cause was

A writ of error was refused by the SuThe law as declared in the preme Court.

lungs, and thus hastened her death, then the the deceased, even though she was predisposed proximate cause of her death was the negli- to that disease and died therefrom, plaintiffs gence of appellant. No new would be entitled to recover, was correct for shown to have intervened between the injury the reasons given in our opinion on the former inflicted by appellant and the death of the appeal. If appellant's negligence hastened the the death of Mrs. Groner, it certainly could not injured woman, and appellant cannot shield escape liability altogether merely because she itself from the effects of its negligence by would ultimately perhaps have died of conproof that Mrs. Mitchell had incipient tuber-sumption, but, of course, the amount of the culosis before her injury which developed recovery would be less than if her death had fatally afterwards. If, as the testimony been caused solely by its negligence." Railway tended to show, the injury fanned the flames v. Groner, 51 Tex. Civ. App. 65, 111 S. W. 667. of consumption into activity in the lungs of Mrs. Mitchell, and so weakened her body that it could not resist the attack of the germs, the injury was a proximate cause of Groner Case is undoubtedly correct, and disthe death of the woman. If consumption de-poses of the second, third, fourth, fifth, sixth, stroyed the life of the woman, it was aided seventh, eighth, and ninth propositions of efficiently by the injury, which became a law, but we will discuss them seriatim. concurring cause in the destruction of her life. Cohen v. Rittimann (Tex. Civ. App.) 139 S. W. 59; Railway v. Groner, 43 Tex. Civ. App. 264, 95 S. W. 1118, and, 51 Tex. Civ. App. 65, 111 S. W. 667. In the last cited case Mrs. Groner had consumption, and the negligence shown upon the part of the railway company was in failing to have its waiting room sufficiently heated, by reason of which she contracted cold and died. The court held:

One of the issues presented by the court which is vigorously assailed by appellant is: "If you answer 'yes' to the foregoing questions, then did such negligence directly cause or contribute to the death of Mrs. Estella Mitchell?"

In connection with that issue, and immediately following it, the jury was instructed that if

"the negligent act (if any) of defendant or its employees in charge of the car should "While, as stated, there was testimony to have directly caused or contributed to the the effect that consumption could not be caused death of Mrs. Mitchell, such act must have by exposure to cold, the same witnesses fur- been an efficient cause of her death. Yet such ther testified that a severe cold or any other negligent act need not have been the immediate cause which lowered a patient's vitality, might cause of her death. But it is essential that allow the germs to find lodgment and the dis- her death should have been a natural conseease to begin its ravages, when, except for this quence of such negligent act, if any. It is lowering of vitality, the patient might have not necessary that defendant or its said em'walled up' the germs and thrown them off ployees, if negligent, should have foreseen the without injury. If, therefore, appellant's neg- particular result, if any. It is sufficient if, by ligence proximately produced a condition of the exercise of that degree of care required health rendering Mrs. Groner susceptible to of defendant with respect to the safety of its the disease (she being otherwise in good passengers, the defendant and its said emhealth), and as a natural and probable conse-ployees might have foreseen that some injury quence she in fact became affected with the disease and her death resulted therefrom, appellant would be liable; or even if Mrs. Groner, at the time of her exposure to cold, was afflicted with the disease, and appellant's negligence reasonably and naturally aggravated it and hastened her death, appellant would be liable, if such death, as submitted by the court, was a proximate result of the negligence charged. In such case appellant's negligence would be at least a contributing cause of the death, and in such event the negligence cannot be excused on the ground that Mrs. Groner's

death would have occurred later."

It is true that a writ of error was granted from that decision, and it was reversed, but upon the sole ground that the court erred in holding that a continuance should not have been granted by the trial court. The cause was tried in the lower court again, and, on a second appeal to the Court of Civil Appeals, the court held:

"We think appellees' special charge, to the effect that if appellant's negligence aggravated or was the means of developing consumption in

might naturally result from such negligent act, if any. The negligent act, if any, need not have been the sole cause of her death. It is sufficient if it directly contributed to her death. And if you answer 'Yes' to questions 1 to 5, inclusive, and if you further find from the evidence that on June 4, 1919, Mrs. Mitchell was suffering from tuberculosis, and that upon said date she received any of the injuries which are alleged in the petition, and if you further find from the evidence that such injuries (if any) aggravated her said disease and hastened her death, then you will answer 'Yes' to ques

tion 6."

[4, 5] Issue 6, herein copied, is objected to in the second proposition because it authorized the jury to answer 'Yes' if they believed that appellant's negligence contributed to Mrs. Mitchell's death, without being required to find that the negligence of appellant was a prominent and efficient cause of such deată. That objection is fully met by the instructions given in connection with the issue, where the jury was told that "such negligent act (if any) must have been an efficient

(238 S.W.)

"He says it might follow; now we object to that as not being the proper medical criterion; we do not try cases on what might happen or what possibly might happen."

but they are not followed in the proposition The objections were vague and indefinite, where it is stated that—

cause of her death." The charge of the court, in connection with issue 6, did not, as claimed in the third proposition, authorize a verdict against appellant "if they believed that said negligence contributed to the death of Mrs. Mitchell in the slightest way, and even though they did not find from the evidence that such negligence directly caused her death." The instruction is not open to any such forced construction, as is apparent from an inspection of it. There is nothing misleading about it, nor was it a comment on the evidence in the instruction to say that the negligence "need not have been the immediate cause of her death." It is the law. The fifth proposition is based on false premises, and a construction placed on the instruction not justified by its language. [8] Of course the bill of exceptions forms The sixth, seventh, eighth and ninth propo- no adequate basis for the objections embodied sitions are overruled. They are mere repetitions of the unfounded claims in the proposi-ferent from those in the bill of exceptions. in the proposition, for they are totally diftions that precede them. They are all fully However, if the proposition had followed the met and refuted by the decision in the Gro- bill of exceptions, and thus offered some rea

ner Case herein cited as well as other deci

"Such testimony was purely speculative and was not confined to a statement of results that were reasonably probable, and was calculated to lead the jury to believe that they were authorized to find that her death resulted from tuberculosis, although they believed from the evidence that this was only a possibility and did not believe from the evidence that such a result was one that would reasonably or probably follow."

sions. Beauchamp v. Saginaw M. Co., 50 son for its existence, it could not be sustainMich. 163, 15 N. W. 65, 45 Am. Rep. 30; Rail-ed, for, in the first answer objected to, the way v. Higgins, 44 Tex. Civ. App. 523, 99 S. W. 200; Ray v. Railway, 40 Tex. Civ. App. 99, 88 S. W. 466; Railway v. Williams (Tex. Civ. App.) 117 S. W. 1043; Transit Co. v. Edwards, 55 Tex. Civ. App. 543, 118 S.

W. 838.

Speaking of a charge similar to the criticized sixth issue, this court held in Railway V. Josey (Tex. Civ. App.) 95 S. W. 688:

weaken the patient, lower her vitality, and witness swore positively that pain would leave her subject to an infection of that kind. That covered the case, and was unobjectionable. It was stated as a fact, and not

a surmise.

[9] The thirteenth proposition is utterly without merit, and is overruled. The complaints of patients during sickness as to pain and suffering may be testified to, and are "Another criticism of the said charge is that not classed as hearsay. Statements of the loit authorized a recovery if such negligence cation of an injury and existing pain made to merely contributed to the result. We think in this regard the charge stated correctly the gen- a physician during treatment or upon exeral rule, when it charged that a recovery could amination, and for the purpose of ascertainbe had for negligence which caused or contrib-ing the extent and nature of the injury, may uted to the result." be testified to by the physician. Elliott on Ev. § 1992. There was nothing in the evi

The issue with the instructions accompany

facts.

ing it contained the law applicable to the dence to indicate that the declarations of pain were made with any view or desire to create testimony for a trial, but the evidence indicates sincere complaints of pain and suffering.

[6] The tenth and eleventh propositions are overruled. The special charges requested in so far as they embodied the law were clearly given by the court, and they were properly refused.

[7] In the twelfth proposition appellant seeks to assail certain testimony of Dr. Redmond, a witness for appellees, which is as

follows:

of the refusal of the lower court to strike [10] The fourteenth proposition complains that his wife "was helpless from the date of out testimony of E. J. Mitchell to the effect

her fall." It is overruled. The evidence was

not a conclusion or an opinion, but the statement of a fact, just as though he had said his wife was deaf or blind.

"The pain would weaken the patient, lower her vitality, and leave her subject to an in[11] The fifteenth, sixteenth, and sevenfection of that kind-tuberculosis, or anything of that kind might follow. It would weaken teenth propositions attack the verdict for the patient, as I say; it might do it; it would excessiveness. This is based on the assumpnot always do it; but, as the patient grew tion that Mrs. Mitchell was, at the time of weaker, confined to the house with this pain, her injury, "suffering from tuberculosis in and unable to get out, the germ would start, as they did, and destroy life; it only paves the way, weakens the patient, lowers their resistance to an infection."

an advanced stage." This position rests on the assumption that the witnesses for appellant testified truthfully, and the witnesses for appellees swore to falsehoods. The jury The bill of exceptions shows that the ob- must have credited the testimony of Drs. jection urged to the testimony was: Mitchell, Stout, Redmond, Shropshire, and

others, and rejected the testimony of the witnesses for appellant as they had the right to do, and to conclude that Mrs. Mitchell was not a sick woman when injured, and that her sickness and death were caused by the negligence of appellant. If, as found by the jury, the negligence of appellant caused the death of Mrs. Mitchell, there is nothing in the size of the verdict to indicate that it was founded on prejudice or passion, and this court is in no position to entertain an attack upon it.

[12] Appellant cites a number of cases on excessive verdicts, some of which would sustain the present verdict, but it may be stated that precedents are of small value in deciding such questions, as the size of a verdict is a question of fact, and each case must be governed by its peculiar facts. The judgment is affirmed.

(No. 9721.)

ALFORD et al. v. THOMAS.
(Court of Civil Appeals of Texas. Fort Worth.
Jan. 28, 1922. Rehearing Denied
March, 1922.)

1. Landlord and tenant 130(1)-Lease con-
tains implied covenant of quiet enjoyment.

A covenant of quiet enjoyment is implied from the words "agree to let" or the words "grant and demise," and the rule is broadly stated that a lease contains of necessity an implied covenant for quiet enjoyment.

2. Set-off and counterclaim 29(2)-Interference with tenant's possession under lease ground for counterclaim in action on note for

rent.

Where a landlord or her agent by threats to

kill disturbed tenants in their right to quiet and peaceable enjoyment of their lease, and caused losses to the tenants, in an action by the landlord on a rent note, a counterclaim arose "out of" or was "incident to" or was "connected with" plaintiff's action, and was authorized by Vernon's Sayles' Ann. Civ. St. 1914, arts. 1325, 1329, 1330.

3. Principal and agent ~150(2) Principal responsible for acts of agent within scope of duties.

Where an agent was placed in possession of premises as general manager, and proceeded to act as such, and the acts performed by the agent purported to be in the principal's interest

and for his benefit, the fact that acts and conduct charged to him were not within the general scope of the duties of an agent will not relieve the principal from responsibility.

4. Principal and agent 22(2)-Declarations of agent as to authority admissible where followed by other evidence.

While declarations of an agent that he was acting as such are not sufficient to establish agency, yet such declarations are admissible to show the declarant purported to act as agent,

and it must then be further shown by competent testimony that he had authority to act as agent.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by Mrs. H. A. Thomas against J. T. Alford and another. From judgment for plaintiff, defendants appeal. Reversed and remanded.

J. E. Warren and J. K. Russell, both of Cleburne, for appellants.

Walker & Baker, of Cleburne, and Capps, Cantry, Hanger & Short, of Fort Worth, for appellee.

Thomas, filed this suit in the district court
CONNER, C. J. The appellee, Mrs. H. A.

of Johnson county on the 31st day of De-
cember, 1919, against the appellants, J. T.
Alford and S. P. Ramsey, on a note executed
by the latter persons on the 23d day of Sep-
tember, 1916, in the sum of $700, and pay-
able to the order of Otho S. Houston on De-
cember 15, 1919. The plaintiff alleged that
the note had been given by the defendants
in payment of the rent on the Klondike
ranch, located in Johnson county, Tex., for
the year 1919. There were other allegations
in the plaintiff's petition relating to the is-
suance of service of a distress warrant
which are not deemed material to the pres-
ent disposal of the case, and which, there-
fore, are omitted.

The appellants, Alford and Ramsey, filed an original answer containing a general denial and a plea in reconvention, in substance to the effect that in 1913 they had leased the Klondike ranch, consisting of some 800 acres of land, together with the buildings thereon, from Otho Houston, by virtue of which the defendants were entitled to quiet possession and occupancy of the premises, to have as their own such hay, pecans, and cultivated crops as might grow thereon, and that in 1916 a renewal rental contract was made with the said Houston for the succeeding three years; that it was upon the renewal occasion that the note declared upon by the plaintiff, together with two other notes of like amount, for the rental of 1917 and 1918, had been executed; that later, in March, 1919, Mrs. Otho Houston, Otho Houston having died in the meantime, sold the ranch to the plaintiff, Mrs. H. A. Thomas, who, in the transaction then occurring, also acquired by assignment the note declared upon; that the defendant J. T. Alford, for himself and Ram

sey, attorned to the plaintiff as her tenants under a contract which, with certain specified modifications, left the defendants with the same rights as had been conferred upon them by the lease from Otho Houston; that defendant Alford was in the actual possession and management of said ranch, both for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(238 S.W.)

the same not being questioned or contested by the appellants. The plea in reconvention of the appellants did not arise out of the cause of action set up in plaintiff's petition, but grew out of a personal difficulty arising between the appellant J. T. Alford and Webster Bradt, another tenant of the appellee, living on the Klondike ranch.

Such a cause of action

himself and defendant Ramsey, who was "Appellee's cause of action as set out in her jointly interested with him; that the plain-petition, filed herein, was based on a promistiff, Mrs. Thomas, soon after her acquisition sory note signed and executed by the appelof the ranch and the notes sued upon, placed lants, J. T. Alford and S. P. Ramsey, and thereher son-in-law, one Webster Bradt, in pos-rectness of which and their obligation to pay fore constituted a liquidated demand, the corsession of one of the houses upon said ranch which had been reserved by Mrs. Thomas, as her agent and manager; that said agent immediately began complaints against the defendant Alford, charging him with theft of certain personal property, and later made threats of personal violence for such time and under such circumstances as that the defendant Alford became alarmed for the safe as that attempted to be set up by the defendants constituted an unliquidated demand, which ty of himself and family, and, being actuated did not arise out of and was not connected by the fear that Bradt would carry out his with or incident to plaintiff's cause of action, threats to kill him, the said Alford aban- and the court properly sustained plaintiff's spedoned the said premises. The defendants fur-cial exception to such plea in reconvention and ther alleged that, at the time of such forced counterclaim, and struck the same out of deand unwilling abandonment, they had certain fendants' answer." crops of corn and cotton and were entitled to certain crops of pecans which the said Bradt, as agent of the plaintiff, refused to permit them to save and gather. The several quantities of corn, cotton, pecans, hay, Article 1325: "Whenever any suit shall be etc., so alleged to have been lost were speci-judgment, bond, bill or otherwise, the defendant brought for the recovery of any debt due by fied in the plea, and the values thereof were shall be permitted to plea therein any counteralso specified; but we deem it unnecessary claim which he may have against the plaintiff, to particularize in these respects. The de- subject to such limitations as may be prescribfendants, however, claimed damages on ac- ed by law." count thereof in the aggregate amount of several thousand dollars.

The plea in reconvention was replete with averments of Bradt's agency for the plaintiff, and further specifically averred that plaintiff, with full knowledge of Bradt's unauthorized acts and threats, ratified what he had done in the premises.

The plaintiff, by supplemental petition, among other things presented a general demurrer to the answer of the defendants, and some 20 special exceptions to the defendants' plea on reconvention.

The court overruled the general demurrer, but sustained exceptions 1 to 20, inclusive, and, the defendants having declined to further amend their plea, the case proceeded to trial, with the result of a judgment in plaintiff's favor for the amount of the note, principal, interest, and attorneys' fees declared upon, and the defendants have appealed.

The defendants excepted to the action of the court in sustaining the plaintiff's said special exceptions, and the assignments of error here presented relate alone to that action of the court. The special exceptions are numerous, and many of them are also quite extended, and we think it would be altogether impractical to take up each exception and undertake to answer it. We will therefore endeavor to dispose of the court's rulings in a general way.

[1, 2] The question most material, we think, presented by the exceptions to the defendant's counterclaim is indicated by appellee's first counter proposition in support of the court's ruling, which reads as follows:

Articles 1325, 1329, and 1330, V. S. Tex. Civ. Statutes, relating to the subject of coun terclaims, read as follows:

Article 1329: "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 to if the suit be founded on a certain demand, the set off any debt due him by the plaintiff; and, 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."

Article 1330: "Nothing in the preceding article shall be so construed as to prohibit the defendant from pleading in set-off any counterclaim founded on a cause of action arising out of, or incident to, or connected with, the plaintiff's cause of action."

We are of the opinion that appellants, by their pleading, showed themselves, within the purview of the articles quoted, entitled to the relief they prayed for. In testing the sufficiency of the answer on demurrer, the allegations must be accepted as true, and, if true, the defendants, by article 1325, were plainly given the right to plead their damages by way of a counterclaim to a cause of action declared upon by plaintiff, unless limited by some prescribed law. It is true article 1329 declares that, if the suit be founded on a certain demand, as was the appellee's in the present case, then the defendant shall not be permitted to set off unliquidated or uncertain damages founded upon a tort or breach of covenant on the part of the plaintiff.

But the general terms of this article, as declared by article 1330, are not to be so construed as to prohibit the defendant from pleading in set-off any counterclaim founded on the cause of action arising out

In Steiner v. Oliver, 107 S. W. 359, by the Court of Civil Appeals of the Third District, it was held that, in an action on a note, and to foreclose a lien on personalty, defendant might plead in reconvention a claim for unliquidated damages for negligent injury to crops growing on premises rented from plaintiff where the two claims are sufficiently associated. See, also, Hurst v. Benson, 27

It clearly appears by the allegations of the plea in reconvention that appellants Alford and Ramsey became the tenants of the plain-Tex. Civ. App. 227, 65 S. W. 76. tiff, Mrs. Thomas, for the year 1919, and as such they were entitled to the quiet and peaceable possession of the premises. There was an implied covenant to that effect on the part of the appellee. It is said in 24 Cyc. p. 1057, par. 2, that:

That the defendants, as alleged, have a cause of action cannot be denied. In 16 R. C. L. p. 675, §-162, it is said:

for the wrongful disturbance of his possession. "A tenant may maintain the ordinary actions by his landlord. Thus, where a landlord wrong"The general rule is that the use of the word fully intrudes upon the tenant's right to the exlease' or 'demise' in an instrument of lease im-clusive possession of the premises, an action of ports a covenant for quiet enjoyment. So it trespass will lie against him as against any othhas been held that a covenant for quiet en- er wrongdoer. So where a landlord wrongfully joyment is implied from the words 'agrees to intrudes upon his tenant, and takes possession let' or the words 'grant and demise.' And the of the personal property on the premises, this rule is sometimes broadly stated that a lease will ordinarily render him liable in trover for contains of necessity an implied covenant for a conversion, and where he wrongfully intrudes quiet enjoyment." and places another tenant in possession of the premises and the effects of the former tenant he will be held liable for a conversion of such

In 7 R. C. L. p. 1146, par. 59, it is said: "Though a lease may not contain an express effects though he does not personally interfere covenant for the quiet possession and enjoyment of demised premises during the term thereof, the law always implies such a covenant."