Besso v. Southworth

71 Tex. 765 | Tex. | 1888

Gaines, Associate Justice.

This suit was brought by appellee against appellant, to enjoin him from permitting a bawdy house to be kept upon certain property owned by him. in the city of Corsicana, and to recover damages caused by the nuisance.

The allegations of the petition show that the defendant was the owner of a house and lot in the city, and that the plaintiff owned other houses and lots in the same vicinity, upon one of which he resided with a wife and children—the other being used “for rental purposes;” that for two years previous to the filing of the petition the defendant had rented his house to lewd women as a place of prostitution, and that during all that time it had been occupied by his consent by such women as a place of public prostitution. It was also averred that during the time the inmates of the house, “at all hours of the day and night, had been guilty of boisterous, vulgar and indecent conduct, in the view and hearing of this plaintiff and his family and his tenants.” It was also alleged in substance that the plaintiff and others had used efforts to abate the nuisance by prosecuting the inmates, by warning the defendant, and by notifying him in writing not to permit the house to be used for such purposes; and that notwithstanding this, for the purpose of shielding himself from the consequences of his conduct, he had made a deed to the keeper of the house, which was without considertion and “a sham and fraud.” The petition also averred that, by reason of the premises, the plaintiff had great difficulty in renting the houses kept by him for that-purpose, that they had depreciated in value, and that he had suffered a wrong and outrage to his feelings, and claimed damages, actual and exemplary, both to his property and feelings.

The court charged the jury that if they found for the plaintiff and awarded damages, that they would state in their verdict how much was allowed for permanent depreciation in the value of the property, how much for loss of rents and how much for injury to the plaintiff’s feelings; but also .charged them that they should not give exemplary damages. The jury found for plaintiff, and gave twenty-five dollars as damages for loss of rents and seventy-five dollars for injury to his feelings, and that there had been no depreciation in the value of his property.

It is insisted that the pleadings did not warrant an award of damages for a loss of rents, and that, therefore, the charge of the court instructing the jury to find such damages was error. We do not concur in the proposition. The allegations of the petition indicated that the plaintiff had been damaged by the difficulty in renting his property as well as by depreciation, and alleged his aggregate damages from this source at twe thousand dollars. We think that this was sufficient in a general way to apprise the defendant of the nature of plaintiff’s claim in these particulars, and that if he had desired a more specific allegation he should have interposed a special exception to the petition.

It is also complained, in effect, that the court erred in instructing the jury that the plaintiff could recover for the injury to his feelings, as actual damages; and the proposition is submitted, that mental- suffering is not an element of actual damages in such a case. There is no statement of facts in the record, and it is a general rule that, in the absence of such statement, errors assigned upon the charge of the court will not be considered. (Dewees v. Hudgeons, 1 Texas, 192; Berge v. Warehop, 23 Texas, 441; McMahon v. Rice, 16 Texas, 335; Lewis v. Black, 16 Texas, 652; Flanagan v. Ward, 12 Texas, 209.) If it should be conceded that the proposition insisted upon is correct, then the question would arise: Has the defendant been prejudiced by the error in the charge?

Mental suffering being an element to be considered in the estimate of exemplary damages, if the pleadings and evidence made a case of such damages, the question would have to be answered in the negative. The petition does show a recovery has once been had for a nuisance and it is continued, exemplary damages are allowed as a matter of course upon a case for exemplary damages. It is elementary, that when a second successful suit. (Wood on Nuis., sec. 855.) The ground of the recovery in such case is that the continuance of the nuisance after damages are once recovered, shows “a wanton and willful invasion of another’s right.” In the case before us the petition shows that the defendant had been warned of the nature of the establishment complained of, and notified in writing to suppress it, and that he subsequently made a pretended conveyance (which was without consideration) to the keeper of the house in order so shield himself from responsibility. Hence, if the allegations be true, he knew the nature of the house, and that it was damaging and offensive to his neighbors; and the law charges him with notice, that it was unlawful. The making of the pretended conveyance showed a consciousness of his guilt and a willful determination to persist in the wrong. This, we think, makes as strong a case for exemplary damages as that of a second recovery. As to the evidence, in the absence of a statement of facts, we must consider as proved every fact necessary to a recovery which could have been proved under the pleadings; unless we are to be governed as to this matter by the statement made in the charge of court, to the effect that there was no evidence to warrant a recovery of exemplary damages. But we are of the opinion that we can not look to the charge of the court to determine whether or not there has been any evidence upon a particular issue. A statement of facts is the method provided by the statute for certifying to this court the evidence adduced upon a trial in the court below; and when this is absent, we must consider everything as proved which is necessary to sustain the verdict. If the circumstances of aggravation alleged in the petition were proved, as we must presume they were, then we think the plaintiff was entitled to recover for the injury to his feelings, and that the error of the court in charging that such injury could be recovered as actual damages becomes immaterial, if error it was. If the appellant had brought up a statement of facts, and it had appeared therefrom that a case for exemplary damages was not made by the evidence, it would have been necessary for us to determine whether the charge complained of was erroneous or not. As the record is presented we are relieved from entering upon the discussion of that vexed question.

There being no error in the proceedings of the court below, which has operated to the prejudice of appellant, the judgment is affirmed.

Affirmed.

Opinion delivered November 16, 1888.