a different place in the schoolhouse from where the assaulted party was, and 'was not and could not have been the person who did such act or acts, it reads: "You are therefore charged that if the evidence raises or leaves in your minds a reasonable doubt as to the presence of the defendant in the yard at the scene of the difficulty in question, at the time such difficulty, if any, occurred, then you must acquit the defendant, and say by your verdict not guilty." This phraseology, in giving this part of the charge on alibi, was approved in Walker v. State, 6 Tex. App. 577, and Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087, and the same proposition asserted in an opinion by Judge Ramsey in Colbert v. State, supra. We think the charge was sufficient and called for by the facts. The judgment is reversed, and the cause remanded. DUNN v. WILKERSON et al. (No. 6016.) (Court of Civil Appeals of Texas. San Antonio. April 10, 1918.) 1. COURTS 247(11)-APPELLATE JURISDICTION-AMOUNT IN CONTROVERSY. Where plaintiff, in an action for conversion of personal property, asked for $100 for mental anguish, but did not allege injury to person, and hence was not, on face of pleading, entitled to damages for mental anguish, the $100 will not be considered in determining amount in controversy, for purpose of appeal to Court of Civil Appeals. 2. DAMAGES 49 CONVERSION ANGUISH. anguish, and $50 exemplary damages. A jury returned a verdict in favor of appellees, upon which the judgment was rendered, ard an appeal has been perfected to this court. The evidence shows that appellant is the mother of Mrs. A. E. Wilkerson, and was invited by her and her husband to make her home with them, which she did. Dissatisfaction was caused by the conduct and conversation of this pensioner upon their bounties, which she admitted arose from what she said many times to them about their mode of living. She testified that she objected to their attendance on dances and other places, where she thought her daughter should not go. She said: "I remonstrated quite a good deal with both of them about living unchristian lives." She further stated that A. E. Wilkerson became "considerably worked up about my talking to his wife about the way they lived." He at last told her she would have to leave. She did not leave, and an injunction was obtained by A. E. Wilkerson, as she said, "to put me off the place." The sheriff, with his writ of injunction, failed to get her off, and at last accounts she was still holding her place in the house of A. E. Wilkerson. The latter swore that her conduct became so unbearable he tried to get her to leave, and she agreed to have her personal property put over the fence on a neighbor's land, where, as she said, "she would fight MENTAL the devil over the fence the same as she had fought him in the house." Wilkerson did not want to have her doing her fighting so close to his house, and he took her personal property to the railroad station and shipped it to her other daughter, who lived at Comstock, Tex., and gave a railroad agent $20 to pay her fare to Comstock, but she refused to go. Wilkerson said: an action for conversion of personal property, where no injury to person is alleged, plaintiff can recover no damages for mental anguish. 3. COURTS 247(11)-APPELLATE JURISDICTION-AMOUNT IN CONTROVERSY-ADDITION OF INTEREST. Where plaintiff in justice court could not have added interest without exceeding the jurisdiction of the justice court, she cannot amend in the county court by claiming interest, so as to bring the amount in controversy within the appellate jurisdiction of the Court of Civil Appeals. sheriff to come out; but he did not move her. "I did get out an injunction, and had the She is there yet, and won't move." [1] Appellant amended her pleadings in Appeal from Nueces County Court; David the county court so as to sue for $100 damM. Picton, Jr., Judge. Action by Mrs. J. L. Dunn against A. E. Wilkerson and another. Judgment for defendants, and plaintiff appeals. Appeal dismissed. Suttle & Todd and I. A. Hunt, all of Corpus Christi, for appellant. Pope & Sutherland, of Corpus Christi, for appellees. ages for "mental anguish, mortification, and humiliation suffered by plaintiff by reason of the seizure, conversion, and wrongful withholding from plaintiff of said property by defendants." Appellant has no right to recover in a suit of this character for damages arising from mental anguish, and, as said in Wells Fargo Co. v. Burford, 59 Tex. Civ. App. 645, 126 S. W. 927: ings that a portion of the items sued for could "Where it appears on the face of the pleadform no proper basis for suit, they should not be considered in determining the amount in controversy." FLY, C. J. This is a suit for conversion of certain personal property, instituted by appellant against A. E. Wilkerson and Thad Wilkerson in the justice's court, the value of the goods being placed at $38.30. She ob- The decision in that case is fully sustaintained judgment for $19 in the justice's ed by Texas authorities cited therein. In court, and appellees appealed to the county the case of Carswell v. Habberzettle, 99 Tex. court, where appellant filed a pleading claim- 1, 86 S.. W. 738, 122 Am. St. Rep. 597, the ing $19.75 actual damages, $100 for mental court, speaking on the subject, said: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "It is now the settled law in this court that, although the amount claimed in the petition may be sufficient to give the court jurisdiction of the case, yet if the facts alleged be such as to show no cause of action, as to such part of the whole sum sued for, as to reduce it below the amount for which the court has jurisdiction, the suit should be dismissed." [2] It is not claimed that appellant was injured in her person in connection with the conversion of her property, and, as said in a quotation approved by the Supreme Court in Railway v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866: "In no case has it ever been held that mental anguish alone, unaccompanied by an injury to the person, afforded a ground of action." in trust for the wife and her husband, and by collusion with the husband secured judgment vesting absolute title in him, and that the wife was not without sufficient excuse for not being present and contesting defendant's right to the judgment. Appeal from District Court, Harrison County; P. O. Beard, Judge. Suit by Millie Ann Smith against F. W. Patillo. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Appellant was the wife of Louis Smith. Eighteen or twenty years prior to March 14, 1910, they purchased 65 acres of land of Oakes Ames on credit. Thereafterwards until about six years before said date, when they ceased to live together as husband and wife, they occupied and used the land as their homestead; and after they separated, until she was evicted therefrom as hereinafter stated, appellant continued to occupy and use the land as her homestead. March 14, 1910, judgment was rendered by the district court of Harrison county in favor of Ames against Louis Smith for $275, that being the amount unpaid of the purchase money, and foreclosing a vendor's lien retained by Ames and ordering a sale of the land to satisfy the sum adjudged in his fa This ruling has been approved in a number of decisions, among the number Railway v. Corley, 87 Tex. 432, 29 S. W. 231, and Railway v. Hayter, 93 Tex. 241, 54 S. W. 944, 47 L. R. A. 325, 77 Am. St. Rep. 856. The rule has been relaxed or modified in cases of failure to deliver messages by telegraph companies, and in slander and libel cases, and perhaps others; but in no case where a plaintiff has been deprived of the possession and use of property, unaccompanied by violence to the person of the owner, have actual damages been allowed for mental anguish or injury to the feelings. WilAt a sale made by the sheriff June 8, liams v. Yoe, 19 Tex. Civ. App. 281, 46 S. W. 1910, in accordance with the order, John 660. Damages for mental anguish Copeland was the purchaser for $337. He therefore form no part of the measure of conveyed the land to appellee by a quitclaim damages in a case of conversion of property, deed dated June 17, 1910, in consideration, and, if the $100 is deducted from the $199.75 it seems, of $347 paid to him by appellee. sued for in the county court, it leaves only Appellant and her husband claimed that $99.75, of which amount this court has no Copeland by the deed from the sheriff, and jurisdiction. [3] Appellant did not sue for interest, be-tle to the land as mere trustees for them, appellee by the deed from Copeland, took ticause she would have gone beyond the jurisdiction of the justice's court by her amenddiction of the justice's court by her amendment in the county court, which she could not do. The amendment in the county court spoke from the date of the suit in the justice's court, and if there had been added any interest, or if the suit carried with it interest, the amount would have been over $200, and the jurisdiction of the court would have been ousted. Railway v. Crenshaw, 51 Tex. Civ. App. 198, 112 S. W. 117. It follows that the whole amount that could be claimed by appellant was $99.75, and the cause could not legally be appealed to this and that they were entitled, on paying to appellee the sum he paid Copeland, to have the title vested in them. It was on this theory, appellee refusing to concede that he was their trustee, that by a petition filed February 12, 1915, they commenced a suit against appellee. In that petition they al leged: That, being unable to pay the Ames judgment, to prevent a sacrifice of the land, "they procured," quoting from the record, "the said F. W. Patillo, in connection with John Copeland, to arrange for the advancement of said funds to satisfy said Ames judgment and to be present at said sale and buy the land in for the use of said Louis Smith and wife; that it was agreed court. The appeal is dismissed for want of juris- by and between said Louis Smith and wife and diction. SMITH V. PATILLO. (No. 1908.) JUDGMENT 463-SUIT TO SET ASIDE-IN- In suit by a wife to set aside a judgment, the court should not have instructed a verdict for defendant if the jury might have found from the evidence that defendant held title to land F. W. Patillo that John Copeland should buy in the land, and the deed executed to him by the sheriff should be a mortgage, and the deed executed to F. W. Patillo by Copeland should also be a mortgage as security for the money should have time to pay said mortgage, with so advanced, and said Louis Smith and wife same bearing interest from date at the rate of 10 per cent. per annum; that said Copeland did bid in said land for $337 on the 8th day of June, 1910, and received deed from the sheriff which Copeland did then agree should be a mortgage, and that said Copeland, in pursuance of said agreement, deeded the land to said Patillo by quitclaim deed; that said Louis Smith and wife, relying upon said agreement, did not bid collusion with appellant's husband secured on said land at said sale, but accepted the the judgment vesting an absolute title in agreement between them and said Copeland and Patillo, and allowed Copeland to bid in the him, thereby defrauding appellant of her land; that said Patillo actually knew that the right therein (Buchanan v. Bilger, 64 Tex. deed to be made to Copeland by the sheriff 589; Davis v. Jones, 149 S. W. 727; 23 Cyc. should be a mortgage, and that said land was 937); and if they might also have found then the home of said Louis Smith and wife; that said Louis Smith and wife had paid said Patillo on said indebtedness $300 in cotton, which was agreed should be a credit on said debt and mortgage; that said Patillo agreed to keep an account of the payments and advise said Smith and wife of the amount; that said Patillo refused to release said land to them, and that said Smith and wife theretofore had requested him to accept the amount due on said indebtedness which they alleged to be the sum of $113, which they tender into the registry of the court, or, if they be mistaken as to the amount due said Patillo, they tender such amount as shall be found by the court to be due; that they now bring this suit for the purpose of having a decree establishing the deeds to Copeland and Patillo mere mortgages and to redeem their said land from said debt, and for general relief." That suit resulted in a judgment, rendered March 3, 1916, in 'appellee's favor, and thereupon appellant was evicted from the land. The judgment contained recitals as follows: "The plaintiffs having failed to appear, and the court being informed that plaintiffs' attorneys had withdrawn from the cause, and the defendant insisting upon said cause being tried, the court proceeded to the trial of said cause. And the court, after hearing the pleadings and the evidence, which consisted of the depositions of Louis Smith to the effect, in substance, that the allegations of plaintiffs' petition were not true, and that the alleged agreement that the deeds referred to in plaintiffs' petition were mortgages were not true," etc. that appellant was not without a sufficient excuse for not being present and contesting the right of appellee to said judgment (Allen v. Land Co., 135 S. W. 682, and authorities there cited). After carefully considering the testimony, we are of the opinion the jury might have so found, and therefore that the court erred in taking the case from them. As the cause will be remanded for a new trial, the testimony will not be commented on further. Judgment reversed, and cause remanded for a new trial. 2. CRIMINAL LAW 163-FORMER JEOPARDY -PUNITIVE DAMAGES. Defendant, though convicted of assault and fined, is liable to exemplary damages in a civil suit; this not being a double punishment for the same offense, in view of Const. art. 16, § 26. Appeal from Dallas District Court; E. B. Muse, Judge. Action by Mrs. Mary E. Logan against George Hartman. Judgment for plaintiff, and defendant appeals. Affirmed. Read, Lowrance & Bates, of Dallas, for appellant. McCutcheon & Church and W. D. Cardwell, of Dallas, for appellee. This suit was commenced and prosecuted by appellant alone against appellee alone. It was to set aside the judgment above referred to on the ground that it was procured by collusion between appellee and appellant's husband and for the purpose of defrauding her. Appellant also prayed that the deeds to Copeland and appellee be held to be mortgages, and that she be permitted to redeem the land by paying to appellee the part, if any, not already paid to him of the RAINEY, C. J. Suit by appellee against sum he paid to Copeland for the land. The appellant to recover actual and exemplary court thought the testimony "insufficient to damages for an aggravated assault and batestablish plaintiff's cause of action," and in-tery on her. Plaintiff alleged that she entered structed the jury to return a verdict in ap- the services of the defendant as his housepellee's favor. The appeal is from a judg-keeper and to care for his minor child; that ment in accordance with such a verdict. on or about the 19th day of August, 1916, defendant, without cause or fault on the part Geo. L. Huffman, of Marshall, for appel- of plaintiff, unlawfully and maliciously aslant. Bibb & Bibb, of Marshall, for appel-saulted plaintiff by striking, beating, and lee. WILLSON, C. J. (after stating the facts as above). The court should not have instructed a verdict for appellee as he did if the jury might have found from the testimony that appellee held the title to the land in trust for appellant and her husband (Lucia v. Adams, 82 S. W. 335; Ellerd v. Ellison, 165 S. W. 876); if they might also have found that appellee, so holding the land, by kicking plaintiff, from which she suffered injuries. Plaintiff claimed $6,500 actual damages, and $5,000 exemplary damages, and the court rendered judgment in plaintiff's favor for $250 actual damages, and $250 exemplary damages. Defendant answered by general denial and specially that he had notified plaintiff to vacate his premises, which she refused to do; that she took possession of his telephone, and refused to allow defendant to use it For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed, we conclude that the assault was wanton and unprovoked, and justified the judgment for $250 exemplary damages. when requested so to do, and when defend- | mony, and which the court evidently believant attempted to take possession thereof she resisted, and if she was injured it was due to her own unlawful acts and negligence in remaining upon defendant's premises; that plaintiff would not have been injured if she had vacated his said premises at the time he requested her so to do, and was guilty of contributory negligence, and her injury, if any, was the direct and proximate result of her own unlawful acts and negligence. Defendant further alleged that he had already paid the fine for aggravated assault, and that this suit by plaintiff constituted an effort to put a man in jeopardy twice for the same offense to the extent of exemplary damages, and that plaintiff could not maintain a suit for exemplary damages, when the defendant had already paid a fine for the same offense in the criminal proceedings. Appellant's first assignment of error is: "That the judgment of the district court rendered herein on, to wit, February 3, 1917, is contrary to the law and the evidence in that said judgment was rendered for the sum of $250 against said defendant as exemplary damages, and there was no evidence to show malice or wanton assault on the part of said defendant. "The uncontradicted evidence showed that said defendant had notified the plaintiff to leave or vacate the premises of said defendant, and that said plaintiff had failed and refused to vacate said premises and had insisted upon remaining upon said premises contrary to the rights of said defendant; that said defendant did not use sufficient force to make plaintiff vacate his said premises, and there was no evidence of any malice or wanton assault on the part of said defendant." Appellant submits two propositions (A and B) under this assignment: "A. There was no evidence to show a wanton and malicious assault by the defendant on the plaintiff, and exemplary damages cannot be recovered in the absence of wanton or malicious acts, and the intent of the defendant must determine the question of malice." "B. The uncontradicted evidence showed that plaintiff was a trespasser on the premises of defendant at the time of the alleged injury, and defendant had notified plaintiff to vacate said premises prior to the alleged injuries, which plaintiff had refused to do, and defendant did not use sufficient force to dispossess plaintiff, and there was no evidence of malicious intent to injure plaintiff." [1] The evidence was conflicting on these issues. There was evidence showing that appellant gave to appellee permission to remain in the house until she could remove her things, and at the time of the assault she was phoning for a transfer man to remove her plunder, and was only waiting for him to get there before she could leave. Under such circumstances she was not a trespasser, having been employed by appellant for service in the house, and a reasonable time for her to leave had been granted. The evidence fails to show any excuse for the appellant making an assault and battery upon appellee, but that it was wanton and unjustifiable. The evidence fails to show that appellant was attempting to eject appellee from the Appellant's second assignment of error is: "The judgment of the court is contrary to the law and the evidence, in this, that the unconMrs. Mary E. Logan, was a trespasser on the tradicted evidence showed that the plaintiff, premises of the defendant, George Hartman, at the time of the alleged injuries on, to wit, August 19, 1916, and the uncontradicted evidence showed that George Hartman owned said premises, and had directed and instructed the plaintiff, Mrs. Mary E. Logan, to leave and vacate said premises, which she failed and refused to do, and stated that she would not leave said premises; and the uncontradicted evidence showed further that the defendant did not use sufficient force to dispossess said plaintiff from said premises, and the uncontradicted evidence showed that the plaintiff, Mrs. Mary E. Logan, remained on said premises until after the defendant had left his own home." Propositions A and B under this assignment are: "A. A trespasser or licensee upon the property of another cannot recover damages or injuries received while so trespassing." "B. The owner of property owes no duty to protect a trespasser or licensee upon his private property, and is not liable for damages received by the party while so trespassing, if the trespasser was guilty of contributory negligence." We conclude that as propositions of law the foregoing are correct when supported by uncontradicted testimony of appellee, but the testimony of appellee shows that the appellant made a wanton and unprovoked assault upon her, which the court evidently believed, and which warranted the judgment, and which we do not feel justified in disturbing. This assignment is therefore overruled. [2] The next assignment of error, in effect, is that the judgment for exemplary damages is contrary to the law and the evidence, because it was shown that defendant had been tried and found guilty of the assault and fined, which fine he had paid. Defendant submits the following propositions, to wit: "A. The defendant had pleaded guilty and paid his fine for the alleged assault and battery, and the judgment of the court for exemplary damages amounted to a double punishment for the same offense, and was contrary to article 16, § 26, of the Constitution of the state of Texas." "B. The Constitution of the state of Texas prohibits a man's being punished twice for the same offense, and the judgment for exemplary damages against the defendant, when he had paid his fine for said alleged assault, amounts to a double punishment. That one may be punished criminally for a wrongful injury is no defense to the assessing of exemplary damages in a civil action for a malicious assault; that is, in such an action a person is not put twice in jeopardy. While there is a division of opinion in the different states, we are of the opinion that under the Constitution and laws of this state, in a civil action, exemplary damages are recoverable against a party, though subject to a criminal prosecution. Only one case in this state bearing on this particular peated judicial decisions for more than a cenof what the law is, the question will not admit tury are to be received as the best exposition of argument." P. W. & B. Railroad Co. v. Quigley, 21 How. 213, 16 L. Ed. 73; Mil. & St. Paul Railroad Co. v. Arms, 91 U. S. 489, 23 L. Ed. 374; 2 Sedg. Meas. Dam. (7th Ed.) 323, and note. unable to find another. That case is Cole v. I been questioned by some writers; but if reTucker, 6 Tex. 266, which is one where suit was brought for maliciously killing a mule, for loss of the service of the same, and for time spent in obtaining the service and making the purchase of another. On the trial plaintiff offered to prove the expenses incident to the institution of the suit, which the court excluded. On appeal the Supreme Court reversed the action of the lower court, holding that said ruling was error, and among other things said, Chief Justice Hemphill speaking for the court: "That in actions for malicious trespasses on personal property vindicatory or corrective damages may be awarded is a rule as old as it is firmly established. Compensation, in the legal and technical signification of the term, is not deemed a sufficient recompense for injuries of this character. Compensatory damages are given where the injury is not tainted with fraud, malice, or willful wrong; but where either of these elements intervene, another ingredient is added to the ordinary constituents of injury, viz. the sense of wrong and insult, and damages are given as well for compensation to the sufferer as for the punishment of the offender. In the language of Judge Baldwin, where trespass is committed in a wanton, rude, or aggravated manner indicating a desire to injure, a jury ought to be liberal in compensating the party injured in all he has lost in property, in expenses for the assertion of his rights, in feeling or reputation; and even this may be exceeded by setting a public example to prevent the repetition of the act. In such cases there is no certain fixed standard, for a jury may properly take into view not only what is due to the party complaining, but to the public, by inflicting what are called in law speculative, exemplary or vindictive damagThat the defendant in this case may be punished criminally lies in contingency, and this is not sufficient to relieve him from exemplary damages in a civil action should the facts justify such damages." es. * The Florida court then closes its opinion with these appropriate remarks: "This question has elicited much discussion and the books are full of it. The courts in some of the states have held to the doctrine as contended for by counsel for the appellant, that in a civil action for a tort, punishable also criminally, punitive or exemplary damages cannot be given by the jury, and we have carefully examined all these authorities. The current of the decision is in the contrary direction, and we can but hold that the court below did not err in refusing to give to the jury the instructions in this respect requested." We are of the opinion that there was sufficient evidence on which to base a judgment for the appellee, and the judgment is affirmed. The possession of a tenant is the possession of the landlord, and possession acquired under tenancy cannot be said to be adverse, in support of limitations, until such time as it repudiation of the tenancy and adverse claim is shown that the landlord had notice of the of his tenant. 3. LANDLORD AND TENANT 66(2)-ADVERSE POSSESSION BY TENANT-NOTICE OF CLAIM. The appellant in this case having made an unwarranted assault on appellee, it makes no difference if he has been punished by fine, for said fine does not suffice for the exemplary damages to which appellee is entitled. In other words, a criminal conviction in this state is no bar to a recovery in a civil action. Since a landowner need not constantly exSee volume 8, R. C. L. § 145, p. 600. In the fecting his title, he is not to be charged with amine records to guard against instruments afcase of Smith v. Bagwell, 19 Fla. 117, 45 notice of registration of hostile deed to his Am. Rep. 12, where Smith was sued for dam-tenant, where his possession is not disturbed.. ages for assault and battery, a charge was 4. LANDLORD AND TENANT asked to the effect that exemplary damages POSSESSION were not permissible. This charge was re- One entering possession under the tenant fused by the lower court and affirmed by the or lessee occupies the same position as the Supreme Court of Florida. The court in original tenant and lessee, and is equally estopdiscussing the question of "twice in jeop-ped to deny that the possession thus acquired is ardy" quotes from decisions of many states, 5. LANDLORD AND TENANT 34(5) and from the United States Supreme Court as follows: SIGNEES. ESTOPPEL that of the landlord. 64 - ADVERSE TENANT'S As FOR FEITURE-ADVERSE CLAIMS. Repudiation by tenant by institution of action in trespass to try title to the land forfeits his right to claim further under the lease. Appeal from District Court, Young County; Wm. N. Bonner, Judge. "In Day v. Woodworth, 13 How. 363 [14 L. Ed. 181], Mr. Justice Greer, speaking for the court, says: 'It is a well-established principle of the common law that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or Suit by D. G. Vick against the heirs of vindictive damages upon a defendant, having in Jacob Werts, wherein defendants filed a view the enormity of his offense rather than the cross-complaint. Judgment for plaintiff, and measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has defendants appeal. Reversed and rendered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |