
    COLEMAN VITRIFIED BRICK CO. v. SMITH.
    (No. 5441.)
    (Court of Civil Appeals of Texas. Austin.
    March 24, 1915.
    Rehearing Denied April 21, 1915.)
    1. Total @=260 — Instructions—Refusal of Instructions Covered by Charge Given.
    It is not error to refuse requested instructions, where the instructions given fairly and fully submit the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    2. Nuisance &wkey;54 — Actions—Evidence—Instructions.
    Where, in an action for damages caused by the erection and maintenance of a brick plant on land adjacent to plaintiff’s residence, there was evidence that a third person had previously maintained a small brick plant on the premises where defendant maintained the plant complained of, but there was no proof that the small plant caused any injury to plaintiff, an instruction, limiting the jury to a consideration of the injury caused after defendant became the owner of the plant and stating that he was not responsible for any injury caused by prior owners, sufficiently guarded defendant’s rights.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 130; Dec. Dig. @=54.]
    3. Trial <&wkey;312 — Instructions on Jury Returning to Court — Statutory Provisions.
    The statute requiring the submission to the jury of special issues does not repeal the statute authorizing a judge, on request of the jury, to give additional instructions.
    TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. &wkey;312.]
    4. Trial @=312 — Instructions on Jury Returning to Court.
    A party may not complain of an instruction given to the jury returning into court and asking for further instructions, which conforms to instructions originally given and is favorable to appellant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. &wkey;312.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Action by W. M. Smith against the Coleman Vitrified Brick Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. A. B. Miller, Woodward & Baker, and Snodgrass, Dibrell & Snodgrass, all of Coleman, for appellant. W. Marcus Weatherred, of Coleman, for appellee.
   KEY, C. J.

Appellee sued appellant for damages, alleged to have been caused by the erection and maintenance of a brick plant in the town of Coleman on lots adjacent to appellee’s residence, fixing his damages at $500 for discomfort to himself and family, and $2,500, depreciation in the market value of his homestead. Appellant answered by special exceptions, a denial of the truth of the allegations in plaintiff’s petition, and averred that appellant did not establish a brick plant, but that the same was established by one W. W. McDonald, and had by regular chain of title become the property of appellant, and that the same had been maintained by McDonald and by appellant for more than two years prior to the institution of appellee’s suit, and for that reason the suit was barred by limitation. Appellee, by supplemental petition, excepted to so much of appellant’s answer as set up the purchase of the brick plant already in existence, and specially denied the allegations of appellant’s answer. There was a jury trial, which resulted in a verdict and judgment for ap-pellee for the sum of $400, as damages to his property, and $250 for discomfort to the plaintiff and his wife, and appellant asks-a reversal of that judgment.

No complaint is made as to the amount of damages awarded by the verdict, and the questions of law that are presented in appellant’s brief are neither new nor novel; and, for that reason, we deem it unnecessary to discuss them separately or to write an elaborate opinion.

Several of the assignments of error relate to the action of the trial court in giving and refusing instructions, all of which assignments are overruled, because we are of opinion that the case was fairly tried, and that the trial court gave to the jury such, and only such, instructions as were necessary to enable them to understand the rules-of law by which they were to be governed in deciding the case. While the proof showed that W. W. McDonald had previously established and maintained a small brick plant on the premises where appellant subsequently constructed and maintained the plant complained of by appellee, there was no proof that it caused any injury to appellee’s premises; and the court in charging the jury limited them to a consideration, of injury and damage caused after” appellant became the owner of the property, and specifically instructed them that appellant would not be responsible for any injury or damage caused by prior owners. So it is that the court’s charge fully and carefully guarded appellant’s rights in that regard, and no error was committed in refusing any further instructions upon that subject.

As the case was submitted by the court to the jury, the question of limitation was not involved, and no error was committed in refusing to submit that question to them. Before the jury reached a verdict, they returned into court and inquired of the judge if they could consider the condition of the old plant, or confine themselves entirely to a consideration of the conditions and results of the new plant, and thereupon the judge gave an additional written charge, telling the jury to confine themselves to the effects, if any, of the new plant owned by appellant. Appellant assigns error upon the giving of that charge, and contends that it was not only erroneous and misleading, but that since the recent legislative enactment requiring all cases to be submitted upon special issues, etc., a trial judge has no authority, alter a case has been submitted to a jury, to give any additional charge. We overrule that contention and hold that the legislation referred to did not repeal the article of the statute which authorizes a judge, upon request of the jury, to give additional instructions. We also hold that appellant has no just ground of complaint against the charge that was so given in this case; it merely repeated what the court had already told the jury, which was, in substance, that appellant was not responsible for what had been done by the former owners of the property, and was responsible only for such injury and damage as had been caused by appellant. That charge was distinctly favorable to appellant, and all the objections urged against it are overruled.

Several assignments in appellant’s brief complain of the action of the trial court in reference to the admission of testimony, some because certain evidence was admitted, and others because certain testimony that was offered was excluded. Those assignments have been duly considered, and are all overruled. The evidence supports the verdict both as to liability and amount of damages.

Our conclusion upon the whole case is that no reversible error has been shown, and therefore the judgment of the court below should be affirmed, and it is so ordered.

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