Michels v. Crouch

• Decision Date: 29 June 1938
• Docket Number: No. 1818.,1818.
• Citation: 122 S.W.2d 211
• Parties: MICHELS v. CROUCH.
• Court: Texas Court of Appeals

Page 211

122 S.W.2d 211

MICHELS v. CROUCH.

No. 1818.

Court of Civil Appeals of Texas. Eastland.

June 29, 1938.

Rehearing Denied December 9, 1938.

Appeal from District Court, Knox County; Isaac O. Newton, Judge.

Action by Lige Crouch against Henry M. Michels for damages alleged to have been caused by the desecration of the graves of plaintiff's children. Judgment for plaintiff, and defendant appeals.

Reversed and cause remanded.

D. J. Brookreson, of Benjamin, M. F. Billingsley, of Munday, and Leslie Humphrey, of Wichita Falls, for appellant.

J. S. Kendall, of Munday, and Gaynor Kendall, of Austin, for appellee.

GRISSOM, Justice.

Lige Crouch sued Henry M. Michels for damages alleged to have been caused by the desecration of the graves of his children. Plaintiff's petition contained allegations that his two children were buried in a public cemetery known as the "old Goree Cemetery." Plaintiff's petition further contained allegations describing the place of burial of his children, alleging that the spot for more than thirty years had been segregated from other lands by substantial fences and the graves therein marked, and that the place described had, for such length of time, been recognized and cared for as the last resting place of departed members of plaintiff's family, and other citizens of the community, and sufficiently alleged facts showing the designation of the spot and its continued existence as a cemetery. Plaintiff further alleged: "That although said cemetery, graveyard and burial ground was segregated, designated and set apart from surrounding lands the defendant on or about the 15th day of January, 1937, unlawfully entered into and upon said sacred enclosure and burial place and unlawfully, wrongfully, wickedly, wantonly and maliciously and with a heart bent on mischief and in total disregard of either legal or moral duty to his fellowman or to society, broke, tore down and removed the fences surrounding the said cemetery, graveyard and burial ground and caused the fences around the same to be torn down and removed and thereby permitted and allowed a large number of cattle which defendant was then pasturing for other persons for hire, to graze in and upon and over the graves of the departed children of this plaintiff and other persons who were buried in said cemetery and burial ground and to trample upon, obliterate and destroy the markings of the last resting places of the loved ones of these plaintiffs and said defendant further wrongfully, illegally, wickedly, wantonly, and maliciously caused his agents and employees to plow into, over and across the said cemetery, graveyard and burial ground and into, over and across the graves of the departed loved [ones] of these plaintiffs in total disregard of the rights of these plaintiffs and thereby caused these plaintiffs to suffer great and agonizing mental pain and anguish, all to plaintiff's damage in the sum of Twenty Five Thousand Dollars for which plaintiffs sue herein." (Italics ours.)

In support of plaintiff's claim for exemplary damages, he alleged that the acts mentioned in the paragraph quoted from his petition were done by the defendant "maliciously, wrongfully, wickedly and with total disregard to the rights of plaintiff" whereby he suffered further damages in the sum of $50,000 "as exemplary damages * * *." (We here call attention to the fact that the allegations in plaintiff's petition that as a result of defendant tearing down the cemetery fence a large number of cattle defendant was pasturing for hire were permitted to graze over, trample upon and obliterate the markings of the graves of his two children, find no support in the evidence.)

We think it evident that the allegations in plaintiff's petition show the suit to be one for willful trespass, for which plaintiff claims damages (1) for mental anguish, and (2) exemplary damages. The petition contains no allegation of actual damage, other than for mental anguish, and is not a suit for damages based on negligence.

In answer to special issues submitted to it the jury found, in substance: "(1) That Henry J. Michels plowed across the unmarked grave of plaintiff's child. (2) That in doing so, he was the agent, servant, or employee of the defendant and acting within the scope or apparent scope of his authority. (3) That said act was the willful act of Henry J. Michels. (4) That Henry J. Michels struck the tombstone of the grave of the plaintiff's child. (5) That in doing so he was acting within the scope or apparent scope of his authority as agent, servant, or employee of the defendant. (6) That the above act was negligence. (7) That the above negligent act was the proximate cause of the injury to the tombstone. (8) That Henry M. Michels tore down the fence enclosing the cemetery. (9) That the taking down of the fence was negligence. (10) That the negligence in taking down the fence was the proximate cause of the injury to the tombstone. (11) That the negligence in taking down the fence was the proximate cause of the injury to the unmarked grave. (12) That ten dollars would reasonably compensate Lige Crouch for the injury to the tombstone. (13) That $5,000 would reasonably compensate Lige Crouch for the damages caused by plowing over the unmarked grave, as a direct result of the willful act of Henry M. Michels, his agents, servants, or employees, including mental pain and anguish. (14) That the agents, servants, or employees of the defendant were guilty of gross negligence in injuring the tombstone. (15) That Henry M. Michels, the defendant, was guilty of gross negligence in tearing down and removing all or any portion of the fence. (16) That $2,500 should be allowed as exemplary damages for the gross negligence and willful acts of the defendant."

Judgment was entered for plaintiff for $7,510 and defendant appealed.

In support of our conclusion that plaintiff's petition discloses an action for a willful trespass, but is insufficient to authorize recovery for damages resulting from defendant's negligence we call attention to the following authorities: "For the purpose of determining the relationship of the subject in hand to other branches of the law, it may be observed at the outset that `negligence' cases are those which involve liability for injury to person or property, the injury not having been the consequence of conduct which was premeditated, or accompanied by the intention or volition of the actor. If the injury or damage is shown to have been the * * * intended result of the wrongdoer's act, the legal situation is described in the terminology of the common law by the words `assault,' `defamation', `nuisance', `trespass', and many others." 30 Tex.Jur. 647. Also see 30 Tex.Jur. 668, 721; 41 Tex.Jur. 414; Gulf States Utilities Co. v. Mitchell, Tex.Civ.App., 104 S.W.2d 652; Horton & Horton v. House, Tex.Com.App., 29 S.W.2d 984.

Trespass is a willful or intentional wrong, and liability therefor is not dependent upon negligence. Where the suit is for damages resulting from a willful trespass only, it is erroneous to submit to the jury the question of a defendant's negligence. A judgment based on findings of negligence is not supported by mere allegations of a willful trespass. 41 Tex.Jur. 415; Steger v. Barrett, 58 Tex.Civ.App. 331, 124 S.W. 174, error refused; Carter v. Haynes, Tex.Civ.App., 269 S.W. 216, 219; Wetzel v. Satterwhite, 59 Tex.Civ.App. 1, 125 S. W. 93; Badu v. Satterwhite, Tex.Civ.App., 125 S.W. 929, 931; 1 Restatement, Torts, 361.

It is fundamental that a plaintiff must recover, if at all, upon the cause of action alleged. Gammage v. Alexander, 14 Tex. 414, 419; Krohn v. Heyn, 77 Tex. 319, 320, 14 S.W. 130; Moore v. Kennedy, 81 Tex. 144, 147, 16 S.W. 740; McGreal v. Wilson, 9 Tex. 426, 429; Brewton v. Butler, Tex.Civ.App., 12 S.W.2d 228. The case, at least in so far as it was submitted to the jury on the issues of negligence and the judgment based on findings of negligence, was tried upon a wrong theory, and must be reversed. Galveston, H. & S. A. Ry. Co. v. Hennegan, 33 Tex.Civ.App. 314, 76 S.W. 452; Shary v. Helmick, Tex.Civ.App., 90 S.W.2d 302; Dominguez v. Garcia, Tex. Com.App., 53 S.W.2d 459. Plaintiff, of course, recognizes the rules that a plaintiff must recover on the cause of action alleged, and that the allegations and proof must correspond, but contends that his pleadings are sufficient to state a cause of action for either negligence or willful trespass. We think that neither the legal conclusion that defendant was negligent in the matters complained of, or that his negligence was the proximate cause of plaintiff's injury, nor facts from which such conclusions may reasonably be drawn are contained in the petition. Gulf States Utilities Co. v. Mitchell, Tex.Civ.App., 104 S.W.2d 652, 656; Van Velzer v. Houston Land & Trust Co., Tex. Civ.App., 16 S.W.2d 865, 866; 30 Tex.Jur. 721; City of Austin v. Schlegel, Tex.Com. App., 257 S.W. 238, 239; Snipes v. Bomar Cotton Oil Co., 106 Tex. 181, 161 S.W. 1; Webb County v. Board of School Trustees, 95 Tex. 131, 136, 65 S.W. 878; San Antonio Street Ry. Co. v. Cailloutte, 79 Tex. 341, 15 S.W. 390.

The evidence disclosed that more than forty years prior to the trial of this case a man by the name of Dick Keys died and was buried on a hill west of Goree, Texas. The owner of the land on which he was buried offered to give 2½ acres of land out of a different portion of the tract for use as a cemetery if the relatives of the deceased would remove his remains to the designated spot. Apparently this was done. Dr. Smith, owner of the tract adjoining that designated by Mr. Parks, who gave the first 2½ acres for such purpose, donated an equal amount of land for the purpose of establishing a community burial ground. Thereafter the tract was fenced. About ten white persons were buried there, and monuments and markers erected. No white person has been buried there for many years. On one side of this cemetery negroes...