Reef v. Hamblen

JONES, C. J. In a suit in a county court at law of Dallas county, defendant in error, G. W. Hamblen, was awarded judgment against plaintiff in error, Fred Reef, as administrator of the estate of his deceased wife, Euna Reef, in the sum of $932.87, with interest from January 1, 1929 at the rate of 6 per cent, per annum. An appeal has been duly perfected to this court.•The following is a sufficient statement of the facts: Mrs. Euna Reef died December 29, 1928, in the city of Houston, Tex., where she and her husband were residing. The funeral arrangements were made under the direction of Mrs. G. W. Hamblen, the mother of deceased, and all of the burial apparel, the casket, etc., were selected by her in the city of Houston. Because of Mrs. Hamblen’s request, the burial was in the cemetery of the town of Palmer in Ellis county, though plaintiff in error owned a burial lot in the city of Dallas. The bills incident to the funeral and burial of Mrs. Reef were paid by Mrs. Hamblen, wife of defendant in error. Some months subsequent to the payment of these bills, a contention arose between plaintiff in error and defendant in error, in reference to whether plaintiff in error should repay the burial expenses. It was contended by plaintiff in error that he was able and willing to bear the expense of this funeral and expected to do so, but that, when Mrs. Hamb-len came to his home, just after the death of his wife, she requested that he permit ner to [376] conduct at her own expense the funeral of her 'daughter, and that she be given the privilege of selecting the casket, burial clothes, place of burial, and other things incident thereto, as a final testimony to the. love and affection she bore for her daughter; that, in consideration of this request, he yielded his desire to direct and bear the expense of the burial of his wife and took no directing part in said funeral arrangements ; that had he not thus yielded, while he would have given his wife a suitable funeral and burial, he would not have incurred such a heavy expense as was incurred by Mrs. Hamblen. Defendant’ in error denied that any such arrangement was made, and the case went to trial on these opposing contentions of the parties. The pleadings of the parties presented their respective contentions. Both Mrs. Hamblen and plaintiff in error supported their respective claims by positive evidence on their part, and each was supported by corroborating evidence. This was the only issue of fact in the case and was submitted to the jury by the trial court in the following special issue: “Do you*find and believe from a preponderance of the evidence that the plaintiff, Hamblen, acting by and through his wife, agreed to give or pay the funeral expenses of their daughter, Mrs. Euna Reef, deceased, without any charge against the estate of Mrs. Euna Reef, deceased? Answer: ‘No.’ ” Judgment was entered for the amount of these expenses in accordance with this finding. The pleadings of defendant in error alleged, by means of exhibits to his petition, the various items making the gross amount of the .sum for which judgment was entered, and this claim was supported by the canceled checks given for the various items. The correctness of this exhibit was duly verified by defendant ip error-. Plaintiff in error, in addition to his answer, alleging the agreement heretofore stated, filed a cross-action against defendant in error, for the value of various alleged articles of personal property, consisting of jewels,' clothing, wearing apparel, and miscellaneous items of “bric-a-brac,” alleged to have been the personal property of deceased and belonging to her estate, and of the aggregate alleged value of $995. The ground of the cross-action is that these items were converted and appropriated by defendant in error, and that defendant in error thereby became indebted to the estate, of which plaintiff in error is administrator, in the sum of $995. The trial court sustained a special exception to this cross-action, and it was stricken out and was not an issue on the trial of the case. To this ruling, plaintiff in error has duly assigned error and properly presented same to this court. We do not think the trial court erred in sustaining the special exception. The ground of such special exception was that the cross-action showed on its face an attempt to plead an unliquidated demand against the certain demand pleaded by defendant in error, and also an attempt to plead a cause of action sounding in tort against a cause of action ex contractu, which consisted of a liquidated demand. This question is controlled by statutes. Article 2015, R. S., reads: “Whenever any suit is brought for the recovery of any debt due by judgment, bond, bill or otherwise, the defendant shall be permitted to plead therein any counter claim he may have against the plantiff, subject to such limitations as may be prescribed by law. The plea setting up such counter claim shall state distinctly the nature and the several items thereof, and shall conform to the ordinary rules of pleading.” Article 2017, R. S. reads: “If the plaintiff’s cause of action be a claim for unliquidated or uncertain-damages, founded on a tort or breach of" covenant, the defendant shall not be permitted" tb set off any debt due him by the plaintiff. If the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of the plaintiff. However, the defendant may plead in set off any counter claim founded on a cause of action arising out of or incident to, or connected with, the plaintiff’s cause of action.” The basis of plaintiff in error’s cross-action is the conversion of personal property belonging to the estate of deceased, and in such cases the measure of damages is the market value of the property converted, at the time of the conversion. It is for the market value of the converted property the plaintiff in error sues in his cross-action. Conversion is an offense against the possession of property, and hence a suit based on conversion is one sounding in tort, regardless of how it be denominated by a pleader. This cross-action being a suit sounding in tort is necessarily for an unliquidated demand, and is prohibited by the terms of article 2017, supra. The assignments of error on this issue are overruled. In August, 1928, it appears from a long letter written by plaintiff in error to his wife, while he was on a business trip to New Orleans, that there existed domestic trouble between the two. This letter was introduced in evidence over plaintiff in error’s proper objection, and a very severe cross-examination of plaintiff in error, by counsel for defendant in error, resulted from certain portions of this letter. The introduction of this letter and the said cross-examination form the basis for several bills of exception and assignments of error. The fact that domestic trouble existed between these parties could throw no light on the issues involved in this suit. It is a matter entirely foreign to the subject-matter of'the [377] suit. The parading oí such domestic trouble and the charges seemingly made by the deceased wife against plaintiff in error, together with the strictures indulged in by counsel on the cross-examination, necessarily tended to prejudice plaintiff in error’s defense before the jury. A litigant has the right to a fair trial in a court of a cause of action in which he is interested, and it is error to prejudice a litigant’s rights by the introduction of prejudicial and wholly immaterial and irrelevant evidence. The issue as to whether the theory of defendant in error or the theory of plaintiff in error, as shown by their pleadings and evidence, should prevail, was sharply contested, and we cannot say this plaintiff in error’s right was not prejudiced by the introduction of this irrelevant testimony. Its tendency was certainly to do so. We therefore sustain the assignments of errnr in reference to the introduction of the letter in question, and the cross-examination of plaintiff in error thereon. This calls for a reversal of the case. For reasons above stated, this case is reversed and remanded for trial not inconsistent with this opinion. Reversed and remanded.