Wedgworth v. City of Fort Worth, 14693.
Decision Date | 08 June 1945 |
Docket Number | No. 14693.,14693. |
Citation | 189 S.W.2d 40 |
Parties | WEDGWORTH v. CITY OF FORT WORTH. |
Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Bruce Young, Judge.
Suit by V. K. Wedgworth against the City of Fort Worth seeking to recover damages for the taking of a tract of land and for the taking of dirt and gravel therefrom and also for alleged personal injuries. Judgment of dismissal, and plaintiff appeals.
Reformed and as reformed affirmed.
V. K. Wedgworth, of Fort Worth, pro se.
R. E. Rouer, Heard L. Floore, Langford Carlton, and Sam A. Woodward, all of Fort Worth, for appellee.
This suit was filed by appellant. Relief was sought on several counts, the nature of which will appear from our discussion of the exceptions addressed by defendant to plaintiff's petition.
Appellee filed what it termed a plea in abatement, and three special exceptions. The judgment recites that the plea in abatement and the special exceptions were heard, that all were sustained, that plaintiff declined to amend, and that the suit was dismissed.
The so-called plea in abatement is in substance a plea of res adjudicata. The contention made in it is that the same matters set out in plaintiff's petition were adjudged in a prior suit. The prior suit was a tax suit, prosecuted by the City of Fort Worth and other taxing authorities. Appellant filed in the tax suit a cross-action in which he set up the same matters later alleged in the petition filed by him in the present suit. Appellee filed in the tax suit certain special exceptions to appellant's cross-action. Said special exceptions were based in part upon the theory that the matters set forth in appellant's cross-action were not proper matters to be litigated in a tax suit, in part upon the theory that the allegations of the cross-action were insufficient to state any cause of action, and in part upon the theory that the allegations of the cross-action showed that the claims therein set forth were barred by the statutes of limitation. According to the judgment rendered in the tax suit, a copy of which is made an exhibit to appellee's plea in abatement filed in the present suit, all of appellee's exceptions filed in the tax suit were sustained. Appellee claims, therefore, that the action of the trial court in sustaining the exceptions to appellant's cross-action constituted an adjudication of appellant's claims therein alleged, such as will bar the prosecution of the present suit.
This is the third time the controversies presented in such cross-action, and in the suit now on appeal, have been before this court. After the trial court dismissed appellant's cross-action in the tax suit, appellant sought by an original mandamus proceeding filed here to compel the trial court to try his cross-action in the tax suit. See Wedgworth v. Davenport, Tex.Civ.App., 170 S.W.2d 789. Appellant later appealed from the judgment rendered in the tax suit. Our opinion in that case was not published. Rule 452, Texas Rules of Civil Procedure. From the record now before us, considered in the light of the records in the two other proceedings in our court, just mentioned, it appears that appellant's cross-action in the tax suit was dismissed because it had no proper place in the tax suit, and that the action of the trial court in dismissing it under such circumstances will not support a plea of res adjudicata in the present suit. As has been said, appellant sought in the mandamus proceeding to compel the trial court to try the cross-action in the tax suit. Appellee successfully opposed that effort, and is not in position now to say that the matters set forth in such cross-action were litigated in the tax suit.
The action of the trial court in the present case, in sustaining both the plea in abatement and the special exceptions, may in a sense have been inconsistent. But it would be an idle gesture to remand the case for action on the special exceptions, where appellant has declined to amend, if the allegations are in fact insufficient as against the special exceptions.
The first claim alleged is that a named representative of appellee, without the knowledge or consent of appellant, seized and took possession of a strip across certain land owned by appellant, the strip in question containing approximately one acre, of the value of $250. Appellant seeks to recover said $250. Appellant does not seek to try the title to such acre of land, nor does he seek to recover any damages done to it, nor does he seek damages for the loss of its use while in appellee's possession. His suit is an attempt to maintain an action for conversion of the acre of ground, and to recover its value. "The suit which corresponds to the common law action of trover lies only for the conversion of personal property, and not for a wrongful deprivation of real property." 42 Tex.Jur., p. 513, and cases there cited. See also Cage Bros. v. Whiteman, 139 Tex. 522, 163 S.W.2d 638, recognizing this rule.
The next count is for the wrongful taking of 3,000 yards of dirt, valued at $250, and 500 yards of gravel, valued at $50, from appellant's land. It may be, although we shall not undertake to pass on it, that the allegations are sufficient to state a cause of action on this count. But, for reasons we shall later state, the district court had no jurisdiction of this claim.
The next count in the petition sets forth a claim for $10,000 for damages resulting from fright suffered by appellant. The facts alleged are in substance as follows: Plaintiff owned a tract of land adjoining land owned by appellee. A controversy arose between appellant and appellee's park superintendent over the location of the boundary between the two tracts. Harry Adams, the park superintendent, proposed a meeting on the ground, and on January 16, 1942, took appellant to the land in question in his car. On the day before, Adams had caused survey lines to be run which were not on the true boundary line. When appellant and Adams reached the property, appellant was surprised to see flags already up indicating that Adams had already run the lines, and showing where Adams claimed the line should be. The flags were south of the real line. Appellant protested to Adams, and attempted to show Adams the true corner, but Adams paid no attention to him. Adams said that he had run the lines where the Park Board told him to run them, and that they were going to stay there. Appellant spent some three or four minutes searching for an old marker, and when he turned around he was surprised to see three men rapidly approaching from the west. Adams had not informed appellant that any other persons were to be present, and this fact, together with the fact that there were three of the men, and their rapid gait, and the fact that the three men were approaching appellant and not Adams, filled appellant with great fear of bodily harm. On a prior occasion Adams had framed a charge against one Hay, the manager of the property in question for appellant, and had had Hay arrested and put in jail on a charge of stealing dirt from Park property. Several times Castevens, "Adams' Park Officer," had threatened appellant's customers and made them unload dirt taken from appellant's own property. Adams was enraged with appellant because appellant had remonstrated with the Park Board on account of Adams' acts. Appellant was not aware of any reason why the three men should be present. Adams walked away from appellant in order that he might have an opportunity to signal the three men without appellant's knowledge, and his signal to them indicated to them that they should hasten, and their appearance and their haste were in answer to Adams' signal. Appellant, recalling all of the aforesaid acts of Adams, and the fact that Adams was angry with appellant, and knowing that an ordinary arrest would not appease Adams, and that, even so, it would require only the park officer to make such an arrest, was seized with great apprehension and fear of serious bodily harm and injury. The three men reached appellant at a threatening pace, and their countenances showed grim determination, and were not the countenances of friendly persons, and the three men were all strangers to appellant. Although Adams was only about fifty feet from appellant, and said men were 200 feet, when appellant first saw them, they and Adams reached appellant at the same time. Adams began by introducing John Castevens as "our Park Officer," then he introduced the other two, but appellant does not recall their names, except that one of them was said to be the man who ran the lines. The first words Adams used after the introduction were, pointing to the flag, "Here's where the Park Board told me to run the line, and here's where it's going to be." Appellant protested to Adams that the line was fifty feet over on appellant's property, and, while appellant was talking to Adams, the surveyor spoke in an angry voice and said that he had run the line and knew his business. Appellant turned to look at the surveyor, and Castevens and the third man seemed to spring to attention, and when appellant further discussed the matter, the surveyor grew angrier and one of the other men moved as if he were either going to draw a gun or to strike appellant. From that time on appellant feared to discuss the line further. Appellant and Adams and the three men walked west to the west end of the tract and the Northwest corner, and Adams showed appellant where the line was there, and appellant said that it was all right because during the whole walk from the east to the west end of the line Castevens and the third man never said a word, and did not take their eyes off appellant, and appeared, as appellant believed, to be watching for some pretext to attack appellant. Adams believed that the taking of appellant's property and the running of the line would greatly aggravate appellant, and would provoke him into some...
To continue reading
Request your trial-
Houston Electric Co. v. Dorsett
...writ refused; St. Louis Southwestern R. Co. of Texas v. Murdock, 54 Tex.Civ.App. 249, 116 S.W. 139, writ refused; Wedgworth v. City of Fort Worth, Tex.Civ.App., 189 S.W.2d 40, writ dismissed, W.O.J.; Laney v. Rush, Tex.Civ.App., 152 S.W.2d 491. The decisions in Hill v. Kimball, supra, and G......
-
Harmon v. City of Dallas
...indulged in its favor. George H. Dentler & Sons v. Fuller's Food Products, Tex.Civ.App., 183 S.W.2d 768; Wedgworh v. City of Fort Worth, Tex.Civ.App., 189 S.W.2d 40; special exceptions constituting no 'blind attack,' as was in case of the old general demurrer. Stillwell v. City of Fort Wort......
-
Dorsett v. Houston Electric Co.
...Texas that there may be no recovery from mere fright which is neither attended nor followed by any other injury (Wedgworth v. City of Fort Worth, Tex.Civ.App., 189 S.W.2d 40; Laney v. Rush et al., Tex.Civ. App., 152 S.W.2d 491, and authorities there cited; Gulf, C. & S. F. R. Co. v. Trott, ......
-
Pecos County Water Control and Imp. Dist. No. 1 v. Williams
...& Sons v. Fuller's Food Products, Tex.Civ.App., 183 S.W.2d 768; Martin v. Hunter, Tex.Civ.App., 233 S.W.2d 354; Wedgworth v. City of Fort Worth, Tex.Civ.App., 189 S.W.2d 40; 44 Tex.Jur. 25; 56 Am.Jur. Also, there are cases holding that only well pleaded facts may be taken as true when passi......