them, then you will find for the plaintiff as kins was allowed on the ground that Enlow, damages such sum of money as you believe under the facts in that case, was charged from the evidence it was reasonably necessary with knowledge of the consequences resultfor him to pay for, and did pay out for, feeding from the willful destruction of the corn for said cattle, with the reasonable and nec- by him. The Hoge Case, cited in support of essary expenses incurred by him in feeding and caring for said cattle in order to winter them, the Enlow Case, was a suit arising out of together with 6 per cent. interest thereon from the willful tort. In the present case, plainthe 22d day of February, 1909." tiffs' cause of action arises, if at all, out of the negligence of the defendant and its failure to exercise the degree of care incumbent upon it to prevent the escape of fire from its engine. Plaintiffs' cause of action here neither arises out of contract nor from willful tort, and the authorities relied upon by the Court of Civil Appeals are not applicable. The Court of Civil Appeals (158 S. W. 561) held that this charge correctly presented the measure of damages. It cited a number of authorities as sustaining its ruling. An examination of Railway Co. v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54, and the cases following in that connection cited by the court, disclose that those cases are with reference to the question of "proximate cause." As we understand the present state of this record, no question is raised with reference to proximate cause, the sole question being as to the proper rule for the determination of the damage. The Court of Civil Appeals also refers in its opinion to that class of cases where the duty devolves upon one who has suffered injury to his property to exercise reasonable care to protect from further loss or to mitigate the damage. It is believed that this is not apropos in the case under consideration. The authorities presented by the Court of Civil Appeals relate to injury to personal property or to the person, and authorize recovery for the necessary expenses incurred in caring for the damaged property or for the person injured. In this case there is no question of expenses incurred in an effort to fight the fire or to prevent it from doing further damage. Plaintiff seeks to recover for the cost of feed and expenses incurred in caring for the cattle by reason of the destruction of the grass. There is no direct injury alleged as to the cattle themselves, further than the deprivation of one character of sustenance being utilized by plaintiff in caring for them. In support of its holding that plaintiff is entitled to recover the money which he was required to pay out in purchasing feed for the cattle in order to carry them through the winter and the expenses necessary in feeding them, the Court of Civil Appeals cites Buffalo B. S. C. Co. v. Milby, 63 Tex. 492, 51 Am. Rep. 668, Enlow v. Hawkins, 71 Kan. 633, 81 Pac. 189, and Hoge v. Norton, 22 Kan. 374. From an examination of these authorities, it is believed that they are not applicable in this character of action. In the Milby Case, supra, the defendant's misconduct was the efficient cause producing the damage, and arose out of the breach of an implied contract and also willful tort. In that case, the damages were such as ought to have been foreseen as the probable consequence of the breach of the implied contract and the commission of the tort. In the Enlow Case, the suit was based upon a willful tort, and in that case, the recovery by Haw [1, 2] To sustain the rule announced by the Court of Civil Appeals would, in our opinion, cause uncertainty in the determination of recoverable damages in cases of this character. That rule is preferable which gives a certain and fixed method for measuring the damages resulting from the destruction of grass by negligent fires. The correct rule, in our opinion, is to permit recovery for the value of the grass destroyed at the date of its destruction. If there is a market value for the property, for the purposes for which it is used, then that should be the measure of recovery. However, if there is no market value, then the recovery should be for the reasonable value of the grass for the purposes for which it is being used or for which intended. Any other rule would result in uncertainty. Texas Pacific Railway Co. v. Prude, 39 Tex. Civ. App. 144, 86 S. W. 1046, is in accord with our conclusion. case, the direct question was presented to the Court of Civil Appeals for the Fourth District, and, following Railway v. Wallace, 74 Tex. 581, 12 S. W. 227, and other cases cited, it was there announced that: In that "The measure of damages for the destruction of grass is its reasonable market value at the time of its destruction. * If the grass had no market value, its value in view of the use to which it was to be put would be the test." [3] Defendant urges that the rental price paid by plaintiff should determine the market value of the grass destroyed. This position is not tenable. What plaintiff paid per acre as a rental may or may not have been the market value at the time of the rental contract. At the time of the fire the market value may have been more or less than the rental. [4] If, at the time of the fire, there were no market value for the grass destroyed, then the rental price might be a circumstance to be considered along with the other evidence in arriving at the reasonable value of the grass for the purposes to which put or intended. For the error in the court's charge on the measure of damage, the judgments of the Court of Civil Appeals and of the district was MONTGOMERY, P. J. This suit brought by Tom Weisner, the surviving husband, and the surviving children, of Roxanna Weisner, to recover of the Missouri, Kansas & Texas Railway Company of Texas damages alleged to have resulted by reason of the death of Roxanna Weisner. Plaintiffs allege that the death of Roxanna Weisner was caused by the negligence of the defendant company. The opinion of the Court of Civil Appeals, 164 S. W. 405, contains a full statement of the pleadings and the evidence. It appears that Roxanna Weisner was a passenger, and it was alleged by the plaintiffs that she was negligently injured by (Commission of Appeals of Texas, Section B. reason of a sudden and violent movement of Jan. 15, 1919.) 1. APPEAL AND ERROR 1066-SUBMITTING ISSUES NOT RAISED-REVERSIBLE ERROR. Giving an erroneous instruction on contributory negligence not raised by the pleadings or the evidence was reversible error. the train as she was in the act of getting off the train at her destination. It is further alleged that said injuries resulted in her death. There was testimony, which if believed by the jury, was sufficient to authorize findings that the railway company was 2. TRIAL 139(1), 140(1)—WEIGHT OF TESTI-negligent as alleged in plaintiffs' petition, MONY-CREDIBILITY OF WITNESSES-QUESTION FOR JURY. The jury are the judges of the credibility of the witnesses and weight to be given the testimony. 3. APPEAL AND ERROR 930(2)-OBEDIENCE TO CHARGE-PRESUMPTION. The court on appeal must presume that the jury in determining the facts and reaching a verdict gave proper attention to the charge. 4. APPEAL AND ERROR 1170(1)-REVIEWPROVINCE OF SUPREME COURT. Supreme Court Rule 62A (149 S. W. x) was not intended to deprive the Supreme Court of the power to determine for itself whether any erroneous action of the trial court was of such character as amounted "to such a denial of the rights of the plaintiffs as was reasonably calculated to cause and probably did cause the rendition of an improper judgment." 5. APPEAL AND ERROR 1064(1) ERRONE OUS INSTRUCTION-PREJUDICIAL Error. Where there is a sharp conflict in the testimony as to liability, the giving of a charge which imposes upon plaintiff a greater burden than is required by law is calculated to prejudice plaintiff and cause the jury to render an improper verdict. that such negligence was the cause of the injury of Roxanna Weisner, and that such injuries resulted in her death. On the other hand, the testimony offered by the railway company, if accepted, showed that there was no sudden movement of the train, that Roxanna Weisner was not injured while a passenger, and that her death was the result of disease. It is not necessary to notice the pleadings further than to state that the petition was sufficient and that the defendant pleaded only a general denial. In this state of case, the court, after stating the substance of the pleadings, charged the jury, among other things, as follows: "The burden of proof is upon the plaintiffs to show by preponderance of the evidence their right to recover. "In the course of these instructions, the terms 'negligence,' 'very high degree of care,' 'ordinary care,' 'proximate cause,' 'proximate result,' will be made use of, and they are defined as follows." Here follows the usual definition of each of the terms referred to and a correct statement of the duties of a carrier to a passenger. Following this, the charge of the court Error to Court of Civil Appeals of Sixth continues: Supreme Judicial District. Action by Tom Weisner and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant was affirmed by the Court of Civil Appeals (164 ReS. W. 405), and plaintiffs bring error. versed and remanded for new trial. Y. D. Harrison and Beard & Davidson, all of Marshall, for plaintiff's in error. L. S. Schluter, of Jefferson, for defendant in error. "It is the duty of a person while a passenger on the train of a common carrier of passengers, in traveling thereon or alighting therefrom, to exercise that degree of care that a very cautious and prudent person would exercise. "You are instructed that the defendant railway company was not an insurer of the safety of plaintiff's wife while a passenger on its train, and it was her duty while traveling on the train, or in alighting therefrom, to use that degree of care to avoid injury to herself that a very cautious and prudent person would exercise under the same circumstances, and that a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes failure to use such care would be negligence on her part and, if such negligence on her part, if any, caused or contributed to cause any injury, she may have received, if any, then plaintiff cannot recover." After the above charge, the court, by a proper charge, defines the duties of the railway company to a passenger and applies the same to the facts of the case, telling the jury in effect that if the railway company failed to use that high degree of care required of it, and if, as a result of such a failure, the plaintiff's wife was injured, then judgment should be for the plaintiff. The Court of Civil Appeals very properly held that the charge above quoted, defining the duties of a passenger, was improper and ought not to have been given in this case, because it required of the passenger a higher degree of care than is authorized by law, and further held there was neither pleading nor evidence raising the issue in this case. Notwithstanding this holding by the Court of Civil Appeals, the court affirmed the judgment of the lower court, denying the plaintiff any recovery on the ground that the giving of said charge was harmless error. [1] The only question which we have for determination is whether the giving of the charge referred to, under the facts of this case, is such error as requires a reversal of the judgment. The plaintiff's evidence, if true, made a case against the railway company, which would authorize a finding of negligence, that plaintiff's wife was injured by reason of such negligence, and that such injury resulted in her death. On the other hand, the testimony of the witnesses for the railway company, if given credence, precluded any recovery, because the testimony showed that the railroad company was not guilty of any negligence, that Roxanna Weisner was not injured while a passenger, and that her death was due to disease. [2, 3] This was a jury trial, and, under the law, the jury were the judges of the credibility of the witnesses and the weight to be given the testimony. The jury are required, both by their oath and the charge of the court, to accept the law as given in charge by the court and be governed thereby Theoretically at least, they are governed and controlled by the instructions given. We must therefore presume that in this case, as in all others, the jury, in determining the facts and reaching a verdict, gave proper attention to the charge. The charge of the court in this case told the jury that the burden of proof was on the plaintiffs to make out their case by a preponderance of the evidence. They were then told that the railway company was not an insurer of the safety of plaintiff's wife while a passenger, and that it was her duty to use a very high degree of care to avoid injury, and that a failure to do so would be negligence, which would preclude a recovery by the plaintiff, We think, taking the charge as a whole, that the effect of the charge was, and that the jury in all probability understood it, to place the burden of proof upon the plaintiffs, not only to show negligence on the part the plaintiff's wife was in the exercise of of the railway company, but to show that that high degree of care for her own safety which a very prudent person would exercise that the jury based its verdict for the deunder the same circumstances. It may be the plaintiffs to prove that Roxanna Weisfendant upon the failure upon the part of ner exercised the proper degree of care for raising the issue of contributory negligence, her own safety. There being no pleading such issue should not have been referred to in the court's charge. There being no evidence upon the issue, the charge was also that the jury may have, from the giving of objectionable and probably prejudicial, in the charge, inferred that in the opinion of the court there was evidence of negligence on the part of the passenger. We think that the error of the court, here shown, should not be held harmless, as in the jury did not believe the testimony of the plaintiff's witnesses or ignored the charge of the court. We prefer to assume that the jurors, in reaching a verdict, were governed by the instructions given. We think that the giving of the charge above indicated was such error as requires a reversal of the judgment. order to do so we must assume either that In passing upon this question, we have not failed to bear in mind Rule 62A (149 S. W. x) prescribed by the Supreme Court for the government of the Courts of Civil Appeals. Before the adoption of that rule, it was always held in this state that the giving of a charge upon an issue not raised by the evidence was reversible error unless it clearly appeared that the jury were not misled thereby. T. & P. Ry. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36. Rule 62A provides: peal and a new trial ordered on the ground that "That no judgment shall be reversed upon apthe trial court had committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment." [4] We do not think this rule was intended to deprive the Supreme Court of the power to determine for itself whether any erroneous action of the trial court was of such character as amounted "to such a denial of the rights of the plaintiffs as was reasonably calculated to cause and probably did cause the rendition of an improper judgment." [5] In a jury case where there is a sharp conflict in the testimony, as to liability, the giving of a charge which imposes upon the plaintiff a greater burden than is required by law is calculated to prejudice the plaintiffs and cause the jury to render an improper verdict. It is never possible in such case for any appellate court, where the case is submitted under a general charge, to say upon what ground the jury acted. In conclusion, our opinion is that the error in this case was of such a nature as requires that the judgment shall be reversed, and we recommend that the judgment of the district court and the Court of Civil Appeals be reversed and this case remanded for a new trial. PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. The case is correctly remanded upon the ground stated by the Commission in its opinion. grantee of the land of the fact of his ownership stopped the running of limitations in his favor, the holder of the note has the burden of showing the fraudulent concealment, his ignorance of the facts, and that he could not by reasonable dili gence have discovered the fraud. 6. APPEAL AND ERROR 1177(7)—REVIEW— REMAND. In an action involving title to land and the foreclosure of vendor's lien notes, where evidence was insufficient to support a recovery, but on fered, held, that judgment would be reversed another trial additional evidence might be ofand cause remanded. Error to Court of Civil Appeals of Fourth Supreme Judicial District. Action by D. Sullivan & Co. and others against Carrie Coleman, consolidated with an action by D. M. Poor against Helen Raley and others. A judgment in favor of D. M. Poor against Helen Raley and another, and in favor of D. Sullivan & Co., was affirmed by the Court of Civil Appeals (159 S. W. 99), and Helen Raley and others bring error. Re versed and remanded. On May 25, 1892, M. H. Poor was the owner of lot No. 1 in Mission Ridge, in Bexar RALEY et al. v. D. SULLIVAN & CO. et al. county, Tex., having a regular chain of title (No. 15-2599.) from the sovereignty of the soil. On that date, M. H. Poor conveyed this (Commission of Appeals of Texas, Section B. land to R. W. Coleman, reciting a cash conJan. 15, 1919.) 1. ADVERSE POSSESSION 81 GRANTOR. TITLE OF Where the one-time owner had by prior conveyance parted with whatever title he had to the land, the claims of a subsequent grantee to title by virtue of the three-year statute of limitations cannot be sustained. 2. BANKRUPTCY 438 CHARGE. -- EFFECT OF DIS Title of a bankrupt to land, though not scheduled as an asset, passes to his trustee, and, notwithstanding the bankrupt's discharge, he cannot recover the same; no facts being shown revesting title in him. 3. LIMITATION OF ACTIONS 118(2)—INTER RUPTION OF TIME-FILING SUIT. Merely filing suit did not arrest the running of the statute, where the suit was practically abandoned by failure to prosecute. 4. LIMITATION OF ACTIONS 197(2) - RUNNING OF STATUTE-FRAUDULENT CONCEAL MENT. Evidence held insufficient to show such a fraudulent concealment by the grantee of land who had not recorded his conveyance as to prevent the running of limitations in his favor as against one holding a vendor's lien note executed by a prior grantee. 5. LIMITATION OF ACTIONS 195(5)-RUN NING OF STATUTE-BURDEN OF PROOF. Where the holder of a vendor's lien note claimed that the fraudulent concealment by the sideration of $600 and a note for $650 due two years after date, and a vendor's lien was retained in the deed to secure payment of the note. On May 27, 1892, M. H. Poor indorsed and delivered the note above described to D. M. Poor. On April 29, 1893, Carrie Coleman, surviving wife of R. W. Coleman and his sole heir, conveyed the land referred to to D. M. Poor. The deed reciting a cash consideration of $600 and the assumption by the vendee of the note given by R. W. Coleman to M. H. Poor, and a vendor's lien was reserved in the deed to secure the payment of the note. This deed, however, was not filed for record until January 4, 1912. On February 2, 1894, M. H. Poor, by warranty deed, conveyed to D. M. Poor the land in controversy. The evidence shows that the note executed by R. W. Coleman was indorsed and delivered by D. M. Poor to Sullivan & Co. after the execution of the deed of Carrie Coleman to D. M. Poor. On May 24, 1908, Sullivan & Co. filed a suit against Carrie Coleman and the unknown heirs of R. W. Coleman, deceased, asking for recovery on the vendor's lien note and to foreclose the lien. No citation was ever issued and no steps taken to prosecute this suit until 1912, when a motion to consolidate the suit with a suit subsequently brought by D. M. Poor v. Helen Raley was made, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the suits were consolidated by order dated | bankruptcy schedule, his discharge did not October 21, 1912. On November 24, 1906, M. H. Poor conveyed the lot in controversy to Helen Raley, and the deed was filed for record the same day. On October 2, 1909, D. M. Poor filed his voluntary application in bankruptcy in the proper federal court, on October 4, 1909, he was duly adjudged bankrupt, and on October 22, 1909, W. A. Hadden was appointed trustee of the estate. The schedules attached to the application show debts to the amount of more than $40,000 and no property except that claimed and afterwards set apart as exempt. The lots in controversy were not scheduled as assets, nor was the note executed by Coleman listed as a debt. On December 18, 1909, D. M. Poor received his discharge. There is nothing in the record to show whether the estate in bankruptcy was ever finally closed and the trustee discharged or not. On November 17, 1911, D. M. Poor filed an action of trespass to try title against Helen Raley and J. Raley, seeking to recov er the property in controversy. J. Raley was afterwards dismissed from the case. On April 1, 1912, the case of D. M. Sullivan & Co. v. Carrie Coleman, above referred to, was consolidated with the case of D. M. Poor v. Helen Raley et al., and Sullivan & Co. by amended petition made M. H. Poor a party and sought a foreclosure as against him. affect their debt, and D. M. Poor, having pleaded limitation against the note in reply thereto, pleaded fraudulent concealment by Poor of the fact of his assumption of the debt by failure to record the deed from Carrie Coleman. The case was tried by the court, and judgment rendered in favor of D. M. Poor against Helen Raley and Mrs. Burr for the title and in favor of Sullivan & Co. against D. M. Poor for their debt and a foreclosure against all the defendants. Such other facts as are essential will be stated in the opinion. James Raley, Wm. Aubrey, and C. S. Robinson, all of San Antonio, for plaintiffs in er ror. Denman, Franklin & McGown, of San Antonio, for defendants in error. MONTGOMERY, P. J. (after stating the facts as above). We will first attempt to settle the question of title before attempting to decide what, if any, rights Sullivan & Co. had as owners of the vendor's lien note. The title to the property was in M. H. Poor when he sold the land to R. W. Coleman on May 8, 1892, and reserved a vendor's lien to secure the purchase-money note. M. H. Poor indorsed the note to D. M. Poor on May 27, 1892, and later by deed conveyed the land to the note and deed by M. H. Poor divested him of all title and vested all his rights in both the debt and the land in D. M. Poor. Carrie Coleman Burr, formerly Carrie him also. The indorsement and delivery of Coleman, joined by her husband Burr, intervened in the consolidated case. The pleadings are very voluminous, but we will undertake, as briefly as possible, to state the several contentions of the parties. D. M. Poor asserted title in himself against Helen Raley and Carrie Coleman Burr and asked for judgment for the title and possession of the land. Carrie Coleman Burr sought to recover the title and possession as against both Helen Raley and D. M. Poor. Her claim was based upon the theory that she in her deed to D. M. Poor had reserved the superior title to the land to secure payment of the note executed by R. W. Coleman, and that, as Poor had failed to pay the note assumed by him, she was entitled to recover the land. Sullivan & Co. asked a recovery against D. M. Poor on the vendor's lien note alleging his assumption of the same and for a foreclosure against all the other parties to the suit. Helen Raley claimed title under deed from M. H. Poor, also by virtue of the three and five years' statute of limitation, and pleaded the four years' statute of limitation as to the suit of Sullivan & Co. She also claimed that, D. M. Poor having been adjudged a bankrupt, whatever title he had was vested in the trustee in bankruptcy, and therefore he was not entitled to recover. Sullivan & Co., in reply to D. M. Poor, alleged that, by reason of the failure of Poor to list their claim in his The deed of Carrie Coleman, the widow and heir of R. W. Coleman, to D. M. Poor, passed to D. M. Poor her title to the land subject only to the payment of the vendor's lien note. The indorsement of the vendor's lien note to Sullivan & Co. gave them only a lien on the land. The effect of these transactions was to vest the title to the land in D. M. Poor subject only to a lien in favor of Sullivan & Co. to secure the payment of the note. We do not think that Carrie Coleman Burr was in position to recover the land against D. M. Poor. At the time she intervened she did not own the debt. Looking at her claim in the most favorable light, she, as between herself and D. M. Poor, had a superior title to the land for the purpose of securing the payment of the note. Had she owned the note she would have been in position to assert this superior title against D. M. Poor; but, not having paid the note, we think she was not entitled to recover the land as against D. M. Poor or the party in possession. If, at the time the deed from Mrs. Burr to D. M. Poor was executed, she had taken his note for the purchase money secured by a vendor's lien, she could have asserted her superior title, provided she retained ownership of the note. If she had parted with the |