
    SOUTHWESTERN LAND & LOAN CO. et al. v. BURR.
    (No. 7576.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1926.
    Rehearing Denied June 12, 1926.)
    Appeal and error <@=»I060(4) — That plaintiff’s counsel in trespass to try title was permitted to explain to jury effect of their answer to special issue and comment if plaintiff lost she would lose all she had, but that defendant was wealthy corporation and would be protected, held, prejudicial, verdict being against preponderance of evidence.
    In trespass to try title, that counsel was permitted to comment that plaintiff was an old lady who, if jury answered special issue in negative, would lose all she had, and that defendant was a wealthy corporation which, if it lost, would still have much land and be protected against loss upon its wealthy co-defendants’ warranty, held prejudicial, verdict being against preponderance of evidence.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Trespass to try title by Miss Ida Burr against the Southwestern Land & Loan Company and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Spence, Smithdeal, Shook & Spence, of Dallas, for appellants.
    K. R. Craig and Geo. A. Titterington, both of Dallas, for appellee.
   SMITH, J.

This action is one in trespass to try title to recover a block of 4 acres embraced in a 98-acre tract of land out of the David Hunter survey in Dallas county. Ap-pellee is the record owner, of the property, but the principal appellant claims title by limitation.

The cause was submitted to the jury upon one special issue, in which was propounded conjunctively, the several specific issues oí (1) peaceable and adverse possession; (2) cultivation, use, or enjoyment; (3) payment of taxes; and (4) claim under duly registered deeds. The issue was so framed that the jury could answer yes only in the event they found in the affirmative upon all the specific issues embraced in the question, and no in the event they resolved either of the issues in the negative. They answered, “No.” In connection with the special issue the court correctly defined the terms used therein, and gave certain special charges requested by appellee and objected to by appellant, who has assigned error thereon.

Mary O. Logan is the common source of title. On February 4, 1886, she executed a deed of trust in which she conveyed 200 acres of land to secure the payment of a debt. In September of the same year she subdivided the same land into a townsite, and on February 24, 1887, conveyed block J in said town-site to M. P. Hayes, under whom appellee holds the legal title to the block. On February 27, 1891, the owner of the debt secured by the existing deed of trust released the deed of trust lien in so far as it covered block J, thus placing the title, unincumbered, in appellee’s predecessor. Subsequently, on March 5, 1891, however, the deed of trust lien was foreclosed against the entire 200-acre tract, and in the ensuing sale the whole tract, embracing block J, was conveyed to the purchaser. On May 19, 1896, the then owner conveyed 98 acres out of the larger tract, including block J, which was specifically described in the conveyance. In similar conveyances the title to the 98-acre tract passed through various parties until it rested in appellants. In all these conveyances block J was specifically described as a part of the larger tract thus conveyed. These conveyances, all of which were recorded, constitute the duly registered deeds under which appellant claims its limitation title to block J.

Block J is situated in the center of the 98-acre tract owned by appellant. The larger tract has never been improved, except by a fence which marks its exterior lines. It has never been cultivated nor used, except as a pasture for live stock. There is no evidence tending to show when it was first inclosed, except that the fence around it was an “old fence” as far back as 1897, from which it may be inferred that it was so inclosed when block J was conveyed by the common source early in 1887. In 1886 the survey embracing the 98-acre tract was far removed from any center of population. At that time the tract, along with adjacent acreage, was subdivided in the form of a city addition “during a historic boom in the conversion of country farm lands into additions to cities,” ás suggested in appellee’s brief. It was laid out into lots, blocks, streets, alleys, and roads, and given the heroic name of “Glencoe.” On the plat, which was placed of record together ■with a formal dedication to the public of the streets, etc., block J was bounded by four streets, which were designated by the poetic names of Lueania, Thalia, Livania, and Il-lyria. The promoter’s dreams of the future greatness of the potential city did not come true, however, for only a very few of the parcels were sold, and the visionary project was soon abandoned. Later some of the parties at interest went into court and procured a judgment setting aside and canceling the dedication. The public was so ungrateful, in fact, that present residents of that vicinity seem never to have heard of the ill-fated Glencoe, or, if they ever heard of it, had wholly forgotten its existence until reminded of it upon the trial of this cause. A number of them so testified. William Barr purchased block J. 1-Ie has long since passed on; his daughter, appellee herein, succeeded to his title, and has herself grown “old and gray,” according to the record. So far as the evidence discloses, she paid no heed to this small and isolated fragment of land, never assumed active dominion over it, or exercised any of the prerogatives of ownership, except in occasional years to pay the taxes on it. In the meantime, in 1892, others took conveyances of 98 acres of the subdivision, embracing block J, but they so lightly regarded the value of their purchase that they gave the use of the whole tract to a stranger for his services as caretaker, and paid taxes on it during only a part of their tenure. And now, 40 years have passed and the city of Dallas in its forward march of progress has approached and will soon envelope the effaced and forgotten Glencoe, which, after nearly half a century, is about to come into its own. The lands embraced within its dim and forgotten lines have stealthily grown into high values, and those who for so many years have slept upon their conflicting rights, now awakened by the rumble of the fast approaching city and aroused by the call of vaulting values, are at each other’s throats. Wherefore this contest over the title to block J, stricken from public records, obliterated from memory, and marked only by phantom streets, whose names were evolved in the long ago out of the pathetic optimism and gentle romanticism of a past generation.

Block J has never been subjected to any use, occupancy, or control not common to the remaining portion of the larger tract which embraces it. It is not nor has it ever been segregated by fence or other evidence of in-, dividuality — -is isolated only by imaginary lines of record description. It has never been used in any way except that stock pastured in the common inclosure passed at win over its imaginary boundary lines, and appellant and bis predecessors in title exercised no dominion or control over it except sucb as was merely incidental to tbe control and dominion over tbe larger tract. No act of possession, occupancy, use, or dominion bas been done with specific reference to tbe smaller tract from wbicb tbe true owner could infer that tbe claimant’s possession was adverse to bers. Out of tbis state of facts arises tbe question of whether or not appellant’s maintenance of tbe existing fence inclosing tbe larger tract, and tbe indiscriminate and common use of tbe whole premises, and, incidentally, of block J, constituted sucb adverse possession and use as will support a limitation title.

Tbe active possession and use of tbe land by appellant and its predecessors began in 1901, when they repaired tbe existing fence inclosing tbe 98-acre tract, put their horses in tbe inclosure, and delivered tbe premises to a caretaker, who was given tbe use of tbe premises for tbe pasturage of her own stock, with tbe additional privilege of pasturing tbe live stock of others thereon for hire; she was also allowed to use tbe premises for “gardening’and agriculture on a small scale.” There was evidence that this caretaker went into possession under tbis arrangement, and continued that possession and use through tbe five-year period relied upon by appellant in support of bis plea of limitation. If there is a question of fact upon wbicb there was any conflict of testimony, it was tbe issue of use and possession, for tbe other questions were of law as applied to undisputed facts. Assuming that tbe evidence raised tbe remaining issue above adverted to, it becomes necessary to determine only if appellants were given a fair trial as to that issue. We think tbe presumption in favor of a fair trial is overcome by tbe showing as to tbe conduct of counsel, which will now be discussed.

It appears that in bis opening argument to tbe jury one .of appellee’s counsel undertook to “explain” tbe special issues to be answered by tbe -jury, and in doing so stated, according to tbe bill of exceptions, “that tbe defendants had pleaded a whole lot of different pleas, among wbicb were the pleas of limitation of three and ten years, as well as tbe five-year statute, and that they h¿d also vouched in their warrantors; that tbe finding of tbe jury that tbe defendants bad bad possession of tbe property for five years would take Miss Burr’s property without compensation, which ought not to be done, and proceeded further to explain to tbe jury tbe effect of their answer to the special issue propounded by tbe court.” When counsel for appellee began to explain to tbe jury tbe effect of their answer to tbe special issue counsel for appellant objected to a continuation of that line of argument, but tbe court overruled tbe objection and permitted counsel to proceed with bis statement, although at appellant’s request tbe court finally instructed the jury that “it is no concern of yours, and you should not, in tbe proper discharge of your duty, take into account tbe effect of tbe answers you may make to special issue No. 1, but your sole duty, under your oath, is to answer such question truly as you find tbe facts to be from tbe evidence and not otherwise, and you will disregard wholly and absolutely all argument of counsel for plaintiff as to tbe effect of your answers on the plaintiff or defendants, and' disregard whether either party will or will not suffer loss on account of tbe manner in wbicb you answer said question.” But at a later stage of tbe argument appellee’s counsel, according to tbe bill of exceptions, “after having explained to tbe jury two or three different times tbe effect of. their answers to tbe special issues propounded by tbe court, told tbe jury, turning and referring to Miss Burr, who was an aged lady with gray hair, in tbe presence of the courtroom, that it would be unfair for them to find in favor of defendants’ plea of limitation and thereby take away from Miss Burr her land, and it would be especially unfair to do so because of tbe fact that it would be taking all she bad, and that they could take the land, by their verdict, away from tbe defendants and they would still have $50,000 worth of land, and that they, tbe defendants, would not lose anything by sucb verdict on their part, as tbe defendants could recover what they bad lost from their warrantors and would do.so, and counsel for defendants objected to tbis argument and statements made by counsel for the plaintiff at tbe time be began to make same, and asked tbe court to stop him and restrain him from making said statements and rer marks, wbicb tbe court refused to do.” - And, further, “counsel, after having at a preceding point in bis argument to tbe jury explained tbe effect of their answers to tbe special issue, proceeded to tell tbe jury that tbe defendants bad vouched in Nussbaum and Simmons, who are warrantors of their title; that when counsel began to make the said explanation and statement to tbe jury, counsel for tbe defendants objected to Mr. Titterington’s remarks. and asked tbe court to restrain counsel and prevent bis discussing tbe effect of sucb plea and tbe rights of tbe defendants on their warranty, but tbe court refused to restrain counsel or stop him, and counsel was allowed to proceed, over tbe objection of tbe defendants, to, and did, tell tbe jury, in substance and in effect, that defendants would not lose anything if tbe jury held against their plea of limitation involved in special issue No. 1, because defendants bad a cause of action against their warran-tors and bad sued them in tbis suit, as he bad shown them by tbe pleadings and judgment would be given defendants against tbeir said warrantors for the value of the land which they would lose by such verdict of the jury, because one of such warrantors, Simmons, was a wealthy banker at Hillsboro, and Nussbaum, the other one, was a successful business man at Mexia.”

This conduct and argument of counsel for appellee is complained of by appellant in his third and fourth propositions of law, which must be sustained. It is too well settled to require the citation of authorities that counsel must refrain from explaining to juries the effect upon the whole case of their answers to specific issues submitted to them, and from coaching juries in the art of determining the whole ease by returning answers to specific issues in accordance with a system adroitly pointed out by astute counsel. The whole purpose of special verdicts is to procure jury findings on the specific issues of fact submitted to them, without reference to the legal effect of those findings, with which the jurors must not concern themselves. The system is designed to exclude from the jury room, as much as possible, the influences of •sympathy, bias, and prejudice, so that jurors may go untrammeled into consideration of purely fact questions, and determine such questions from the evidence alone without eager or troubled apprehensions as to the effect of their answers upon the fortunes or misfortunes of the respective litigants. The average juror is, happily, but human, and, being but, human, is, happily again, amenable to the appeals of sympathy and all the other human emotions. When aroused, those emotions operate in some degree to swerve the normal person from the course of reason and judgment, and in the case of a juror to influence him in the determination of an issue of fact. It is in recognition of this human attribute in jurors that lawyers are required to confine their arguments to the record and to refrain from appeals to passion and prejudice; and litigants are further safeguarded against the operation of these influences by the statutory provision for special verdicts, and by the rule that jurors shall consider and pass upon the issues of fact submitted to them without instruction from the court or suggestion or coaching from counsel as to the effect upon the litigants of their findings upon those issues. The case here presents a flagrant disregard of these rules. Counsel for appellee “explained to the 'jury two or three different times the effect of their answers to the special issues propounded by the court.” When opposing counsel objected to this argument, the court overruled the objections and by doing so impliedly approved the argument, thus fixing in the minds of the jury the process by which they could and thereafter did determine the whole case by their answers to specific issues of fact. It is idle to say that the suggested process was eradicated from the minds of the jury by the subsequent instruction that they were not concerned in that process and must disregard it and the argument and instruction of counsel thereon.

The argument of counsel as to the relative financial worth of the parties to the suit, the contrast between the gray-haired old lady on the one side and a wealthy corporation upon the other, and the adroit _ suggestion that if appellee lost the case, if the jury answered the special issue in the negative, she would lose all she had, while if the corporation lost it would still have $50,000 worth of land, and would be protected against the loss upon its wealthy codefendants’ warranty — all this argument was in flagrant contravention of the rules, and certainly was prejudicial in its effect. Appellant’s timely objection to this argument but accentuated the duty already resting upon the trial judge to stop the argument upon his own motion, and the action of the court in overruling the objection and permitting counsel to proceed in that line of argument amounted to an implied instruction to the jury to give effect to that argument in considering and answering the special issues in the manner and with the effect pointed out to the jury by counsel. The verdict was against the preponderance of the evidence, to say the least of it, and it is not difficult to surmise that this result was due to the improper argument of counsel and the court’s implied approval thereof. The court should have set aside the yerdict and granted a new trial. Other questions are raised, but it is not deemed necessary to discuss them in view of another trial.

The judgment is reversed and the cause remanded. 
      <©3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     