Cammack v. Rogers

• Decision Date: 23 April 1903
• Parties: CAMMACK v. ROGERS.
• Court: Texas Supreme Court

Page 795

73 S.W. 795

CAMMACK v. ROGERS.

Supreme Court of Texas.

April 23, 1903.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by Mrs. Jennie Rogers against E. E. Cammack. Judgment for plaintiff, and defendant appeals. On certified questions from the Court of Civil Appeals.

J. B. Scarborough and T. A. Blair, for appellant. Prendergast & Sanford, for appellee.

WILLIAMS, J.

Certified questions from the Court of Civil Appeals for the Third District, as follows:

"It is a suit brought by the appellee, Mrs. Rogers, against the appellant to recover possession of certain lands, and for damages resulting from an alleged breach of a rent contract, wherein the appellant became bound and liable as lessee. One of the items of damages sought to be recovered by appellee is the alleged failure of the appellant to properly and with reasonable care form and cultivate the premises rented by him from appellee, which it is claimed he was bound under the contract to do with reasonable care and diligence in cultivating and producing a Johnson grass crop on the premises, which it is alleged he, by reason of his want of care and attention and negligence, failed to produce, for which reason the appellee suffered and sustained damages, as she was, under the contract, entitled to a part of the crop produced.

"We find that the appellant was liable under the contract for damages that might arise for his failure to exercise reasonable care and attention in the cultivation and production of the character of crop called for in the contract, and there is evidence in the record tending to show, to some extent, a failure upon his part to observe the requirements of the contract in this respect. His liability or nonliability for the breach of the contract, as stated, was submitted by the charge of the court to the jury. The jury returned a verdict, upon which judgment was rendered in the plaintiff's favor for the possession of the premises and for the sum of $400. The jury, in determining that the appellant was liable to the appellee for $400 damages, evidently considered that the appellee sustained some damages on account of the failure of appellant to properly cultivate and produce Johnson grass crops on the leased premises.

"In response to this issue the appellant pleaded that, if there was a failure or yield of crop, it was not attributable to any want of attention upon his part, but was occasioned by unprecedented dry weather during the year in which the crop was to be produced; and we find that there was much evidence in the record tending to prove the fact that the failure of the crop was, to a great extent, attributable to dry weather. The court, in its charge, did not submit this defense to the jury. Upon this issue the appellant requested the following instruction, which was refused: `You are instructed that if you find that defendant used proper diligence, as explained herein, in the management and cultivation of said farm, and that the yield therefrom was lessened by dry weather, or other natural causes, you will not charge the defendant with such lessened yield.' The record shows this to be defendant's requested charge No. 1. The court refused to give this instruction.

"The court, on the 7th day of January, 1903, by an opinion then delivered, reversed and remanded this cause for the failure and refusal of the court to give the charge as quoted. On February 11, 1903, this court set aside its former judgment, granted a rehearing, and affirmed the judgment of the trial court, and held in the last opinion delivered in the case that the assignment of error complained of the refusal to give two charges which presented two separate and distinct questions, and for that reason could not be considered. The assignment, while presenting two separate and distinct questions, is followed by appropriate propositions and statements, which present each of the questions raised in the assignment in such a manner that the court can readily ascertain and determine each of the two points intended to be presented and raised by the assignment, and we desire to say that, if the assignment could or should be considered, this court is still of the opinion that the refusal to give charge No. 1 mentioned in the assignment, which is already quoted, is reversible error.

"The assignment is as follows: `The court erred in refusing to give special charges Nos. 1 and 2 asked by the defendant, respecting the effect of dry weather on said crop and the yield therefrom, and as to the value of one-half of the ungathered hay crop on the farm at the time the plaintiff took possession under the writ of sequestration.' This assignment is numbered in the brief as the fifth assignment, and is followed by the following propositions and statements:

"`Proposition: Defendant was not an insurer of crop as against drought, and should not be compelled to respond in damages for short crop, as the result of dry weather.

"`Statement: Plaintiff's suit was largely based on failure to make crop of hay, alleging only 914 bales made, when he should have made 4,000 bales, and her damages $700. (R. 6.) Defendant requested special charge (R. 42) to the effect that, if he used proper diligence, and the yield was cut short by dry weather, that he would not be responsible for the failure thus caused. This the court refused. (R. 42.)'

"We construe `R. 42' to mean page 42 of the record, where charge No. 1, as pointed out in the assignment, is stated, which charge is previously in this assignment set out, and which the trial court should have given.

"The appellant continues his statement under this proposition as follows: `The undisputed testimony is that the year was extremely dry, and the yield was very little on this account. Mr. Cook and Mrs. Boggess, who...