Davenport v. Taylor County Tuberculosis Ass'n, 1278.

• Decision Date: 25 May 1934
• Docket Number: No. 1278.,1278.
• Citation: 72 S.W.2d 407
• Parties: DAVENPORT v. TAYLOR COUNTY TUBERCULOSIS ASS'N.
• Court: Texas Court of Appeals

72 S.W.2d 407

DAVENPORT v. TAYLOR COUNTY TUBERCULOSIS ASS'N.

No. 1278.

Court of Civil Appeals of Texas. Eastland.

May 25, 1934.

Appeal from Taylor County Court; John Camp, Judge.

Suit by the Taylor County Tuberculosis Association against Nelson E. Davenport for conversion of a house. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Smith & Eplen, of Abilene, for appellant.

Waldo Green and Davis Scarborough, both of Abilene, for appellee.

FUNDERBURK, Justice.

Taylor County Tuberculosis Association— unincorporated, but suing herein in the name of trustees—brought this suit against Nelson E. Davenport to recover actual and exemplary damages for the alleged conversion of a house of the alleged value of $450, situated upon land formerly owned by Mrs. Tabitha Reeves, and subsequently purchased at foreclosure sale under a deed of trust lien in its favor by Mortgage Servicing Company, of which the defendant was agent. The house was placed by the plaintiff upon the property under an agreement with the owner that prevented its becoming, as between them, a part of the land. The house placed upon the property was used for the occupancy of tubercular patients under care of the plaintiff through the said Tabitha Reeves, as nurse. About two months after the purchase of the property by the defendant's principal, the defendant, charged with the management and care of said property, gave the house to a farmer in consideration of his tearing it down and removing it from the land. One issue was submitted to the jury and found in favor of the plaintiff, which was to the effect that the house was of the market value of $450. From the judgment rendered in accordance therewith, the defendant has appealed.

Upon the trial, certain evidence was admitted of the fact that fixtures, such as a toilet, electric wiring, gas pipes, and a lavatory, etc., were attached as permanent fixtures to the house, and evidence of the value of some of said articles. Objection was made to this testimony on the ground that plaintiff, by its pleading, asserted no claim for damages for the conversion of fixtures. The action of the court in overruling such objection and admitting the testimony is the subject of complaint in appellant's first proposition. We conclude that the court did not err in this respect. The testimony was limited to such fixtures as had become so attached to the house as to become a part thereof. The allegation that the house was of the value of $450 was sufficient basis, so far as pleading was concerned, to justify the introduction of the testimony as tending to prove the value of the house.

Appellant contends, by his second proposition, that the court committed error in his instruction to the jury in which he excluded from their consideration the evidence previously admitted concerning removable fixtures, such as tables, chairs, beds, or any furniture not permanently attached to the house. The proposition is asserted under an assignment of error reading as follows:

"The court erred in giving the following oral instructions to the jury, during the progress of the trial:

"`Gentlemen of the jury: You will not consider the testimony of any witness as to the value of articles such as tables, chairs, beds, or any furniture not permanently affixed to the house, because the defendant would not be liable under the pleadings for the loss of such articles; but you may consider such fixtures as are shown to be permanently affixed to the house, such as comodes, bathtubs, waterlines, gas mains, and light wiring and fixtures'

"—for the reason that said remarks of the court to the jury in excluding the testimony regarding the fixtures, was a comment by the court upon the evidence."

It is to be observed that the proposition does not, as it should, state a reason to show why the court erred as contended by the assignment of error. The real reason is stated in connection with the assignment of error which is to the effect that the "remarks of the court to the jury excluding the testimony regarding the fixtures was a comment by the court upon the evidence." We overrule the assignment of error and proposition asserted thereunder for two reasons:

In the first place, the assignment of error is not properly supported by the record. The transcript, which constitutes the record proper, does not show that the judge instructed or admonished the jury as contended. There is no bill of exceptions showing that any objection was made to any action of the court in this regard. Assuming that the court, as a part of his instruction excluding the evidence, did comment upon the weight of the evidence, it was necessary that a record be made of such action. It was necessary that appellant interpose proper and timely objection, and the record so show, or else the error would be waived. If the charge or instruction to the jury was oral, as stated in the assignment of error, then it was necessary that the record show the instruction and the objection, which could only be done by a bill of exceptions. As said before, the record does not so show.

In the second place, it is not necessarily error for the judge to comment upon the evidence. He was commenting upon the evidence when directing the jury not to consider certain testimony previously admitted. In that there was no error, we think. The objection made at the time, and which was necessary to support the assignment, did not advise the judge that his directions to the jury were considered objectionable on the ground that they constituted a comment upon the weight of the evidence. In Karotkin Furniture Co. v. Decker (Tex. Civ. App.) 32 S.W.(2d) 703, it was held that an objection that a charge is "upon the weight of the evidence" without specifications to show that it was subject to that vice was too general to require consideration. Whether so or not, it is required that an objection be "specific, constructive and helpful." Chase Bag Co. v. Longoria (Tex. Civ. App.) 45 S.W.(2d) 242. The objection in this case clearly did not meet that test. Upon both these grounds we overrule this...