to allege the resulting fact, for it is under-, tiff are recoverable under the general ad stood to be averred by the averment of the damnum clause, and need not be specifically facts from which it necessarily results." alleged. 5 Enc. Pl. & Prac. pp. 748, 749; In Brown v. Sullivan, 71 Tex. 476, 10 S. W. Suth. Dam. §§ 1242, 1244; Railway v. Gold290, Judge Gaines, speaking for the Supreme man (Tex. Civ. App.) 51 S. W. 275; Village Court, says: "Where serious bodily injury of Ava v. Grenawalt, 73 Ill. App. 633; Treadis inflicted involving fractions, dislocations, well v. Whittier, 80 Cal. 574, 22 Pac. 266, 5etc., and results in protracted disability and L. R. A. 498, 13 Am. St. Rep. 175; Bradbury confinement to bed, we know that some degree v. Benton, 69 Me. 199; Lynch v. Railroad Co. of physical and mental suffering is the neces- (Super. Ct. N. Y.) 13 N. Y. Supp. 236; Rosesary result. Hence, when a serious bodily velt v. Railway Co. (Super. Ct. N. Y.) 13 N. injury, which threatens permanent disability, Y. Supp. 598; Railway v. Harris, 122 U. S. and continues for a long time, is proved, the 597, 7 Sup. Ct. 1286, 30 L. Ed. 1146; Ehrgott jury are authorized to consider the pain, both v. Mayer, etc., 96 N. Y. 264, 48 Am. Rep. 622." of body and mind, in assessing the amount of See, also, Railway v. Newburn (Tex. Civ. damages without direct proof of such suffer- App.) 58 S. W. 542; Knittel v. Schmidt, 16ing." It was held that the court did not err Tex. Civ. App. 7, 40 S. W. 508; Brown v. in instructing the jury that plaintiff could re- Railway, 99 Mo. 310, 12 S. W. 655; Railway cover for his wife's mental suffering, although v. Nesbit, 40 Tex. Civ. App. 209, 88 S. W. there was no evidence that she suffered pain 892. of mind. San Antonio & Aransas Pass Rail- We think that under the allegations in this way Co. v. Weigers, 22 Tex. Civ. App. 344, 54 case, which show that the plaintiff was seriS. W. 910, was a suit for damages for per- ously crippled in a matter affecting his future sonal injuries, wherein the plaintiff alleged comfort and capacity, the law, even in the that he had received certain injuries through absence of an allegation as to mental and the negligence of the defendant, and that as physical pain, would infer that he had suffera result thereof his left arm and hand were ed damages in those respects, and proof would so badly injured as to be well-nigh useless; be admissible to show the character, extent, that the blow across his breast and abdomen and probable duration of such suffering withhad injured him internally; that his heart out any specific allegation thereof. As before had been affected, enlarged, and misplaced stated, we do not think the allegations of the by the blow, and internal injuries inflicted petition should be construed as restricting apupon his stomach, sides, and spine; that he pellee's right to recover to such suffering only was confined to his bed many weeks, and suf- as occurred prior to the filing of the suit or fered great mental and physical pain and the trial of the case. Our views are not in loss of time; and that his injuries were last- conflict, we think, with the opinion of the ing and permanent. The trial court charged Courts of Civil Appeals in Lodwick Lumber the jury that they might take into considera- Co. v. Taylor, 39 Tex. Civ. App. 302, 87 tion, in estimating the plaintiff's damages, S. W. 358, and City of Rockwall v. Heath "the mental and physical suffering, if any, (Tex. Civ. App.) 90 S. W. 514, in both of which consequent upon the injury received. recovery was denied for future mental sufThe court, at the request of defendant, fur-fering because such damages were not pleadther charged the jury that plaintiff could not ed. In neither of the cases is the character recover for mental and physical suffering aft- and extent of the injuries stated. In the er the date of the trial. It was urged by de- first case cited it was held that it might befendant on appeal, as a ground for reversal that physical suffering would necessarily reof the judgment in plaintiff's favor, that the sult from the injuries alleged and proven, but general charge which permitted a recovery that in the opinion of the court mental sufferfor mental and physical suffering after the ing did not necessarily result from such intrial was inconsistent with, and contradictory juries, and that to be recoverable they should of, the special charge. Justice Neill, of the have been alleged. In Rockwall v. Heath, the San Antonio Court of Civil Appeals, in ren- court held that the submission to the jury of dering the opinion of the court, after saying mental suffering as an element of damage, in that the special charge was a qualification the absence of an allegation of such suffering of, rather than in conflict with, the general on the part of plaintiff's wife, was reversiblecharge, goes on to say: "But however this error. In the absence of any statement in may be, we deem it proper to say, the opinion showing that as the result of her injuries plaintiff's wife was in some way permanently injured in a matter affecting her health, comfort, or capacity, we cannot dissent from the views there announced. This disposes of appellant's seventh, eighth, ninth, tenth, eleventh, and twelfth assignments of error, all of which are overruled. * * that the special charge limiting the recovery of damages for mental and physical suffering to such as occurred before the trial is erroneous, and should not have been given. Under the general allegations of damages in the petition the plaintiff was entitled to recover for all the injuries which necessarily resulted from the negligence complained of, and it was unnecessary to specify them in the pleadings. Damages for future and permanent effect of H. Swanson, a witness for defendant, and who was one of the inspectors who inspected car No. 1,061, testified, over objection of shipper might be shown in mitigation of dam- | topped from recovering, even though the ages, but the actual return of the goods to the property had been wrongfully delivered; and, shipper did not relieve the carrier, on the shipper's damages exceeding the value of the goods. further, that subsequently the plaintiff had [Ed. Note.-For other cases, see Carriers, Dec. the property delivered back to it, and that Dig. § 94.*] it was not in any way damaged by the alleged wrongful delivery by the defendant." Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge. Action by the J. A. Fay & Egan Company against the Midland Valley Railroad Company. From a judgment for plaintiff, de fendant appeals. Affirmed. Ira D. Oglesby, for appellant. Brizzolara & Fitzhugh, for appellee. Plaintiff sold to the Muskogee Sawmill & Manufacturing Company machinery at the price of $3,775, to be paid for as follows: Six hundred dollars in cash; $500 "by three machinery at Muskogee. months note; $500.00 by six months note; $1,000.00 by nine months note; $1,000.00 by twelve months note, and the balance by an allowance of $175.00 on a secondhand machine." This agreement was afterwards BATTLE, J. J. A. Fay & Egan Co. is modified by mutual consent, requiring the plaintiff, and the Midland Valley Railroad mill company to pay, in addition to the cash Company is defendant, in this action. Plain-payment, a draft for $500 on arrival of the tiff alleges in its complaint that both parties are corporations; that on or about the 6th Subsequent to first sale, the mill company day of March, 1905, it sold to the Muskogee purchased of plaintiff other machinery, and Sawmill & Manufacturing Company certain agreed to pay therefor $313.42 in cash. All machinery, at the price of $3,775, of which of the machinery was shipped on defendant's $600 was paid in cash, and the mill company railway on the 6th of March, to plaintiff's agreed to pay plaintiff's draft for $813.42 up-order, to Muskogee, with draft for $813.42, on the arrival of the machinery in the city of Muskogee, that plaintiff shipped the machinery on defendant's railway on the 6th of March, 1906, consigned to shipper's order, and at the same time drew a draft on the mill company for the $813.42, and attached it to the bill of lading given by the defend- | ant for shipment of the machinery, and that by the terms of the consignment and contract the title to the property remained in plaintiff until the draft was paid, and that the defendant wrongfully delivered the machinery to the mill company without requiring payment of the draft or the production of the bill of lading. Plaintiff further alleges that nothing has been paid upon the draft, except $130.81, that the mill company is insolvent, and refuses to pay for the machinery, and that the bill of lading is still in its possession. Plaintiff further states that the defendant wrongfully delivered to the mill company a certain panel raiser belonging to it, and that it incurred expenses in recovering and repairing the same, which amounted to $43. Plaintiff asks for judgment for $715.61. and interest and costs. The defendant answered, and in effect specifically denied each allegation of the complaint. "The answer further sets up that plaintiff ratified the delivery of the property to the mill company; that it permitted the mill company to use same, and entered into a contract with the mill company under which the company was to retain the property and make weekly payments of $100 until the draft was paid. The answer further alleges that by reason of the acts and conduct of plaintiff in dealing with the property after it was delivered to the mill company, it is es the amount of the $500 to be paid in cash, and the $313.42 for additional machinery, attached to the bill of lading given by the defendant for shipment of the machinery. Defendant delivered the machinery to the mill company on its arrival at Muskogee, without requiring payment of the draft, or demanding the production of the bill of lading. In addition to the above-mentioned machinery plaintiff, on the 6th of March, 1905, shipped to the mill company a panel raiser, priced at $108, which was wrongfully delivered by the defendant to the mill company with the other machinery, but it was finally recovered and repaired by plaintiff at an expense of $43. Defendant has never offered to return the machinery, and plaintiff never expressly ratified the delivery to the mill company, but on the contrary, refused to surrender the bill of lading until the draft was paid. The mill company proposed to pay $100 weekly in settlement of the draft, provided plaintiff would surrender the bill of lading and release the defendant, and, in order to show its good faith, accompanied its proposition with a check for $100, the first weekly payment. Plaintiff expressed a willingness to accept $100 weekly, but refused to surrender the bill of lading and release the defendant until the draft was paid in full, and the mill company made no other payment. Credits for $100 paid as before stated, and $58.50 allowed for freight, have been indorsed on the draft, but balance of $654.92 is still due and owing. Plaintiff still holds the bill of lading. Most of the machinery has been recovered, but in much damaged condition. Plaintiff recovered judgment for $710.96, and the defendant appealed. As the machinery was shipped to the order of appellee, with the draft attached, the ap Nor do we think the remarks of counsel, complained of in appellant's sixteenth assignment of error, could have improperly influenced the jury in finding the amount they did, in view of the fact that the court twice admonished them not to consider them, and the counsel, who made the remarks complained of, explained to the jury that he did not intend the remarks to be taken seriously, and requested the jury, and requested the court to instruct them, not to consider the remarks. and the doctor came over and put me in bed, of the railway service that I could perform. and he got the Sisters-it was the Sisters' I might learn to be a one-handed telegraph Hospital-and told them to put a poultice on operator, but there is not much demand for that hand every two hours, and they did that, one-handed anythings the way I have found and kept me up at night, doing the same it that I have seen in my line. I tried to get thing night and day. Of course I couldn't work all last summer, and don't think I have sleep at all; this finger, the forefinger, was a lazy bone in my body. I have never been larger than my wrist, and my hand looked accused of it, not on the road, anyway. I like a large chunk of raw meat, and I suf- was in good health, and had never been sick, fered a great deal. They kept that poultic- and was 26 years old." The testimony of ing up for upwards of a month, and during plaintiff as to the condition of his hand was that time I couldn't sleep or do anything, and corroborated by his witness, Dr. Boyd. Unthe doctor said I must sleep, and he gave the der this testimony, and in the light of precenurse, I think it was, morphine tablets. I dent, we cannot say that the verdict was so stayed about a month before I got out of the large as to warrant the conclusion that the room at all, and then it commenced to heal, jury was actuated by prejudice, passion, or and they got all the pus out of it with the other improper motive in making their poultices, and I stayed there about four award. Brooke v. Clark, 57 Tex. 113; Railmonths before it got a place in here where way v. Randall, 50 Tex. 261; Railway Co. v. this hole is, and it would not heal in there. Stewart, 57 Tex. 170; Railway Co. v. Brett, There was a lot of pus, and I had to stay 61 Tex. 488. there three weeks while they were burning it with some kind of caustic. It was hurting me, but it was easy to what I had gone through with. Then they tried to straighten them, and the doctors just took hold there, and them sisters kept rubbing it with olive oil, and I was there four months, and I didn't have a very good time. I mean I was suffering all the time. In fact, there was never a moment I didn't suffer; and the pains were very severe during those four weeks when I was staying up and getting a poultice every two hours. I thought I couldn't stand it at all, because the pain was running up and hitting me between the eyes. After I left the hospital my hand was tender for months and months, and it is tender yet, and it is always cold. The circulation seems to be poor, and in the mornings, and especially in the evenings, I suffer a good deal, because it gets cold and pains me continually, and if I happen to get on this side, and lay on this shoulder, that wakes me up every night when I get on 1. it. Since I received the injury I had one job, which I got five weeks ago, driving a laundry In an action to set aside a fraudulent conwagon. I looked all last summer for work, veyance from mother to son, an instruction that things that I could do, I went to all the cof- if the grantor, for the purpose of defrauding her creditors, conspired with the grantee, and in fee houses and stores. I would go over every pursuance thereof conveyed the land to him, and two or three weeks and see if they needed if he at the time knew of her intention and resome one. I got a job driving a laundry wag-ceived the deed to assist her to defraud her creditors, and the deed was without consideration on for Burkhardt, and worked for four and not made in good faith, plaintiff should reweeks, and laid off this week. I never earn- cover, but if the grantor executed the deed in ed anything between the time I got hurt up good faith for a valuable consideration, and her to the time I got this laundry job. I am driv-grantee was an innocent purchaser for value, or if, though the vendor's purpose was to defraud ing the Fifth ward wagon for Burkhardt, and her creditors, unless the grantee had notice of I am making $10 a week. I am not able to the intent, the grantee should recover, was not brake now, because I couldn't climb a car; of showing that he was an innocent purchaser. erroneous as placing on the grantee the burden couldn't set a brake, and couldn't go over a train. I might do passenger conductor work now, but a man can't get one of those jobs unless he works 15 or 20 years. In the meantime he has to run a freight, and there is no chance of getting one. I know of no charac ter of work in the transportation department •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes We are of the opinion that the record is free of reversible error, and that the judgment of the court below should be affirmed, and it is so ordered. Affirmed. ADAMS et al. v. HAMILTON. † (Court of Civil Appeals of Texas. Jan. 23, 1909. Rehearing Denied Feb. 27, 1909.) FRAUDULENT CONVEYANCES (§ 309*)-IN STRUCTIONS - GOOD FAITH OF GRANTEE -- [Ed. Note.-For other cases, see Fraudulent Conveyances, Dec. Dig. § 309.*] 2. APPEAL AND ERROR (§ 1050*)-REVIEWHARMLESS ERROR-ADMISSION OF EVIDENCE. The admission of depositions that defendpropounded at the instance of plaintiff, on the ant had refused to answer certain interrogatories ground that he intended to appear at the trial trees had been felled on the land, cut into logs, and the logs were left lying on the ground where the trees fell; logs to the number of 314, amounting to 156,824 feet, were hauled away from the land by the defendant company. These logs were not hauled away prior to the 30th day of May, 1907, on account of the water, but were hauled out as soon as the teams could get in where the logs lay. There was a jury trial, and verdict for plaintiff in the sum of $152.79, the amount found by the evidence to be the value of the logs. The defendant has duly prosecuted an appeal. So in from the land within the time limit. In the case of Kemble v. Dresser, 1 Mete (Mass.) 271, 35 Am. Dec. 364, which is usually cited to support appellee's contention, the language used was that the wood should be "got off and removed within two years and not afterwards"; and thus, this case is distinguished in the case of Plumer v. Prescott, 43 N. H. 277. The case of King v. Merriman, 38 Minn. 47, 35 N. W. 570, seems to sustain appellee's contention, but in the later case of Alexan H. F. Roleson, for appellant. W. A. Comp- der v. Baner, 94 Minn. 174, 102 N. W. 387, ton, for appellee. the Supreme Court of Minnesota, referring to the case, said: "The inference of the learned judge who wrote the opinion in that case was not necessary to its decision, and, upon the view which we have taken, must be treated as dicta which should not control our present view." The court held that, upon the failure to remove the logs before the time limited, the title thereof did not revert to and become reinvested in the owner of the land. Again, in the case of Pease v. Gibson, 6 Me. 81, which is almost universally relied on by the courts which hold in favor of appellee's contention, the language used was dicta, and if it may be said that it was not, it has been overruled by a later decision of that court to which reference will be made later. HART, J. (after stating the facts as above). The facts in this case are undisputed. The timber was cut down or severed from the soil prior to the period of time limit mentioned in the contract, and the logs were left lying on the ground where the trees fell. The sole question raised by the appeal is, could the appellant subsequent to the time limit remove the logs from the land without being liable for conversion? The question is an open one in this state. The point was raised in the case of Plummer v. Reeves, 83 Ark. 10, 102 S. W. 376, but the court held that under the facts of that case it was abstract, and was not necessary to be considered in determining the issues involved. The question has been many times considered by the courts of other states, and there is great conflict and some confusion in the decisions. The latter has largely arisen because each decision is to a great extent based upon its own peculiar facts, and the courts have not always been apt in citing decisions upon which their opinions have been based. Some of the contracts considered contained other stipulations and facts, which made the discussion of the general principles here involved unnecessary to be determined; in others, the decisions were placed upon the evident design of the parties to the contract under examination, as shown by the particu-ant. lar expressions and provisions thereof. To illustrate, in the case of Taylor Brown Timber Company v. Wolf Creek Coal Co., a Kentucky case, reported in 107 S. W. 733, the second paragraph of the syllabus reads as follows: "In the case of contracts granting the right to cut and remove timber for a certain term, time is ordinarily the essence of the contract, and, where the contract by its terms expires, the rights of the vendees automatically terminate." An examination of the contract in that case shows that the grantees of the timber had four years "to cut and remove the trees and logs," thus showing by the express terms of the instrument that the parties designed that not only the timber should be severed from the soil, In the case of Hodges v. Buell et al., 134 Mich. 162, 95 N. W. 1078, defendant by deed dated October 11, 1899, deeded land to complainant, with a reservation as follows: "First party reserves all saw timber on said land, with right to enter upon and remove same within two years." The Supreme Court of Michigan, after reviewing and discussing its former opinions on the subject, held that as to all timber standing on October 11, 1901, the title was in complainant, but that timber severed from the soil, though still on the premises, belonged to the defend In the case of Erskine v. Savage, 96 Me. 57, 51 Atl. 242, the syllabus is as follows: "A grantor in a deed reserved 'all hard and soft wood growth, with right of entry upon the premises at any and all times for a period of five years from the date of the deed with men and teams for the purpose of cutting and removing the same.' Within the five years, the plaintiff, who was the purchaser of the rights reserved by the grantor, cut all the wood reserved, but some of it had not been removed before the end of the period. Held, that the wood remained a part of the real estate until severed from the soil; that as soon as it was severed within the period limited it became personal property; that the title then vested in the plain title to the wood cut, but not removed, by gal Box Company v. Moore et al., 114 Tenn. failure to remove it within the five-year 596, 87 S. W. 415, 4 Am. Cas. 1047, and period." Bunch v. Lumber Co., 134 N. C. 116, 46 S. E. 24, which hold that, under a contract of sale of standing timber with the right to cut and remove it within a specified time, the grantee has no title to the timber which has been felled, and not taken away before the expiration of the time limit. But we think that the weight of authority and the best-considered cases, which are strictly in point, harmonize with the view that all timber cut down and severed from the soil by the grantee before the date specified in the contract of sale becomes his personal property, which he may remove in a reasonable time after said date, unless by the express terms of the contract a contrary invention is manifest. In the case of Plumer v. Prescott, 43 N. H. 277, the court used the following language: "When, however, these trees are lawfully cut by the vendee within the time limited by the contract, they cease to be parcel of the land, and become the personal property of the vendee; and unless it can be considered that he has waived or forfeited his title to the timber by neglecting to remove it within the time, it must stand, for aught we can see, upon the footing of any other personal property of the vendee, which by his fault or neglect, and without any fault of the vendor, is upon the land of the latter. It is very clear, we think, that having been lawfully severed from the land it has become personal property, and at any period before the expiration of the limited time, at least, the title is vested in the vendee as fully as any other chattels. If this be the case, it is difficult to see how the title can be lost by the neglect to remove it." In this case the contract of sale must be construed as an entire instrument, and we think that the words "cut and remove" in the connection in which they are used mean a severance from the soil. It necessarily follows that, when severed from the soil by the grantee, the timber becomes its personal property, and subject to the law concerning personal property. In the case of Brock v. Smith, 14 Ark. 432, the facts were that Smith, without license, In the case of Zimmerman Mfg. Co. v. Daffin, 151 Ala. 380, 42 So. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58, under a deed in all essential respects similar to the one under consideration, the Supreme Court of Alabama held that the grantee might re-entered upon vacant lands belonging to the move the logs after the expiration of the time limited, and that he would not be liable for the value of the logs, but that, for so doing, the grantor might maintain against him an action for trespass, and recover such actual damages as he might have sustained to his possession. United States, felled timber, and split it into cordwood. Before the wood had been removed, Brock purchased the land from the United States. Smith, although notified by Brock not to do so, went on the land and removed the wood. Brock sued him in trespass for breaking and entering his close and In the case of Hicks v. Smith, 77 Wis. 146, taking therefrom the wood in question. It 46 N. W. 133, the syllabus, which is an accu- was held that Smith acquired no title to the rate statement of the facts and the point wood, but that when the trees were severed, decided, reads as follows: "The pine tim- they became personal property, and belonged ber upon certain lands was conveyed to the to the owner of the soil-in this instance, plaintiff, with a stipulation that it should be the United States. It was held further that cut and removed from the lands before a upon the facts stated Brock could not respecified date. Afterwards, with knowledge cover the value of the wood, but was enof the plaintiff's rights, the defendants pur- titled to nominal damages for the wrongful chased the land. Held, that all timber cut and unauthorized act of Smith in entering down and severed from the soil by the plain- upon the land. The applications of the printiff before the date specified became his per- ciples decided in the case of Brock v. Smith sonal property, which he might remove with- to the present case is that, if the logs bein a reasonable time after said date." To came personal property by being severed the same effect, see Irons v. Webb, 41 N. J. from the soil, then appellee could not reLaw, 203, 32 Am. Rep. 193; Hoit v. Stratton cover for the value of the logs, but could Mills, 54 N. H. 109, 20 Am. Rep. 119; Rich- only recover for the unauthorized acts of mond Land Co. v. Watson, 129 Mo. App. 554, appellant in entering upon his land. 107 S. W. 1045. The judgment is therefore reversed, and There are authorities, like those of Men- the case dismissed. |