Sinclair v. Stanley

Acker, Judge. The uncontroverted facts of this case are: That Thatcher & Co. and the Galveston City Railroad Company each claimed to own lot 8 in out lot 141, in the city of Galveston, under a common source and both through judicial sales. Thatcher & Co. through judgment of the United States court and execution sale thereunder by the marshal; and the railroad company through judgment of the district court of Travis county and execution sale thereunder by the sheriff of Galveston county. Waul & Walker were agents for Thatcher & Co., and, as such agents, leased the lot to appellee, Stanley, in the latter part of March, 1883, for a term of eighteen months, Stanley paying'them one month’s rent. Appellants were officers of the railroad company, Sinclair being president and Ravey being superintendent. About April 2, 1883, appellee deposited lumber on the lot for the purpose of erecting a house thereon, and appellants had the lumber removed to another place in the city. The railroad company’s track was upon the lot, and cars were being run thereon. Appellee had his lumber cut and house framed at another place, and during the night of April 4, 1883, erected his house on the lot, and was occupying it as a place of business on the morning of April 5. The lot was not inclosed. Appellee continued his occupancy of the house until April 9, when appellants erected a plank wall, nine feet high, around and against the house, completely obstructing the-entrance thereto. Appellee knocked down a portion of this wall so that he could go into and out of his house. Appellant Sinclair caused appellee to be arrested for knocking down the-fence. When appellee was arrested and taken away by the officer, he left his minor son, about fourteen years of age, in possession of the house with instructions to remain until his return,. While appellee was absent, in custody of the officer^ appellants, with a force of men and teams, demolished the. — 725 — house, and hauled the materal and the personal effects that were in the house, away, and deposited them upon the ground at another place. The lumber of which the house was constructed, and the personal property that appellee left therein, were entirely lost to him. The house was built upon the lot under the advice of counsel. Appellants acted under advice of counsel in what they did, but there was evidence tending to show that they did not fully inform their counsel of the exact situation. The verdict was for five hundred and sixty dollars and thirty-four cents actual, and two thousand dollars exemplary damages, upon which judgment was entered for appellee, and we are asked to reverse this judgment upon numerous grounds, there being twenty-two assignments of error. The first, second and third errors assigned, relate to the action of the court in overruling appellant’s second, third and fifth special exceptions to appellee’s trial amendment, in which it is contended that the court erred, because it appeared from the trial amendment that appellee’s “title to recover was derived from an assignment made to him by others after the reversal of the judgment by the Supreme Court, and the defendants having no notice prior to the filing of the trial amendment of any claim against them by him as assignee, or otherwise than as alleged in his original petition, plaintiff could not lawfully proceed to judgment over defendant’s exception for want of process advising him of his suit as such assignee.” But for the earnestness with which the learned counsel insists upon these assignments, we would think there is really nothing in them that should require our consideration. It clearly appears that the assignment made by appellee of the judgment rendered on the former trial of this case was only as security for debts he owed, and when that judgment was reversed by this court, the parties to the suit were relegated to their respective rights and liabilities as they existed prior to the judgment. If the cause of action was embraced in the assignment made by appellee, it was reassigned to him before the trial which resulted in the judgment from which this appeal was taken. Whatever rights he disposed of by the assignment were restored to him by the reassignments. There was no necessity for the trial amendment, and the court did not err in overruling the exceptions. It is contended under the fourth assignment of error that the court erred in admitting in evidence over the objections of ap- — 726 — pellants the power of attorney from Thatcher & Oo. to Waul & Walker, and in refusing to exclude it from the jury at conclusion of the evidence, because it was executed af ter the lease to appellee, and after the acts and occurrences for which he seeks to recover damages in this suit. The power of attorney in terms expressly, ratified and confirmed the lease made by Waul & Walker to appellee, and we think was admissible in confirmation of the authority they exercised in making the lease. It is contended under the ninth assignment of error that “the court erred in refusing to allow defendants to read the testimony-given by the witness Stanley on a former trial, as contained in the agreed statement of facts of that trial for the purpose of contradicting or affecting his evidence given in the pending trial.” We do not think the court erred in the ruling here complained of. It appears from the bill of exceptions that appellee answered every question propounded to him with reference to his previous testimony in the affirmative, with slight qualification as to three of the answers attributed to his former testimony, and these qualifications were only to the extent of saying that “he could not say whether he had so testified or not,” and “I said Keenan protested, but can not say whether I said he protested in the name of the company,” and “that is what I said, except that I do not remember whether or not I said I didn’t think Sinclair or Ravey or Keenan acted from personal spite at me.” Each of these qualifications was preceded by an affirmative answer to the following question: “Didn’t you on a former trial testify in effect as follows?” followed by reading from the statement of facts made up on the former appeal. The only question contained in the bill of exceptions to which the witness gave a negative answer is the following: “Wasn’t the -conversation you have spoken of between Sinclair and yourself at the Treinont hotel about this way?” Then follows Sinclair’s version of that conversation, as testified to by him. We know of no authority, and counsel has cited none that authorizes the introduction in evidence of the statement of facts made up by counsel on a former appeal for the purpose of contradicting or affecting the evidence of a witness on a subsequent trial. The statement of facts contains what counsel agree upon as the testimony which may be, and frequently is, quite different from the testimony as given by the witnesses. But if such practice was permissible, we do not think the predicate was laid in this instance. — 727 — It is contended that the language used by counsel in argument to the jury was prejudicial to the rights of defendants in arousing the prejudices and passions of the jury against defendants, whereby' they were led to render the verdict. There being nothing in the record tending to show that the verdict was the result of prejudice or passion or other improper influence, the verdict will not be attributed to the improper language of counsel in argument, especially when such language is immediately retracted and the jury requested to disregard it. As said by this court in Railway Company v. Irvine, 64 Texas, 535, the use of improper language by counsel, within itself, furnishes no sufficient reason for reversing a judgment; and it is only in cases in which the preponderance of the evidence seems to be against the verdict, or in cases in which the verdict seems excessive and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes ground for reversal. Parties are not to be punished by reversals for improprieties in their conduct, unless there is reason to believe that the course pursued affected the merits of the case. We find in this case no reason for such belief. What we have said in considering the first, second and third assignments of error disposes of the twelfth, thirteenth and fourteenth assignments. Under the fifteenth and sixteenth assignments of error it is contended that: “It appearing from the evidence that the railroad company had title to, and possession of, the lot, and plaintiff came and erected a house thereon, the defendants, as officers and agents of, and acting for, the company, had the right to enclose the lot and remove the house and contents therefrom; provided, that in doing so, they did only what was reasonably necessary for that purpose.” To this proposition we can not assent, as we believe it to be in conflict with the great weight of authority, as it certainly is with the established policy of our government and the genius of our laws. Adéquate provision has been made in our laws for the recovery of possession of property which has been forcibly taken or forcibly detained, and as said in Warren v, Kelley, 17 Texas, 551, if one holding title to land was permitted, by himself or his agent, with force and arms, to dispossess one in peaceable possession, the consequences would be breaches of the peace, oppression and bloodshed, and trial by the use of the bowie knife and revolver would be resorted to instead of the quiet and peaceable remedy afforded by the due course of law in the judi — 728 — cial tribunals of the country. While there are decisions of courts of undoubted learning and respectability that sustain the rule insisted upon by the appellant, we believe the great weight of authority is contra. Very full reviews of the authorities and learned decisions of this question may be found in the following cases: Dustin v. Cowdry et al., 23 Vermont, 631; Reeder v. Purdy, 41 Illinois, 281. Although one is permitted to defend a right by force, it does not follow that he is at liberty to recover by force a right which is denied; the latter can only be justified in extreme cases, such as would justify force in preventing crime and in arresting offenders. (Cooley on Torts, 168.) Upon this theory of the law our statutes, civil and criminal, are founded. Title 45 of the Revised Civil Statutes, provides a remedy and effectual mode for the recovery of the possession of land the possession of which has been forcibly taken or forcibly detained, in all cases where such entry or detainer is made “without the consent of the person having the actual possession.” By our Penal Code, articles 572 and 575, one is justified in taking human life under certain circumstances and conditions, in defense of his possession of property, but he is expressly prohibited from doing so to recover possession. The entry by Stanley upon the lot, it seems, did not disturb the railroad company’s use of it. If the railroad company had actual possession of the lot, and Stanley made entry without consent of the company, such entry was unlawful, without regard to ownership, and the company could have effected his prompt removal by proper proceeding for that purpose; but Stanley having obtained possession, and held it for several days, appellants had no right to forcibly eject him by destroying his house and removing his effects from the premises, although the railroad company may, in fact, have been the real owner of the property. (T. M. & H. R. R. v. Johnson, 119 U. S. Sup. Ct., 611.) We are of opinion that the court did not err in giving the charge here complained of, nor in refusing to give the third special charge asked by appellants. While that part of the charge — in which the jury was told that appellants had the right to enclose the house, if it could be done without a breach of the peace — complained of under the seventeenth assignment of error, considered disconnectedly, may contain technical error, considered in connection with and relative to the other portions of the charge, as it should be, we think it contains no such error as requires or would authorize — 729 — reversal, especially as there is nothing in the record indicating that appellants were in any way prejudiced thereby; It is also contended that “the court erred in that part of its charge to the effect that if plaintiff’s son was assaulted, or, being in possession of the house for his father, was compelled by force to leave it, such fact or facts could be considered by the jury in making up their verdict; because, 1, said instruction was a charge on the weight of evidence; and, 2, was based upon an assumption in direct conflict with the great preponderance of the evidence; and, 3, it did not submit the alternative of plaintiff’s son not having been assaulted and not having been compelled by force to leave the house, and operated to the prejudice of defendant in withholding from the jury the law as it would be upon such alternative.” Upon the question of appellee’s son’s removal from the house, the charge was as follows: “Unless you believe from the evidence that Stanley’s son was either forcibly driven from the house or thrown from it, your verdict should be for defendant.” . “If you believe from the evidence that Stanley’s minor son was in the actual possession of the house, holding it for Stanley, and was forced therefrom, or forcibly thrown therefrom, or forcibly driven from the house by defendants or by their authority, and that defendants then caused the house to be torn down and its contents carried away, then the verdict should be for plaintiff for the value of the house and contents so carried away, with interest at eight per cent per annum, and that would be the amount of plaintiff’s actual damages; and if you believe from the evidence that such tearing down and carrying away was done with malice, or with bad, evil motive, then, in addition to such actual damages, you would be authorized also to find reasonable and fair exemplary damages to be determined from all the facts and circumstances in evidence.” Following this, in the same connection, the court gave the portion of the charge which we understand is complained of by the eighteenth assignment of error, now being considered, which is as follows: “ The plaintiff in this suit is not entitled to any damages for assault upon his son, if any assault was made, as this suit is brought for damages to property, but if assault was made upon the son, or if the son was in possession of the house for Stanley, and was compelled by force to leave the house, that fact :may be taken into consideration in this case, which is a suit for dam — 730 — ages for alleged trespass in tearing down and carrying away plaintiff’s house and contents.” While we do not hold that the portion of the charge here complained of is absolutely correct in all respects, we believe that, considered with reference to the facts of the case and the other portions of the charge upon the same subject, there is nothing in it of which appellants oan justly complain. The charge, taken all together, we think fully as favorable to appellants as the law and facts of the case would justify. We find no preponderance of the evidence, one way or the other, as to how appellee’s boy was gotten out of the house. He testifies that he was thrown out. Appellant Ravey testifies that he went out on his request. This is all the testimony there was on that question. In such case, the question is for the jury and the court below, and this court will not disturb the verdict. We can not say that the amount of exemplary damages assessed by the jury is excessive. Having considered every question raised by appellants, and the whole case as presented by the record, we conclude that there is no error requiring reversal, and it is our opinion that the judgment of the court below should be affirmed. Affirmed. Opinion delivered February 7, 1888.