*1 REPORTER 219 SOUTHWESTERN 1.106 аge, on evidence excessive as based held 520.) (No. son HUNT. relation of father and LUMBER CO. v. that an affectionate WEST existed, of that the considerate son was Appeals Beaumont. (Court of Texas. of Civil father, of considerate obedient Rehearing Denied 1920. Jan. 17 brothers and sisters. 11, 1920.) Feb. <&wkey;125(l) counsel 8.Trial —Statement of neg- <&wkey;350(5)Specialissue Trial 1. — LOCOMOTIVE WAS EMPLOYER’S DEATH THAT ligence FOR ACTION OF DEATH IN PLAINTIFF IMPROPER. TRAP IMPROPERLY REFUSED. company against lumber an action In a master mechanic In an action on son of his mechanic for death its master a defective tramroad engines his son tramroad for death of of argument locomotive, axles, engine the trial defective with any company request employer’s have submitted should trap (the locomo- like that have a death was or was issue whether death tive) to have con- to coin dollars with negligen.ee. by plaintiffs proximately own caused negligence improper, re- not to be fess held <&wkey;351(2)-Request peated for submission 2. Trial trial. on new — ISSUE TO CALL OF SPECIAL SUFFICIENT AT- Liberty Court, Coun- CORREC- from District ISSUE NECESSITATE Error TENTION TO AND Judge. Llewellyn, ty; TION. J. against company me- master In action its against the West Hunt A. L. Action on a tram- chanic for of his son death Company. review To Lumber request company’s engine, for road defendant brings Re- error. for defendant proxi- death was submission of issue whether mately by plaintiffs and remanded. held versed caused own attention to issue sufficient call plain- Houston, Kayser, Huggins & plead- seeking submitted, so was ing tiff error. submission, justifying it be- and evidence Cain, Pickett, Jr., both of H. and C. E. B. properly to submit came in quested, either Liberty, in error. re- issue as own or to refr-ame erroneous, and then submit it. petition Plaintiff’s J. contributory <&wkey;352(4) Trial 3. —Plea proximately son was death of his SUBMIS- NECESSARY JUSTIFY NEGLIGENCE TO of defendant SION OF ISSUE. respects, to wit: these of his In father for death an action dangerous engine (1) un- That employer, ab- the latter’s equipped pony trucks; with contributory safe'because plea negligence, there sence of was engine any (2) nor because neither said the issue. basis submission of no system equipped any with brake cars “were <&wkey;350(5)Improper submission 4. Trial — engineer bring- aid whatever ing assist FOR ACTION NEGLIGENCE CONTRIBUTORY IN stop”; (3) engine be- its train to a IS- EIGHT TO HAVE NOT DID DEATH DEFEAT crooked and bent axles “were cause such of ing drive SUBMITTED. SUE OF NEGLIGENCE PLAINTIFF’S driving way wheels out throw said against company by master its action prevent balance, them from follow- thus a defective mechanic for death his son on improper manner”; free and unobstructed rail in a engine, submission of unauthorized failing negligent (4) “in because contributory negligence ab- issue of son’s keep ordinary reasonable use care negatived plea, existence sence of its repair engine and in in a state of condition said deprive jury’s answer, defendant lumber did not causing safety, operated and in to be company right vital to have submitted of its heavily engine loaded attached to said plaintiffs own to whether defensive issue as negligence logs aforesaid, with- train of cars loaded death. of son’s cause any engine any said brakes said out — Compensation safely <&wkey;86(l) train enable it to handle said 5. Death cars to upon grades tramroad.” child’s death defined. down thе on said law, common father could Under the paragraph petition the 5 of his And the death his son the value of cover for son’s services that— during and, minority, under statute, is also the value entitled recover engine The tramroad such contributions or reasonable son after aid as he being operated when son Earnest Lee Hunt killed, valleys, and into “extends over hills majority. high grades; which makes and causes and that grades point going <&wkey;77Finding down one of said at a when upon Death 6. — engineer the said was unable to said road ON EVIDENCE. BASED BE (a) engine, speed said because control said recovery for of a father’s heavy enough safely engine was not minor son must be based evi- death of his great weight back of said handle and hold jury, and cannot denсe before they proceeded gain logs, carloads specu- on surmise or left to their determination engine (b) speed grade; said down said lation. equipped said cars were not <&wkey;99(3)$5,000award father Death — or would in with brakes could manner manner PRACTICALLY OF SON OF AGE engineer checking FOR DEATH HELD aid said EXCESSIVE. grade; speed said train down $5,009 in Verdict for favor father for .a of said the defects as above because set son, years explained, 10 months of the death same could not and out and topic Key-Numbered @s»Por Digests Indexes cases see same KEY-NUMBER *2 Tex.) LUMBER CO. WEST v. HUNT 1107 :.w.) speed, high upon stay of at rate cause the com- said track causes or contributes to not plained jumped of. turn- and ed the and because thereof the track “ stated, in which over, lаw means that wrecked, ‘Proximate cause’ or was as above sequence, in unbroken natural and continuous the said Hunt was result that Earnest Lee by independent cause, produces the then killed in new. and there said wreck.” not event and without which the event would error, by defendant, plaintiff happened. its in have “Keeping foregoing general in- pleaded in mind the above and de- first amended answer propound structions, you: I now to alleged special nial, answer first “Question defendant, No. 1. Was which resulted accident Company, guilty West Lumber in proxi- death of deceased was due to and particulars charged plaintiff’s peti- 'the in part mately the failure on regard engine -tion plaintiff’s on which ordinary for his to exercise care deceased son was killed? Answer ‘Yes’ or ‘No.’ alleged safety. that— Next said answer own any, negligence, “Question 2.No. Was such if inquired question plaintiff 1, mechanic about “The herein was the master No. engines equipment cause of swer ‘Yes’ or death of An- their said son? engines time of said and the crews ‘No.’ complained of, “Question herein No. 3. Was the defective condi- accident engines engine to were defective, was his proper see said tion of sult of if was No. engines contributory negligence that said were condition and on proper repair; avers plaintiff, state and defendant the that, L. Answer the ‘No.’ A. Hunt? ‘Yes’ engine proper , state of if was not in said operated repair money, any, condition “Question No. 4. What sum of if negli- rails, paid plaintiff fairly now, justly compensate same was due to will perform gence duty, plaintiff any, aid, and his failure to for the loss if plaintiff that for this reason is he had the reasonable to recover herein.” entitled from his son had he lived? said Answer stat- ing amount, any. answering what question you not consider an- will mental answer further Said that— suffering, grief guish, plain- pain, occasioned tiff as of the the result death his said son. engine fully The defects in said known proof plaintiff “The burden is plaintiff, and that defendant instructed allegations petition establish material in his permit him “not to Lee said Earnest Hunt upon ponderance-of ponderance recovery by pre- which for a he relies go engines; out on but the said By ‘pre- evidence. term herein, without the consent оf this defendant great- of the evidence’ is meant the defendant, the instructions of this weight testimony. er of credible sent the said Earnest Lee Hunt said out on en- judges “You exclusive are gine the facts question, on occasion and defendant proved credibility and the of the witnesses.” avers act that said was not the act of this de- fendant, was but the act of and that being returned, Upon the verdict for such reason this defendant is liable favor of below rendered not entitled is to recover.” for actual fendant error seasonably $5,000. Plaintiff sum error prayer damages in the for actual trial, filed by new its motion $10,000 exemplary sum of overruled, to which The case to a that amount. was submitted duly excepted its and in due time filed issues, following upon the to bond, applied for writ of wit: before this court cause now jury: will This case “Gentlemen of errors. revision and correction you By submitted to meant will issues. ninth, seventh, eighth, Plaintiff in error’s you propound I hereinafter cer- assignments of error are fol- and tenth you you questions will tain answer lows: facts to be from A find the the evidence. failing refusing separate piece paper you (a) “The court will be furnished erred give jury special you ques- No. 5 will answer as directed issue you propounded. defendant, have submitted because the same hereinafter When tions questions directed, your evidence, fore- raised the have a and the these sign answered finding man the same and such will was entitled to thereon.” answers your failing refusing (b) verdict in erred in constitute this case. “The court guidance give jury special your answering ques- to submitted 5 “For issue No. propounded, defendant, plead- I submit tions hereinafter the because the ings following instructions: of defendant and evidence in the cause ‘negligence’ “By happening as used means raised the the term herein degree alleged by plaintiff use would which is failure to care which have resulted person ordinary prudence the'negligent the death of his son was plaintiff be exercised under the same act of or similar circumstances. himself.” “ ‘Contributory negligence’ (c) refusing failing in law means such “The erred in person jury special requested in- as, or omission on the submit to the 5 act No. amounting ordinary jured concurring pleadings to a want of care because the and the co-operating negligent with some evidence raised the issue that the dition of con- defendant, proximately by plaintiff, or omission act REPORTER SOUTHWESTERN joined respect proposition under to tlie advanced
due thereto, twenty- twenty-second and defendant twenty-first, entitled finding issue.” third refer- of error. The give (d) court erred “The the meas- ence made the court below to charge by *3 submitted the issue No. 5 to ure of is as follows: alleged defendant, had defendant because money, if “Question No. 4. What sum of the locomotive condition that upon fairly compensate by any, paid justly now, plaintiff which the son any, plaintiff pecuniary aid, chargeable if plaintiff plaintiff, to the loss of the to killed was have been responsible therefor, and the reasоnable lie had the who was stating son, condi- from had he Answer of the defective alleged by plaintiff, his said lived? that one evidence shows any. ques- answering amount, to what if In tions of said locomotive is, you any anguish, axles, un- wit, axles tion pain, suffering, consider that will not mental that the drive bent, plaintiff grief crooked and had or occasioned as were derneath the and was the same happening charge plaintiff that the result of the death of son.” showed his said repair thereof, responsible for some time before had been bent give this The refusal to plaintiff is al- son of to this error. With reference was might life, leged and the to have lost his same plaintiff matter testified: any repaired by plaintiff with- at time have been day young two, “My Hunt, to entitled man аnd defendant was or son Earnest L. you respect living, special wreck, with thereto that was have termined said issue who might killed in was jury, say, to submit killed. and the failure me at the he was the issue was time with special highly prejudicial boarding though time. He at were not We was time. rights man, at the with me defendant.” a married he was at down Milvid work had been to He special as follows: issue No. 5 was days. wages something he I like 30 think earning $2.50, as I as well was $2.25 jury: request At the “Gentlemen of the just forget had I now which. He remember. following special submit- defendant the ted to issue is Trinity living Palestine, near been back you, to wit: place Oakwood, river, in Leon coun- called at a son of of “Was the death of the just ty, he to Milvid. Before before he came plaintiff proximately go I to to wоrk and before came to Milvid came Milvid plaintiff? foregoing answer the in- You will was’ or living go work, to he had been to to not,’ according terrogatory ‘it ‘it was me, practically had never all his life. He with you find the fact to be.” work, away home to a to went from sawmill foregoing assignments con- go will be jobs, Both unless I was with him. to other to work opinion except together. place, this one time. In our at same sidered wag only gone request- I special time had ever This away give this to erred years. in the or five left him last four jury, we sustain ed assignments helping I left home At that first. He timo matter. to this with reference family my by tak- to at that time take care twentieth, nineteenth, eighteenth, , The ing two little The next care of his brothers. complain assignments twenty-first of error 14; time, believe, I well I one was at give to court’s refusal 14; 17, that time other one remember at I and the requested defendant’s They my believe; 16 or were children. 17. During follows: which is as No. that he at back the time was left home county Orange I had come to Leon request following “At the Orange accepting posi- Milvid, and tion you, issue is submitted to to wit: I had been offered to me. out of “Question 1. What did that son No. During time, looking work for work. plaintiff’s petition who-is my I son E. time looked efforts - per killed, have been earn month? my Hunt, and he fact care of Lee minor did take “You will fill in the above blank the sum got my job After I sent children. so find.” my brought Milvid, chil- for him to come to he my After two minor plaintiff dren there. children Under got my there, boarded son Earnest Lee we all proposition errоr advances the the meas- place. place at the same at the I and lived injuries ure of the father for re- paid think, us, board, I well for all of sulting in death of minor child is regards way helped as I in the he he remember. he earnings net the child over and above why general sustenance required support, the amount for the child’s every always had; he turned dollar that in error was entitled put family fund; it in as a it ascertaining belonged the basis for found and his; mine; any member of any family money, if determined er- stood in need of gardless was; there, his need if it was of what recover ror During it was his. we lived there at the time .premises. in error buy- Milvid I think he ing sities; contribute towards was, The son at the my neces- children’s clothes of his a minor. no evi- time There is working— I can’t been —he upon- bearing dence record the meas- is, rule, customary I don’t know that whether more under damages except ure of de- day pay not; had drawn he testimony upon fendant error. All of one, that; he ever drawn and I than subject is set forth the statement sub- ever am that he not sure drawn Tes.) LUMBER CO. v. WEST HUNT . :.w.) they days following they ever “The before is submitted them hack 30 held * * * you, money. to wit: kind We drawn financially things kept “Question 1. No. Was companions, and in a manner our up together. benefited I to or at time of the together, money the time At our subject death of his said son? every cent was to whatever drew “Question hoy ject sity everything No. been required Would was sub- he drew pecuniarily son by. up subject aided his son required, the time neces- I to whose to what majority? regardless moment, have reached was. questions money required “Answer of the above each ‘Yes’ maintain that was And the the it, ‘No,’ you may applied find the just facts to children, be.” what he made was just it, applied I made was and what * * * I time. was more convenient at These matters have been should submitted put in the I I worked all the was there. time should have been *4 regularly boy a rule. than did as time more answer refusing and the action to kept helped rule, and As a he house sometimes in to submit same to paid remember, place. I well as I about the As jury was error. including family, the whole the board for boy, thirty-third, thirty-fourth, thirty-fifth, The just place I where boarded. I can’t thirty-sixth assignments complain and say positively I re- about as but as well Jr., Pickett, the remarks made B. E. my part bill; ; I know I couldn’t member plaintiff, аrgument cents, of* counsel for seemed remember to be words, dollars and but it my biggest balance “Any company cash. the effect that to my money pay than more to board it took trap who would death have like anything to more The board bill amounted else. (meaning the locomotive * * * left, I had than I had taken some I had learned a take care other words. happened which the occurrence pride, less, more or in the fact life) to which the lost his son skilled able to trade and was ought coin to to my very dollars with have confess family; well, I claim little objection always respect negligence,” being and taken credit as a mechanic. I in that support my defendant, own as a rule. been able to thereto counsel for in contin- keep my health, why, I I is no reason if I There will uing “Yes, I to his remarks the effect long always that; able to do to”; expect you except more to have for to my reasoning. keep my ability my health complain of the and also error of the court * * * boy Granbury I told Mr. that what jury refusing to con- to instruct it; own, but he he claimed earned was improper sider remarks of for counsel family. it; had claimed he left it with the never Pickett, plaintiff, Jr., argument to E. B. Granbury I I Mr. in that conversa- think told always my jury mentioned, support been and in tion that I able to had always wholly by family give jury own done it my efforts, always expected that I own by defendant, No. 14 submitted as follows: every that; the future to be able to do man most “You are instructed the remarks of coun- * * * I I does. disremembеr whether ‘Any company sel to the effect who would man that he hotel must collect .told trap have like that coin with a death dollars boy own board or I cannot for his not. negligence,’ to confess after man that the I told boy with whom we boarded objection exception thereto the remarks of himself, working now, own man was his for ‘Yes, expect counsel to effect and I have he, pay board, his own board- you except to,’ improper some more remarks, ing not; it, board, man must collect own house you will not consider same.” I if I said such don’t If I said remember. suppose it; I meant I it was true.” occurrence forms the basis or not The issue these is set forth in bill ex- error had con- ceptions defendant by plaintiff ceased. No. 4 in er- submitted support was one ror, pertinent part tributed of which fol- is as sharply fact contested issues lows: only testimony throughout trial. Pickett, Jr., “E. B. of counsel for bearing the issue was that of on defendant engaged closing argument while in ject All of his on the sub- error. cause, effect, made, the merits of the is set out. following statement, ‘Any company the which to wit: Special requested by issue No. 11 trap (mean- would have death like that ing below fol- and refused court was the locomotive of defendant alleged ought occurred) to coin dollars lows: negligence.’ Objection have confess following special “The issue is submitted to was made to said statement counsel for you, exception duly to wit: defendant and taken thereto whereupon “Did the dеath of son result the said plaintiff? argument loss to continued his foregoing question following statement, wit,- “You answer ‘Yes, you ‘Yes’ the and if ‘No,’ you show, object negligence, my discussing find the fact to be.” the facts which no doubt then there will be more of requested by Also issue No. 12 de- my argument except to, fendant below and refused the court was undoubtedly record is so full of facts which follows: defendant,’ show 219 SOUTHWESTERN REPORTER HIGHTOWER, which last J., WALKER, named statement and remarks of C. J. said'argument counsel for After submission of this cause in this objected exception, and made due and counsel assignment preparation its for the thereupon submitted to the court opinion BROOKE, fell to Associate Justice special charge (the same prepared opinion, and he has a written cause) instruсting Nó. 14 on file which the disregard special charge conclusion is remarks, reached to was the court in judgment by the court refused. To which action of of the trial court should be revers- declining objection to sustain there- ed and the cause remanded several differ- declining to, consider due to instruct not to grounds, specifically ent the mention of which regard same, defendant has made unnecessary here, but will be found exception, this, here now tenders its opinion prepared by Justice BROOKE. exception, bill of and asks that the carefully opin [1] We have considered the proved and ordered filed as a of the record prepared by ion as Justice in this cause.” reached, the conclusion with him that Immediately improper upon said remarks of the trial court should be being made, plaintiff: counsel for remanded, reversed and the cause but not proper manner, open court, excepted and upon grounds upon which Justice preserved excep- then and there their bill of placed agree BROOKE has the reversal. We tions, immediately submitted to seventh, eighth, ninth, and tenth as special charge *5 cop-' court their No. 14 above signments of error found in the brief the special charge ied. This was refused. error, complain in all of in Upon meager supplied by the language different form and the action of alone, of defendant and the trial in to submit tending to show that the deceased son of requested by plaintiff error, issue No. 5 in defendant expense error was and be assign should be sustained. These several pecuniary aid, himto rather than á clearly opin ments of error are shown the jury meager found such issues as were prepared by BROOKE, ion Justice and there against plaintiff to them submitted all necessity elucidating is no for further them error, damages against plain- and assessed here. tiff error and favor of defendant Special issue No. which the court refused $5,000. error in the sum of jury’s submit, answer, re- for the at the complained The remarks of counsel of quest as follows: highly improper aggravating, were and son of of jury’s or was not the death of the ‘‘Was should have been withdrawn from the by negligence plaintiff proximately by language consideration court. Such plaintiff? foregoing inter- You answer the will prejudice rights was calculated to according rogatory was,’ not,’ ‘It or ‘It was to inflame the minds of the find the fact to be.” jury, and when attention was called thereto jury have been should admonished opinion In the of Justice BROOKE it is the court that same not should be considered clearly stated that refusal of the trial passing to be considered in court to submit this issue was error the measure this case. reversed, for which the should be required much Too that counsel in care cannot be in order opinion but let his Justice BROOKE case like this should not concluding. reflect the reason for so As we jury, this, inflame the minds of the contention of understand the peculiar court cannot know the undoubtedly ing $5,000 damages. effect which here), (defendant in negligence this case one in this case in resulted assess- grounds main relied peculiar We make men- recovery against below tion, as we heretofore made with refer- alleged plaintiff, fact, as was the counsel, ence to remarks of in order that the engine upon axles of the the drive may absolutely trials courts below be plaintiff’s son met his death “were crooked any improper motive; free from and when way" and bent such throw said jury damage the tendency has assessed a which has a driving balance, pre- out of and thus wheels mind, to show an inflamed following rail them from a free vent might might improper not arise from an course, Of manner.” and unobstructed motive, impossible it is for us to know what opinion BROOKE, Justice shown
impelled jury to do this. grounds negli- several other therе were gence charged language But used B. said E. petition; plaintiff’s but Pickett, Jr., assessment grounds main large we was one sum, this impresses in such proximate negligence suspicion to be the cause our minds with the the re- plaintiff’s Now, brought of the death of son. of counsel defend- marks this about. It general grounds certainly tendency ant, after a denial of to do so. plaintiff’s negligence peti- pointed out, contained in For the errors of tion, specially this alleged, substantially, cause is reversed and remanded if lower engine court for a new trial. axles bent and the drive came the determining issue, Tex.) ligence death. by he nowhere nor properly the issue sumed negligence, as we defensive was refused framed and answered “Yes” tion correсt, we court in error’s whether ligence quested crooked and prepared by issues submitted cient submitted to the fendant was spect, question on defendant’s question. submit such brief, plaintiff, result such condition of the answered “Yes.” that matter entire that, ure on his son, since the court’s to see that [2] tins a counter evidence, right jury’s request if Now, to call for the seeks hold, having plaintiff court, engine that defendant became a privilege and he failed case, We submitted, issue now general so or not such alleged by proximate framed issue propounded and if to recover issue Then the refusing consideration and jury counsel the axles one have death, by the court. out of son’s Justice plaintiff reason, issue, guilty requested who justified the trial court’s attentiоn to error uphold cause proposition in error he yard, will be seen of the trial question resulted we see it affirmatively whether concluded that to do such in the jury the just above kept main It death was caused was the should any raised such then to submit such repair, cause of against defendant. of the son’s negligence, legal left the criticism in error to question, and, in error so, condition of tbe since to submit such plaintiff No. 5 as drive suggested manner did, court’s then, substantially, in the death of his whether such such whose proper repair, question action be seen from not, general question contained cause of the master mechanic right submission of judge WEST LUMBER CO. HUNT certainly axles copied presented negligent decision, was assumed therefore, be point, issue, it pleading submitted himself, affirmatively failed to see the issue as reversed. in error be *6 charge that duty record, plaintiff of the trial framed as by counsel, determina have requested to either any, was guilty made inquired or issue without prepare by neg- seeking request opinion not de- second issue, son’s of the suffi son’s tiff such neg axle or fail- was and The record tbe his for be re so s.w.) issue of himself, fendant would not have prive plaintiff’s son, charge, and, issue, he must issue, however fully urge there was if proceeded that negative. closes the fact that to the tributory negligence, ted answer submission both in the motion below and in submit caused his son’s could ment 787. From the to whether just months pellate S. W. incorrect, tention a er court, not avail himself of the court’s omission.” the error tory negligence by stand of also, submit the issue submit it to the “When [3, 4] It is true [5-7] either contributory negligence so Olds Motor exception a correct son’s death. We in error as to the defendant above is Roberts v. Houston y. reframe plea and a complaining negatived not, 259; Brady McCuistion, principle court. But We submission of" in this favor without instruction party contributory negligence, as but vital defensive age; no basis As we next for its determination whether or * * * shows, approximately correctly general appellant’s trial, omission, we view sufficient'to call the court’s which the contributory Works clearly applicable determined desires think, opinion tender to error of omission taken to such failure case, announced pass jury. death, the time of issue as the record fails be, trial that the verdict and when make such have there was no without for in error here was on that v. in error assignment failure to do presentation No. the unauthorized therefore conclude that v. upon have announced the issue the court should submit new trial in the court the submission of the trial words, brief, issue, in the court has submit- This rule we under- fuller answer Churchill, been judgment proximate 5, as the court a correct Motor issue submitted as below excessive. requested by plain- in his own plaintiff issue; that correct, negligence. But, dispute, for requested, and its existence court submitted of the he entitled to case we assignment years this case dis on material issue effect Car that proximately plea the absence here. sо, 210 S. W. should be the cause quotation presented, also he would contribu and then cause of the case right Co., the de he and 10 success- if charge, of con shown, error’s reason though quote: to de or im guilty S. W. judg issue, 1111 jury, prop- true can- See, at- 219 SOUTHWESTERN REPORTER tionate son would have continued to contribute ing in in robust after tribute thing There was ing proximately and the verdict of mise or father the time made tified reason to believe this element port 47 the approximately *7 majority trial receiving from continue to that the before left to ther, we would son of the statute of this such verdict and ices of the largely ture as he had care of other children would also be entitled connection; of his maintenance. dient, would have which would time other than that оf der the common entitled performed but cate that question, however, reliable dered valuable services have reached his when he was last from the date of his death. ther shows that the deceased covery would have ters regularly any $2.50 years be arrived boy father, boy there for his pertaining of the son’s contributions or aid reaching that he had to his father after tending was a skilled kind, son, was a dutiful and in excess of the could their determination in this case to boy this would have reached his per day; speculation. father of his had he lived. health and is little promise no jury, and could not record, do to warrant age, family, in his father’s deceased, 14 and and affectionate case, been, up be a support reached his eаrnings proof that he to show 60 so. The outside recovery, however, at and based has two other death, hesitate to conclude that to the household and a reasonable in addition to that days household, always majority, employed, law, question majority that he was a faithful and of his testimony, evidence adduced and if other pecuniary meahanic son after earning Now, he would That would from the accident. strength, younger that the deceased consecrate proof employment, whatever such value ment and to the time the son the father would enter into this were excessive. Un- this record. expense proof his father or and that he had no in our recover But years, respectively. amade conclusion than the fact obedient and reaching any capacity at the for determination attending trial value and there is noth- majority, in about 60 state, as stated outside of duties he made he was an obe- upon doing support shows that The record between the amount of reasonable and substantial basis in the evi shows upon loss to sons, son is element of than reaching be unable to favor of any, below good and he tes- the value majority of the serv- sarily proper sup- bility would have time himself mere his father majority, so aged ap- himself; and ren- these facts alone must constitute the basis evidence but that not have the effect that the relation of father and son that further, any opinion from to indi- in that or con- to mat- for the salary, 45 and beyond before, all of taking father of the the show- affec- were for case, any- that days had sur- rea- fur- the to na- fa- At $2 fully reversal tice lar ones that we do marks thing they closing argument reaching ment the cause we have such time verdict of a error for But, dence, ent, this reasonable dict are based know, ical sible to establish lar ever, which, tributions thorities relied dict fendant in fectionate, this case. No useful ror served the be based existed, [8] speculate merely suggest very case, we have not been cited to a conclusion reached case, upholding certainty appellate in cases of this case, child, depends now since the the remarks shown issue, and, We of another shown in challenging not concur with Justice BROOKE in opinion, addressed and that-a obedient to the jury’s brothers and sisters. We should not be indicated, nature of brief and that and we think that none of the au appear the excessiveness vel non sufficient of has deem it not another trial such remarks or simi that what alone, $5,000. remanded excessive having discussing discretion of the that questions our and that the son was considerate had he verdict error for the sum of this expectation that we upon judgment verdict in the sum of We are not what been courts of this of counsel for defendant in er the amount of the is excessive extent to which the point. opinion, judgment, trial, we largely on such issue must have a the verdict and complained of, We hold that things opinion prepared frequently their relations were af- pecuniary lived, record in evidence with mathemat hardly justified by any character, facts similar think, upon we upon of this kind are neces surmise made. purpose father, themselves to cause a favor of we deem it improper facts must be record, cannot be view would be to the sound upholding it would be view of the other but him upon entertain at for, unmindful, and considerate state, value the the record in determined would be sub- money be sustained. would have a and withhold we defendant in each yet reversed isas that the re has done determining grounds, error in his $5,000 evidence to to those single which are verdict ease, this case $5,000. judgment do authority aof this ver we also facts as particu verdict, usually or con assign proba impos agree judg how that Jus par case this ver Tex.) RUSSELL RHONE v. s.w.) point appellee. carefully land was at as- considered claimed We have signments He also found those the brief error contained concluded, under whom he claimed error, with- had held the land and have length sufficient of time under an adverse discussing none of them out perfect claim under, rights title both of five prejudicial anything point out year and ten statutes of The two limitation. they are overruled. presented appellant’s of error findings brief contend that the court’s conclusions are not sustained the evidence. [1, carefully 2] haveWe examined the state facts, ment of and have concluded we 2213.) (No. BARRY JONES. v. justified reversing judg would not be (Court Appeals Texarkana. of Civil of Texas. grounds. appellant ment those The 11, 1920.) March sovereignty not connect herself with the soil, and there is no evidence rec tey Trespass <@=6(1) 1. title —Plaintiff agreement ord of common source or MUST HIMSELF CONNECT WITH SOVEREIGNTY as to a common source. which tended to show that There OF SOIL OE COMMON SOURCE. in contro the land trespass try posses- to the title to land in versy was embraced in what was known as another, sion of him- connect Wyatt claim, sovereignty soil, and was self included the deed show agreement Wyatt appellee. source appellee’s common to a common from The source. Wyatts in showed land, early 1902, closed the — possession <&wkey;43(3) 2. Adverse Grantee larger tract, portion greater HAS RIGHT TO AVAIL HIMSELF OF ADVERSE tract had been cultivated and used for CLAIM EXERCISED GRANTOR. BY many years. right While the small tract dis here in Grantee has a to avail himself of pute grantor cultivation, claim adverse exercised was not in the same boundaries recited in pasture. deed. inclosure and was used for a having appellee’s court cluded deed in found Appeal Court, County; from District controversy, Bowie the land the latter O’Neal, Judge. H. E. right had the to avail himself of the adverse by Wyatts. claim exercised Trespass try by Mary Barry title Judgment E. unnecessary phases It to discuss in detail the Ed Jones. various of the evidence. plaintiff appeals. Affirmed. will be affirmed. Crumpton, Texarkana, appellant. Sid Tidwell, Boston, Johnson & of New pellee. (No. 2236.) HODGES, RHONE v. et al. RUSSELL J. This suit was instituted appellant against appellee in the form (Court Appeals Civil Texas. Texarkana. trespass try of an action of title to recover Rehearing Feb. Denied a small tract of land described as a April 8, 1920.) *8 survey, county. ap- the Eskell in Bowie The Appeal jurisdiction pellee pleaded guilty <&wkey;65 five and —No appeal involving $80 year OF OF ten statutes of limitation. The testi- AND INTEREST. mony dispute tended to show a as to the lo- appellate jurisdiction court no has boundary cation true line between appeal county orig- an from the court a suit parties lands owned to the suit. The inating justice court for $80 appellant claimed a subdivision of the Eskell interest; interest recoverable for de- survey land, known as the Hooks and the money, tention of of and not as a distinct element appellee survey claimed a of the same dаmages. appellant known as the Talbot land. The produced in evidence a deed from T. W. Court; Appeal County fr'om Wood R. E. Hooks, administrator of the estate of C. Bozman, Judge. Hooks, alleged, 1869, conveying, executed in she Action between W. M. Rhone and Hardee controvesy Lucy the land in to Mrs. judg- Russell and others. From ment, adverse Smith, Lucy A. deed from Mrs. A. Appeal appeals. the former dismissed. Smith, 1877, conveying executed Wilkinson, Winnsboro, appel- H. L. description land pellee the'same to her. The Wyatt lant. claimed under deeds from exe- Suiter, Winnsboro, appellees. W. D. cuted in 1916. The case was tried before the without and a justice LEVY, plain- appellee. rendered in J. 'the favor cent, substance, per $50 with 6 tiff sued interest found that boundary appeal true line 1913. On between the from December tracts of two topic Key-Numbered Digests eases see same and KEY-NUMBERin all and Indexes feoFor