I respectfully dissent from the disposition of this case by the majority. The jury in answer to special issues found, material to this dissent, in substance that: “ * * * The I. & L. Development Company represented to Spradlin that they were the owners of Lot 40, Block B, Cherrywood No. 2 Addition to the City of Dallas, and that there was no outstanding title or claim against the property * * * ”; that Sprad-lin relied upon the representation and was thereby induced to purchase the property; that he was without notice or knowledge of the 36-inch water main across said lot on November 20, 1946; that the statement made -by representative of the I. & L. Development Company was false, but that the Development Company was of the opinion it was the owner at the time of the sale and expressed such opinion to Spradlin in good faith at the time it sold the property to Spradlin; that the presence of such water main was not visible so as to reasonably apprise persons in general of its presence under said lot; that its presence was not known to Spradlin; that the City of Dallas issued a permit to I. & L. Development Company to construct a residence on said lot at a location on said lot over its water main, which was negligence and proximate cause of the depreciation in value of the property; found that the market value of the property on November 20, 1946, the date of Spradlin’s deed, without the city easement, was $7,350, and with the easement, $4,040; that its value at time of the trial, with the easement, was $3,733.
It is the writer’s opinion that on this verdict the court should have entered judgment for Spradlin against the I. & L. Development Company for $3,310 as prayed for by Spradlin in his motion for judgment on the verdict, and that the trial court’s failure to do so was error. Zavala Land & Water Co. v. Tolbert, Tex.Civ.App., 184 S.W. 523, error refused; Old National Life Ins. Co. v. Bibbs, Tex.Civ.App., 184 S.W.2d 313, error refused wvm.; Stowe v. Wooten, Tex.Com.App., 62 S.W.2d 67, 68, by the Commission of Appeals.
In the Stowe case the Commission of Appeals stated: “It is the settled doctrine in this state that in actions for fraud a person is responsible to the party deceived for what he represents to be true, regardless of his lack of intent to' deceive.” Citing numerous cases to sustain that holding.
The general rule as set out in the Stowe case applies here; not Article 4004, R.C.S., which applies where the fraud is active and intentional, justifying exemplary damages.
For the reasons stated, the judgment below should have been reversed and here rendered for appellant against I. & L. Development Company for $3,310 plus interest and costs.