concerning appellant’s general reputation in the community in which he lived as to being a peaceable and law-abiding citizen. The question was proper. Appellant having filed an application for a suspended sentence, it was proper for the state to show that his general reputation in the community in which he resided for being peaceable and law-abiding was bad. Moore v. State (Tex. Cr. App.) 67 S.W.(2d) 610.

A careful examination of all of appellant's contentions leads us to the conclusion that error is not presented.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: LATTIMORE, Judge.

text:
    THEDFORD v. STATE.
    No. 16781.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    Carlton Smith and Jim Guthrie, both of Waco, for' appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,' for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, four years in the penitentiary.

We find accompanying the record an affidavit, in proper form, showing - that since this appeal was perfected the appellant has .been killed. The appeal is abated.


author: KRUEGER, Judge.

text:
    JONES v. STATE.
    No. 16577.
    Court of Criminal Appeals of Texas.
    March 21, 1934.

      Li. C. Counts, of Olney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the offense of unlawfully selling intoxicating liquor, and his punishment assessed at confinement in the state penitentiary for a term of one year.

The appellant first complains of the insufficiency of the testimony to warrant his conviction. The testimony on behalf of the state showed that on the 11th day of August, 1933, James Rayfield and his wife drove np to a filling station owned and operated by the appellant and purchased from him one pint of whisky, for which Mr. Rayfield paid to the appellant 75 cents. The testimony offered by the appellant was to the effect that he (the appellant) was not at the filling station at 8:30 p. m. on August 11, 1933, at the time Mr. Ray-field claimed he purchased the whisky from him; that his brother-, Garvin Jones, was employed by him and ran the filling station at night; that the appellant was always at home at night unless he was gone somewhere with his wife. Mr. and Mrs. Rayfield were positive in their identification of the appellant as being the man who sold the whisky to Mr. Ray-field. It is clearly apparent from the testimony that a sharp conflict arose between the state’s testimony and that for the appellant. This question was submitted to the jury under proper instructions from the court, and the jury, whom the law has made the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, found against the appellant, and this court is not legally authorized to overturn their verdict unless there is no competent evidence upon which the verdict may rest.

By hill of exception No. 1 the appellant complains of the action of the trial court in sustaining the objection of the state to the following question and answer of the witness James Rayfield, while being cross-examined by the appellant: “Have you been drinking at any time since you have been in Seymour? A. No, I haven’t.” To which the state objected, and which objection was sustained by the court, and the appellant excepted. This hill of exception is in question and answer form and therefore cannot be considered by this court. However, we do not see the materiality of said testimony, nor do we see that it in any way tended to proWe that the appellant did or did not sell the pint of liquor at the time and place testified to by the witness. We overrule the appellant’s contention.

We have carefully reviewed the record, and finding no reversible error therein, the judgment of the trial court is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    BETTS v. STATE.
    No. 16578.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    B. C. Counts, of Olney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

A state ranger, accompanied by his wife, drove to the service station of A. D. Jones for the purpose of buying a pint of whisky. According to his testimony and that of his wife, A. D. Jones came to his car and he told him that he wanted to buy a pint of whisky. At this juncture, another party drove into the filling station and Jones went to wait on him. Jones directed appellant, who was lying on a bench in the filling station, to get the ranger a pint of whisky. Going into the station, appellant reached up in the loft and secured a pint of whisky which he brought out and delivered to the ranger’s wife. The money for the whisky was delivered by the ranger to Jones.

Appellant testified that he was not at the filling station on the occasion in question. He admitted that he worked for Jones a few days each week, but declared that he had no connection with the handling of any whisky by Jones.

Appellant insists that the evidence is insufficient to support the conviction. The court submitted the case upon the theory of principals. We think it clearly appears from the evidence introduced by the state that appellant, being present and knowing Jones’ unlawful intent, aided him in committing the offense by securing and delivering the whisky which Jones sold to the state’s witness. This being true, appellant was a principal. See articles 65 and 66, P. C.

The only bill of exception found in the record is in question and answer form, without any certificate on the part of the trial judge showing the necessity for such form. Hence said bill is not entitled to consideration. If the bill should be considered, we think it fails to reflect error.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: COMBS, Justice.

text:
    MOTHNER v. GRANATA et al.
    No. 2530.
    Court of Civil Appeals of Texas. Beaumont.
    March 28, 1934.
    Rehearing Denied April 4, 1934.

      D. E. O’Eiel, of Beaumont, for appellant.
    I-I. P. Barry and Jas. A. Harrison, both of Beaumont, for appellees.
   COMBS, Justice.

This case is before us as an appeal from a judgment of the county court, of Jefferson county at law, sustaining a special exception to the first amended original petition of appellant and dismissing the case. The appellant was plaintiff below, and the exception of the defendants was to the effect that plaintiff’s cause of action was barred by the statute of limitation of two years (Rev. St. 1925, art. 5526) at the time his first amended original petition was filed, February 6, 1931.

This case was before us on a former appeal and was reversed and remanded on other grounds than limitation, that issue not being raised on the former appeal. See Granata v. Mothner (Tex. Civ. App.) 44 S.W.(2d) 817.

As more fully appears from the facts stated in the opinion on the former appeal, appellant’s cause of action is for brokerage commission claimed to be due appellant for procuring a purchaser for certain real estate listed with him by appellees for sale under an exclusive agency. The cause of action arose March 15, 1928. The exception which was sustained by the trial court is as follows:

“They except specially to all of that portion of the petition alleging as a cause of action and a ground of recovery that plaintiff was the exclusive agent of defendants to sell said land and defendants gave to him an exclusive contract of agency with right to a commission regardless of whether plaintiff found the purchaser or sold the land or not because said cause of action was not asserted in plaintiff’s original petition and is asserted for the first time in plaintiff’s first amended petition, and, as appears from the file mark on said last named petition, more than two years had elapsed from the date plaintiff’s said cause of action accrued, if any he ever had, and the filing of said amended petition and said asserted cause of action 'based on an exclusive agency, affirmatively appears to have been barred by the two years statute of limitation and is now barred thereby.”

Plaintiff’s original petition does not appear in the transcript. On application of appellant we granted the writ of certiorari to have the original petition sent up, and in response to the writ the clerk of the county court sent up a copy of an instrument not signed by plaintiff or his counsel, to which the clerk attaches the following certificate:

“I, Fred G. Hill, clerk County Court of Jefferson County at Law, hereby certify that the above and foregoing is a true and correct copy of what purports to be a copy of the plaintiff’s original petition in Cause No. 8535, styled L. H. Mothner v. J. J. Granata, et al., as same appears on file among the papers of said cause in my office.”

The file mark on that instrument is dated March 27, 1931. There is nothing in the transcript to show when the original petition was filed, nor what its contents were, other than the above-mentioned purported copy.

The judgment of the trial court sustaining the exception and dismissing the case must be affirmed. Appellant contends that the trial court could look only to the first amended original petition in passing upon the exception, and that since it does not affirmatively appear in said petition that the cause of action was barred at the time the cause of action was originally sued upon, the judgment of the trial court should be reversed. This contention is without merit. Regardless of the rule announced in earlier cases, such as Oswald v. Giles (Tex. Civ. App.) 178 S. W. 677, 679, it is now the rule that, in passing upon an issue of limitation raised by exception to the pleadings, it is the duty of the trial court to look to the file marks and contents of superseded pleadings. Rule 14 for district and county courts; Askey v. Power (Tex. Com. App.) 36 S.W.(2d) 446; Braddock v. Brockman (Tex. Civ. App.) 49 S.W.(2d) 908. In the absence of a contrary showing, the presumption is that the trial court did look to the superseded pleadings and correctly determined therefrom that plaintiff’s cause of action was barred. The first amended original petition, upon which the case was tried, and the only pleading of the plaintiff which is before us, was filed nearly three years after the cause of action arose. We have examined the record carefully and there is nothing in it from which we can determine that the trial court did not correctly dispose of the issue of limitation. The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. MOYERS et al.
    No. 4467.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 27, 1934.
    Rehearing Denied March 15, 1934.
    Lawther, Cox & Cramer, of Dallas, B. M. McMahan, of Greenville, and Jas. P. Swift, of Dallas, for appellant.
    Willis & West, of Dallas, and Germain Harris, of Greenville, for appellees.
   SELLERS, Justice.

Mrs. C. B. Moyers brought this suit for herself and as next friend of her two minor children in the district court of Hunt county against Texas Employers’ Insurance Association to set aside an award of the Industrial Accident Board and for compensation for the death of her husband, J. B. Moyers, who was an employee of the Texas Refining Company at Greenville, Tex., and which company was a subscriber with the Texas Employers’ Insurance Association under the terms of the Workmen’s Compensation Law of this state (Vernon’s Ann. Civ. St. art. 8306 et seq.). The injury alleged to have been sustained by J. B. Moyers, as described in plaintiffs’ petition, is as follows:

“That on or about the 30th day of June, 1931, the said Jacob B. Moyers was employed by the said Texas Refining Company, and as such employee was engaged in the usual and customary duties for said Company, and was doing and performing the work, duties and labor that he was directed to do by his said foreman, and while so employed and while so engaged in said work for said Company "in Hunt County, Texas, he sustained' and received an accidental injury. That on said day and date, which was an extremely hot afternoon, plaintiff was working between two buildings in the hot‘sun with the rays of the sun beating directly down upon him, and was working near the west side of the East Building, which was constructed of tin and iron, that is the sides and roof, that the rays of the sun beating on the side of said building reflected on the body of Jacob B. Moyers as he was at work on said date ; that the reflection of said sun rays made it a hotter place for plaintiff than for any other person on that job, and hotter than the general public was accustomed to in that vicinity at said time, and subjected him to greater hazard from the heat of the sun than that to which the general public was ordinarily subjected; that at the time of said accidental injury and immediately prior thereto the said J acob B. Moyers was doing hard manual labor and had been painting heavy iron doors which were laid flat upon what is commonly known as horses about two feet off the ground and was an inexperienced painter; that the paint and iron doors, with his body and face directly over-same while using a paint brush, and the rays of the sun reflecting directly on to said paint and iron doors and reflecting back into his face and body made it a hotter place to him than to the general public in said vicinity on said date; by reason of all Qf the allegations herein the said Jacob B. Moyers, now deceased, suffered an accidental injury and what is known as a heat-stroke, from which stroke he died on the road to the hospital in Hunt County, Texas; that said injury resulted in his death. That he sustained the injury while working for the Texas Refining Company; and that he and said Company at the time of said injury was engaged in work, and deceased was in the course of his duties as directed by his said foreman at said time and occasion, and while in the usual and customary duties that he was ordered to perform, .and while doing said work at said time and ■occasion in Hunt County, Texas; that said injury resulted in his death, which was a direct and proximate result of the injury sustained on said time and occasion.

“Plaintiffs would further allege and show to the court that the said Jacob B. Moyers, deceased, was in the course of his employment for the said Texas Refining Company in Hunt County, Texas, on the day and date of the above alleged injury; that the said injury of Jacob B. Moyers, deceased, originated and had to do with the business of the said 'Texas Refining Company, and was sustained ¡by him while in and about the furtherance of the business of the said Texas Refining Company, and while doing the usual and customary duties of said employer.”

The defendant’s answer contained a general demurrer, certain special exceptions, general denial, and specially alleged as follows:

“Now comes defendant, for further and special answer, if same be necessary and without waiving its foregoing pleas, exceptions and demurrers but still insisting upon same and respectfully shows to the court that the alleged death of Jacob B. Moyers was due to an act of God and in the alternative defendant alleges that if the said death was not due to an act of God, that then and in that event the death was due to some other than damage or harm to the physical structure of his body and such diseases or infection as naturally result therefrom resulting from an accidental personal injury, and further in the alternative, defendant alleges that the hazards of the employment of said J acob B. Moyers was not the direct or proximate cause of his alleged death.”

The plaintiffs offered evidence to show that June 30, 1931, was a very hot day, the report of the government weatherman showing that the heat as recorded by him at about 2 o’clock on this day in Greenville, Tex., was 102 degrees. There is also evidence that this general degree of heat was exceeded by reason of the special situation and conditions at the very place where the deceased was doing the painting by twenty-live degrees. That the deceased worked at this place from some time in the morning until 3 or 3:30 in the afternoon. That on completing this work in the afternoon he went to a building some 150 yards away and continued to perform some duties for the refining company there. That this last place of work was in the building where the heat v as about the same as that generally prevailing in that vicinity. That deceased only remained in this building about thirty or forty minutes when he returned to the main shop of the company to get some tools, and, as he stepped into this building, he fell, and died a few minutes later in an ambulance on the way to a hospital. That he was not perspiring at the time he fell except a little under his arms. That at the time of his death his temperature was around 107 degrees. The deceased was about forty-nine years of age, and his wife testified that he had never been sick except for a spell or two of the flu a year or so before. A doctor testified from a hypothetical question that in his opinion the deceased died as the result of a heat stroke. There was evidence offered by the defendant to the ef-feet that deceased had been complaining for some time of feeling bad. That only a year or so before he gave out while chopping cotton and complained of pains in his chest and shortness of breath and a doctor testifying on behalf of appellant on a hypothetical question gave it as his opinion that the deceased died from heart trouble. The court submitted the following issues to the jury:

“No. 1: Do you find from a preponderance of the evidence that the death of J. B. Moyers was caused by an injury sustained in the course of his employment by the Texas Refining Company?”
Answer: “Yes.”
“You are instructed that ‘act of God’ as used in this charge, means that the injury is due directly and exclusively to natural causes, without human intervention, where no amount of foresight or care which could have been reasonably required of the Texas Refining Company could have prevented his injury.
“Now, bearing in mind the foregoing instruction, you will answer the following question:
“No. 2: Do you find from a preponderance of the evidence that the death of the said J. B. Moyers was due solely to an act of God?”
Answer: “Yes.”
“No. 3: Do you find from a preponderance of the evidence that J. B. Moyers was, at the time of his death and immediately prior thereto, in the performance of duties for the Texas Refining Company that subjected him to a greater hazard from the heat of the sun than ordinarily applied to the general public at that time?”
Answer: “Yes.”
“No. 4: If you have answered ‘Yes’ to question No. 3, above, then do you find from a preponderance of the evidence that such fact caused the said J. B. Moyers to suffer what is commonly called a heat stroke?”
Answer: “Yes.”
“No. 5: If you have answered ‘Yes’ to question No. 4 above, then do you find from a preponderance of the evidence that the death of the said J. B. Moyers was caused solely by said heat stroke?”
Answer: “Yes.”
“No. 6: Do you find from a preponderance of the evidence that the death of the said J. B. Moyers was caused by some natural disease?”
Answer: “No.”

Upon the answers of the jury to the issues submitted and the undisputed facts the court entered judgment for the plaintiffs for the sum of $7 per week for the term of 360 weeks;, one-third of which amount was allowed plaint-tiffs’ attorneys as their fee. Prom this judgment, the defendant has duly prosecuted this appeal.

Appellant’s first proposition is directed at the court’s definition of the term “injury sustained in the course of employment”' in that it did not contain the statement “that an injury caused by an act of God is not to be-considered as an injury sustained in the? course of employment unless the employee is at the time engaged in the performance of duties that subject him to a great hazard from the act of God responsible for the injury that ordinarily applies to the general public.” The court’s definition of the term “injury sustained in the course of employment,” as given in the charge to the jury, is as follows:

“You are instructed that wherever the term ‘injury sustained in the course of employment’ is used in this charge, it shall mean all injuries of every kind and character having to do with, and originatifig in the work, business;, trade or profession of the employer, received1, by an employee while engaged in or about the-furtherance of the affairs of business of his-employer, either upon the employer’s premises, or elsewhere.”

Article 8309, omitting provisions not pertinent to the points raised, provides:

“The term ‘injury sustained in the course of employment,’ as used in this law, shall not, include: 1. An injury caused by the act of God, unless the employee is at the time era-gaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public. * * * 4L But shall include all other injuries of every kind and character having to do with: and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of Ms employer whether upon the employer’s premises on-elsewhere.”

It will be observed that the definition of the' term as given by the court is in the language of the statute and has been approved. Texas Employers’ Ins. Ass’n v. Owen (Tex. Com. App.) 298 S. W. 542. The effect of'the first provision of the statute above quoted, iii our opinion, is not to change the definition- of the-term “injuries sustained in the course of eme ployment” in cases where the injury complained of is the result of an act of God, but only has a legal effect of placing upon the injured; employee, or his beneficiaries in ease of bis death, the burden of establishing the additional ultimate fact that the injury was sustained by the employee while engaged in the performance of duties for his employer that subjected such employee to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public. The requirement of the statute in this particular was fully met by the court with Submission to the jury of special issue No. 3.

The appellant complains of special issue No. 6 as contained in the charge of the court in that it places the burden of proof upon appellant. We regard the issue as immaterial to the judgment entered by the court in this case. The issue was evidently intended by the court to present to the jury the ap-' pellant’s defense as gathered from its evidence offered on the trial. Appellant’s pleadings, however, raise no such defense and the issue therefore was uncalled for as an affirmative defense of the appellant. The evidence offered by appellant as to a heart attack being tbe cause of Moyers’ death • was admissible to go to tbe jury and be considered by them in passing on the general issue made by the pleadings of the appellees that the deceased’s death was caused by a beat stroke. Certainly it would not be incumbent upon the appellees, after having established by a preponderance of tbe evidence that the cause of the death of the deceased was due to heat stroke, to then go further and establish by a preponderance of the evidence that the deceased did not die from any natural disease. The issue as submitted and found by the jury does npt present reversible error.

Complaint is maile that the preponderance of the evidence is against the jury’s findings upon some of the material issues submitted by tbe court. We have carefully reviewed the evidence and have concluded that the evidence is sufficient to support each of the jury’s answer's to the issues submitted.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

We are cited by appellant in its motion for rehearing to the rule which requires in this character of case the court to submit to tbe jury all affirmative defenses raised by the evidence of the appellant although its answer contained only a general denial. U. S. Fidelity & Guaranty Co. v. Baker (Tex. Civ. App.) 65 S.W.(2d) 344. We think the above rule has no application in a case where the evidence, as in this ease, tends only to negative the cause of action of a plaintiff which has been affirmatively submitted to the jury by the court. Texas Indemnity Co. v. Perdue (Tex. Civ. App.) 64 S. W. 386. Therefore appellant’s. motion for rehearing will be overruled.


author: JOHNSON, Chief Justice.

text:
    WALKER v. BAILEY et al.
    No. 4430.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1934.
    Meador & Meador, of Dallas, Bacy & Molhusen and George Prendergast, all of Longview, for appellant.
    W. H. Sanford and Gonan Cantwell, both of Dongview, Y. P. Broome, of Tulsa, Okl., and Allen & Morton, of Fort Worth, for appellees.
   JOHNSON, Chief Justice.

Appellant, W. B. Walker, was plaintiff in the trial court; and appellees, O. H. Bailey and those holding mineral interests under him, were defendants in the trial court. The suit is in form an action in trespass to try title, and in point of fact a boundary suit, with respect to the true location of the east boundary line of a tract of land of which the following is a substantial plat:

On September 18, 1930, W. B. Walter executed an oil' and gas lease conveying to 0. H. Bailey tbe ⅞ leasehold interest in and under the land, described in the lease as follows:

“Said land is in Gregg County, Texas, and is considered as follows:
“A part of the S. L. Davis Survey about 14 miles W of the town of Longview, on the waters of Sabine River, and bounded as follows, to-wit:
“Beginning at the 1ST 13 corner of the B. A. Vansictle Survey from which a pine and two water oats marted (X) are witness trees, which corner and bearing trees are on the bant of said Sabine River;
“Thence W with N B line of said B. A. Van-sickle Survey 1560 vrs to S. W. Comer of said S. B. Davis Survey;
“Thence N 1331 vrs to corner witness trees two water oaks, one brs N 80 deg W 3-2/5th vrs; the other brs S 42 deg E 2 3/5 vrs;
“Thence E 1180 vrs to corner on bank of Sabine River;
“Thence S 16 d.eg-40 min E following the meanderings of said river 1400 vrs to the place of beginning, containing 324 acres of land out of the South end of said S. L. Davis Survey, being the same land conveyed by J. E. and S. M._ Smith to undersigned on 1/15/1907 deed reed Vol. ‘V’, pp 482-3, Gregg Co., Deed Records.
“For the purpose of calculating the payments hereinafter provided for, said land shall be treated to comprise 324 acres, whether it actually comprises more or less. It is the express intention to include all land owned or claimed by said Grantor in survey or surveys, regardless of the correctness of the description above set out.”
In the latter part of the year 1931, plaintiff, W. B. Walker, employed a surveyor, W. D. Elliott, to make a survey of the land by the field notes in said deed dated January 15, 1907, from J. E. and S. M. Smith to plaintiff, W. B. Walker, which field notes are in effect the same as in the Bailey lease, said deed describing the said east boundary line, it being the last call, as follows:
“Thence S. 16 deg. 40 min. E. down said Sabine River with its meanders 1400 varas to the place of beginning, containing 324 acres, more or less.”

Elliott’s survey showed that with respect to the east boundary line there is a conflict in the call for course and distance and the call to meander the river from the northeast corner to the southeast corner of the tract, in that a line surveyed “down said Sabine River with its meanders,” or as recited in the lease, “following the meanders of said river,” to the place of beginning, does not coincide with the straight line course and distance call. “South 16 degrees 40 minutes East 1400 'varas,” in that the river first makes a slight bend to the west and then a larger bend to the east and back again, contacting the line at the southeast corner. In this bend of the river, according to Elliott’s survey, approximately 22 acres lie east of the course and distance call line and west of the Sabine river; that there is less than 324 acres lying west of the course and distance call and there is more, than 324 acres in the whole tract, approximately 341 acres; that east of the course and distance line called for in the field notes, he platted a line, west of which there would be 324 acres and east of which in the bend of the river there would be approximately 17 acres. This suit was filed by plaintiff, W. B. Walker, to recover the north 9 acres of the 17 acres in the bend of the river. It being the contention of the plaintiff, W. B. Walker, that the east boundary line should be located by the call for course and distance, hence said 17 acres in, excess of the 324 acres would lie outside of and not be covered by the field notes in the Smith deed to plaintiff nor covered by the same field notes in his lease to Bailey, and contending that plaintiff’s title to said 17 acres is by limitation and not by conveyance to him by the Smith deed. It is the contention of the defendants that the east boundary line should be located by the call for the meanders of the Sabine river, hence the 17 acres would be within the field notes of the deed from Smith and of the lease to-Bailey. A trial was had to a jury. There was no evidence introduced showing where the original surveyor in fact surveyed this east boundary line on the ground, no marked trees or other indications of his footsteps were found on the ground. Elliott, the surveyor, testified that in making his survey he located the four corners and the south, west, and north boundary lines on the ground as called for in the field notes, by beginning his survey at the established southeast corner on the bank of the Sabine river, thence running west, north, and east to the river; that when he arrived at the northeast corner on the Sabine river, he then surveyed along the west bank, following the meanders of the river to the place of beginning, and that he made the line himself as he went along; that he then ran the course and distance call from the northeast corner “South 16 degrees, 40 minutes East 1400 varas,” to the southeast corner; and that he did not find any marked or line tree, or any evidence of any other survey having been made along this line. At the close of the evidence the court instructed the jury to return a verdict for the defendant, and judgment was entered thereon accordingly. Erom an order of the court overruling his motion for new trial, plaintiff, W. B.. Walker, has perfected his appeal, and has assigned as error the action of the court in instructing a verdict against him.

It is the contention of appellant: (1) That the course and distance call is a specific and locative, call and that the call to meander the Sabine river is merely a directory call, and that since the two conflict, the latter must yield to the former, citing Phillips v. Ayres, 45 Tex. 601; (2) that the question as to' the true location of this boundary line was one of fact which should have been submitted to the jury, citing Hughes v. State, 57 Tex. Civ. App. 306, 123 S. W. 177.

We are not of the opinion that either of appellant’s propositions can be sustained. The call “down the Sabine River with its meanders” is not a directory call locating or placing the body of land- in the general neighborhood or locality of that part of the Sabine river, but it is a special locative call specifically identifying this boundary of the land by placing it along and down the Sabine river with its meanders, or, as stated in the lease, following the meanders of the river. It is a locative call for a natural object on the ground, and controls over the less reliable unmarked call for the course and distance with which it conflicts. Phillips v. Ayres, 45 Tex. 601; Stafford v. King, 30 Tex. 257, 94 Am. Dec. 304; Taylor v.. Higgins Oil & Fuel Co. (Tex. Civ. App.) 2 S.W(2d) 288; Burkett v. Ohestnutt (Tex. Civ. App.) 212 S. W. 271; Stover v. Gilbert, 112 Tex. 429, 247 S. W. 841.

In the absence of any evidence of the footsteps of the original surveyor preparing the, field notes, or any other evidence, as to where in fact he actually on the ground surveyed the line, the case presented no issue of fact to be determined by the jury, and in this respect is distinguishable from the case of Hughes v. State, supra. In the circumstances the case presented the question of locating the true boundary line, to be determined from the field notes by .the court under the general rule with respect to the relative importance of conflicting locative calls, namely, preference to be given, first, to calls for natural object; second, to artificial objects; third, to calls for course and distance.

We are of the opinion that the court correctly determined the east boundary line of the tract of land to be down the meanders of the Sabine river.

The record presents no error, and the judg-' ment of the trial court is affirmed.


author: SMITH, Justice.

text:
    McKINNEY et al. v. MEIER et al.
    No. 9295.
    Court of Civil Appeals of Texas. San Antonio.
    March 21, 1934.
    J. M. Mothershead, of Harlingen, for appellants.
    Osee Pristoe, of Harlingen, for appellees.
   SMITH, Justice.

On October 5, 1932, Ernest Meier and another conveyed a twenty-acre citrus fruit orchard in Cameron county, to P. W. Moser, and as a part of the consideration therefor the latter gave Meier his note for $4,6S0, secured by both the vendor’s lien and a deed of trust lien. Moser in turn conveyed the property to Maggie J. McKinney, subject to said liens, and the latter and her husband entered into possession of the property and still reside thereon as their homestead.

Early in the year 1933 Meier threatened to foreclose his deed of trust lien by procuring the trustee to sell the property under the terms of the deed of trust, but the sale was restrained under a writ of injunction issued by the district court.

In this situation Meier procured the appointment of a receiver to take charge of the orchard, collect and impound the revenues therefrom, and properly care for the fruit trees against alleged neglect and deterioration, and by this means conserve the creditor’s security. Mrs. McKinney, joined pro forma by her husband, has appealed from the order appointing a receiver.

In his application for a receiver Meier alleged: “That on October 5th, 1932, the time this defendant sold and conveyed said prop--erty to the said P. W. Moser, there was then growing on said lands a large number of citrus fruit trees, that said trees at said time had been carefully looked after and attended by this defendant and kept in a healthy and growing condition. That since this defendant sold said property, said lands and citrus fruit trees have been neglected and have not had proper care or attention, nor have the same been watered or cultivated in the manner necessary for the normal or healthy growth of said trees, and as a re- • suit thereof, this defendant says that said trees are rapidly deteriorating and are in great danger of dying from infestation and in this connection, this defendant further says that said trees have not been watered, sprayed or pruned since October 5th, 1932. That in order to produce marketable citrus fruit from trees, it is essential to cultivate, water, spray and prune citrus fruit trees, and that said trees should have been given this care and attention during the past winter and long prior to the filing of the Motion, and as a result of the lack of said care, this defendant says that said trees are badly infected with gummosis; that unless said trees have immediate proper attention, 'the fruit crop growing thereon will be of very inferior grade and said trees will be greatly damaged. Defendant further says that the principal value of said property is in said trees, and that the bare land would be. of very little actual value. That unless a suitable person is appointed by the Court to take charge, properly look after and care for said trees and said land, this defendant has ample reason to believe and does believe that plaintiff will continue to neglect said property, and not give the same the care and attention necessary; That if said property continues to be neglected as it has been since October 5th, 1932, that the property will not be of sufficient value to pay this defendant the indebtedness secured by lien thereon as above set forth. This defendant says that said property, taking into consideration the serious condition of the trees, is now not of sufficient value to equal the amount of said indebtedness held by him.”

Appellants have brought forward seven propositions of law based upon a like number of assignments of error, but have briefed only the first proposition and assignment, which are, in effect, that the application for the appointment of a receiver was subject, to the general demurrer urged against it. The question of the sufficiency of appellants’ special exceptions, or of the evidence to support the judgment, is not briefed, and, being thereby waived, will not be considered.

We are of the opinion that the application was good as against the general demurrer, and that the trial judge was warranted in hearing evidence in order to determine the merits of the ease, and, he having done so, and there being no error assigned against his findings thereon, those findings are binding upon this court.

It is urged by appellants that appellees alleged nothing to negative the existence of any adequate alternative remedy, but we conclude the application was sufficient for that purpose. Appellee alleged (and presumably proved) the debt, the existence of a valid lien, the neglect, as well as substantial and progressive deterioration of the security, and the probable imminent destruction of the value of the security, if not conserved by a receiver. Appellee had been enjoined from pursuing his remedy of foreclosure. The remedy of prohibitory or mandatory injunction restraining'appellants from neglecting the security, or commanding them to properly care for and conserve it is of course unavailable. In such case receivership was the only alternative, and the obvious one.


author: HIGGINS, Justice.

text:
    PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. BERRYHILL.
    No. 2972.
    Court of Civil Appeals of Texas. El Paso.
    March 15, 1934.
    Rehearing Denied March 29, 1934.

      H. D. Stringer and R. A. D. Morton, both of El Pasó, for appellant.
    Jones, Goldstein, Hardie & Grambling, of El Paso, for appellee.
   HIGGINS, Justice.

On January 24,1922, appellant issued to ap-pellee a policy of insurance. The terms of the contract pertinent to a consideration of questions here presented read:

“Should the insured, before attaining the age of sixty years and while this Policy is in full force and no premium thereon in default, become so disabled as to be totally and permanently unable to perform any work, or engage in any occupation or profession for wages, compensation or profit, or suffer the irrecoverable loss of the entire sight of both eyes, or the use of both hands or feet or of one hand and one foot, the Company will waive the payment of future premiums and pay the Insured One Hundred Dollars immediately on receipt of due proof of such disability or loss and a like sum on the first day of each month thereafter as long as the Insured shall live, and such waiver of premiums and payments to the Insured shall not affect any other benefits or values granted under the conditions of the Policy, provided, however, as follows:
“Should the Insured at any time thereafter, when required by the Company, (such requirement, however, not to be exacted more frequently than once a year) be unable to furnish due proof of the continuance of his right to the foregoing benefits, the Company will discontinue the same and require the payment of any premiums which may thereafter become due under the conditions of the policy, but no reimbursement shall be required for any premiums waived or monthly payments made.”

On May 3, 1932, through the accidental discharge of a shotgun, appellee was shot in his left hand and right foot.

Upon the theory that such injury had caused the irrecoverable loss of the use of such hand and foot, appellee brought this suit to recover seven past-due monthly installments of $100 each, the statutory 12 per cent, penalty and attorney’s fee.

The first question submitted inquired whether on May 3, 1932, plaintiff suffered the irrecoverable loss of the use of his left hand.

The second question made like inquiry concerning the right foot.

In this connection the court charged that the “irrecoverable loss of the use of a hand or a foot is the total permanent loss of the functions of said member to the' extent that said member is of no practical use or benefit, without reasonable hope or expectation of regaining the use of such member.”

An instruction requested by defendant was given which reads: “In connection with Questions 1 and 2 you are instructed that the phrase ‘irrecoverable loss of the use’ means whether the member is so injured that there is no reasonable probability that the member will ever be of any practical use. If the member is so injured, there is such irrecoverable loss of the use, but if it is not so injured, then ■there is no such loss of the use.”

Both of the questions stated were answered in the affirmative.

The third question inquired what would be a reasonable attorney’s fee for the institution and prosecution of plaintiff’s claim upon the policy. This was fixed at $1,500. In connection with this question, the court charged: “That you may take into consideration the nature and c-har-acter of such services, the amount involved, the interest at stake, the services performed, the length of time occupied in the performance of such services.”

Judgment was rendered in plaintiff’s favor, finding he “suffered the irrecoverable loss of the use of one hand and one foot, to wit: his left hand and right foot, on the 3rd day of May, A. D. 1932,” and awarding recovery of the monthly payments sued for, with 12 percent. penalty and attorney’s fee of $1,500 to be taxed as costs.

Our conclusions disposing of the questions raised will be briefly stated. Extended discussion is regarded as unnecessary.

The court’s definition of irrecoverable loss of the use of a hand or foot, in connection with the charge requested by defendant, is correct. Citizens’ M. L. I. Ass’n v. Kennedy (Tex. Civ. App.) 57 S.W.(2d) 265; Modern Order of Praetorians v. Taylor, 60 Tex. Civ. App. 217, 127 S. W. 260; Brotherhood, etc., v. Britton (Tex. Civ. App.) 292 S. W. 286, 287; United States v. Clapp (C. C. A.) 63 F.(2d) 793.

It is not objectionable as being upon the weight of the evidence. Charges general in their nature and undertaking to instruct the jury as to the law arising upon the facts are improper in special issue submissions, but the definition given cannot properly be regarded as of such nature. Missouri, K. & T. Ry. Co. v. Long (Tex. Com. App.) 299 S. W. 854.

The testimony of plaintiff and Drs. Mas-son and Clark is ample to show an irrecoverable loss of the use by plaintiff of his left hand and right foot, as the term was defined by the court. It is true there is testimony by other medical experts that the functions of such members have not been entirely destroyed, and there is a chance of saving the same so they will be of some use, but such testimony presented only an issue of fact for the jury’s determination which was resolved in the Xfiaintiff’s favor. The finding made is controlling in the state of the evidence.

Complaint is made of that portion of the judgment adjudging plaintiff had suffered the irrecoverable loss on May 3, 1932, of the use of one hand and one foot. Error is also assigned to the refusal to incorporate in the judgment a provision that it was without prejudice to the rights of the defendant in .any future litigation and protecting defendant in its right to discontinue payments should plaintiff in the future be unable to furnish due proof of the continuance of his right to the monthly payments.

The basic issue in the ease as made by the pleadings and evidence and. upon which the rights of the parties depend is whether the plaintiff has suffered the irrecoverable loss of the use of one hand and one foot. The plaintiff’s right to recover the sums sued for depends upon an affirmative showing that he has suffered such loss. It was proper to expressly adjudicate the controlling issue in the case, though, in truth, it added nothing to what would have been the legal effect of a judgment simply awarding a recovery of the sums sued for. A judgment of the latter nature by necessary implication would have been res judicata of the issue of irrecoverable loss. Great Southern L. I. Co. v. Johnson (Tex. Com. App.) 25 S.W(2d) 1093, 1094; Beasley v. Pacific M. L. I. Co., 158 Tenn. 346, 13 S.W.(2d) 330.

And we are of the further opinion the court properly refused to incorporate a no prejudice provision in the judgment, thus leaving undetermined the controlling issue in the ease and permitting future litigation over the same.

It has been established by judicial decree the plaintiff has- suffered the irrecoverable loss alleged. Under the terms of the policy and the fact thus established, he is entitled to payments of $100 per month as long as he lives and to be relieved of the payment of future premiums. The provision of the policy, giving defendant the right to discontinue such payments in the event plaintiff should be hereafter unable to furnish due proof, can have no proper application where the issue of an irrecoverable loss has been judicially ascertained and established.

In this connection, appellant refers to the cases above cited, but they do not involve the question here presented. Neither of such cases determine whether a nonprejudice provision should or should not have been incorporated in the judgment. The question involved in those cases was that of res judicata.

In Southern Casualty Co. v. Morgan (Tex. Civ. App.) 299 S. W. 476; Id. (Tex. Com. App.) 12 S.W.(2d) 200; Id. (Tex. Com. App.) 16 S.W.(2d) 533, the question arose under the Workmen’s Compensation Act, and for this reason it has no present application. The other authorities cited deal with the law of res judi-cata, which is not the question here presented.

The assignment questioning the validity of the Texas attorney’s fee and penalty statute (article 4736, R. SI, as amended by Acts 1931, e. 91, § 1 [Yernon’s Ann. Civ. St. art. 4736]), upon the ground that it violates the due process and equal protection clauses of the Federal Constitution (Amend. 14), is overruled. Fidelity M. L. Ass’n v. Mettler, 185 U. S. 308, 22 S. Ct. 662, 46 L. Ed. 922; Union C. L. & I. Co. v. Chowning, 86 Tex. 624, 26 S. W. 982, 24 L. R. A. 504; Manhattan L. I. Co. v. Cohen (Tex. Civ. App.) 139 S. W. 51.

The statute in question was amended in 1931 by adding the following; “Such attorney fee shall be taxed as a part of the costs in the case. The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.” (Vernon’s Ann. Civ. St. art. 4736.)

It is urged that, since the statute provides that the attorney’s fee shall be taxed as costs and fixes no amount, it is, so far as concerns attorney’s fees, too indefinite, and for that reason invalid; also that a matter of costs, is not a proper subject for submission to the jury.

The attorney’s fees are not to be regarded as costs in the ordinary sense of the small fees allowed court officers. People of Sioux County v. National S. Co., 276 U. S. 238, 48 S. Ct. 239, 72 L. Ed. 547; Missouri State L. I. Co. v. Jones, 290 U. S. 199, 54 S. Ct. 133, 78 L. Ed. —, decided December 4, 1933.

The amount to he allowed as attorney’s fees was a proper matter for submission to the jury. Connecticut G. L. I. Co. v. Bertrand (Tex. Civ. App.) 47 S.W.(2d) 631; Id. (Tex. Com. App.) 65 S.W.(2d) 279.

The objection that the statute, for the rea-, son indicated, is too indefinite to be valid, is regarded as without merit.

Nor do we regard as tenable the position taken by appellant that the statute, because of the amendment of 1931, cannot constitutionally be made applicable to the present case. Funkhouser v. J. B. Preston Co., 290 U. S. 163, 54 S. Ct. 134, 78 L. Ed.-, decided December 4, 1933.

Under the authority of the cases cited, the amendment is not to be regarded as impairing the contractual obligation - of appellant.

To the charge given in connection with the issue of attorney’s fees, appellant objects upon the ground that it allows a double recovery and includes elements which are not proper. The charge in question is quoted above; It is not subject to the criticism made.

The ruling upon evidence complained of under points of error 7, 8, and 9 presents no error. The evidence was properly admissible for the purpose to which it was limited by the court at the time of its admission, and a supplemental charge given by the court limiting the effect of such evidence was correct and properly protected the appellant’s rights in the matter.

There was no error in admitting the letter from appellee’s attorneys to appellant demanding payment and appellant’s reply thereto. The letter to appellant was admissible as a predicate for the recovery of the statutory penalty and attorney’s fees. Appellant’s reply was admissible to show receipt of such demand and refusal to pay. Such reply was not an offer to compromise as appellant asserts. On the contrary, it repudiated liability.

Other rulings upon evidence are complained of. They are without merit and call for no discussion.

The only other question in the case arises upon the claim that the allowance of $1,500 as attorney’s fee is excessive. Two members of the bar testified concerning this matter. One of them expressed the opinion that $1,500 to $2,000 would be a reasonable fee for representing the plaintiff in the suit. The other attorney fixed $750 cash as a reasonable fee. In considering this question, this court is not bound by the direct testimony upon the issue, but we may “view the matter in the light of the testimony, the record before them, the amount in controversy, and their own common knowledge and experience as lawyers and judges.” Southland L. I. Co. v. Norton (Tex. Com. App.) 5 S.W.(2d) 767, 769.

The amount in controversy involves more than the seven monthly payments sued for and penalty thereon, for the judgment is res judicata of the disability claimed by plaintiff and of his right to the monthly payments in the future as provided by the policy.

This court is always reluctant to interfere with a jury’s finding upon an issue of fact, and the majority of the court see no occasion to interfere with the finding fixing $1,500 as a reasonable fee. The writer inclines to the view that $1,000 would be an ample fee and a remittitur of $500 should be required, but he will not dissent from the holding of the majority that we should not interfere with the finding of the jury upon the issue.

Affirmed.


author: ALEXANDER, Justice.

text:
    POWELL SALT WATER CO. v. BIGHAM.
    No. 1448.
    Court of Civil Appeals of Texas. Waco.
    March 15, 1934.
    Yinson, Elkins, Sweeton & Weems and R, E. Seagler, all of Houston, and C. W. Taylor, of Corsicana, for appellant.
    Richard & A. P. Mays, of Corsicana, for ap-pellee.
   ALEXANDER, Justice.

In 1924, and for several years thereafter, the defendant Powell Salt Water Company was engaged in the business of disposing of the salt water from various wells in the Powell oil field in Navarro county. These wells were on the watershed of Chambers creek. The defendant disposed of said salt water by causing it to flow into Chambers creek and thence down Richland creek. The plaintiff E. Y. Bigham owned a farm consisting of 85 acres located in Richland creek bottom. The land did not abut on said creek, but was subject to overflow therefrom. Por a valuable consideration, the defendant purchased from all landowners whose land abutted on said creek a right of way privilege authorizing it to flow the salt water down said creek, but did not procure such permit from the plaintiff. In 1928 the plaintiff brought this suit against the defendant to recover for the damages alleged to have resulted to his land as the result of the flowing of said salt water down Richland creek by the defendant. It was alleged that salt was carried to plaintiff’s land from said creek both by overflow and by underflow or seepage.

The case was submitted to the jury on fourteen special issues, and the jury in answer thereto found substantially as follows: That as the result of salt water being discharged into said creeks by the defendant (1) a part of plaintiff’s land was damaged or destroyed; (3) that 11 acres of plaintiff’s cultivated land was totally destroyed for farm purposes; (4) that 24 acres of the cultivated land was damaged or partially destroyed; (5) that none of the timberland was totally destroyed; (6) that 15 acres of the timberland was damaged or partially destroyed; (7) that the cultivated land immediately before it was so destroyed by the defendant was of the reasonable market value of $70 per acre; (8) that immediately after being so destroyed said land had no value; (9) that the cultivated land which was partially destroyed was of the reasonable market value of $70 an acre immediately before it was so damaged; (10) that immediately after being so damaged by the defendant said cultivated land which was partially damaged was of the reasonable value of $52.50 per acre; (13) that the timberland which was damaged or partially destroyed by the defendant was of the reasonable market value of $22.50 per acre immediately before it was so damaged; (14) and that immediately after being so damaged it was of the reasonable market value of $16.-96 per acre. In response to such findings, the trial court entered judgment in favor of the plaintiff for the sum of $1,274.60. The defendant appealed.

There is evidence to the effect that there were approximately 700 wells in the Powell field and 250 wells in the Richland field from which the salt water was discharged into the creek in question. The appellant handled the salt water from approximately 90 per cent, of the wells in the Powell field. Others not parties to this suit handled the salt water from the remaining 10 per cent, of the wells in the Powell field and the 250 wells in the Rich-land field. These other parties- discharged the salt water handled by them into the same creeks. With the record in this condition the appellant requested the court to give its specially requested issues Nos. 1 to 4, inclusive, in which it sought to have the jury find whether or not others than appellant had damaged appellee’s land by discharging salt water into said creek, and, if so, what per cent, of such salt water damage was caused by appellant and what per cent, was caused by other tort-feasors. The trial court refused such issues, and the appellant here assigns the ruling of the court as error. In view of the manner in which the case was submitted to the jury, it was not error to refuse to submit the issues in question. Perhaps if the couirt had undertaken to ascertain what amount the value of plaintiff’s farm had been depreciated by all causes, it might have been pertinent to have ascertained what proportion or percentage of this damage had been caused by the defendant; but the court -did not submit the case to the jury in this manner. The court submitted to the jury questions as to the amount of damages caused by the defendant alone. The defendant was liable for the full amount of the damages so caused by it, but was not liable for the damages caused by others. Hence it was not necessary to -ascertain the amount of damages caused by others nor the percentage relation between the damages caused by the defendant and that caused by others.

The appellant further contends that the evidence was insufficient to support the verdict because such evidence failed to separate the damages caused by the appellant from that caused by other tort-feasors. It is true 'that the evidence does not establish to a mathematical certainty the exact amount of damages caused by appellant alone, nor does it separate with exact accuracy the damages caused by appellant from that caused by others who discharged salt water into the creek in question; but the law does not require such exactness. Where the evidence establishes that a plaintiff has suffered substantial 'damages, he is not to be denied a recovery merely because others than the defendant contributed to bring about his loss and he is unable to show distinctly the amount of damages contributed by each tort-feasor. All that the law requires is that the best evidence of which a case is susceptible be produced, and if from such evidence the amount of damages caused by the defendant can be inferred or estimated by the jury with reasonable certainty, then the amount of such damages is for the jury. 17 C. J. 758, 759; 13 Tex. Jur. 368; Owens v. Navarro County Imp. Dist. (Com. App.) 115 Tex. 263, 280 S. W. 532, par. 5; Burr’s Ferry v. Allen (Tex. Civ. App.) 164 S. W. 878; Fort Worth & D. C. Ry. Co. v. Tomson (Tex. Civ. App.) 250 S. W. 747, par. 5. We think the evidence was sufficient to enable the jury to estimate with reasonable certainty the amount of damages caused by the appellant. We overrule this assignment.

At the request of appellee, the court charged the jury as follows:

“You are instructed in connection with questions numbered one to fourteen, inclusive, as follows:
“In considering and determining the damage to the land, if any, you will find (1) the market value of the land before it became damaged, if it was, as a result of salt water being discharged into Chambers and Rich-land Creeks by the defendant; and (2) you will find the reasonable market value of the land after the damage to said land, if any, was sustained. And in this connection you will take into consideration all evidence and facts relating to the damage to said land, if any, sustained as a result of salt at the time the injury was sustained, if any, since then, and the «reasonable and probable damage which it will sustain thereafter, resulting from salt water discharged into Chambers and Richland Creeks by the defendant, if any, upon, plaintiff’s said land.”

Appellant objected to said charge: First, beeausé the same was a general charge given in a case submitted to the jury on special issues and such charge was not necessary for the definition of any legal or technical term used elsewhere in the court’s charge; and, second, because said charge authorized the jury to award compensation to the plaintiff for damages done to his land by the discharge of salt water into said creeks by persons and companies other than the defendant

We are of the opinion that the first objection urged by appellant to the above charge should have been sustained. As before stated, the case was submitted on special issues. The charge complained of does not purport to contain a definition or explanation of any legal or technical term used elsewhere in the charge. It purports to instruct the jury generally as to what evidence should be considered and how it should be applied in answering each of the fourteen issues submitted to the jury. In the case of Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 557, 559, Judge Harvey said.

“A ‘general charge’ is an instruction given by the court to the jury as to the law pertaining to the case, or any phase thereof. For a charge to be a general one, it is not. necessary that it be one submitting an issue-of fact for determination by the jury, with instruction that if they find such facts to exist to find verdict thereon in favor of one of the parties. * * * It is obvious, from a reading of these statutory provisions, that whenever special issues are submitted to the-jury, a charge which undertakes to instruct-the jury as to the law pertaining to any phase of the case, excepting such explanations and definitions of legal terms as are allowed by the statute, is not permissible.
“Every party litigant has the right to have-his case tried in accordance with such statutory provisions. If this right be violated, over-his objection, by the submission of instructions not authorized by statute, injury to the objecting party is presumed; and unless it clearly appears that no injury or prejudice results to him, or his cause, he is entitled to a new trial. Railway v. Harrington (Tex. Com. App.) 235 S. W. 188, and authorities there cited.”

See also, in this connection, Barnes Bros, v. I. & G. N. R. R. Co. (Tex. Com. App.) 1 S.W.(2d) 273; T. & P. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Winters Mutual Aid Ass’n v. Reddin (Tex. Com. App.) 49 S.W.(2d) 1096, par. 10; Kemper v. Police Firemen's Ins. Ass’n (Tex. Com. App.) 48 S.W.(2d) 254; Owens v. Navarro County Levee Imp. Dist., 115 Tex. 263, 280 S. W. 582.

When the si>ecial charge in question is carefully and critically analyzed, it is probably not subject to the second objection above set out. The charge, however, is confusing and might have led the jury to believe that they were authorized to consider and allow compensation for all depreciation in the market value of the land regardless of the cause ■ thereof.

The appellant complains of other alleged errors in the court’s charge. These objectionable features can and doubtless will be avoided-on another trial.

On account of the error above 'pointed out, the judgment of the trial court is reversed, and the cause remanded for a new trial.