*1 256 injury. bill proximately resulting argument shown
after additional believe, prior physical such condition that the was made. We do ap- susceptible harm circumstances, for necessary rendered more that it was objection injury not defeat pellant again make to save ful from does results objection, action 13 court’s liability error. Such or lessen merely time, Ten Damages, thereon a second sec. 3 Tex.Jur., p. point appellee emphasized desired Supp., Tex.Jur., p. and cases there Year jury. bring before the cir- Under the Point excessiveness raising cited. ap- sustained, cumstances shown the bill we sustain verdict, we think should be pellant’s point, first which necessitates re- jury and amount of the since the evidence versal of the judgment gener- below. trial, For may be another verdict different on al quotations statement of the rule and from point be further discussed. need not authorities, 41 Tex.Jur., see Trial —Civil pointed out For the error Cases, p. sec. and 9 Supp., Ten Year cause remanded and the reversed below Tex.Jur., p. 261. for another the trial trial. court Reversed and remanded. Since there will be another trial of pretermit we case a discussion raised, other questions except insofar isas the new trial. Point portion
dences error in that of same where appellee’s attorney injects his own ex
perience. portion, The other with reference appellee’semployer keeping him on out
pure sympathy, proper legitimate as his deduction inference from evidence. v. MOWELL. LINDLEY jury probably will not discuss No. 2784. not in matters evidence on retrial and we Appeals Eastland. of Texas. Court Civil point lay will- therefore not discuss 3. A April may testify he, witness as to what by ob servation, doing, actions, saw plaintiff his July Rehearing 28, 1950. Denied movements, etс., and, job, after hav facts, a shorthand ing given rendition of (if whether or state he is an ex employer experienced
perienced
same line work appellee) he would
employ appellee apparent physical in his Leach,
condition; Tex.Civ.App., Fisher v. e.; refused, error n. S.W.2d r. Ray,
McCormick and Texas Law of Evi dence, whether or not p. labor; heavy light manual perform
could Gilcrease, Ry. T. Co. v. Tex Missouri, K. & refused. error
.Civ.App., propriety question of the
Point raises a for recovery aggravation of an settled, we It is syphilitic condition.
mer aggrava recovery
think, is аllow condition diseased of a directly results aggravation when such able negli actionable proximately .and being course, recovery, of gence; directly ill effects increase of
limited *2 Jaye, Harmon, Frederick Fred O. G. De
Leon, Duke, Brooks, Templeton Brooks, & Ab- ilene, appellee. Appellant judgment. above mentioned
COLLINGS, Justice.
filed
suit
try title
trespass to
This
ais
and under
claimed title under such deed
against
аppellee M. Mowell
J.
*3
year
limitation.
five
statute of
Appellant
2, 1949.
Lindley
April
G. D.
further
guilty” and
plea
“not
entered
of
Lindley
a
appellant
that
court found
ten
three,
and
five
expressly pleaded the
year
and
statutes of
waived
three
ten
Ann.
limitation, Vernon’s
year
of
that,
statutes
any
in
limitation
found
and further
that
alleging
Civ.St. arts.
event, appellant’s plea
year limita-
ten
of
question un-
land in
had
he,
his own
by
tion
not
was
tenable because
Upon a trial
tax lien.
of a
der foreclosure
property
admission,
possession
took
of the
jury,
a
without
the court
before
years from
in 1943 which
ten
is less than
title
appellee Mowell
was entered
filing
of this suit.
G. D.
premises and
possession
and
of
suit was
The cоurt further
found that
brings
appeal.
this
April 2,
filed on
a time less than
1949 at
a
in evidence
offered
Appellee Mowell
years
expiration
five
the tax
after the
of
A. E.
April 3,
by which
deed dated
period
years
redemption
of two
conveyed to him the
Hampton and wife
its
date of the
and the date of
question.
deed
Such
to
land in
title
therefore,
registration,
was,
and
filed less
$2,500.00 of
of
a consideration
recited
year
years
right
than five
of
after the two
cash,
was
in
$850.00
which $650.00
redemption
expired. The court con-
had
lien notes and
by
vendor’s
evidenced
five
cluded as a matter of law that
price
purchase
was the
of the
the balance
of land under a tax
to
deed
not adverse
evi-
$1,000.00
assumption
indebtedness
of
during
in which
owner
two
executed
promissory notes
by five
denced
redeemed
that limi-
and
Mort-
wife
the Land
by
B
and
R. Kidd
time,
tation does
run
not
and
by a deed
and
of Texas
secured
gage Bank
appellant’s plea
further concluded
of
by
Kidd and wife
executed
of trust
year
the five
statute of limitation had not
Humble,
five vendor’s
Trustee. The
T.W
ripened at
time
filing
of the
of this suit
sum of
exe-
the total
$850.00
lien notes in
April
a
appellee
Mowell as
cuted
found,
law,
The court
as matter
conveyance
the above
consideration
warranty
Hamp-
that the
deed from
E.A.
1916, 1917,
on December
were due
appellee
ton
April
and wife to
Mowell on
1920, respectively.
and
3, 1915, conveyed
simple
title to said
fee
the date of
The court found
lands
appel-
and further
found that since
maturity
mentioned in
the last notes
Lindley expressly pleaded
lant
his title
twenty-nine years
deed, more than
plea
under the tax deed and
limitation
as a matter of
elapsed
concluded
evidence,
which,
stand,
under the
cannot
presumed
that said
it
lаw
competent
and submitted no
evidence re-
of the institu-
the time
were
*4
to serve as a
for
basis
of re
plea
to the extent
guilty”
of “not
proved
He
no claim
makes
to have
a chain
title.
appellee
prove
quiring
to
his own
of title from
sovereignty
the
of the soil
limitation,
Appellant’s pleas
himself;
prove
down to
did he
neither
deed,
his
the extent of
the tax
defined
Appellee’s
common source of title.
'
appellee as
defense but did not relieve
proved only
by
Hamp-
from the
deed
establishing a
of the burden
tons and
showing
there is no
con-
property.
right
Tate v.
prima facie
nection between
Hamptons
and the title
288;
Johnson, Tex.Civ.App., 140 S.W.2d
by appellant. Apрellant’s
claimed
claim is
Hunt,
v.
424;
v.
45 Tex.
Custard
Shields
pleas
founded on
of limitation and on the
217;
Musgrove,
Ri
Tex.
Garrison v.
tax deed and
which indicated
chards, Tex.Civ.App.,
his of limitation thought that he a man name urged, ripened. true, as is also It place Torrence lived on the and also the tax deed introduce .did Lindley’s Mrs. original son-in-law lived there but opinion, our question as stated in long; did not know how although he did introduce place he went back 1942 or purported based. upon which it was place 1943 “to see the old looked” how that in order for It be noted repairs and to make if but that he needed it of title to have shown *5 any repairs. did nоt make There was no necessary for tax deed been the would have any evidence that Mowell ever received in evidence to show been any , place rent on 1923. the at time since with the .common appellant’s connection Huffmeyer, 90 Tex. source. Hendricks v. placed Anson Hill was on the witness 577, Coffin, v. Tex.Civ. 40 S.W. Skov by appellant stаnd and testified that he page. App., 137 S.W. ; premises moved on the in 1923 question Tex.Jur. opinion, how original our As indicated bought personal prop- that he Mr. Mowell’s ever, by ap- was not shown erty place; and moved on the that Mowell as a pellee with such deed considered even “they away place said have took this from purpose. for that Our part of the.record me and beat me out of it.” Hill further strength ap not based the of action is stayed he place testified that on the tax deed 'but is pellant’s title under the years; three that when he left in the fall appellee had holding that fhe' 1926, of a man the of Russell name prima a facie establishing the burden of Hughes wrote to & O’Rourkе Construc- himself, he failed to do. which title in Company place and leased the from appellant prima them. Mowell testified Lind- has that urges that he made Appellee ley tip County came pos- to Haskell showing prior in 1938 and proof of facie me, way, through in a understanding “wanted a road fix not our It was session. they ap- there for them to where could come argument presented in record and onto that field there. I making And told them I original he brief that was pellee’s do couldn’t it. I did not have no question was, there- this contention * * * right’, to do it. I length what mean opinion. ‘no fore, in our at not discussed * * * I just mean I didn’t feel like I reason, detailed statement a more that For thought ought given. road back will be east thereto relevant of the facts always where it was.” that, Mowell discloses The evidence Appellee Hamp paid testified no taxes were E. in 1915 from A. bought the land place the years of a considera wife and as ton and far as knew. He 1923 so he tion, lien notes in vendor’s executed a tax District Court and assumed addi $850.00 total sum Texas, County, $1,000.00, Comanche dated November in the sum of indebtedness tional 1942, 23, in favor of the State of Texas a lien on the land. constituted which Hughes' O’Rourke & Construction Com- 'vs. premises until 1923 when on .the lived He pany, that “the court reciting heard Mowell Texas. Haskell went he is the evidence that said place and never sold the testified indebted to is and im- defendant claimed the land owned all times pleaded defendants for taxes due homestead; them when as his.own 1934, Evidence, 1931, 1933, And as stated in 31 1930, § for the C.J.S. presumption “A 731: 1940 and law p. strong assumption law that a made sum $544.31.” in the total correct, inference is uncontradicted evidence will of evi- therefore sustain the burden pur- upon his is based Lindley’s possession dence, point conflicting until facts on the sale; tax under the chase of are shown.” question and received $925.00; consideration concerning evidence Russell name of Witt man occupation possession, claim's of own-' property as occupying the working and ership land in since 1923 appel- R. Green tenant of one Chessie Mowell, last аctual land; appellant so lant personal occupation thereof, is not such dated possession took presumption justify as will that he convey purported January 1943 which present ownership owner. can Present Con- Hughes & O’Rourke the interest reasonably be re general therein; that Mowell Company struction usually type sult which follows way shown to connected is in no case, by appellee shown in this claim, Hughes & any, if title or nor does strong create a Company may have O’Rourke Construction ownership. inference Mowell has land, has been occupation' been in actual land at all continuous 26 years and has received rent from until filing times thereafter *6 during paid nо time. He fence, suit in it under work- during period. taxes no There was it, ing, using cultivating per- either in paid $1,850.00 evidence that he any' of the tenants, son or and that has at all upon indebtedness secured liens the land. kept times the To presumption base a upon pre of title paid they fully taxes are now sumption that such indebtedness has been paid. paid (аnd seriously we doubt if the latter presumption is After a further examination tenable under the facts this case) basing the record we remain of the presumption be evidence, upon presumption viewed in permitted. its most which is not favorable light merely Mowell appellee, prior fails to show such claimed to own the land during is as time constitute claimed to have state, prima proof man, facie rented it one although title. We will he received our opinion renting of the basis of the as .rental denied rule applied particular claimed tenant. conclusively It facts of this case shown any attempt without by Lindley discuss or not ousted distin guish the great number since Witt Russell bearing was in cases оf the upon premises question. The pos rule entered. The taxes prima proof period session is entire facie of 26 of title is not were a rule paid of substantive law but never shown to have been rendered one upon legal Mowell, contrary, dence but presumption based on the in were rend dulged others, to avoid the ered in the names of inconvenience and were and dif ficulty proving paid by against chain them entered back to foreclosing of the presump against soil. others tax liens The tion, valid, Appellant Lindléy to be paid must land therefor. be has a reasonable one. Hunt, Tex.Com.App., Garrett v. the entire amount such tax As stated in addition to taxes he has page 245: Tex.Jur. “Presumptions possession. of law embrace since he entered those fixed legal evidence, general rules deduced here not whether results usually plaintiff’s follow inconsistent which is sufficient connection be prima tween certain facts.” rebut a facie case of title estab- has him, is whether lished prima such showing burden
met the of the аll instance the first case in facie in determin- considered
evidence should evidence, considered ing question. light in its favorable most uncertainty to who raises, most, as property, and does
is the owner of correctness
permit that assurance they presume by courts
should be felt proof actual thereof. the absence indulged are presumptions If such will be proof of courts judgments uncertain
obliged enter solеly presumed for con- facts to be certain trial of cases. Conveni-
venience in the title to land are proving
ence and ease in
greatly not so dear to be desired but are they, at the cost should secured judgments uncertainty presented by facts of this case. original opinion, indicated in the we
As fully developed
feel that case was the.
and that it should be remanded for another
trial. for rehearing
The motion is overruled. *7 et COUNTY al. v. DALLAS
EDWARDS
No. 14295. Appeals of Texas. Dallas. Civil
Court of
July 14, 1950. Aug. 4,
Rehearing Denied Peters, Dallas, Neal, LeRoy
Shirley W. Gladewater, for notes butting appellee’s title, appellee suit. required sovereignty back оf the Appellee introduced the soil to better County, Texas of Comanche District Court appellee’s reason of title to the 23, 1942, in of the favor dated November property Hampton under the deed he was against Hughes & O’Rourke State Texas entitled to recover. Company for taxes Construction complains Appellant points in several $544.31, and for fore- for costs sum proved by appel- weakness of the title property a tax lien closure of Mowell, contending lee failed question and further prove either title under Texas Comanche Constable of or a chain of title January connected Lindley dated re- D.G. soil, pur- so a consideration citing $925.00 failed, judg- сourt erred convey entering un- porting to ment for him. of, der, by satisfaction virtue or, appellee’s (2) title from the agree with emanation of his cannot We claims; expressly source appellant, -by from which the contention ) or, year (3 possession statutes of -the at a and three the five pleading upon possession time antedating defendant’s limitation or, thereof; thereby (4) shifted question, limitation. the tax deed in Tex.Jur., page prove his himself to -500. burden the burden and relieved Appellee plead did not limitation ap proof. pleas were alternative Such conclusively and the evidence shows that did pellant’s plea guilty,” of “not type did not have the rely deprive appellant of recovery.