182 S.W. 1144 | Tex. App. | 1915
The appellant, Mrs. M. E. Hamlett, brought this suit against the appellee, Mrs. M. B. Coates, in the form of trespass to try title to recover possession of a house and lot in the town of Italy, Tex., and sued out a writ of sequestration. The affidavit for the issuance of the writ of sequestration was made by T. B. Hamlett, agent of the plaintiff, Mrs. Hamlett, and the ground alleged therefor is that the affiant fears the defendant, Mrs. Coates, will use her possession of the property in controversy to injure the same, or to convert to her own use the fruits or revenues produced by the same. The defendant answered by a general demurrer, and pleas of denial and not guilty. She also filed a plea in reconvention for damages, alleging, in substance, that she rented the property in controversy from plaintiff, through her agent, T. B. Hamlett, about April 30, 1912, for a term of one year, at $15 per month, and with the understanding and agreement at the time of entering into such contract that if she paid her rent during such term, she might have the premises as long as she desired; that in pursuance of said agreement and understanding and with the consent of the plaintiff she held over the premises upon the terms of the prior rental contract and paid the rent up to the time she was dispossessed of the rented premises by the execution of the writ of sequestration herein; that said renewal contract began May 1, 1913, and would expire May 1, 1914, and that by the terms of said contract defendant was entitled to the possession of said premises during the whole of said time, but that plaintiff in violation of said contract, knowingly, willfully, and maliciously and without probable cause procured and caused the writ of sequestration herein sued out to be executed, and defendant and her family ejected from said premises, and her furniture, household goods, and wearing apparel piled in the street, whereby said property was damaged in the sum of $100. Defendant further alleged that at the time of the execution of said writ of sequestration she was engaged in the boarding house business and had a large number of boarders, who were paying her a total of $88 a week; that by reason of being dispossessed of the premises in question she was forced to discontinue her said business, whereby she was damaged in the sum of $1,000. Defendant further avers that by reason of the execution of the writ of sequestration "she was humiliated, aggrieved, distressed, and made to suffer in mind and body, which injured and impaired her health," for which she had *1146 sustained the further damage in the sum of $2,500; that by reason of said writ of sequestration having been sued out, willfully, maliciously, and without probable cause she has been damaged in the further sum of $2,500. Defendant prays that she recover of plaintiff as actual damages the sum of $3,600, and as exemplary damages the sum of $2,500. A jury trial resulted in a verdict in favor of the defendant on her plea in. reconvention for the sum of $1,940 apportioned as follows: Damages to furniture $20; damages for loss of business $420; humiliation and grief $500; exemplary damages $1,000. Judgment was entered that plaintiff recover possession of the property sued for and in accordance with the jury's verdict against the plaintiff for the damages awarded, and she appealed.
The first assignment of error complains of the court's refusal to give appellant's special charge instructing the jury to return a verdict in her favor. The propositions advanced under this assignment are, in substance: (1) That while neither party in trespass to try title is required to plead his title specially, yet, if he does, he must recover, if at all, on the title pleaded, and that defendant having by her plea in reconvention specifically relied on an alleged rental contract for a year "with the further understanding and agreement at the time of entering into said contract that if defendant should pay her rent during said term, she might have the premises as long as she desired," and the evidence failing to show any such agreement, but showing that the year for which the defendant had rented had expired before suit, and plaintiff's ownership of the property being admitted, the jury should have been instructed to find for plaintiff; (2) that the proof failing to show any agreement extending beyond the year, but showing at most only a unilateral promise without consideration appellee did not sustain the issue tendered by her, and the jury should have been instructed to find for appellant; (3) that when there is a lease of lands for a yearly term at a fixed monthly rental, and the tenant holds over after the end of the term, the landlord has an election to dispossess him, or treat him as a tenant for a new term; that the election is with the landlord, and not with the tenant; and, rent being paid and received according to the terms of the expired lease, there is a presumption that the new holding is upon the terms of the expired contract; but this is only a presumption of fact, and may be rebutted by proof of a different state of facts, and in every case of holding over the nature of such holding, and the relations created thereby, are questions of fact, to be determined from all the circumstances.
It is unquestionably true in our practice that if either party in an action of trespass to try title pleads specially his title he must recover, if at all, on the title pleaded, but we do not believe the rule under the appellee's pleadings should be applied in this case. That there was a rental contract between the appellant and appellee for the renting of the premises in controversy to begin April 30, 1912, is undisputed. The real questions at issue were whether the renting, under the terms of the contract, was by the month or by the year, and whether, if by the year, the appellant, without objection, permitted appellee to hold over after the expiration of the rental term and continued to receive the same rent for the use and occupancy of the premises. The question of title, within the meaning of the rule of practice referred to, was not involved. The appellee set up no such title, and in the trial appellant's title was practically admitted, but appellee asserted an extension of the rental period beyond the year, and her right to possession of the premises on the terms of the rental contract by a holding over without objection on the part of appellant, and acceptance by her of the same monthly rent provided for in said contract. In City of San Antonio v. French,
"The tenant who holds over after the end of the term under which he entered with consent of his landlord is deemed to be in possession upon the terms of his prior lease, upon the ground that the parties are presumed to have tacitly renewed the former agreement."
The English doctrine, as stated by Mr. Smith on Landlord and Tenant, and quoted in the case of San Antonio v. French, supra, is as follows:
"But though at the end of the lease if the tenant holds over he holds as a tenant at sufferance, still if, when the period for the payment of the rent becomes due, he pay the landlord the rent reserved by the expired lease he becomes a tenant from year to year, the payment of such rent by him and the receipt of it by his landlord being considered indicative of their mutual intention to create a yearly tenancy."
The parties in the case before us entered into a verbal contract for the renting of the property in controversy, and, while the evidence was sharply conflicting as to whether the renting was for a year or by the month, it was sufficient to warrant the conclusion that it was for a year, and that appellee continued in possession of the rented premises after the expiration of her time with the tacit or implied consent of the appellant. And the testimony is undisputed that appellant accepted from appellee, for several months after the expiration of one year from the date of the rental contract, the same rent paid prior thereto, and made no demand, according to appellee's testimony, for possession of the rented premises until about the time this suit was instituted. Appellant's contention is that the renting was by the month, and that upon that theory alone the rent paid by appellee after the expiration of the year was accepted. On the other hand, the appellee contends that she had rented the *1147 premises for a year, and that without objection on the part of the appellant she paid the rent as she had formerly done. These respective contentions involved, under the evidence adduced, issues of fact for the determination of the jury, and the court properly declined to instruct the jury to return a verdict for the appellant. There was some testimony to the effect that subsequent to the making of the rental contract and the entry upon the rented premises by appellee, appellant said to appellee that as long as she paid her rent she could have the place, but there is no testimony that at the time said contract was entered into it was agreed and understood between appellant and appellee that if appellee paid her rent during the term beginning April 30, 1912, and ending April 30, 1913, she might have the premises as long as she desired. The issues were substantially as we have stated, and no question as to the contract being unilateral or obnoxious to the statute of frauds arises.
It is next urged by appellant that the trial court erred in admitting evidence tending to show damage from loss of business by appellee as a boarding house keeper, and in submitting as an element of damage, which might be recovered, loss of profits to her as a boarding house keeper, because such loss of profits were not the measure of her damages, in that it was not alleged that appellant knew or had reason to expect that such damages would accrue to appellee from being dispossessed of the property sued for, and because the evidence on these points was insufficient, too vague and uncertain to support a recovery for such damages; and, further, because it developed in the testimony that the defendant was a married woman at the time of the transaction, made the basis of this suit, and no facts were shown which would authorize her to maintain a suit for the recovery of such damages, as such damages, if recoverable at all, constituted a community claim of appellee and her husband, the right of action for which was in him and not in her.
We think the court did not err in admitting evidence to show that the appellee had suffered damage from loss of her business as a boarding house keeper, and in submitting to the jury as an element of her damages such loss of business and resultant loss of profits. Writs of sequestration and of attachment are regarded as standing on the same footing with respect to the rights of the defendants to recover damages for the wrongful suing out of them in this state (Harris v. Finberg,
The contention that because it was developed on the trial that appellee was a married woman when this suit was instituted and no facts appeared which would authorize her to sue and recover the damages claimed, her husband alone could maintain an action therefor, will also be overruled. That a married woman cannot maintain a suit in her own name, her husband not being a party, to recover community property, except where she has been abandoned by the husband, is thoroughly established by the decisions of this state. The appellee testified on crossexamination by appellant:
"I don't know where my husband is now. We are not living together, and were not when this suit was instituted, and have not been living together since. I have never requested him to join me in this suit. He does not know anything about it one way or the other."
It may be conceded that this testimony, which is all that was offered on the subject, fails to show such an abandonment of the appellee by her husband as authorized her to maintain a suit for a recovery of the damages sued for in this action, and yet we think appellant is in no position to urge her incapacity to do so. Appellee is sued by appellant as a feme sole, and nowhere in the record does it appear that her coverture was unknown to appellant at the time the suit was brought. The appellee did not plead her coverture, and the judgment taken against her for the title and possession of the house and lot sued for by appellant, in its operation *1148
and effect, is the same as if rendered against a feme sole. Focke v. Sterling,
The next contention is that the trial court erred in submitting to the jury an issue of exemplary damages. It is claimed that the record in this case not only shows no basis whatever for a recovery of exemplary damages, but shows beyond question to any reasonable mind that the action was instituted in good faith and without malice; and furthermore that it appears that the writ of sequestration was sued out by an agent, and not by the plaintiff, and there was neither allegation nor proof that would make the plaintiff responsible for the malice of such agent, even had there been such malice. This contention, we think, should be sustained. The statutory affidavit for the issuance of the writ of sequestration was made by T. B. Hamlett as agent of appellee and said writ otherwise sued out by him. If in suing out the writ T. B. Hamlett was actuated by malice, he is responsible for his wrongful acts; "but his malice will not be imputed by presumption to his principals, while his bad judgment in wrongfullly suing out the writ would be." Wallace v. Finberg,
Appellant's next proposition is that the court erred in submitting, as elements of actual damage, humiliation, grief, distress, or mental suffering on the part of appellee from being dispossessed of the premises in question, when such damages, if recoverable at all, could be recovered only in this character of case, as exemplary damages, and the record fails to show any right to recover exemplary damages. The record shows that the jury awarded the appellee as actual damages for "humiliation and grief" $500, and that judgment therefor was rendered by the court. This was error and the proposition of appellant must be sustained. It is well settled in this state that physical and mental suffering may be presumed to follow as a material and necessary consequence upon a serious bodily injury, and be recovered as actual damages; but this rule has never been carried to the extent, so far as we are aware, of holding that the seizure under legal process of real or personal property, even though such property be exempt from forced sale, will necessarily cause the owner distress of mind, humiliation, or mortification of feelings. On the contrary, it has been expressly held by our appellate courts that injury to feelings, or mental suffering caused by such seizure, is not recoverable as actual damages, though it may, under some circumstances, be taken into consideration in estimating exemplary damages. Trawick v. Martin-Brown Co.,
"It is too plain for argument that this does not belong to either of the classes of cases in which compensation has been allowed for mental suffering."
We have said that exemplary damages were not recoverable under the facts of this case, and in no event then were damages for "humiliation and grief" caused the appellee by the issuance and execution of the sequestration complained of an element of appellee's damages.
The judgment of the court below awarding appellee actual damages in the sum of $440 for injury to her furniture and for "loss of business" will be affirmed, and the judgment awarding appellee actual damages in the sum of $500 for "humiliation and grief," and in awarding her $1,000 as exemplary damages, will be reversed, and judgment here rendered in favor of appellant as to those items of damage.
Affirmed in part; reversed and rendered in part.