5. QUIETING TITLE 10(2)-RIGHT TO BRING | Landa v. Heermann, 85 Tex. 1, 19 S. W. ACTION-TITLE OF PLAINTIFF. $85. [2-4] It is contended that Pullen is not entitled to recover the land for the reason that, prior to the institution of the suit, he had entered into a contract in writing for the sale of such land, under the terms of The holder of a naked legal title may main- which $1,000 earnest money had been paid to tain an action of trespass to try title. 7. ADVERSE POSSESSION 60(3)-ACKNOWLEDGMENT OF RIGHT OF STATE. A person in possession of land, though acknowledging a better right in the state, may hold adverse possession as against true owner. 8. ADVERSE POSSESSION 70-HOSTILITY TO OWNER. The mere holding of land, under the belief that the land is the state's and with the purpose of acquiring it lawfully at some future time, does not define the attitude of the possessor as hostile to the claim of the owner of whose existence he is ignorant. 9. ADVERSE POSSESSION 60(3) IMPROVE MENTS-POSSESSION ADVERSE TO TRUE OWN him, and the person who contracted to purchase the land had been put in possession thereof and was still in possession at the time of the trial. The contract was not introduced in evidence. Plaintiff testified that he had contracted in writing prior to the institution of the suit to sell certain lands, including that in controversy, to Neal Jernigan; that Jernigan ascertained that plaintiff could not give him title to the 360 acres in controversy, and that he had to prove up his occupancy as to the west half of section 34. It appears from his testimony that Jernigan parted with $1,000, which was at the time of the trial in a bank; but he did not explain whether it had been paid to him, or whether it accompanied the contract and was in the nature of a deposit to secure Jernigan's compliance with the terms of the contract when plaintiff should have complied with his part. Jernigan was to pay about $6,000 additional. This testimony does not warrant a finding that even the $1,000 had been paid to plaintiff. Had the entire consideration been paid, and possession given, Jernigan would have had an equitable title superior to the legal title of plaintiff. Secrest v. Jones, 21 Tex. 121. As it was, Jernigan had no such title as would authorize him to recover the land from plaintiff. He could only tender the consideration and ask for specific performance Appeal from District Court, Edwards of the contract. Wallace v. Wilcox, 27 Tex. County; James Cornell, Judge. ER. Plaintiff, who took possession of land for purpose of acquiring land from state under belief that land was vacant, but who after being told that land was not vacant, and with knowledge of real owner, continued for a period of ten years to hold land and make substantial improvements in fence inclosing land, held to have held land adversely to true owner. 10. ADVERSE POSSESSION 30 NOTICE FENCE. Fence inclosing 360 acres of land was a sufficient notorious assertion of holder's adverse claim, though land was in a very rough, broken, uninhabited country. Action by L. M. Pullen against Reba B. Masterson and others. Judgment for plaintiff, and defendants appeal. Affirmed. W. C. Linden and William C. Church, both of San Antonio, for appellants. Jno. W. Hill, of Uvalde, for appellee. MOURSUND, J. L. M. Pullen sued Reba B. Masterson, E. R. Guenther, Adolph Wagner, and his wife, Amanda Wagner, to remove cloud from the title to 360 acres of land in Edwards county, described by metes and bounds, pleading specially title by limitation under the three and ten years' statutes. The record contains no answer by Reba B. Masterson. The other defendants answered by plea of not guilty. 60; Bell v. Warren, 39 Tex. 106; Prusiecke v. Ramzinski, 81 S. W. 771. [5, 6] There is no merit in the appellant's contention that at the time of the institutitle. The holder of a naked legal title may tion of the suit plaintiff had parted with his maintain an action of trespass to try title, and plaintiff occupied a much more favorable position. Dean v. Jagoe, 46 Tex. Civ. App. 389, 103 S. W. 195. In the second assignment it is contended that the evidence does not sustain a finding that plaintiff's possession was adverse for a period of 10 years. Plaintiff inclosed the land about 25 or 27 years before the date of the trial, and made application to purchase the same as vacant land; but the exact date thereof is not shown. He testified Judgment was rendered in favor of plain-his papers were returned and he was notified tiff. [1] Complaint is made of the failure of the court to file his conclusions of fact and law. The failure to file such conclusions will not be considered without a bill of exceptions. that the land he was claiming conflicted with some other surveys, but he knew it did not. He also testified that some one notified him he had $14 "in the land office," and asked him if he wanted him to collect it, and he For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes paid no attention to the notice, his idea being that he expected to get the land "at some time or other"; that he was not trying to beat anybody out of it; that he left the money there for the purpose of paying the state for the title. He did not testify when this occurred, and when it was that he was not trying to beat anybody out of the land. In 1903 he received a letter from Rogan & McInerney, attorneys at Austin, stating that there was no vacancy, as the surveys of block J call to tie to the Southern Pacific surveys, and that the land office had so ruled on the 1900 files that were sought to be located on the supposed vacancy. He testified that from the time he received this letter he knew the owners of the surveys in block J owned the land in controversy; that from that time forward he had not claimed it was vacant; that he had claimed said land against the whole world during the entire time he had it fenced. He testified further that the last time he tried to get the commissioner to recognize a vacancy there was in 1903, and that "they claimed it was covered by 15"; that he had not frequently stated within the last few years that he believed it was vacant land; that he knew better than that; that he had known since 1903 that it was not state land, and had not claimed it since then as state land; that he had been claiming it adversely to Mr. Masterson ever since then. The evidence warrants a finding that plaintiff improved his fence on the land materially about 6 or 7 years before the trial. His testimony was sought to be weakened by asking him whether he had not made statements to certain persons, tending to show that he still believed within a few years prior to the trial that there was a vacancy. He first denied making any such statements, but finally said he had no recollection of having conversations such as were inquired about. Luther Roberts testified that about 3 years before the trial plaintiff told him he had no deed to the land, but had been trying to get a deed for a good while; that his money was at the land office, and he expected to get a deed; that plaintiff did not tell him until the spring of 1917 that he was claiming the land; that he then said he was expecting to get a deed from the state or he was going to sue Masterson for a deed. Quincey Craig testified that he had talked to plaintiff concerning this land, and while most of his testimony appears to relate to what plaintiff thought and claimed at the time he had a survey made on the theory that it was vacant land or school land, which must have been prior to 1903, he also said: "I do not remember when was the last time he thought it was vacant land-I think within the last four or five years. I could not say whether or not it was within the last two or three years; it has been something like five years." While plaintiff testified he paid taxes on the land in controversy, the tax collector testified that from 1913 to date of trial the tax rolls showed no payment of taxes by plaintiff on said land. He testified his examination did not extend further back. It appears that the assessor's record was offered in evidence, and that a copy was intended to be attached to the statement of facts; but it was not attached. The court recited in his judgment, and the recital is sustained by the evidence, that the land in controversy is a part of survey No. 15, block J, which survey was shown to have been patented to Branch T. Masterson on October 23, 1882. [7-9] Under the rules laid down in the case of Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153, it is clear that, even though a person in possession of land may acknowledge a better right in the state, he may hold adverse possession thereof as against the true owner. It appears, however, that the mere holding of it under the belief that the land is the state's and with the purpose of acquiring it lawfully at some future time does not define the attitude of the possessor as hostile to the claim of an owner of whose existence he is ignorant. In this case it is shown that after 1903 plaintiff knew that the owner of survey 15, block J, was held to be the owner of the land in controversy by the Commissioner of the General Land Office, and by attorneys whom he consulted, and therefore he not only had a suspicion of the claim of the true owner, but, if his testimony be believed, such a welldefined belief in the merit of such claim that he did not renew his efforts to acquire title from the state. The fact that his possession was still maintained under a claim of right to acquire the title from the state, if such is the fact, would not necessarily show that his possession was not adverse to that of the true owner. After he received the letter from Rogan & McInerney, he continued to hold possession of the land for more than ten years, during all of which time his fences were promptly repaired when down, and about seven years before the trial a substantial improvement was made in a portion of the fence. It is true that at some time, according to his testimony, he did not want to beat anybody out of the land; but that may have been prior to 1903, and, if he testified to the truth in making other statements, it must have been prior to that time. We conclude that we would not be warranted in setting aside the finding of the trial court that plaintiff's possession was adverse to the true owner for a period of ten years prior to the institution of the suit. [10] The further contention is made that as no improvements were placed on the land other than the fence, which ran across the FAILURE TO PRODUCE Where a party fails to present evidence within his power to produce, the presumption is that the evidence, if offered, would be unfa vorable. same in a very rough, broken, uninhabited | 6. EVIDENCE 75 7. APPEAL AND ERROR_1051(1) — ADMIS- Although plaintiff, when he received permanent injuries to his foot and other injuries, was 60 years old, where he was able to and did superintend a large business and injuries had largely impaired his ability to do so, besides causing him suffering and expense, a verdict for $10,000 will not be held excessive. 2. APPEAL AND ERROR 1013-AMOUNT OF RECOVERY-PROVINCE OF JURY. The determination of the amount of damages in personal injury cases is committed to the jury in a very large measure, and its decision will not be reversed, though damages are greater than appellate court would have given. 3. APPEAL AND ERROR 1050(1) ADMISSION OF INCOMPETENT TESTIMONY-HARMLESS ERROR. In an action for injuries to pedestrian due to automobile accident, that a witness was asked the whereabouts of some X-ray pictures of plaintiff's foot, and replied, "I gave them to the insurance man," held not to have had any appreciable influence in enlarging the verdict or in arousing any degree of prejudice. 4. MUNICIPAL CORPORATIONS COLLISION IN TION. 706(8) STREET-ACTION-INSTRUC In action for personal injuries sustained by plaintiff pedestrian when run down by an automobile, driven by defendant's chauffeur, held, that court's main charge was not subject to objection that it submitted issue of discovered peril. 5. TRIAL 252(8) DENCE. INSTRUCTIONS EVI In action for injuries sustained by pedestrian when run down by an automobile, giving of a special requested charge on discovered peril held not erroneous as against objection that there was no evidence that chauffeur saw plain tiff. In action for injuries sustained by plaintiff pedestrian when run down by an automobile, held, under the evidence, that court did not err in refusing to give special charge submitting issue whether chauffeur was an employé or servant of defendant. 9. MUNICIPAL CORPORATIONS 706(7)—INJURIES TO PEDESTRIAN-CONTRIBUTORY NEG LIGENCE. In action for injuries sustained by plaintiff pedestrian when run down by an automobile, driven by defendant's chauffeur, held, that court did not err in denying peremptory instruction for defendant who pleaded contributory negligence as a defense. Error from District Court, Tarrant County; Bruce Young, Judge. Action by A. J. Anderson against Tom L. Burnett. Judgment for plaintiff, and defendant brings error. Affirmed. Samuels & Brown and McLean, Scott & McLean, all of Ft. Worth, for plaintiff in error. Slay, Simon & Smith, Chas. T. Rowland, and Theodore Mack, all of Ft. Worth, for defendant in error. CONNER, C. J. This appeal is from a judgment of $10,000 in appellee's favor as damages for personal injuries received in an automobile accident. The record discloses that on April 27, 1916, a chauffeur in a large, high-powered automobile, with a daughter of plaintiff in error, was rapidly driving along Jennings avenue in the city of Ft. Worth, and that near the point where said avenue connects with Throckmorton street in said city said car ran over and seriously injured defendant in error, who at the time was attempting to cross the street. The defendant in error, in his petition for a recovery, alleged, among other grounds of negligence, that the driver of the automobile was proceeding at an unusual rate of speed in violation of both a state statute and a city ordinance on the subject. In answer, this was denied, and it was further alleged that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the plaintiff in the suit was guilty of contributory negligence. The trial, however, resulted in a judgment in defendant in error's favor as stated. [1] Plaintiff in error, on this appeal from the judgment mentioned, presents as of first importance the contention that the verdict and judgment is excessive, but, after a careful consideration of the evidence, we have been unable to so determine. There was evidence tending to show that Anderson was very violently thrown upon the paved street; that the car ran over and crushed the arch of his left foot and broke or shattered two or more of the bones in the arch; that he received blows or injuries on the side of his spine that resulted in a loss of sensation of the right leg for a number of days, and a curvature of the neck not yet under control; that the use of his right arm has become greatly impaired. The evidence is further to the effect that the injury to the foot caused very great and long-continued pain, Anderson testifying that it became greatly swollen and discolored; that for nearly three weeks he was confined to his bed, during all of which time the pain and agony was intense; and it was some four months before he was able to do more than "hobble" around on his crutches; that at the time of the trial, about one year after the injury, he was yet unable to walk with his former ease; that he could not walk without pain more than five or six blocks in town where the pavements were smooth without sitting down to rest; that where the ground was uneven and rough he was unable to walk that far without pain; that, when his foot rested upon a pebble or protruding substance, it gave him pain; that in walking he was compelled to "drag his foot and keep it flat"; that he was unable to do much work which would necessitate his moving around or being active on his feet; that he was unable to work in his store as he did before because of his inability to stand upon his feet. The evidence further tends to show that he conducted a large business in the city with some 37 employés engaged by him in conduct ing it; that such business had been supervised and managed by him continuously to the time of his injury, save that some seven months prior to the injury he had acquired a suburban residence on Lake Worth, some 12 miles from the city, at which place during said months he had spent much of his time in improving it, etc., but nevertheless going to the store once or twice a week to superintend the business; that since his injury he had been required to hire one of his former employés as general manager of the store at an advance in salary of $50 per month; that he had incurred an expense of about $100 in the way of doctors' bills for medical treatment, exclusive of his drug bill. [2] There is no mathematical standard by which we can measure damages for injuries of the character indicated by the foregoing statement of what the evidence in this case tends to prove. The law merely declares that such damages shall be limited to just compensation, and the determination of that question is committed to the jury in a very large measure. The rule by which an appellate tribunal is to be guided, when called upon to review the verdict of the jury assessing damages, is thus tersely stated in the case of H. & T. C. Ry. Co. v. McNamara, 59 Tex. 255: "It is only when the damages are palpably and manifestly excessive that the verdict will be set aside by the appellate court. A large amount of discretion is necessarily left to the jury in all such cases, and the court will not reverse even if the damages allowed are much greater than the court would have given under the proof." To the same general effect are the following authorities: H. & G. N. Ry. Co. v. Randall, 50 Tex. 254; Lumber Co. v. Denham, 29 S. W. 554; C., R. I. & T. Ry. Co. v. Jones, 39 Tex. Civ. App. 480, 88 S. W. 445; C., R. I. & G. Ry. Co. v. Swann, 60 Tex. Civ. App. 427, 127 S. W. 1164. [3] While defendant in error was 60 years of age at the date of his injury, he nevertheless was, as the evidence tends to show, a man in full vigor of life; was able to do, and did, superintend a large business; that the ability to do this has been largely impaired; that he suffered for weeks very great pain; that his injuries are permanent; and we find nothing in the evidence that to our minds induces the belief that the jury in assessing the damages in this case were actuated by passion or prejudice. The only circumstance relied upon by the plaintiff in error is the fact that, in the examination of one of the witnesses, he was asked the whereabouts of some X-ray pictures that had been taken of defendant in error's foot, and he gave the following reply: "I think I gave them to the insurance man." But we attach no particular weight to this incidental answer of the witness, no objection was made to it at the time, no further inquiry was made, and therefrom it is just as reasonable to infer that the insurance agent who received the X-ray pictures was one who had insured Anderson against the consequences of an accident, as to infer that he was one who had insured plaintiff in error against the consequences of damages. We are unwilling to assume that the answer of the witness quoted had any appreciable influence in enlarging the verdict in this case or in arousing any degree of passion or prejudice. On the whole, we think the assignment raising the question of excessiveness in the verdict must be overruled. The following paragraph of the court's charge is assigned as error: "Bearing in mind the foregoing definitions and instructions and those hereinafter given you, if you find and believe from the evidence the driver actually saw or discovered the that on or about the 27th day of April, 1916, plaintiff in time to have avoided the injury, while plaintiff was walking across the public are alike made mere elements of the plainstreet in the city of Ft. Worth near where Jen- tiff's case on the general allegations or isnings avenue and Throckmorton street come tosues of negligence. In both instances a findgether, an automobile belonging to the defendant, Tom L. Burnett, being driven by his chauf- ing of negligence, and that such negligence feur, agent, employé, or representative, at a was the proximate cause of plaintiff's injury, greater rate of speed than twelve (12) miles an was required in order to find for him, and hour, struck plaintiff herein; or if you further under the charge, even though the finding of find that the driver operating said car at said the jury should be in favor of the plaintiff on time and place suddenly turned said car toward both of those special issues of negligence, the the plaintiff and failed to use ordinary care to general finding for plaintiff and assessment so guide and direct the movements of same as of damages was conditioned on a further to avoid striking plaintiff; or if you find that the driver of said car, in approaching the place finding that the defensive issues, including where plaintiff was injured, failed to use ordi- the issue of contributory negligence, were nary care to keep a proper lookout on said all determined adversely to the defendant. street in order to discover whether pedestrians This is rendered more certain by reference to or other persons were crossing or about to cross other paragraphs of the court's charge, for the same; or if you find that the driver of instance, in the fifth paragraph, after desaid car, just prior to said injury, either saw fining the duty of the plaintiff to exercise or by the exercise of ordinary care could have seen plaintiff, and that plaintiff was in a dan- ordinary care for his own safety, the jury gerous situation, in time to have avoided the in- were instructed that if they believed from jury to him by the use of the means at hand, the evidence that at the time plaintiff was and that, after seeing plaintiff and the condi- injured he was guilty of contributory neglition and position in which he then was, said gence, which proximately caused or contribdriver failed to use the reasonable means at his uted to his injury, the finding should be for command to avoid injuring the plaintiff; and the defendant. No escape from the conse: if you further find that such act or acts or omisquences of the plaintiff's contributory negligence, if any, was presented in the court's main charge. sions, or either of them, if any, on the part of the agent, employé, or representative of the defendant driving said car at said time and place, were 'negligence,' as that term has been heretofore defined; and you further find such negligence, if any, was the proximate cause of plaintiff's alleged injuries, if any, and you do not find for the defendant under other instructions herein given you-then your verdict will be for the plaintiff and against the defendant." [4] The paragraph of the charge quoted is made the basis of the contention that the court erred in submitting the issue of "discovered peril," but we do not so interpret the charge. It merely required a finding of one or more of the acts of negligence alleged, and a determination that such act or acts constituted negligence which proximately caused the plaintiff's injury. It is true that the paragraph embodied the statement emphasized before us that if the driver of the car, just prior to the injury, "either saw or by the exercise of ordinary care could have seen plaintiff and the plaintiff was in a dangerous situation, etc.," the finding should be for the plaintiff. While, to constitute discovered peril that would relieve the plaintiff from the consequences of contributory negligence on his part, it would be necessary, as now contended, to show that the driver actually discovered plaintiff's perilous position, if any, and not merely that he was negligent in a failure to so discover such peril, yet it is manifest, from a scrutiny of the charge, that the court in the paragraph quoted was not attempting to submit the issue of discovered peril. By the charge the failure to exercise due care in discovering the plaintiff's perilous situation, and the failure to use all available means to avoid injuring him if [5] It was only in a special charge requested by the plaintiff that the issue of discovered peril was submitted at all, and this special charge is not criticized because of a failure to require actual discovery of plaintiff's perilous position. The only objections to the special charge referred to now urged are: First, that it does not affirmatively appear that the driver of the car actually realized and saw that the plaintiff was in a dangerous position and failed to exercise the means at hand; and, second, that there was no proof of the distance that would have been required to stop the car, and no proof of the condition of the brakes, and no proof of how the chauffeur could have avoided the collision. Defendant in error, however, testified to the effect that the car approached him at about the speed of 25 miles per hour; that when within a short distance of the curb he noticed the car some 15 feet away from him running very near the curb; that in order to avoid it, as he thought, he stepped back, and as he did so the driver swerved his car toward him; that he again stepped forward toward the curb, whereupon the driver again swerved the car in his direction and ran over him. The evidence, as we think, clearly indicates that the driver saw Anderson and that he was probably endeavoring to avoid the collision. Otherwise, we would have to give color to the imputation of the plaintiff that the driver was trying to run him down. The sudden decisive swerve given the car by the chauffeur is explainable upon no other theory than that he actually saw plaintiff. The evidence seems strongly to show that at |