Hargrove v. Fort Worth Elevator Co.

BISHOP, J. On August 23, 1920, the plaintiff in error, Robert Hargrove, instituted this suit in the Sixty-Seventh district court of Tarrant county against the Fort Worth Elevator Company, defendant in errox, alleging in his petition that for the two years next pi-eceding that date defendant in error had dumped large quantities of rotten grain, filth, and ill-smelling water into the street and gutter of East Second street so that they ran down in front of his residence, and stood in a foul, stinking, stagnant pool, which affected his health and comfort, and rendered his home unfit for use and enjoyment. Issue having been joined, the case was tried, resulting in a verdict on special issues, and judgment for defendant in ei’ror. This judgment was by the Court of Civil Appeals affirmed. 262 S. W. 868. On the trial there was an issue of fact as to whether the rotten grain and filth were conveyed by a sewer pipe extending from the premises of defendant in error and emptying into Second street, or were conveyed there by surface water from the premises of the Ralston Purina Mills, another grain company, situated near the premises of defendant in error. One Jesse Tidwell, who owned property near plaintiff in error, had sued the Ralston Purina Mills for damages, alleging facts showing a similar nuisance, and this case had been theretofore tried. There was evidence that the sewer pipe extended from the premises of defendant in error under the railroad tracks and also under the premises of the Purina Mills, and emptied into Second street. The jury, in answer to the special issues submitted, found that defendant in error “did not, as alleged, between August 23,1918, and August 23, 1920, cause or permit grain, refuse, or other substances to go from its premises upon or about the property of” plaintiff in error. They did not, as recited in the opinion of the Court of Civil Appeals, find that plaintiff in error “was not made sick at those times, nor suffered pain or mental anguish, and suffered no damage as a proximate result of the accumulation of grain, refuse, and other substances on or about his property.” What they did find is that no such injury was suffered as a proximate result of the defendant in error permitting grain, refuse, and other substances to go from its premises upon and about his property. The judgment is clearly predicated upon the finding that defendant in error did not cause the nuisance complained of, and not upon a finding that no injury occurred. There is evidence that such injury did occur. Complaint is made at the action of the judge of the trial court claimed to have been prejudicial to plaintiff in error on the issue as to whether defendant in error caused or permitted rotten grain and filth to accumulate near the residence of plaintiff in error as was .alleged. While one Joe Mar-cello, a witness for plaintiff in error, was testifying on direct examination, and after he had stated that he saw the accumulation of grain and filth, and that it was offensive, the judge propounded to him the following questions, which were answered as shown, to wit: “The Court: I want to ask this witness a question — what is his name — Marcello? I want to get some matters straightened out in,view of his answers. Do you remember about two or three ydars ago that you were a witness up here in the case of Jesse Tidwell against the Purina Mills? “The Witness: I don’t understand. “The Court: Do you remember that we tried a case in this court about two years ago in which a man by the name of Jesse Tidwell— “The Witness: Yes, sir. “The Court: Sued the Purina Mills? “The Witness: Yes, sir. “The Court: And you were a witness in that case, were you? “The Witness: I think I was; yes, sir. “The Court: You testified in that case yourself? “The Witness: Yes, sir; I did. “The Court: Do you live now where you did then? “The Witness: Yes, sir. [428] “The Court:' How far was Tidwell’s property from Mr. Hargrove’s property — it was in the same neighborhood — in the same neighborhood? “The Witness: Tes, sir. “The Court: About how many feet is Tid-. well’s property'from Hargrove’s property? “The Witness: I guess about 60 or 60 feet, something like that. “The ' Court: Right close together? “The Witness: Yes, sir. “The Court: Do you remember testifying in that ease — state whether or not you did testify in that case that there was grain and odor and sediment that came from, the Purina Mills onto Tidwell’s property? “The Witness: Yes, sir; I remember. “The Court: And you testified that that grain and odor and sediment came from' the Purina Mills, did you not? “The Witness: Well, it came onto the — under the track, in that. sewer — it came from under the track. “The Court: Prom Where? A. It came from the Purina or from under there, because it came right through under the track, you know. I cannot tell you exactly from what it came from; it came from under that hole. “The Court: And that suit was by Jesse Tid-'well against the Purina Mills?' A. Yes, sir.” While this witness was being cross-examined by the attorney for defendant in error, the judge asked the plaintiff in error'if it was not a fact that he also testified as a witness in the case of Jesse Tidwell against the Ralston Purina. Mills, and, over an objection that such action on the part of the judge was prejudicial to him, required him to make answer to this question. These questions indicated that the judge was not only attempting to discredit the testimony of the witness, but also was of the opinion that the nuisance complained of was not caused by the defendant in error, but was caused by the Ralston Purina Mills. This conduct was improper, and calculated to prejudice the rights of plaintiff in error. It was clearly an interference with the right of a litigant to have .the jury pass on issues of fact without being influenced by prejudicial statements made by the judge in their presence and hearing. _ It was ’ unfair, and we may not presume that no injury resulted. On -the trial of all eases thei judge should preside with impartiality, and in a trial before a jury, who are the sole, judges of the credibility of witnesses and the weight to be given their testimony, he should be especially! careful to say or do nothing which would be calculated.to influence their minds ini regard to facts in issue, the solution of which- it is their duty to determine. While it is within his authority to ’examine witnesses, in doing so he should not indicate by words or manner either his disbelief of a witness or of a material fact which a litigant is endeavoring to establish; 38 Cyc. 1316; 26 R. C. L. 1026; Lewter v. Lindley, (Tex. Civ. App.) 89 S. W. 784; St. Louis & S. P. Ry. Co. v. Lano (Tex Civ. App.) 110 S. W. 530. We recommend that the judgments of the district court and the Court of Civil Appeals. be.reversed and the cause remanded to the district court. OURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission of Appeals on the questions discussed in its opinion.