Hanna v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 11 December 1901
• Citation: 65 S.W. 493
• Parties: HANNA et al. v. GULF, C. & S. F. RY. CO. et al.
• Court: Texas Court of Appeals

65 S.W. 493

HANNA et al. v. GULF, C. & S. F. RY. CO. et al.

Court of Civil Appeals of Texas.

December 11, 1901.

Appeal from district court, Bell county; John M. Furman, Judge.

Action by Mrs. E. A. Hanna and others against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment for plaintiffs for one-fourth only of the amount demanded, they appeal. Reversed.

Suit of Mrs. E. A. Hanna, feme sole, J. F. Hanna, and Mrs. Alice Shea, joined by her husband, John Shea, and W. R. Hanna, against the Gulf, Colorado & Santa Fé Railway Company, for damages and alleged injury and depreciation of residence and boarding house property on Batte avenue, in Belton, Tex., owned by plaintiffs, caused by constructing the railroad on the street, resulting from noises, vibrations, smoke, and cinders thrown into the house by passing locomotives and trains, to the annoyance of occupants and boarders; the depreciation placed at $1,000. Defendant company answered by general denial, and alleged enhanced value of the property by the construction and operation of the road, and impleaded T. W. Cochran, J. Z. Miller, Sr., J. S. Wilson, W. McB. Smith, F. K. Austin Chas. S. Fisher, N. S. Monger, Chas. B. Smith, Lee Peyton, A. D. Rather, S. M. Ray, J. F. Elliott, Thos. Yarell, Martha McWhorter, L. F. Grimes, Don Chamberlain, E. B. Baggett, Wm. Thatcher, T. J. Baker, and A. J. Vickory as indemnitors, under an agreement by them to hold the railway company harmless as to all damages incurred against property by the operation of the road. The defendant indemnitors adopted the answer of the company. The trial resulted in verdict and judgment for the plaintiffs against defendant company for $250, and in defendant's favor over against the indemnitors for like amount, from which this appeal is taken. The evidence was conflicting, some of it tending to show that the property was increased in value by the building and operating of the road, especially as a boarding house, though not as residence property; while other testimony tended to show that the property was injured as a residence and as a boarding house by the smoke, cinders, and noise from passing locomotives. A verdict for much more than the amount awarded would have been supported by the evidence, though conflicting; but, if the trial had been legally conducted, we would not feel authorized to disturb the verdict upon the ground of insufficiency. Appellants insist that the verdict is grossly inadequate, and that it was influenced by unlawful appeals of counsel for defendants and the indemnifiers, and that the court erred in permitting defendants' counsel to argue, over objections of plaintiffs, that any judgment rendered in favor of plaintiffs against the company would not have to be paid by them, but by their guarantors, etc. Bills of exceptions were reserved to such arguments, the court declining to interfere. One of the bills is as follows: "While Geo. W. Tyler was arguing the case, at its close, before the jury, on behalf of the defendants, he being one of the attorneys for the citizens of Belton that gave the bond to indemnify the railway against damages to adjacent property owners, which said railway company declared upon in its cross bill, he commenced to argue before the jury that this suit was in effect and practically not against the railway company, but against the defendants in the cross bill, who would have to pay the judgment, if one was obtained; that said defendants were liberal and public spirited citizens, who were working for the public good, while the plaintiffs in the case were not liberal, and gave nothing for public good, and were impediments to progress, —to which arguments, or any other of a like nature, plaintiffs' counsel objected to the court, because said arguments were irrelevant, and did not tend to elucidate or explain the true issues in the case, which were only as to whether or not plaintiffs were damaged in the value of their property adjacent to the street occupied by the railway company by the construction of the railway on such street and its operation thereon, and that the tendency and purpose of said arguments was only to unjustly prejudice the jury against plaintiffs and their action, and to favor defendants, sued as indemnifiers, because of the friendship of the jury to them, because of their public spirit and liberality, which objection was overruled, and said counsel for defendants continued his statements and arguments, saying, among other things: `While this is a suit against the railroad, it is a suit against our own citizens, the progressive enterprising citizens Geo. C. Pendleton, Tom Cochran, Col. Miller, and others, who have the pluck, spunk, and enterprise to favor a great enterprise like this, and procure the building of the Gulf, Colorado & Santa Fé Railway into the city, and establish its depot at a point convenient to the business of the town and the traveling public; that they had contributed liberally of their money for that purpose, when the evidence does not show that the Hannas had contributed a cent. These citizens are working for the public benefit, and they do not propose to be held up by the Hannas. Why was not Jap (referring to J. F. Hanna, one of the plaintiffs) a broadgauged citizen. He is an impediment to progress. He just balks,—stands in the way. When a railroad is building through the town, each fellow wants it on the other fellow's street,'—to which ruling of the court in permitting said argument to go before the jury plaintiffs excepted." The court allowed the bill. Another bill is reserved to remarks of another of counsel stating: "That the plaintiff in this cause is trying to levy an embargo on the town and the country people who trade in the town, as is shown by this suit. The town is prospering as it never prospered before. There are one or two complaining, and this plaintiff is one of them." It was in proof that a bond of indemnity had been given indemnifying the railway company from damages resulting from running the road into the city, which bond had not been signed by the Hannas.

A. M. Monteith, for appellants. G. W. Tyler, X. B. Saunders, and W. S. Holman, for appellees.

COLLARD, J. (after stating the facts).

Assignments of errors relating to intemperance of argument of counsel are sustained, in so far as they relate to the Hannas, and especially to "Jap" Hanna. The writer does not agree with appellants that the argument in praise of the indemnifiers is erroneous. The evidence furnished the matter of argument in their favor as public-spirited men. It is true that any judgment against the company would be virtually against the indemnifiers, and the fact that they had made themselves liable for damages incurred by bringing the railroad into the city was the subject of comment to their credit. It is true the testimony does not show that they, or any of them, were so situated in the town as to be inconvenienced by...