*1 tеstify plaintiffs only given by permitted E. M. to one While to Carter was notice upon wheat, Elevator tlie his cross- connected with father owned the opinion plaintiffs in the examination interest stated that claimed upon by M. Car based E. the contract with the made made wheat was ter, Jr., statement had Gaits. wheat one Caudle before the to appears paid It for. all been delivered general еlevator, manager of the bookkeeper Ele that Caudle was permitted Boothe, should tes to not and it was shown vator tify authority to defendant’s scope authority of his it was within the bookkeeper, Caudle. buy pay wheat, a matter E. M. Carter not have been should plain him of the claim the law notice to objec permitted testify, over defendant’s Company. not to the Elevator tiffs was noticе tion, that the wheat was delivered under the crops general raised is that rule of the terms contract. realty and, upon in the of the land are a case to have been tried Because seems contrary, agreement are absence theory mistaken because property Rob of the land. of the owner Carters, property wheat was Armstrong Com. erts convey by their of it Gaits could no title sale Ray v. Foutch company, and this without to the defendant 380. question notice, regard we have to the provisions 6645, to of R. S. art. proper disposition Under the to make cluded that every respecting writing judgment of the case is reverse ought personal property -which law title cause for another trial. remand the be recorded to be should recorded and remanded. Reversed county prop- in which the officeof clerk’s necessary, erty situated, it in order to Company, that it should bind Elevator of the existence have actual notice arising notice contract or constructive re- it had been recorded as fact quired by While found statute. Jr., Carter, notified defendant’s M. v. WILSON et al. McDANIEL BROS. et al. prior paid bookkeeper, defendant the time No. 2545. wheat, that the Carters were Galt therein, claiming this is suf- an interest Appeals of Beaumont. Texas. of Civil Court judgment based ficient notice and April plain- ain While sense error. ihat wheat, Hay to one-half Rehearing were entitled tiffs Denied either the wheat could not recover showing notice actual or without constructive. dispose 'of trial we will of another In view urged appellant’s contentions several brief. requested Apрellant the court sub jury: special T. “Did issue
mit this question wheat Galt deliver Carter, Sr., plaintiffs E. M. E. M. Car ter, the court sub refusal Jr.?” The delivery A error. mit the belong wheat elevator have been sufficient Carters It compliance the contract. re with delivery personal quire to either of actual is that the rule arising ownership is one law testimony. shown *2 Brothers, independent contrac- McDaniel tors under E. L. Wilson Hardware required lot, made the on its excavations building. erection of a The retain- pro- Brothers wall built *3 adjacent appel- tect the embankment wall damag- gave way, resulting in the lot building, suit es to which this verdict, appel- predicated. jury’s On the appel- judgment against lees were awarded individually Brothers, lants McDaniel and partnership, members E. L. Wil- and jointly Company, son and several- Hardware ly, $5,325. appeаl sum A former the reported in McDaniel Bros. of this case 298,
v. Wilson to which we refer for a more detailed state ment the facts. answering special In issues and jury appellants found that entered appellees’ property displaced, loosened, and sup- material and porting the earth and disturbed appellees’ building; walls negligence part this constituted appellants, and was a cаuse of the injury appellees’ building. following Marcus, both C. and David A. L. Calhoun supports materiality statement and shows the appellants. Beaumont, for findings: Appellees alleged of these fol- Beaumont, ap- Sonfield, & Sonfield entered,and lows: “That said defendants pellees, trespassed upon premises of the land and plaintiffs, loosening, displacing and disturb- WALKER, Justice. Chief supporting earth and materials оriginally on October This suit filed causing building, the foun- walls Maude 192S, Wilson Mrs. and E. E. exposed dation to be rain and the ele- joined Littleton, pro her hus- forma ments and the same.” There was individually Littleton, band, and Martin W. building between the old L. of the E.' Wilson executors of the estate Company, way Hardware to make demolished against deceased, Starke, Mc- G. Mrs. Minnie building ap- for pellees, composed Brothers, partnership Daniel alleyway wide, about feet own- 8% McDaniel, C. and H. and Howard and H. C. jointly by E. ed L. Wilson Com- Hardware individually, and E. L. McDaniel Howard pany alleyway prior to and corporation, Company, a Wilson Hardware paved' construction was with concrete. All of Reciprocal Association, to Lumberman’s paving alleyway, including in the injury for an brick recover part alleyway belonging appеllees, city building them the Beau- owned removed, thereafter, while the Wil- county. mont, L. Wilson Hard- Jefferson Company being son Hardware vated, lot was exca- against Company filed a cross-action ware heavy were continuous rains McDaniel and Brothers and C. H. McDaniel city Mauer, of Beaumont. Mr. brought McDaniel, Howard architect, appellees, witness for testified that Surety Company New York Southern alleyway, causing rains “softened” a, party on cross-action. The Lum- “slip”; it to rially this condition added mate- Reciprocal Association was dismiss- berman’s pressure piling sheath suit. ed protecting adja- walls of the excavation plaintiffs below, lot, Appellees, appellees’ building own the cent to ha'd tend- adjacent thereon, ency in; brick to “shove” it that if concrete situated appellant Wilson E. L. Hard- not been a lot had removed city Company gotten Beaumont. E. water under the foun- ware ' appellees’ building; through Hardware Wilson wrecked dation of L. lot, alley- on its situated removal of the concrete softening dence, way, saturating trespass upon water, own- loosening alleyway in, to, soil the foundation and involved incident pres- materially foundation, of, added betwеen the contract n piling; the Brothers and sure on sheath E. L. Wilson Hardware Com- tendency pany ; findings “to were testimony defendants, damage.” finding assist E. L. included the remov- Wilson witness raised committed the Hardware trespass. excepted to, al of concrete was a These issues were Appellant appellees’ building. jury’s joint trespass nor is the as- contractors, McDaniel, propositions assignments tеstified one of of er- sailed making that, statement, exea- ror. time were Under fact that Mc- Ques- 'vation, great of rain. there was deal Daniel Brothers contrac- were *4 as the rain on the soil to the effect of tors Company E. Wilson Hardware tioned does relieve L. alley building liability trespass between Wilson of for com- appellees, well-sup- “All of answered: he mitted ported exception McDaniel Brothers. A general of soil was with water.” Mr. saturated rule of non- Echles, appellants, liability employer a witness for testified that of the, for the acts of appel- independent the saturation of the soil únderneath in contractor stated 23 is thus assisting great “in a 567: “When Tex. Juris. work was done slip bulge causing contemplated or earth to out manner means excavation”; im- contract, per- was an that it toward the portant the contractor has causing strictly employer directed, factor in the earth move. formed as given prior escape -liability plea The evidence Mr. Mauer was of cannot under appellant appellants’ .placed charge to that of was the work of inde- disputed pendent See, Scoggins also, witness Echles.' Neither of them contractor.” v. Mauer‘that, Co., 213, 175; of the evidence hut the re- Cement 179 Ala. an 60 So. moval 1233; Upton of the concrete from the 21 v. A. L. R. Town notation end, 71; rainfall would Eng. Reprint not have contributed the in- 994; C. B. 17 139 jury appellees’ building. Kampmann Rothwell, 535, 109 S. v. (N. 1089, 17 S.) 758;. W. L. R. v. A. Robbins “trespasser Our a on courts define Chicago City, 678, 4 18 427. Wall. L. Ed. See thereto, who, having land” as one title generally p. in 21 .annotations A. L. owner, without consent of true makes en bring clearjy L. Wil- The this case try 208; Kirk, thereon. Pilcher Tex. v. 55 excep- son within .Hardware App.) Jones & v. Bank Nixon Civ. general rule, jointly making tion to the li- Conway (Tex. Hensley 116,W. S. v. with McDaniel Brothers for dam- able Civ. 416. Under rule ages resulting proximately trespass 895, every J. unauthor announced C. alleyway.. find- entry upon of another is a tres ized pass land ings jury trespass .of the the issue of damage even if no done or the appellees^ stitute сause of -action in favor slight, gives action damages sued for. injured party/ “It is immaterial that the en try made in defendants’ the course jury Under convict the verdict of the operations land, although adjoining trespass, appellees’ proper ing appellants of prevent injury plaintiffs’ property un damages the difference in measure right.” der claim bona-fide It also immediately value of their market liability trespass depend law that immediately injury. after before and ' upon personal participation. ent who One in 63 C. thus stated rule is J. aids, assists, trespasser advises com subject “Trespass”: “As tort in other ac trespass mitting equally á him with liable tions, is that rule the measure of complained who does the 931; of. 63 C. J. act damages in actions is such sum as Sattéfwhite, App. v. Wetzel 59 Tex. Civ. compensate person injured for will the. 1, trespasser 125 S. 93.W. lia issue loss sustained.” This was sent to the negligence. ble without 63 C. reference J. jury question 24, .by follows: No. “What Satterwhite, supra; Steger Wetzel v. in the reasonable difference market was the App. Barrett, Tex. S. property immediately plaintiffs’ be value prompting intent or Also motive immediately any, if fore trespass is immaterial. 63 C. J. 589. by giving Answer thereto? the amount ‘ shown, pleadings jury both To It cents.” dollars and appellants “¡¡>5,000.09.”.Answering-question evi- answered: uncontradicted .
(¡22 tenberry follows, found No. which was Campbell sum “What additional sum v. Johnson $325: an money, preponder- any, W. 261. do if reasonably neces- the evidence ance by question The issue submitted sary expended by plaintiffs for the serv- to be Ap- No. 24 was also raised evidence. plans preparation of architects ice pellee prinсipal, Dr. Wilson if not was the repairs supervision for, and only, by appellees witness on the offered giving building? Answer building. Dr. Wil to their agree with We in dollars cents.” amount son testified knew location he the item of the contention use, value, condition, its necessarily in and included $325 was contiguous and the value and condition of jury’s question No. answer property; unequivocally he he testified given should not building. knew market In of this valuе done, judgment, for this City of Waco Roberts 12 S. item, W.(2d) 263, said: “The rule appellants’ conten We overrule well seems to be established that where wit sup without 24 was positively tions ness states market knows the he Ap- pleadings port evidence. controversy, there action, pleaded fully pellees their cause by prima qualified testify facie becomes *5 the of the expert, testimony an is as. and his admissible con of the destruction the Burgin (Tex. App.) such. Foster v. 244 Civ. pavement, and soil the the of crete removal S. W. authorities The and there cited.” material, etc., the founda of the supported by rule thus stated is well fol the negligent building, the different tion of their lowing p. additional authorities: excavations, appellants making the of acts 59; Hapgood & Fort Worth D. C. Co. v. R. expended by amounts the (T App.) 210 969; Civ. S. W. Central- ex. necessary repairs as a re to the (Tex. App.) Bank v. Henderson 286 State Civ. injury, addition to and sult (writ dismissed); W. 518 of error Houston S. repairs “has the cost of the the Daily (Tex. App.) & v. L. P. Co. 291 S. W. Civ. generally damaged permanently to been and (writ dismissed); 317 error Worth & of Fort $5,000.00.” Appel- of sum of extent the the Ry. App.) (Tex. D. S. P. Co. v. 4 Civ. Judd damages recovery prayed the for of the lees S.W.(2d) (writ dismissed); 1032 of error petition for their and stated Murray (Tex. S.W.(2d) App.) v. Morris Civ. 17 law, following principle an of relief. The (writ dismissed). 110 of error On au supports appel- 13 Tex. Jur. nounced qualified thorities Dr. Wilson to- cited assignment: against pleadings “It this testify on the issue of value. market good pleading general requisite not a of principal question damages; The in this- allege involved petition of measure particular assignment against question No. immaterial be held to and is therefоre weight admissibility 24 proper to the of' alleged relates plaintiff has not that the testimony pe Dr. Wilson’s required of the measure measure. All damages. allege He testified that value- the market essential which are tition facts building immediately injury- action, before the court of which cause $100,000. assignment- is no There Where measure. can determine the against testimony. up this pleadings, cause estimated the- He set are supported alleged market value jury by taking in evi after the action $100,000 dence, a matter law' for reason measure is (cid:127) duty necessary repairs, court, of the able cost of fixed "him it becomes $2,509.63, jury,'or, sum of absence to inform and the difference court jury, apply proper "building: measure.” between the The market value of of a support immediately injury proposition wеll of law thus cited is before and immedi repairs following Monzingo ately made, authorities: v. been which 662; S.W.(2d) $5,000. App.) qualified (Tex. Ma Civ. estimated He was Jones Preddy App.) testimony. (Tex. give 295 S. v. this difference between chaelis Civ. The ; Morgan Steinberg (Tex. App.) injury immediately v. before aft value W. S.W.(2d) repairs fully & F. Tokio Marine er were made did in Aldridge Company demnify appellees. The Insurance reasonable of" cost Railway repairs S.W.(2d) necessary proper & Tr. Dallas was a of' element Company recovery. City v. Bankston Union Transfer v. T. & Co. N. Capitol Ry. 637 ; Hotel v. Rit- O. Co. 50 designated. Railway given Chicago, Construing Zumwalt & G. Co. the definition I. language whole, 912. Had the court so Com. building, repairs fully their cost clear that can restored the no recovery; meaning technical would term thus submit- have measure fully repairs jury. the ted to but since restore cost, being reasonable their refusing court did The not err necessary, proper recovery, in item submit to the that the depreciation addition appellees’ building, “concurring coop building . erating with the moisture accumulation of following gave rainfalls,” defini from the excessive sole The cause” as tion of “new cause sustained by appellees. “proximate cause”: “A an of its dеfinition It follows because affirma intervening an tive answer ‘new cause’ would not have causal con efficient breaks defense. force constituted “accumulation wrong original and the moisture from nection between the excessive rainfalls” an injury. of element Such force he sufficient for must cause action tres pass, ques oS itself to the cause affirmative stand tion appel would not have been and be one which the in favor of but ground lants recovery ‘new’ occurred. term refers not and incapable being means a reason cause wrongdoer by ably original foreseen following court submitted is ordinary part; care on and the use sues of sole cause: ‘independent’ word refers to and means “Special Twenty-Bight. relation absence of Issue Do cause preponderance original from a between the wrongful the evidence *6 omission, plaintiffs’ building upon unless act or in- that tervening ‘question the soil in thus both and inde- at time was is cause sole pendent, any damage sufficient itself stand as cause ‘yes’ breaking property? you ‘no,’ causal cause of Answer find nection, original wrongdoer is reliev- the facts be.” legal wrong responsibility ed negligence.” “Special Number ‘B.’ Do Issue authority of Rio Bravo Oil On preponderance from a of the evidence that Co. v. Matthews accumulation in the soil moisture un- v, 342; Vilbig & Co. Lucas derlying plaintiffs’ building by reason of ex- West Texas Tr. Co. Hash cessive rainfalls in the time was (2d) 152, 43 S.W. we overrule damage, sole cause if assignment appellants’ court erred that any, plaintiffs’ building?” refusing in term define the “natural Appellant urges against questions these sequenсe,” as in continuous the defini- used following assignment of error: “The court independent tion of new and cause. submitting Special in erred Issue No. 28 and assignment overrule alsoWe Special Issue B.in such manner that the refusing in define court the term erred proof placed burden of 'as to issues said force,” “intervening used efficient defendant, on this because the burden of cause. definition of new The proоf really as to said issues -on the assignment court erred that the the plaintiffs placing such burden on refusing given, submit a definition highly prej- defendant erroneous and think term was sufficient definition. We Being multifarious, udicial to' it.” this as- ly said: ‘new in court “A defined. The signment should be considered. intervening dependent is an efficient cause’ refusing court not err connection causal be force breaks to submit to the issue “as to wheth original injury.” wrong tween and the plaintiffs any steps or not er failed to said, take independ “A court Had protect ascertaining their intervening force, by efficient ent cause is the manner in which the excavation work which is meant force which breaks the being done, so, original wrong was if whether or not causal connection between the negligent failing so, to do injury,” were no there could be negligencе proximately such whether con “intervening efficient force” defined. any damages language used constituted a tributed sustained effectually Appellants pleading plaintiffs.” sup- definition if it so have no been requested porting it In 13 Tex. was also issue. L. Wilson Hard- contended that E. ware em- said: not released it is ployment Being contractors. contend wishes to the defendant “If disposition satisfied with have made we prevented might or mini- plaintiff have proposition of this case under tres- recovery damage for which mized the pass, pretermit we a discussion of by special ,he up sought, set defense must grounds recovery. averments. “ rehearing Motion for overruled. of reason- exercise fact ‘The appellant’s breach, the diligence, after able might appellee minimized plead- any way, must be a matter which and avoid- in confession defendant ance, is inad- such fact evidence ” general denial.’ missible Special Corp. also, See, Films World’s Eichtenberg S. W. RAYNOLDS HOLDING CO. et al. v.EL Hammond, Mich. Gildersleeve v. PASO CO. ELECTRIC Annotations N. W. 33 L. R. A. No. 2966. L. R. 514. A. has been said It follows what Appeals Court of Civil Texas. El Paso. judgment errone- favor March $325, that it should ous to the extent Rehearing May 3, favor the elimination affirmed their Denied acсordingly sum, our order. which is and affirmed. Reformed Rehearing.
On proposition cor aAs say cotenancy good ais defense rect to cotenant, trespass by an action for good has where but it is not defense ouster; joint possession “nor a de ah *7 'lias been a destruction fense where there property, or a thereof.” C. -J. 'misuse Appellees’ cause of action was 94.' entry upo'n а of the al mere use based dedication, leyway purposes of its pleaded ground recovery they “That defendants follows: 'entered said trespassed, premises of land and displacing loosening,, plaintiffs, and disturb supporting materials earth plaintiffs’ building, causing foun walls exposed to the rain and dations ele ments, . the same.” The evi fully allegations, sustained these thus dence bringing appellees’ of action within the principles cotenancy of the law of as an by Corpus Juris, supra. nounced ’ ground- In addition dis- original opinion', appellees al- cussed city so' relied the ordinance Beaumont, opinion discussed on the appeal; that, and also contended former un- 'peculiar case, circumstances der the iihposed upon appellants law common duty protect appellees’ property
same city Beaumont; the ordinance