Corn v. Crosby County Cattle Co.

• Decision Date: 20 March 1930
• Docket Number: No. 1083-5308.,1083-5308.
• Citation: 25 S.W.2d 290
• Parties: CORN et al. v. CROSBY COUNTY CATTLE CO. et al.
• Court: Texas Supreme Court

25 S.W.2d 290

CORN et al. v. CROSBY COUNTY CATTLE CO. et al.

No. 1083-5308.

Commission of Appeals of Texas, Section B.

March 20, 1930.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Two separate suits by Frank Corn and by Frank Corn and others against the Crosby County Cattle Company and others, consolidated and tried as one suit. Judgment for the plaintiffs was reversed and remanded by the Court of Civil Appeals [25 S.W.(2d) 283], and plaintiffs bring error.

Affirmed.

Bledsoe & Crenshaw, Lockhart & Garrard, and F. D. Brown, all of Lubbock, for plaintiffs in error.

Goree, Odell & Allen and Dayton Moses, all of Fort Worth, W. P. Walker, of Crosbyton, Lloyd A. Wicks, of Ralls, T. L. Price, of Tahoka, and L. L. Gambill, of Fort Worth, for defendants in error.

SHORT, P. J.

This case is a consolidated one, there having been two original suits, one by Frank Corn, alone, and the other by him and his wife, Kittie Rider Corn, as plaintiffs, the first suit being against Crosby County Cattle Company, a corporation and Sidney Webb and Z. Boaz, individuals, and the other against these same parties and Joe Cole and Will Luman. However, these two last-named parties were afterwards dismissed from the case. In each of these cases, a temporary injunction was issued on an ex parte hearing. The first injunction temporarily restrained the defendants from using, or attempting to use, the Half-Circle S brand on any cattle belonging to them, or claimed by them. That suit involved the ownership and right to use this particular brand, the petition showing that both the plaintiffs and the defendants were the owners of cattle ranging on adjoining ranches in Crosby and Garza counties. This suit was filed July 22, 1926. The second suit was filed September 20, 1926, and the temporary injunction, issued in that case, enjoined the defendants, their agents and employees, from going upon plaintiffs' ranch, and from gathering up or in any way interfering with plaintiffs' possession of their cattle. Motions to dissolve these injunctions were filed and overruled.

After these cases were consolidated, the plaintiffs in the original suits amended their pleadings, in harmony with the order of consolidation, as did also the defendants, and thereupon the case was tried to a jury upon special issues, after the court had passed upon the exceptions of the original defendants, to the plaintiffs' amended petition; these exceptions being overruled. The jury received the case Saturday evening and returned its verdict Tuesday evening, in the meantime being allowed to separate during the time they were not engaged in their deliberations. On the findings of the jury, the court rendered judgment for plaintiffs against the defendants, jointly and severally, for the sum of $7,100 actual damages, and $15,000 exemplary damages, and enjoined the defendants from using or attempting to use the Half-Circle S brand. From this judgment the original defendants, being the defendants in error here, prosecuted an appeal to the Court of Civil Appeals for the Seventh Judicial District, where an opinion was rendered (25 S.W.(2d) 283), in which all the assignments of error were overruled, except three. The court sustained these three assignments, reversed the judgment of the district court, and remanded the case for another trial. The writ of error in this case was granted to the plaintiffs in error upon errors assigned, based upon the action of the Court of Civil Appeals in sustaining the assignments presented by the defendants in error in that court.

In the trial of the case in the court below, the parties, by their pleadings and their testimony, presented two opposite theories. The theory of the plaintiffs in error was that the defendants in error, in pursuance of a common conspiracy, had, through their agents and employees, gone upon the ranch of the plaintiffs in error, and thereafter, in the nighttime, had secretly and surreptitiously taken therefrom, without his consent or knowledge, and without authority of any law, 97 cows having the brand of the Half-Circle S on them, which the plaintiff in error had properly placed there. Assuming their testimony to be true, the plaintiffs in error sustained these allegations, as reflected by the verdict of the jury, the judgment of the district court, and that of the Court of Civil Appeals. The theory of the defendants in error was that they, having purchased at the bankruptcy sale in the bankruptcy proceedings, in which the plaintiff in error Frank Corn was adjudged a bankrupt, all of his cattle, amounting to several thousand head, identified by the Half-Circle S brand, and having transferred these cattle from the Half-Circle S Ranch to the Z-L Ranch, adjoining and separated therefrom only by a fence, the plaintiff in error Frank Corn, after his discharge from the bankruptcy proceedings, had secretly and surreptitiously and without their knowledge or consent, and without authority of any law, taken the cattle in controversy from the Z-L Ranch and placed them on the Half-Circle S Ranch, mixing and mingling them with certain other cattle which the plaintiff in error Frank Corn and his wife had acquired after his discharge from bankruptcy, and that in doing the things they did in fact do, they were repossessing themselves of their own cattle in a lawful way. During the trial, the plaintiffs in error were allowed, over objections timely interposed, to introduce in evidence the injunction proceedings in the two original cases, including the petitions, the flats of the judge, and the writs themselves as well as the answers of the defendants in error, and the motions to dissolve and the action of the court thereon.

The question of law presented to the Supreme Court by the first assignment of error is, whether the Court of Civil Appeals was correct in holding that the trial court committed reversible error in allowing the plaintiffs in error to introduce these injunction proceedings. In support of the action of the trial judge on this matter, the plaintiffs in error present the opinions of the Supreme Court in Pridgen v. Hill, 12 Tex. 374, Barrow v. Philleo, 14 Tex. 346, and several other cases in which it is held that the admission of improper evidence (under certain circumstances) will not authorize the reversal of a judgment where there was sufficient evidence to warrant the verdict, and that since the Court of Civil Appeals, in its opinion, reached the conclusion that the testimony was sufficient to support the findings of the jury on the issues submitted by the court, even though there was error in admitting these proceedings, it did not constitute a reversible one, especially in the absence of the complaint that the verdict was excessive. On the other hand, the defendants in error contend that the appellate court must presume that harm resulted from the admission of improper testimony, unless it appeared from the record that it did not, citing among many other cases Bain Peanut Company v. Penson (Tex. Com. App.) 294 S. W. 536, which case holds that where improper testimony, in its nature calculated to prejudice the rights of the party against whom the testimony was introduced, is admitted, the appellate court must presume that harm resulted therefrom, unless it appears from the record that it did not. This case cites Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Brittain v. Rice (Tex. Civ. App.) 183 S. W. 84.

In the case of Freeman v. Hawkins, 77 Tex. 498, 14 S. W. 364, 19 S. W. 769, the Supreme Court holds that the averments in the petition in a case like this were essentially self-serving, and that they could not be received in evidence, even on a pedigree. To the same effect is the opinion in House v. Stephens (Tex. Civ. App.) 198 S. W. 384, and Gamble v. Martin (Tex. Civ. App.) 151 S. W. 327. The question was discussed in the case of Ry. Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877, in which it was held that the admission of such pleadings is proper only in such cases where offered against the pleader, and not where it serves as a declaration in the interest of the party making them. In a more recent case (Campbell v. McLaughlin, 280 S. W. 189), this section of the Commission, in an opinion written by Judge Speer, declares that the rule is well settled in Texas that abandoned pleadings containing material admissions against an interested party are admissible in evidence. It is, however, true that declarations of the nature here introduced, and of which complaint is made, are admissible where there has been some effort to impeach the party, and he then undertakes to show that his prior or declarations are in harmony with his testimony, and that these declarations had been made by him before any controversy on the subject had arisen. No such situation is here presented. Since the Court of Civil Appeals has reached the conclusion, not only that the proceedings in these injunction cases were inadmissible, but that their introduction resulted in harm to the defendants in error, we are unable to find any conflict in the cases cited by the parties. In view, however, of another trial of the case and the likelihood of this same matter being presented again in some form, we suggest that, while the allegations in the plaintiffs' petition for injunction, were admitted in evidence erroneously, there are some parts of the injunction proceedings which would be admissible. The orderly way, though not an exclusive one, to present to the jury the facts contained in these injunction proceedings, properly admissible...