author: GRAVES, Judge.

text:
    CARNES v. STATE.
    No. 20641.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    For former opinion, see 134 S.W.2d 1052.
    • W. C. Baker and Jim W. Weatherby, both of Kerrville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant files a motion in this court requesting that we correct our mandate heretofore issued on January 12, 1940, his complaint being directed at the following italicized phrase: “It is ordered, adjudged and decreed by the court that the judgment be in all things affirmed, and that the appellant and his sureties on recognizance pay all costs in the court below, and that this decision be certified below for observance.”

In the Revised Civil Statutes 1895, Art. 1063, it was provided that: “In every * * case of a less grade than felony in which an appeal is taken to the court of criminal appeals, and the judgment of the court below is affirmed against the defendant, all fees due the clerk of said court in said case shall be adjudged against the defendant and his sureties on his recognizance,” etc.

Construing such statute, Judge Henderson held in Benson v. State, 39 Tex.Cr.R. 56, 44 S.W. 167, and Arbuthnot v. State, 38 Tex.Cr.R. 509, 34 S.W. 269, 43 S.W. 1024, that payment of the costs in this court was a portion of the obligation of the sure^ ties on a recognizance in such a misdemeanor case. This statute has been repealed, and will not be found in the 1925 revision of our statutes. . The recognizance in this case merely obligates the sureties to see that appellant shall appear before the court from day to day and from term to term of the same, and not depart therefrom without leave of the court in order to abide the judgment of the Court of Criminal Appeals of the State of Texas.

Without the aid of the repealed statute, we do not think we have the power, under this recognizance, to require the sureties to pay the costs in the lower court, nor does the law thus require, but must leave that matter to the proper officers in such court •to enforce the same against the appellant.

The motion is therefore granted, and the clerk is directed to withdraw the mandate .of date January 12, 1940, and to issue a further one as above set forth, leaving out, however, the words “and his sureties on recognizance.”


source: Caselaw Access Project

author: GRAVES, Judge. KRTJEGERj Judge.

license: Public Domain

text:
    FRANKS v. STATE.

      No. 20670.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Rehearing Denied April 3, 1940.

      John M. Hatter and L. D. Johnston, both of Waxahachie, for appellant.
    Forrester Hancock, Crim. Dist. Atty., of Waxahachie, Frank B. Tirey, óf Waco, Henry Tirey, of Dallas, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with the murder of Willis Wilemon, and by the jury convicted and assessed the death penalty.

It appears from the testimony that appellant, who lived at Bonham, Texas, visited the town- of -Maypearl, in Ellis County, on Monday'May 8, 1939, and the following Tuesday and Wednesday; with the purpose of familiarizing himself with the localities and surroundings, eventually looking towards robbing the Maypearl bank. He was identified by numerous witnesses on these trips, and the' stolen car in which he was .riding was also identified by witnesses. On Wednesday May 10th he was in Maypearl prior to the noon hour, and again came under the observation of various'persons who identified him.. At about. 12:10 o’clock, .when there ,was no one in the.bank except the deceased, he entered the bank and by means of exhibiting a pistol he obtained some $1,700 in money. He then directed the deceased to proceed to the vault, and struck the deceased over the head with some blunt instrument, and then shot him in the back, from the effects of such shot wound the deceased expired that night. Appellant then proceeded from the bank to his mother’s home in Bonham, Texas, where he concealed a portion of the stolen money, and upon his arrest in a hotel in Denison, Texas, the following day the sum of $585 was found under the pillow of his bed. He was then taken to his mother’s home where he directed the officers to dig near a garage thereon and a hidden $1,000 was there recovered. He then showed the officers where he had hidden the number plates off the stolen car, which had been changed for other numbers stolen off a car in Oklahoma.

Appellant’s defense was insanity, which was testified to by his mother and sister, and an accidental killing, which was testified to by himself. The jury refused each of such defenses and assessed the extreme penalty. The testimony is short. The transcript, however, contains twenty-five bills of exceptions, evidencing the energy, industry and learning of his attorneys.

Appellant’s bill No. 1 complains of the court’s refusal to grant a continuance of this cause in order to enable him to procure the attendance of one Andrew Franks, who was alleged to be secreting himself, the proof expected to be gotten from the witness being that he would testify that appellant’s uncle, Ed Franks, was the one who had planned this bank robbery,, and was the master mind-therein, directing this appellant in planning and carrying out this scheme. By the court’s qualification to such bill it was shown that this witness was a fugitive from justice in two different states, and that he. had been such for several months, and his whereabouts was um known. We see no error reflected herein. There is naught shown, save appellant’s statement, that Ed Franks had anything to do with this offense, either in its planning or execution. Ed Franks’ participation therein would not have affected appellant’s guilt or innocence, if appellant’s testimony was true. This bill is overruled.

Bill of exceptions No. 2 is based upon the court’s refusal to grant appellant’s motion for a change of venue. It is to be noted that süch motion is signed by appellant’s two attorneys of record alone as com-purgators. The trial court, however, ignored any defect therein and heard evidence relative to the motion. After such hearing the court overruled the motion, to which ruling this exception appears. We find a controverting affidavit of the State relative to the change of venue, and we also find téstimony brought forward in the record in support of the allegations in the motion for a change of venue, as well as testimony substantiating the State in' its contention that a fair trial could be had in Ellis County, with its population of approximately 60,000 and- its eight or ten thousand poll tax payers. The major part of the witnesses so heard thought that a fair trial could be had in such county. Under these circumstances the .court’s ruling on the motion impresses us as having been correct, and there seemed to have been no great difficulty in qualifying a jury herein. This bill is overruled.

Bill of exceptions No. 3 relates to the fact that soon after appellant’s indictment on May 11, 1939, this cause was set for trial on May 22, 1939, and a special venire of 200 men ordered drawn for that date. On May 16th following L. D. Johnston and John M. Hatter, attorneys, were appointed by the court to conduct the defense of appellant. That on May 22, 1939, Mrs. Frank Watson, the mother of appellant, filed an affidavit alleging that appellant was insane at the time of the commission of the alleged offense, and was insane at the time of the filing of the affidavit, and praying the court to try the issue of appellant’s insanity before a trial upon the merits of the case. Whereupon the court proceeded to try such issue before a jury.

This bill is concerned with a motion for a continuance requested by appellant’s attorney for a period of ten days in order that psychiatrists and alienists might be employed by appellant’s mother, and that they could have ten days in which to observe appellant and go over his case before they would be able to testify relative to his mental condition. It appears from the trial court’s qualification to this bill that o'ne alienist did appear and testified, that- there were also other alienist witnesses on the part of the State, and that none of the witnesses save appellant’s mother ’ arid sister expressed the opinion that appellant -was insane. 'We think it was hardly reasonable to request the court to'postpone this case for a period of téri days in'order-to allow two further alienists to make up their minds relative to appellant’s .sanity or insanity. We think the request for ten days observation of appellant by these alienists, made, on the day set for his trial on the facts, was unreasonable. This case had been set on May 13th for May 22nd, and appellant was so notified, but on account of these other matters the trial on the merits of the case was not entered into until May 29, 1939, and we think that this request for a ten day extension of time for observing- appellant came too late. This bill is overruled.

Bill of exceptions No. S complains because of the court’s failure to-fill out the original panel of 200 men, appellant demanding the immediate filling of such panel by personal service. It seems that the court had, prior to the calling of such case, ordered a special venire of 200 men to appear for this trial. Upon the filing of the affidavit in-lunacy by appellant’s mother on the day set for this trial, when all excuses had been’ heard and acted upon, there remained but 112 men. After the lunacy jury had been 'selected from the original panel, which was not objected to by appellant, and returned their verdict, there remained 49 members of such venire, and the court directed the trial to proceed on the merits, atid this jury panel to be first exhausted before any talesmen should be brought in by the sheriff. 'It seems that upon an exhaustion of the remaining jurors, -the sheriff dr his deputies personally served all tales-men.'and 151 such men’were brought- in, from which number, together with the remaining 49 jurors, the jury was selected. Under Art. '596," C.C.P., the court was correct in his action herein. This bill is overruled. . , ■

.Bill pf exceptions No. 6 seems to be a complaint based upon a colloquy between the .court and counsel, ,and not in the presence ibf, the, jury, prior-to the examination 0;| any, Juror, ,and we dp not think any error is evidenced therein.

Bill of exceptions No. 7 is aiso an exception taken - to the remarks of the court, which the qualification of the court says did' not happen. It does not present any error, so we think.

Bill of exceptions No. 8 relates to the fact that it is claimed that certain members -of the- jury that sat on this case had not paid their poll tax; but 'we observe that there was-no -proof offered thereof. Since the passage of Art. 579, C.C.P.: “Failure to pay poll tax shall not disqualify any person from jury service.” Also see King v. State, Tex.Cr.App., 100 S.W. 387.

Bill of exceptions No. 9' relates to the court’s action in overruling of a challenge for cause of a certain juror, in which we see no error. In this bill and Bill No. 10 it seems that the juror had no knowledge of the facts, had talked to no witness, but only had the knowledge possessed by most citizens that such an offense had been committed, and both jurors testified that they had no opinion that would influence their verdict. The same facts are also applicable to bills of exceptions Nos. 11, 12, 13 and 14. We note that all of said objectionable jurors'had formed an opinion from rumor and hearsay only, — none of them knowing ánything relative to the facts, nor having talked with any fact witness. Their opinions were based upon newspaper accounts or hearsay. They all said they could lay aside these thus formed opinions and try this case entirely upon the law and the evidence.

Jurors testifying that they can give a fair trial are competent; though they have formed an opinion based on hearsay or rumor. Adams v. State, 35 Tex.Cr.R. 285, 33 S.W. 354; Suit v. State, 30 Tex.Cr.R. 319, 17 S.W. 458; Trotter v. State, 37 Tex.Cr.R. 468, 36 S.W. 278; Green v. State, 117 Tex.Cr.R. 499, 35 S.W.2d 419; Hassell v. State, 107 Tex.Cr.R. 541, 298 S.W. 293, and many other cases of like import.

Bill of exceptions No. 15 relates to the testimony of Charlie Smith, who seems to be one of the first persons who arrived at the side of the deceased after he had been shot. At the time of the witness’ arrival at the bank, just after the hold-up, the deceased was unconscious', but immediately upon gaining consciousness the deceased related the circumstances surrounding the transaction, the testimony complained of being as follows: “I knew Willis Wilemon. He is dead. Just after the hold-up I went to the bank. Willie Wilemon was lying down in the vault. Lewis Brigman was holding his head. He was unconscious. I went and got a steel cot and we laid him on it. We put the cot in the bank. ■ Willis Wilemon began talking in two or three minutes after I got to him. He-regained consciousness in the vault. The first thing that he. said that I remember was, T don’t see why he shot me. I gave him everything he - asked for.’ He said, ‘He carried me around by the cashier’s stand and got the money.’ I am not positive what he said in the vault. He said what I have just detailed after we got him out of the vault. He said, ‘He was marching me into the vault,’ and he said ‘he hit me.’ And he said, ‘He didn’t knock me out. I was getting to my feet, and he shot, me.’ He was shot in the left side slightly left of the spine about the waist line. His wife came in and' he said, ‘Lila, watch my insurance.’ He said, ‘I have got them paid up to the 20th.’ He was suffering with his legs and could not move them. I cut his shirt off of him. * * * I went to the bank and went in and then went ’and got a cot and went back and we got him out of the bank vault and that is when' I heard the statements.”

This is a typical case of res gestae, the thing speaking rather than the witness. There was no time for fabrication; no time for deceased to form any deliberate design, but immediately upon regaining consciousness the, thing, or transaction itself, was made known by the words out of the mouth of the dying man. The authorities are numerous, and we cite only a few. See Outlaw v. State, 125 Tex.Cr.R. 636, 69 S.W.2d 120, 18 Tex.Jur., p. 299, and authorities there cited.

Bill of exceptions No. 16 also relates to the testimony of Lewis Brigman, who testified that he ran a store next door to the bank; that he heard Mr. Wilemon was shot; that he ran into the bank and found . Mr. Wilemon unconscious lying down in the' Vault; he’ raised his head and' puf it into witness’ lap; the deceased “came to” and said “Take my tie off.” He said he was knocked in the head, and he said “and when he ■ saw he didn’t knock me out, he shot me, and I don’t know why. I wa's doing all I could,” the last portion in quotation marks being the portion complained of in the bill. This was clearly res gestae and properly admitted.

Bill of exceptions No. 17 relates to the testimony of the widow of the deceased wherein she testified that she and the deceased were married and had two sons;, that her husband was president of the bank at Maypearl; that she saw him lying in the vault. He said he had been hit in the back of the head, and then shot in the back. “I noticed blood on his head. He said the man was about twenty-two or twenty-three years old.”

The appellant asked the witness no questions, and made-no objection to any-portion of her testimony during its recital, but after the witness had been excused, without cross-examination, appellant’s attorneys requested the court to strike such testimony from the record, and the court did thereupon instruct the jury to not consider any portion of such testimony except the statement: “I noticed blood on his head.” If the appellant had not desired such testimony to have been given he should have made a timely objection. If its admission was due to his inaction and failure to object at the proper time, and some improper testimony was allowed to go before the jury, his complaint comes too late. Upon the court’s attention being called thereto, he did all that should have been expected of him by withdrawing same from the jury’s consideration. We see no error reflected herein.

Bill of exceptions No. 18 is based on the admission of the' testimony of Lewi’s Winchester, a peace officer from Denison, who testified as follows: “I found the defendant Burton Franks asleep in bed. In his pillow case under his head we found $558.00. I removed from his person a .380 automatic pistol magazine. In the áfter-' noon of the same day in the city jail we' took five steel hacksaws- blades from the lining of the shirt which the defendant was wearing. They were in a hand-made leather case.”

- This testimony was objected to' on the grounds that appellant was under arrest-at such time, as well as that same was imma-’ teria'l, irrelevant and highly .prejudicial. The trial court’s qualification shows that at the time of the admission of the testimony the appellant had not taken the witness stand, and such testimony- was admitted as a circumstance to show his guilt of the crime charged. The deceased was shot with a .380 pistol, and about- $1,700 in money was taken from the bank in the robbery. Afterwards, however, appellant- did take the stand and testified to1 practically the things objected to herein. We think-the officer thus arresting appellant had the right' to search him, and we see no good reason for not introducing these criminat-ing matters before the jury. It was later shown by appellant that this pistol magazine came out of the pistol that did the' killing; and that this money was a portion1 of the' stolen money; that appellant .took the officer to where he had secreted the remaining portion of the money, and told them where he had thrown the pistol in the Red River. We think no error is here shown. See Reynolds v. State, 106 Tex.Cr.R. 391, 293 S.W. 178; 18 Tex.Jur., p. 413; Merriman v. State, Tex.Cr.App., 20 S.W.2d 1051; Silva v. State, 102 Tex.Cr.R. 415, 278 S.W. 216, 217. As to the admission of the possession of the saws in evidence, see 18 Corpus Juris, p. 554; also State v. Duncan, 116 Mo. 288, 22 S.W. 699. From the last case we quote, 116 Mo. 288, 22 S.W. page 704: “In State v. Jackson, 95 Mo. 623, 8 S.W. 749, it was ruled that evidence was admissible to show that a prisoner had requested another to secure tools so that he might effect his escape, 'and, by parity of reasoning, evidence was competent to show that defendant had saws on his person in jail, with intent to make his escape in case of a conviction.”

Bill of exceptions No. 19 complains of the testimony of a State’s witness who testified that appellant, after his arrest, directed the officers to the spot where he had buried the remaining money taken from the bank at the time of the robbery and killing, the money being buried on the home lot of appellant’s mother. Such testimony seems to be sanctioned by the statute, Art. 727, C.C.P., the only objection thereto, certified to by the court, being that appellant was under arrest at such time.

Bill of exceptions No. 20 complains of the trial court’s refusal to allow appellant to testify, in substance, that he robbed this bank on account of the influence of his uncle Ed Franks over him. This hill as qualified shows that appellant did testify that he had planned this robbery with his uncle Ed Franks, and substantially this same testimony finally was given by him before the jury. That there was no claimed duress of any kind, and that the uncle was not ever present with appellant in Ellis County, neither at the two trips previous to the day of the crime nor on the day of the killing. That appellant’s uncle may have been his tutor in crime may have been true, and yet have been no justification nor excuse for this crime. Most-persons committing crimes doubtless learned the rudiments thereof at least' from the experiences and advice of others, nevertheless such tutelage should have no effect on the crime committed. We do not'think such testimony was relevant. Mr. Branch says in his Penal Code, Sec. 97, p. 62:

“Relevancy is' defined to be that which conduces to the proof of a pertinent hypothesis — a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable. McGuire v. State, 10 Tex.App. [125] 127; Lane v. State, [73 Tex.Cr.R. 266] 164 S.W. [378] 380.
“No circumstance is relevant which does not make more or less probable the proposition at issue. McGuire v. State, 10 Tex.App. [125] 127; Luttrell v. State, 40 Tex.Cr.R. 651, 51 S.W. 930.”

This bill is overruled.

Bill of exceptions No. 21 complains of the court’s action in refusing to re-open this cause after both sides had closed with their evidence and allow the appellant to introduce before the jury testimony showing the suicidal death of his uncle Ed Franks, as well as to introduce the complaint against Ed Franks for the same killing as this appellant was then being tried. This matter was offered merely in an effort to obtain some mitigation of punishment before the jury and not as a defense herein as stated by appellant’s attorneys. It is to be noted that finally this case did not rest on circumstantial evidence. The appellant went on the stand and admitted the robbery and the killing, and we are familiar with no doctrine that would allow such testimony as a mitigation for such an offense. 18 Tex.Jur., p. 129, Sec-. 63, says: “The declarations of a third person confessing or tending to show his guilt of the crime with which the defendant is charged are hearsay and ordinarily inadmissible unless the case is one in which the State is relying solely upon circumstantial evidence, and also where the guilt of the accused and the facts show that he was so situated that the -crime might have been committed by him.” Also see Wise v. State, 101 Tex.Cr.R. 58, 273 S.W. 580, from which case the above text was taken; Baker v. State, 119 Tex.Cr.R. 161, 46 S.W.2d 680.

If Ed Franks’ confession, were he living, that he had committed this offense, would have been inadmissible, we fail to see- any reason why his suicidal death, which might be treated as an inferential confession, would become admissible. This bill is' overruled.

Bill of exceptions No. 22 relates to some kind of testimony given by Mr. Pigg claimed to have been newly discovered, which testimony was not set forth in the bill but reference is made to the motion for a new trial and an affidavit attached thereto. Because of the extreme penalty exacted herein, we have gone to the motion for a new trial and do not find any misconduct of the jury shown therein. The court further qualifies this bill by the statement that the matters contained in the affidavit of Mr. Pigg were denied under oath by each of the two jurors mentioned therein. Mr. Pigg’s affidavit related to statements made to him by’two of the jurors on the next day after, the case had been concluded. Each juror denied making such statement, so the bill shows, and we see no error in the trial court disbelieving siich affidavit.

We overrule the contention set forth in bill No. 23 without further discussion.

Bill of exceptions No. 24 relates to a complaint of the court’s charge in that he charged the burden of proof relative to the insanity of the appellant to be upon the appellant, and did not explain that the burden of proof did not mean beyond a reasonable doubt.

The charge given by the court has been upheld in many cases as correctly presenting the law relative to' insanity as a defense for crime, and beginning with the early decisions and on through the later ones such has been held sufficient. For a collation thereof, see Branch’s Penal Code, Sec. 38, p. 20.

Bill of exceptions No. 25 relates to the court’s refusal to allow appellant’s mother, Mrs. Frank Watson, to testify that prior to appellant’s trial, the witness had gone to Dallas to see three specialists relative to obtaining their testimony as to appellant’s mental condition, and that they informed her that they would require ten days time in which to observe and examine appellant before they could give any opinion on his sanity. - This testimony was objected to as immaterial, hearsay and prejudicial. We think the same reasoning applies hereto as was set forth in treating bill No. 3. According to the record, it is shown that there were eleven days elapsed in which these specialists could have examined and observed appellant before he was actually tried on the facts. We can see no relevancy to the proffered testimony.

The facts herein show a wanton killing perpetrated in a robbery, and the record impresses us as exhibiting a fair trial therefor. - That the jury has demanded of appellant the extreme penalty is a matter left within their discretion. The appellant was ably represented by attorneys appointed by the court, who are to be commended for their- diligence and industry. In the matters presented to us we have carefully reviewed the record, the facts and the bills of exceptions, arid see no error reflected therein, and • have no alternative other than to allow the law to take its course.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRTJEGERj Judge.

Tn his motion for a rehearing the appellant relies upon and reasserts'the same grounds - for a rehearing that he urged for a reversal of his casé on original submission. We have again very carefully examined every legal proposition advanced by him, and while it appears that he made a strong showing for a change of venue, the issue was contested and we do not feel that we would be justified under the evidence as disclosed by the record in holding that the trial court abused his discretion in overruling the same.

. Upon mature and careful consideration of all matters asserted by appellant, we. remain of the opinion that the cause was properly disposed of on original submission. Consequently we see no good reason for again entering upon an extended discussion thereof.

The motion for a rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by ’ the Judges of the Court of Criminal Appeals and approved by the Court.


author: KRUEGER, Judge. KRUEGER, Judge.

text:
    WALLACE v. STATE.
    No. 20725.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    On Appellant’s Motion to Reinstate Appeal March 20, 1940.
    Alex P. Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is burglary. The punishment assessed is confinement in the state penitentiary for a term of three years.

It appears from the record that this Court has not acquired jurisdiction because of a defective appeal bond. The record shows that at the time the indict-, ment was returned by the grand jury, the Hon. Walter G. Russel was the regularly qualified and acting judge of the Seventh Judicial District. That Bascom Gist was the District Attorney in and for said district. That at the trial, Judge B. W. Patterson presided instead of Judge Russel. Just why Judge Patterson was called upon to preside does not appear from the record. However, after the trial, Bascom Gist, the district attorney, was duly appointed judge of said district.

It appears that the appeal bond is approved by the sheriff of Smith County and Judge Gist. We do not think that Judge Gist could legally approve the bond, since he had been an attorney in the case and his act would involve the exercise of judicial discretion. He had to hear evidence as to the solvency of the sureties, what property they had in excess of that exempted from forced sale, its value, etc. If this act had been merely ministerial, a different question might have been presented. See Art. 5, Sec. 11 of the Texas Constitution, Vernon’s Ann. St.; 25 Texas Juris., p. 301; Taylor v. State, 81 Tex.Cr.R. 359, 195 S.W. 1147; Patterson v. State, 83 Tex.Cr.R. 169, 202 S.W. 88; Wells v. State, 68 Tex.Cr.R. 277, 150 S.W. 1163; Arts. 818, 268, 271 and 272, C.C.P.; Ex parte Williams, 116 Tex.Cr.R. 125, 32 S.W.2d 839. This leaves the appeal bond signed only by the sheriff and this is not sufficient. See Perkins v. State, Tex.Cr.App., 298 S.W. 577; Gonzales v. State, Tex.Cr.App., 298 S.W. 893; Lamar v. State, 118 Tex.Cr.R. 464, 40 S.W.2d 162; Harlan v. State, 116 Tex.Cr.R. 208, 32 S.W.2d 182.

From what has been said it follows that the appeal in this case must be dismissed and it is so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Appellant’s Motion to Reinstate Appeal.

KRUEGER, Judge.

This cause was originally dismissed because of a defective bail bond. The record has been perfected in this respect, the appeal is reinstated and the case will now be disposed of on its merits.

Appellant contends that he was deprived of a statement of the facts without fault on his part. It will be noted from the ■ original opinion herein that appellant was tried before the Hon. B. W. Patterson, Regular Judge of the 88th Judicial District, who was sitting in this cause for the Hon. Walter G. Russell, then the-regular Judge of the 7th Judicial District of which Smith County is a part. Shortly after appellant’s trial, Mr. Bascom Gist, who was then the District Attorney for Smith County, became District Judge by appointment to succeed Judge Russell on his resignation. It seems that upon the conclusion of the .appellant’s trial, Judge Patterson resumed his official duties in his own judicial district.

■ Appellant, in due time, prepared and filed with the clerk of said court an affidavit in which he alleged that he was financially unable to pay for a statement of the facts and transcript or give security therefor. He called Judge Gist’s attention thereto several times and requested that he make an order requiring the court reporter to make a statement of the facts proved upon the trial. Judge Gist seems to have been under the impression that appellant would have to present the same to Judge Patterson, who presided over the trial, or to Judge Russel, who was at the time of appellant’s trial, the regular judge of said ■ Court. This appellant failed to do, evidently believing- that the order could be made by Judge Gist.

Art. 5, Sec. 11, of the Texas Constitution. provides among other' things as follows: “No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. * * * ” This provision has been construed to mean that the incapacity of the disqualified judge extends to any action with reference to a case involving the exercise of judicial discretion. In short, such a judge may perform purely ministerial acts, but not any acts involving the exercise of judicial discretion. See Taylor v. State, 81 Tex.Cr.R. 359, 195 S.W. 1147; Patterson v. State, 83 Tex.Cr.R. 169, 202 S.W. 88; Cock v. State, 8 Tex.App. 659; 25 Tex.Juris. 301, and authorities there cited.

Assuming that appellant has used that degree .of diligence required by law in attempting to secure a statement of the facts, the question then arises whether the action of Judge Gist in entering an order requiring the court reporter to make a statement of facts would be the performance on his part of a purely ministerial act, or would be one involving the exercise of judicial discretion. If his action were purely ministerial, then he might enter the order, notwithstanding the fact that he had been an attorney in the case. If his action involved the exercise of judicial discretion, then he could not enter said order, since under the Constitution and law he would be disqualified.

We are of the opinion that the order here requested did not involve the exercise of judicial discretion but was a ministerial act. Therefore when appellant notified Judge Gist that the affidavit had been filed and requested him to make an order directing the court -reporter (who was then under his control and direction) to prepare a statement of the facts, Judge Gist should have complied with the request. This court has held an appellant’s right to a statement of facts, upon proper presentation of a pauper’s affidavit, to be absolute, and that no discretion was invested in the trial court to refuse the same. See Art. 760, sec. 6, C.C.P.; Ex parte Fread, 83 Tex.Cr.R. 465, 204 S.W. 113; Ballinger v. State, 110 Tex.Cr.R. 148, 8 S.W.2d 159; Rice v. Roberts, Tex.Civ.App., 177 S.W. 149; Rice v. State, 135 Tex.Cr.R. 626, 122 S.W.2d 194; Williams v. State, 132 Tex.Cr.R. 60, 102 S.W.2d 228 where the authorities are collated.

Under the circumstances reflected by this record, we think appellant would not be required to have such ministerial apt performed by the Judge who tried the cause. Since it appears that appellant made several requests without success to have Judge Gist make the desired order, we are of the opinion that appellant did everything required.of him by the law in order to obtain a statement of facts. The object and purpose of the law is to. accord to everyone convicted of an offense denominated a felony, no matter how poverty stricken such' person may be, the right of an appeal and to have his case properly presented .to this court for a review.

Having reached the conclusion that appellant was deprived of a statement of the facts without any fault on .his part, the judgment of the trial court is’reversed and the cause .remanded.

PER CURIAM".

The foregoing opinion of the Commission of Appeals has been examined by the Judges of. the . Court of Criminal Appeals and approved by the Court.


author: CHRISTIAN, Judge. ■ PER CURIAM.

text:
    FULKS v. STATE.
    No. 20913.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Jimmie Cunningham, of Graham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge. ■

The offense is possessing beer in a dry area for the purpose of sale; the punishment, a'fine of $100.

Officers went to premises occupied by ap-péllant and found therein eight' cans of beer. They observed three people in the house drinking beef. There were a number of empty cans in the- room. The eight cans of- beer were in a crock with ice and cold water around them. The-officers then searched a1 building to- the rear of appellant’s house, which was-occupied by Frank Crutchfield, a son of the appellant, and found 21 cans of beer in an ice box. It appears1 that the house occupied by appellant was a public café and a place in which people danced. The state’s testimony -shows that Young County was a dry area.

Appellant did not testify, but introduced Frank Crutchfield, her son, who gave testimony to the effect that appellant had no-control over the house he occupied. Further, he testified that the 21 cans of beer found in his house belonged to him and that his mother “had nothing to do with it.”

Among other things, the court instructed the jury as follows: “In this connection you are further instructed that under the law when one stands charged with the offense of possessing beer in Young County for the purpose of sale, the possession by the defendant of more than one case of such beer is prima facie evidence of guilt.”' It is shown in bill of exception No. 11 that appellant excepted to the foregoing charge for the reason that it was in contravention of Art. 667 — 25, Vernon’s Ann.Texas P.C., and assumed as a matter of law that a case of beer equalled 24 bottles having a capacity of 12 ounces. It is shown in bill of exception No. 6 that appellant presented a requested instruction to the effect that possession of more than 24 twelve-ounce bottles of beer in a dry area was prima facie evidence that the possession of same was for the purpose of sale. Appellant is correct in his contention that the instruction in question was not in accordance with Art. 667 — 25, Vernon’s Ann.Texas P.C., from which we quote as follows: “Possession by any person in any dry area of beer in any quantity exceeding twenty-four (24) bottles having a capacity of twelve (12) ounces each shall be prima facie evidence of possession for the purpose of sale in a dry area.” If the jury reached the conclusion that appellant exercised no control over the 21 cans of beer found in the living quarters of Crutchfield, they nevertheless might have thought that the possession of 8 cans of beer by the appellant was prima facie evidence of her guilt. We say this in view of the fact that they had no sufficient guide for determining that the prima facie evidence rule operated only when the quantity of beer possessed .exceeded 24 bottles having a capacity of 12 ounces each. Under the circumstances reflected by the record, we think the failure of the court to amend the charge constitutes reversible error.

The judgment is reversed and the cause remanded. .

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: PRICE, Chief Justice.

text:
    BORDER STATE LIFE INS. CO. v. NOBLE.
    No. 3913.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 29, 1940.
    Rehearing Denied March 21, 1940.

      Cofer & Cofer, of Austin, and Petsch & Usener, of Fredericksburg, for appellant.
    Alex Jung, of Fredericksburg, fpr ap-pellee.
   PRICE, Chief Justice.

Thiá action originated in the District Court of Gillespie County. Appellee, Mrs. Christine Noble, sued appellant, Border State Life Insurance Company, on a policy of life insurance issued on the life of her husband, in which she was named as beneficiary. The parties, for convenience, will be designated as they were in the trial court.

Plaintiff alleged the issuance of the policy, payment of the premiums, the death of her husband, Albert W. Noble, the furnishing proof of loss in accordance with the terms of the policy; judgment was sought in the sum of $1,000. The petition is somewhat lengthy and other matters were set up which we will not set out. Suffice it to say that all matters herein discussed came within the scope of the pleadings of the parties, and there is no question as to the sufficiency of the pleadings of either party.

Defendant pleaded in bar a general denial, specially that it was a corporation under Subdivision 46 of Article 642, R.S. 189S; that it was exempt from the insurance laws of the State by provisions of Art. 3096 and Article 3096w, Revised Statutes of 1895. The execution and delivery of the policy were admitted. It was averred that the policy had lapsed for failure to pay a $2 assessment premium due on the 5th day of August, 1937; prior to August 5th the mailing of a notice that same was due, at least fifteen days before that date; the reinstatement of the policy subject to the condition that the’ assured was in good health; a provision 'in the policy that if assured died from any of the certain enumerated causes, among which were heart disease and kidney trouble, within one year from the date of the policy or within one year from a reinstatement of the policy, that only one-fourth of the face thereof should be paid; further, that the assured was not in good health on the date of the reinstatement and died within less than one year from heart disease or kidney trouble, or both. The provision as to good health was pleaded as a complete bar; the provisions as to death from kidney or heart disease as a defense to all but $250 of the alleged cause of action of plaintiff. The case was submitted by the court upon special issues to a jury. On the findings of the jury judgment was rendered against the dé-fendant in the sum of $1,000. Defendant duly perfected an appeal and the case is here for review.

It seems that the parties concede that the defendant is a mutual insurance corporation. Alfred Noble made application for this policy on the 3rd day of June, 1935, and the policy is dated June 6, 1935. It provides for an assessment of $2.00 per month, payable' in advance, and for increased assessment in certain contingencies. All these assessments from the date of the issuance of the policy to the death of the assured, which was on the 20th day of April, 1938, have been paid. It seems to have been the custom of the defendant to make these assessments come due on the 5th day of each month.

The controversy in this case has arisen over the $2.00 assessment alleged’ to have been due on August S, 1937. A correct disposition of this controversy largely, if not entirely, controls in this case.

Defendant alleges that it mailed notice of this assessment to the assured on July 20, .1937, and that payment was not made of such assessment until after August 5, 1937, and by failure to make this payment by that time the policy lapsed; that the assured on August 9, 1937, made application for reinstatement accompanying same with a remittance; that the payment was accepted and assured was reinstated on this application. On the other hand, the plaintiff contends that her husband did not receive the notice until the 9th day of August, 1937, and promptly made remittance thereafter.

Included in the remittance of Noble was a remittance on a policy on the life of plaintiff’s wife in all respects similar to the one in suit. This remittance on plaintiff’s policy (the policy on her life) was accepted without requirement of an application for reinstatement.

The contract of insurance here consists of the policy in question and the Constitution and By-Laws of the defendant. Even though it somewhat lengthens this opinion, it is deemed necessary to set out in full some of the provisions of each deemed vital here.

The policy of insurance provided:

“4. The holder of this policy is required to notify the company of any change in his or her address and there shall be no further obligation upon the company than to mail a written notice properly stamped and addressed to his or her last known address as shown by the records in the office of the company. The holder of this policy shall have the right to change the beneficiary herein named by filing notice of such intention at the Home Office, accompanied by this policy and fifty cents.”
“8. The failure of the insured to pay any assessment levied by the company within fifteen days from date of notice shall, without further action on the part of the company, lapse this policy, and all future assessments received by the company are accepted upon the representation of the member being in good health and in lieu of a health certificate at the time of the company’s acceptance of same.”
‘TO. If the insured shall within one year from the date of this policy, or reinstatement after lapse thereof, die of any form of the following diseases: heart disease, kidney trouble, tuberculosis, cancer, high blood pressure or a complication thereof, then the company shall be liable for the payment of only one-fourth of the amount provided for herein, and one-half of the principal sum should death occur during the second certificate year from any of the above causes.”

The Constitution provided:

“Section 8. Suspension — Reinstatement and Expulsion: Under no condition shall a member be automatically suspended for failure to pay dues ,or assessments until a notice is sent out to such member and to his last known address, stating therein by what date or time such a member will be suspended if payment of assessment or dues are not made. If, after such period of time, a member fails to make said payment, he becomes suspended and after such time cannot enjoy any of the privileges and rights stated in the policy.
“A member may reinstate on the following conditions, to-wit: such member shall' be required to sign a reinstatement blank giving evidence of insurability at the time of reinstatement, and pay up all the assessments missed by said member to be placed in the mortuary fund less the portion payable to the Secretary and Treasurer as provided in Section #3.
“A member shall also pay a reinstatement fee of $1.00.”
“Section 11. Assessments: All assessments shall be levied as ordered by the Board of Directors and such orders shall be entered upon the minutes in a book kept for that purpose of the Board of Directors.”

In the construction of the insurance contract and determining the rights of the parties thereunder all of the above quoted provisions of the policy and constitution must be considered.

Under our construction of this policy, before defendant was entitled to lapse same for the non-payment of an assessment, notice of the due date thereof must be mailed to the assured at least fifteen days prior to the due date of the assessment. Defendant’s testimony tended to show that the notice of the assessment of August 5, 1937, was mailed, in accordance with the policy, on the 19th day of July, 1937, same being dated the 20th day of July, 1937. Plaintiff testified that her husband did not receive such notice until the 9th day of August, 1937. The inference of fact sought to be drawn by plaintiff was that said notice was not mailed at least .fifteen days before the 5th day of August, ‘ 1937.

The jury found that the notice was mailed, properly addressed and stamped, but it was not so mailed fifteen days prior to August 5, 1937; that the policy was not lapsed after August 5th for non-payment; that Noble made application for reinstatement and same was accepted by defendant; that Noble was in good health on August 9, 1937, the date of the application; that Noble died of a form of heart disease; that such form of heart disease was not the proximate cause of his death — that it was the contributing cause; that he died from a form of kidney trouble; that they did not find same the proximate cause of his death; that kidney trouble was a contributing cause of his death.

Plaintiff filed motion for judgment on the verdict. Defendant likewise filed such motion, further seeking to have the finding that the notice was not mailed prior to the fifteen days disregarded, also the finding that Noble was in good health on August 9th, also the finding that the policy was not lapsed. These findings being disregarded, defendant sought to have the court enter judgment in favor of the defendant, or, in any event, the judgment should not be rendered for any amount in excess of $250. The motion further asked that if the 'findings be not disregarded, that then the court should set the .verdict aside, as conflicting and declare a mistrial.

Notice was waived as to the respective motions by both plaintiff and defendant and the court sustained the motion of plaintiff and overruled that of defendant.

First, it is asserted that the evidence is insufficient to support the finding of the jury that appellant failed to give notice of the assessment of August 5th fifteen days prior to said assessment coming due; second, that having sought and obtained a reinstatement of the policy, the rights of the parties áre to be determined on the basis of the reinstatement.

The . question of reinstatement is important from this standpoint; that, as will be observed from the provisions of the policy above quoted, if there was a reinstatement, the amount of the coverage of the policy was decreased if the assured died within one year from certain enumerated diseases, among which were kidney trouble and heart disease.

Appellant’s secretary and treasurer did testify to the addressing, stamping and mailing of the notice on July 19, 1937. If this testimony was believed by the jury it formed a basis for the reasonable belief that it had been duly delivered. In any event, appellant had discharged its full duty under the policy.

On the other hand, mail properly addressed and stamped and deposited in the United States Post Office is almost in-, variably delivered in a reasonable time. Plaintiff testified that a notice was not delivered to her husband until August 9th; she had. every opportunity to know- as to the facts to which she testified. San Antonio and Fredericksburg are less than one hundred miles apart. In ordinary course twenty-four hours would seem to be ample time for the mail to have been delivered. If delivery may be presumed from mailing,the failure to mail may be inferred from non-delivery. This proposition is valid where- the mailing, stamping and addressing is an issuable fact. Texas Law of Evidence, McCormick & Ray, page 126, sect. 70; page 883, sect. 687.

As supporting the proposition the failure to mail may be inferred from failure to receive, the cases next cited are almost parallel as to their facts to the case at bar. Cisco Mutual Life Ins. Ass’n v. Ferguson, Tex.Civ.App., 8 S.W.2d 546; Mutual Life Ins. Ass’n v. Lillard, Tex.Civ.App., 5 S.W.2d 586; Mutual Life & Loan Ass’n v. Wylie, Tex.Civ.App., 79 S.W.2d 919; Texas Mutual Life Ins. Ass’n v. Burns, Tex.Civ.App., 92 S.W.2d 469.

We hold that it was an issue of fact as to whether the notice of the assessment purportedly due August 5th was mailed at least fifteen days prior to that date.

We come now to the contention of appellant in substance - that, having applied for and obtained a reinstatement, plaintiff must abide the legal consequences thereof. These legal consequences were-that, as has been stated, the coverage of the policy was decreased from $1,000 to $250 in case of death from the diseases specified in the policy. Of course, if the-assured was not in good health at the time of the - reinstatement the coverage of the policy in any amount would be terminated. In regard to this last contingency the jury found that he was in good health on the 9th day of August, and the finding being upon conflicting evidence we think this question passes out of the case.

This policy was ^incontestable after two years, and the two years had elapsed on August 9, 1937. If lapsation there was and reinstatement, as contended by defendant, the assured had lost part of the coverage of the policy and the benefit of the provision that same is incontestable. In the case at bar, if the policy did lapse, the payment of the premium and the promise of future premiums were sufficient consideration to support the new contract of insurance. On the other hand, if the policy had not lapsed, there was no consideration to support the assured's agreeing to a limitation of the coverage and to the clause as to incontestability. In support of the theory that the assured, having accepted a reinstatement, was bound thereby, two cases are cited: Supreme Ruler of Mystic Circle v. Darwin, 201 Ala. 687, 79 So. 259, and Neighbors of Woodcraft v. Hildebrandt, 98 Colo. 231, 54 P.2d 889.

The second syllabus in the Alabama case first cited is as follows: “If insurer [assured] had been properly suspended by defendant fraternal society, stateme'nts made in his application for reinstatement would be binding, otherwisé not.” We think that as far as this case goes is to simply hold that the fact the assured made an application for reinstatement is evidentiary of the fact of lapsation.

The second case, a Colorado case,- we think goes no further, if as fa-r as the Alabama case. In fact the Alabama case, according to our view, gives support to the idea that, there, being no ground to suspend a member, such suspension of the member or his policy has no effect on the contract relations. The reinstatement application here makes no recital or express admission as was the case in Bankers Life & Loan Ass’n v. Chase, Tex.Civ.App., 114 S.W.2d 374.

It will be observed that Section 11 of the Constitution of defendant, which has been copied above, provides that all assessments shall be levied, as ordered by the board of directors and the orders be entered upon the minutes. It may be that the assessment in question was so levied and so recorded. If so, the part of the record where this appears has not been called to our attention in the briefs of the parties. We have not found same in the statement of facts. It may be that the long course of procedure with reference to the policy here involved is some evidence that such an assessment was levied by the board of directors. However, if there was such levy the same was in the knowledge of defendant and easily susceptible of certain proof. We take it that a levy of an assessment was essential to the matured liability of the assured for the premium provided for in the policy.

The findings of the jury on the question as to kidney disease or heart disease being the cause of the assured’s death are - in. hopeless conflict. It has been before pointed out that they found that Alfred Noble died of a form of heart disease ; they did not find it was the proximate cause but they did find it was a contributing cause-; they - further found he died from a form of kidney trouble, but they found that it was not the proximate cause of his death, but same was a contributing cause of his death. These findings are so conflicting that they will not support a verdict. However, if the judgment is supported by other independent findings the conflict is immaterial. These findings were only relevant if there had been a legal lapsation of the policy and a reinstatement thereof. The facts found support the theory that there was no legal lapsation of the policy. Law of Special Issues, Speer, Sect. 435. Hence the verdict at least is sufficient to support the judgment as rendered.

Special issues No. ,1 and No. 2 were as .follows: ■

“Special Issue No. One: Do you find from the evidence that the defendant insurance company mailed notice of assessment properly stamped and addressed to Albert W. Noble to his post office address last known to the defendant as shown by the records in its office?” Answer: “Yes.”
“Special Issue No. Two: Do you find from the evidence that such notice, if any you have found in answer to the foregoing special issue, was so mailed fifteen days prior to August 5, 1937 ?” ' Answer: “No.”

Defendant made no objection to issues one and two as submitted by the court. It complains under propositions 4, 5, 6 and 6a that defendant was entitled to an affirmative submission of its defensive issues. The assignments on the proposition are predicated on the refusal of the court to •give the following issues requested by the defendant:

“Defendant’s Requested Issue No. Two: Do you find from the preponderance of the' evidence that the Border State Life Insurance Company mailed a notice to A. W. Noble of the due date of the August, 1937, assessment?”
“Defendant’s Requested Issue No. Three: What date do you find from a preponderance of the evidence was fixed by the assessment notice, if you find said notice was mailed, as a final due date for payment of such assessment?”
"Defendant’s Requested Issue No. Four: What date do you find from the preponderance of the evidence was the assessment notice for August, 1937, assessment mailed by the Border State Life Insurance Company, if you have found it was mailed?”

This idea prevails throughout the three issues requested: that the mailing of a notice was sufficient. Now, to discharge its obligation to the assured, the notice should not only be mailed, but same should be properly addressed and stamped. We think that there was no error in the court’s refusal of these issues. The issues neither singly nor taken collectively completely present an ultimate issue in the case.

Defendant contends that there is a conflict preventing the rendition of a judgment herein between the findings on special issues three, four and five. Number three was as to whether the policy was lapsed after August 5, 1937, the finding in the negative; number four, that Albert W. Noble, after August 5, 1937, made application for reinstatement of his policy, and was answered in the affirmative; number five found that the defendant accepted such application for reinstatement. It is undisputed under the evidence that the assured did, after August 5, 1937, make application for reinstatement of his policy; likewise that defendant purported to grant such reinstatement. Now number three might have been objectionable as a submission of a question of law to the jury, but under the issues as made in this case it does not conflict with four and five.

We have heretofore discussed what, in our opinion, is the effect of the application and acceptance of reinstatement where there was no basis for the lapsation or suspension. If it was the submission of a legal question to the jury, it is immaterial. The other findings are ample tQ support the judgment entered. The judgment finds ample support in the findings in substance^ that notice that the assessment claimed to be due on August 5th was not given at least fifteen days before that date.

It is ordered that the judgment of the trial court be in all things affirmed.


author: McGLENDON, -Chief Justice..

text:
    THRASHER v. NOVY.
    No. 8894.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1940.

      Robert B. Thrasher, of Austin, for appellant. ' '
    Hart & Brown, of Austin, for appellee.
   McGLENDON, -Chief Justice..

Appeal from a judgment upon a directed verdict in favor of plaintiff in a suit upon an open account by Novy (doing business ’under the name of Austin Metal & Iron Company) against Thrasher in his capacity as administrator of the estate of W. W. Callaway, deceased.

Appellant urges three propositions which challenge the sufficiency of the evidence to establish: (1) That Callaway was dead and appellant had been appointed and had qualified as his administrator; (2) that the claim had been presented and (3) rejected by the administrator.

We consider these propositions together since the record showing thereon is interrelated.

The petition alleged Callaway’s death, the appointment of the administrator by the county court of Travis county, and that he had qualified and was acting as such. The original claim duly verified by Novy was attached as an exhibit to the petition. It bore the following endorsements :

“The State of Texas,
“County of Travis.
“I, Robert B. Thrasher, Administrator of the Estate of W. W. Callaway, deceased, finding upon an examination of the within claim in favor of Austin Iron & Metal Company against the Estate of W. W. Callaway, deceased, which has been presented • to me by the claimant as a claim against said Estate and believing from the facts relating thereto that it should not be allowed, do hereby reject said claim this 1st day of April, 1938.
“Robert B. Thrasher;
“Administrator of the Estate of W. W. Callaway, Deceased.
“Number 8846. In the County Court .of Travis County, Texas. In the Matter of the Estate of W. W. Callaway, Deceased. Claim and Rejection of Claim of Austin .Iron & Metal Company. Filed April 2, 1938. Miss Emilie Limberg, County Court, •Travis County, Texas. By S. H. Ramsey, Deputy.”

The administrator filed an answer in his capacity as such, which was signed “Robert B. Thrasher, Attorney for Defendant,” containing: (1) General demurrer; (2) special exception of two years statute of limitations; (3) general denial; (4) plea of two years statute of limitations; and (5) plea “that said debts were never incurred,” or (if incurred) had been paid “during the lifetime” of Callaway. This last plea was verified as follows:

“State of Texas,
“County of Travis.
“I, Robert B. Thrasher, attorney for the Administrator of the Estate of W. W. Callaway, deceased, do hereby state on oath that according to information furnished me by the family and heirs-at-law of the said W. W. Callaway, deceased, and according to the best of my information 'and belief the facts as above set forth are true and correct.
“Witness my hand this 21st day of May, 1938.
“Robert B. Thrasher.
“Sworn to and subscribed before me this 21st day of May, 1938.
“Leila Belle Steck,
“(Seal) Notary Public, Travis County, Texas.”

The answer contained no specific denial of the administration or the administrator’s qualification.

The original claim, with the above endorsements, was introduced in evidence “for the purpose of showing that the suit was timely brought.”

In so far as concerns the first proposition, the answer did not put in issue the existence of a valid administration and the qualification of the administrator', since there was no specific traverse of the allegations of the petition in this regard. This was expressly held in Tolbert v. McBride, 75 Tex. 95, 12 S.W. 752, citing Judge Wheeler in Cheatham v. Riddle, 12 Tex. 112. Appellant cites American L. & M. Co. v. Bangle, Tex.Civ.App., 153 S.W. 662. The holding there was that Art. 1265, R.S. 1895 (now Art. 2010), which requires certain pleas to be verified, relates only to allegations in the petition regarding plaintiff’s capacity to sue; and has no relations to allegations therein as to defendanfs representative capacity. In so far as the particular statute is concerned, the holding is correct. No reference was made in the Bangle case to Tolbert v. McBride or the holding therein, which was predicated, not on the statute, but. upon general principles of proper pleading. From which we conclude that the point was not • called to the court’s attention. In this connection we refer to Chief Justice Fly’s comment on the Bangle case in Woodward v. Brown, Tex.Civ.App., 252 S.W. 337. See also Schaff v. Nash, Tex.Civ.App., 193 S.W. 469.

Aside from this, however, the admissions in the answer, the verification of plea 5 thereof, and the endorsements on the claim, conclusively establish: (1) The administrator’s capacity to be sued as such; (2) presentation of the claim; and (3) its rejection. Appellant’s contention of lack of proof in this regard is predicated upon the fact that the claim and endorsements thereon were introduced only to show “that the suit was timely brought.” This was' the only purpose as to which the endorsements were admissible. It was essential to plaintiff’s right (1) to sue and (2) to recover that he (1) allege and (2) prove that the claim was presented to the administrator, was rejected by him, and that the suit was filed within 90 days thereafter. R.C.S. Arts. 3514 and 3522; Johnson v. Loan Co., Tex.Civ.App., 135 S.W.2d 806. Having proved without objection that a properly verified claim was presented to and rejected by the administrator, and that suit was brought thereon within 90 days after such rejection, plaintiff’s right to sue the administrator in his representative capacity was established and nothing remained but to establish the existence and validity of the claim. 365 pages of a 410-page statement of facts (costing, incidentally $200) were devoted to that subject; and so conclusive was the evidence thereon that no question is raised in the appeal in that regard, even in the face of a directed verdict.

The trial court’s judgment is affirmed.

Affirmed.


author: WILLIAMS, Justice.

text:
    ANDING v. QUEENER.
    No. 5529.
    Court of Civil Appeals of Texas. Texarkana.
    March 14, 1940.
    Rehearing Denied March 21, 1940.

      McGee & Head, of Kilgore, Stinchcomb, Kenley & Sharp, of Longview,- and Darden, Burleson & Wilson, of Waco, for appellant. ' ■
    Jones & Jones, of Marshall,' and Mann & Gossett, of Wichita Falls, for appellee.
   WILLIAMS, Justice.

Harriet Jane Queener, between six and seven years of age, by Next Friend, brought this suit against A. F. Anding, herein referred to as defendant, to recover damages for injuries alleged to have been sustained as the result of an automobile accident which occurred, on Main street within the corporate limits of Kilgore during the noon hour. In amended petition, upon which the case was tried, she alleged that while crossing Main street she was run into by an automobile belonging to defendant and being driven by Bailey Jones, a servant and employee, while acting in the course of his employment. Various alleged acts of negligence were pleaded, which included a charge that this driver operated the car at a greater speed than twenty miles per hour within the corporate limits of Kilgore in violation of the penal laws of the state. She further pleaded that if she be mistaken in her allegation that such alleged speed was in violation of the penal law, then, in the alternative, said speed constituted actual negligence. Defendant answered with a general demurrer and denial. He pleaded various acts of plaintiff constituted contributory negligence, and further pleaded that the driver of his car was acting under an emergency at and prior to the time of the accident not proximately caused by any negligent act of his driver, who exercised ordinary care while acting under such emergency. In a supplemental petition plaintiff pleaded that on account of her age she could not be charged with contributory negligence; specially denied that the driver of the car was acting' under an emergency ; and if there was an emergency, the driver failed to exercise ordinary care in such emergency.

Harriet, going in a northerly direction, was crossing Main street at or near a point where the same intersected Broadway. As she reached the center, or a foot or two north of the center of Main, defendant’s car, traveling east on Main, struck her. The right front side of the car hit her. Approaching this intersection from the west, there were situated on the north side of Main street an electric shop, a space of about twenty feet, then the Star Grocery, another space of perhaps twenty feet, and then the -Palace Grocery, on the corner west of the-intersection. There were parking spaces off the pavement between and in front of these buildings. Several trucks and automobiles were parked along or around the stores. Some placed all the vehicles off the pavement. Other witnesses placed some of the -vehicles parked on the pavement parallel to the curb. Main street was thirty feet wide. Broadway was under-repair and.closed to vehicular traffic. According to plaintiff’s witness Watson, he -first observed in his rear-view mirror defendant’s car approaching, probably ISO feet back; Watson proceeded thirty or forty feet when defendant’s car pulled to the north to the center of the street and passed •him as he was proceeding to turn off to the south to park between the electric shop and Star Grocery. Harriet emerged from the south.into the street either from between or around some parked vehicle. Some said she was walking, others that she ran into the street. Witnesses estimated the speed of defendant’s car at and just prior to the accident at thirty-five miles, slow, fifteen .miles, and fifteen to twenty miles, and skid marks at fourteen or sixteen inches, ten feet and twelve feet. Harriet was within eight or ten feet of defendant’s car when various witnesses observed her. The car proceeded some.ten feet to the north curb after striking Harriet and came to a stop at an angle hear the north curb.

We deem the foregoing brief picture sufficient for an understanding of the propositions discussed.

Plaintiff moved for judgment and subject thereto for a mistrial on account of irreconcilable conflict in the jury’s findings. From a judgment in favor of plaintiff and the refusal of the court to grant defendant’s motion to set aside the verdict and grant a new trial, defendant has perfected his appeal.

In response to Special Issues Nos. 4, 5 and 6, the jury found that the driver of the automobile on the occasion in question failed to keep a proper lookout as he approached the juncture of Main and Broadway; such failure was negligence; and this was a proximate cause of the injuries. The driver was exonerated on other alleged acts of negligence, except that of speed, to be observed later. The jury answered Issue No. 12, “It was not an unavoidable accident.” The jury found .that Harriet failed to look to her left before attempting to cross the street; failed to keep a proper lookout at the time; attempted to run across the street; and that she ran into the path of the car: They found that neither of these acts constituted negligence on her part. To Special Issues Nos. 31 and 32, the jury found that at the time of the accident, the driver was acting under an emergency not proximately caused by any negligence on his part, and used ordinary care after the emergency arose.

Under several propositions defendant asserts that the jury’s findings in response to issues on emergency were in direct, irreconcilable conflict with the findings on failure to keep a lookout and on unavoidable accident. Special Issue No. 31 reads : “Do you find from a preponderance of the evidence, if any, that Bailey Jones was, at the time of the accident in question, acting under an emergency?”

The court defined an emergency as follows : “In connection with the above issue, you are instructed that the word ‘emergency’ as used herein, means a condition arising suddenly and unexpectedly, and not proximately caused by the negligent act or acts of_Bailey Jones, and which called for immediate action on his part without time for deliberation.”

Such an issue with its definition was submitted in Dr. Pepper Bottling Co. v. Rainboldt, Tex.Civ.App., 66 S.W.2d 496, 497, 501; Schroeder v. Rainbolt, 128 Tex. 269, 97 S.W.2d 679, 684, and received the tacit approval of both courts. The jury answered “Yes” to No. 32, reading: “Do you find from a preponderance of the evidence, if any, that after the emergency, if any arose, Bailey Jones did what an ordinarily prudent person would have done under the same or similar circumstances?”

It is to- be observed that the jury found the failure of the driver to keep a proper lookout as he approached the juncture of the two streets was negligence and a proximate cause of the injury. The jury also found that the emergency arose through no act of negligence of the driver and was not proximately caused by any negligent act of his. The former would form a basis of recovery, the latter would lead to its denial, 30 T. J. 691; 45 C.J. 713. This presents an irreconcilable conflict on controlling issues. The finding on unavoidable accident is also in conflict with the findings- on Nos. 31 and 32. As stated in Speer’s Issues (1932 Ed.) Sec. 431, p. 560: “There is no rule of priority, indeed there is no priority, in the degree of importance to be attached to any particular finding. So that, where the findings with respect to a definite fact material to the judgment are such that both cannot be true and therefore cannot stand at the same time, there is a fatal conflict.” Stiles v. Union Terminal Co., Tex.Civ.App., 1 S.W.2d 947, 949.

In response to Special Issues Nos. 1 and 2, the jury found that the automobile was being operated at a rate of speed in excess of twenty miles per hour on the occasion of the injuries, but this was not negligence. The jury was instructed that if they answered No. 1 “Yes,” to answer No. 3. To this they answered that the speed in excess of twenty miles an hour was a proximate cause. We need not determine if the findings on speed can form a basis for the judgment entered. If the answer to No. 3 be given effect on the theory of common-law negligence, the observations above made on a conflict with emergency would likewise be applicable.

We pretermit a discussion of the other propositions advanced. Because of the irreconcilable conflict in the jury’s findings, the judgment is reversed and the cause remanded.


author: FOLLEY, Justice.

text:
    GENERAL EXCHANGE INS. CORPORATION v. BELL.
    No. 5110.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1940.
    Rehearing Denied March 11, 1940.
    Clayton & Bralley, of Amarillo, for appellant.
    Mahan & Broughton, of Childress, and J. O. Fitzjarrald, of Memphis, for appellee.
   FOLLEY, Justice.

This is an appeal from an order'of the County Court of Hall County, Texas, overruling a plea of privilege of the appellant, General Exchange Insurance Corporation.

Homer Bell, the appellee, and as plaintiff below, filed this suit against the appellant to recover upon a fire insurance policy issued by the appellant upon a truck of the appellee which was destroyed by fire. The appellant filed its plea of privilege to be sued in Potter County, Texas, the county of its residence.

The appellee filed his controverting affidavit seeking to retain venue in Hall County by virtue of Subdivisions 23 and 28 of article 1995, Revised Civil Statutes. The allegations under Subdivision 23 were that the appellant was a corporation with an agent in Hall County, and that the cause of action arose in such county. The ap-pellee has abandoned the venue exception embraced in this subdivision because the truck when destroyed by fire was in Harde-man County, Texas, and for the further reason that the proof failed to show the appellant had an agent in Hall County. The remaining controversy on the issue of venue is predicated upon the first portion of Subdivision 28 of the statute which reads as follows: “Insurance. — Suits against fire, marine or inland insurance companies may also be commenced in any county in which the insured property was situated.”

The appellee lives at Estelline in Hall County where he has resided for thirty years. He purchased a 1937 Chevrolet, truck on or about the first day of September, 1937, which was insured against fire at such time by the appellant. The truck was destroyed by fire on or about the third day 'of June, 1938.- Before .its destruction such truck had been used by the appellee for occasional hauling and when not in use was kept at Estelline in Hall County. J. C. Bell, a brother of the appellee, was driving the truck for the appellee at the time it was burned. The loss occurred near Quanah in Hardeman County.

Under the holdings of the Commission of Appeals in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, and Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, and that of the Supreme Court in A. H. Belo Corporation v. Blanton, Tex.Sup., 129 S.W.2d 619, we think the appellee has discharged the burden of proof in showing himself entitled to maintain this suit in Hall County under Subdivision 28 provided he has sufficiently shown that the truck was “situated” in Hall County within the purview of that portion of Subdivision 28 above quoted.

There is no controversy over the fact that the truck was not actually in Hall County when the loss occurred, but the appellee asserts that since he resided in Hall County and the truck was there kept at all times except whep the regular use thereof necessitated its being driven temporarily into some other county, the truck was “situated” in Hall County for the purpose of venue as expressed in the language of the statute. In support of this contention the appellee cites' us to the case of General Exchange Ins. Corporation v. Dudley, Tex.Civ.App., 128 S.W.2d 452, where the exact question was decided in conformity with appellee’s contention by the Court of Civil Appeals at Galveston. We think the argument therein, set forth, which we -shall not here repeat, is not only logical but is unanswerable.

The appellant contends that the Dudley case is in conflict with Jones v. Hollywood Style Shop, 62 S.W.2d 167, 168, by the San Antonio Court of Civil Appeals. We think a careful reading of the two cases will lead to the conclusion that they are not in conflict with each other but deal with divergent situations, as was set out in the opinion in the Dudley case.' In the Jones case the insured property was merchandise in Cameron County, the county where it was insured, where the loss occurred and where the suit Was filed. The appellant therein attempted by a plea of privilege to remove the cause to Bexar County where‘its representative resided. The Court of Civil Appeals upheld the action of the trial court in overruling the plea of privilege and in that instance construed the above language of the statute to refer to the place 'where the property was “situated when destroyed by fire.” As was said of that case in the Dudley case [128 S.W.2d 453], the “property involved therein consisted of personal property in the nature of merchandise permanently located in a place of business within the county in which the suit was instituted, * * * The situation of the property in that' case and the place of the loss were one and the same. Such is not the case in the cause before us. The property involved'is a truck which was only upon a temporary business errand in the county where the loss occurred. The owner resided in Hall County and the truck was kept at his residence except upon occasions when in the course of his business it became necessary to operate the truck in some other county.

It will be noted that the language of Subdivision 28 above quoted does not provide that the suit may be commenced in the county in which the' property actually was at the time of the loss. In fact, the place of injury or destruction is not noticed by this portion of the subdivision. On the other hand, the provision is only to the effect that the suit may be filed in any county where the property insured is “situated” without regard to the place of loss. The word “situated”, as used in the statute and as applied to mobile and transitory property, would surely not imply that the venue of a suit involving such property would change every time the property, in the course of its use, departed from one county and entered some other county. If such an interpretation should be placed upon the word “situated” it would be possible under our modern methods of transportation for the venue of a suit of this character to change a dozen times in the space óf a few hours. We think it was the intention of the Legislature that the word, “situated”, as used in this statute, should have a more stable meaning with reference to mobile or transitory property than would necessarily follow if appellant’s contention is correct as applied to the facts of this case. Brock & Co. v. Board of Sup’rs of Los Angeles County, 8 Cal.2d 286, 65 P.2d 791, 793, 110 A.L.R. 700; Ingram v. Cowles, 150 Mass. 155, 23 N.E. 48, 49; Lathe v. Schoff, 60 N.E. 34, 35; Logan et al. v. Ludwick, Tex.Civ.App., 283 S.W. 548.

In 58 C.J. 741, the word “situate” is thus defined: “To have a situs, a place or position; kept.” On this same page the word “situated” is defined: “Located ; placed with regard to its surroundings. The term contemplates more than mere temporary presence.” Also, the word “situs” is there defined as follows: “Location; site, situation; the place where a thing is. While it is said that permanency of location is not required to fix situs, yet the term does import fixedness of location.” Under such definitions certainly the truck was not “kept” in Hardeman County nor did its location there at the time of the loss import “fixedness”, but on the contrary its presence was merely “temporary”. It is therefore our opinion that for the purpose of venue the truck of the appellee was “situated” in Hall County within the purview of Subdivision 28 of article 1995, R.C.S., and that the venue was properly laid in such county.

The appellant assigns as error the admission of certain testimony introduced by the appellee in an attempt to show the appellant had an agent in Hall County and thus establish venue under Subdivision 23 of the statute. If there'was any merit to such assignment, the same becomes immaterial, since the appellee has abandoned his efforts to establish venue under such subdivision but relies strictly on Subdivision 28 to which the assignment is not germane.

The judgment is affirmed.


author: JACKSON, Chief. Justice.

text:
    LAWSON v. HUTCHERSON et al.
    No. 5107.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1940.
    Rehearing Denied March 11, 1940.
    W. W. Kirk, of Plainview, and Dennis Zimmermann, of Tulia, for appellant.
    Griffin & Morehead, of Plainview, for appellees.
   JACKSON, Chief. Justice.

The appellant, L. C. Lawson, instituted this suit in the District Court of Hale County, Texas, against the appellees, S. C. Hutcherson and his son, Claude Hut-cherson, to recover the sum of $37,909 for personal injuries received while a minor driving a tractor for appellees on their farm.

The negligence relied upon, the'injuries received and the damages sustained were fully set out in appellant’s petition.

- The appellees answered by general denial and alleged that appellant appeared to be twenty-one years of age, was an experienced tractor-driver and hence es-topped to urge his minority; they also pleaded assumed risk and contributory negligence.

No complaint is made of the pleadings and the above, together with the testimony hereafter recited, we deem sufficient for the disposition of the questions presented for consideration.

When the testimony was concluded the court peremptorily instructed the jury to return a verdict for appellees and on the verdict so returned rendered judgment that appellees' go hence without day and appellant take nothing by his suit.

The appellant by proper assignments challenges the action of the court in directing a verdict and rendering judgment against him because he contends the testimony presented fact issues that should have been submitted to the jury for determination.

The record discloses that in June, 1936 the appellees were engaged in cultivating a farm consisting of several hundred acres of land, employed several hands, owned ten or more tractors and other machinery which they used in connection with their farming operations; that Claude Hutcherson had charge of and supervision over the employees,' the farm, the tractors and machinery and the operation thereof; that appellees maintained on the farm. a shop for the repair of tractors and machinery and Claude Hutcherson, who was a good mechanic, did the repairing himself or supervised the repairing of the tractors; that on June 19, 1936 the appellees employed appellant to drive and operate a tractor to be used in harrowing, listing and breaking land; that he was twenty years old and had operated tractors in breaking land and other farm uses in the summer time for five or six years but he was not a mechanic, had never overhauled a tractor and was not qualified to fix or repair the defects in such machines or the mechanism or parts essential to the operation thereof. Claude Hutcherson selected and furnished the tractor to be driven by appellant who operated said tractor until June 30th, eleven days, when he received the injuries for which he seeks to recover damages.

The above facts, the injuries received by appellant, the severity thereof, the time he remained in the hospital, his suffering, the expenses he incurred for hospitalization and the incapacity to work resulting from the injuries, which are permanent, are not controverted.

Appellees contend that the court was warranted in peremptorily instructing the jury to find in their behalf because the evidence was not sufficient to show actionable negligence but did disclose without contradiction that appellant was as a matter of law guilty of contributory negligence and assumed risk or in any event guilty of one of them.

The law appears to be settled that when a litigant requests the court to peremptorily instruct a verdict in his behalf he admits as true all the evidence supporting the contention of the adverse parties. Owen v. Al Parker Securities Co. et al., Tex.Civ.App., 296 S.W. 620, affirmed in Tex.Com.App., 1 S.W.2d 271.

In Coca-Cola Bottling Co v. Dickson, Tex.Civ.App., 115 S.W.2d 1223, 1224, it is held to be reversible error for the court to direct a verdict,

‘ “ If, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.” Dendy v. Cockerham et ux. (Tex.Civ.App.) 82 S.W.2d 756, 758.
“ ‘To the same effect are the holdings in Texas Employers’ Ins. Ass’n v. Ritchie (Tex.Civ.App.) 75 S.W.2d 942; Jackson v. Langford (Tex.Civ.App.) 60 S.W.2d 265; Gross v. Shell Pipe Line Corporation, (Tex.Civ.App.) 48 S.W.2d 377, and authorities cited.’ Panhandle & S. F. Ry. Co. v. Jones, Tex.Civ.App., 105 S.W.2d 443, 444.”

’ See also Octane Oil Refining Co. v. Blankenship-Antilley Implement Co., Tex.Civ.App., 117 S.W.2d 885; Jefferson Standard Life Ins. Co. v. Curfman, Tex.Civ.App., 127 S.W.2d 567.

Discarding all the adverse evidence the testimony is that appellant discovered the day he began driving the tractor assigned to him that the steering gear when he attempted to turn the machine to the left or to the right would lock or become fastened and to remedy this locked or fastened condition it required the exercise of more than usual or ordinary force; that some times the tractor had to be stopped and thrown out of gear in order to turn a corner; that appellant had informed appellee Claude Hutcherson the same day that there was something wrong with the steering gear and that he was having trouble and at least twice thereafter he told the appellee that there was something wrong with the spindle pins or bushings or with the steering gear that caused it to lock and hang and this interfered with the operation of the machine; that the appellee advised him that he knew the tractor was in that condition but in a very short time he would have another tractor ready for appellant to use and to continue the use of the one he was driving and he would fix it when there came a shower of rain or at some convenient time when he wasn’t too busy and on such assurance appellant continued the operation of the tractor until he was injured; that in order to enable appellant to exercise greater force for the purpose of releasing the steering wheel from its locked condition it was necessary for him to leave the seat, stand on the floor of the machine, brace himself against the fender, and thus secure a greater leverage and a better position to exercise more force; that appellant and several other employees were operating tractors each following the other, listing the ground in a field on the day he was injured and in making the circuit with the tractors it was necessary to make five left turns and one right turn; that there were furrows placed across the land to prevent erosion and as these ran diagonally across the listing furrows they had to be crossed; that at the time he was injured he had turned the tractor to the left and the steering gear locked and in an effort to turn the machine back to the right he left the seat, placed his feet on the floor of the machine, leaned against the fender so he could exercise more power to unlock the steering wheel and guide the tractor to the right for the purpose of following the preceding tractor and listing furrow; that while he was attempting to do this the tractor dropped into one of the erosion ditches, lurched and he fell or was thrown from his position on the machine and permanently injured or disabled. The tractor continued to the left and made two or three complete circles before the engine was killed by the extra load resulting from the greater depth the plows went into the ground when left without an operator; that appellant did not know that it was dangerous to leave the seat, stand on the floor and lean against the fender in order to turn the tractor; that the other boys some times rode on the fender when they were driving a machine; that appellee Claude Hutcherson had seen the appellant on the fender but gave him no warning of the danger of riding in that position.

An expert placed on the stand by appel-lees said that he had examined the tractor after the appellant was injured and that the king pin or spindle bolt and the knobs in the steering mechanism were worn off about 50% and when so worn were loose and if small particles of the steering apparatus were broken and not removed it would have a tendency to hang or lock the steering wheel and interfere with the operation of the tractor causing the steering apparatus to hang or lock, but by exercising sufficient strength on the steering wheel it could be loosened and the tractor guided or turned until this locked condition again arose.

If we give credit to all the testimony favorable to appellant and indulge every legitimate conclusion which the jurors might have drawn from these facts, they might have found for appellant and the court erroneously directed a verdict against him.

In Currie v. Missouri, K. & T. Ry. Co. of Texas, 101 Tex. 478, 108 S.W. 1167, 1169, plaintiff Currie alleged in substance the turntable in use by the railroad was defective ■ and out of repair and because thereof it would catch, hang and stop suddenly when being turned; that while exercising great force in assisting to turn the table it suddenly stopped causing the injuries which were the basis of his claim for damages. The testimony tended to show the occurrence as pleaded that Currie had assisted in turning the table on previous occasions without difficulty; the table was old, defective and out of repair, but if the engines were properly balanced on the table it would turn without hinderance; that the sudden stopping had occurred before and the railway company had been warned of this condition. The trial court peremptorily instructed the jury to return a verdict in behalf of the railway company. The Supreme Court, in holding in effect that there was an issue of actionable negligence and that the directed verdict constituted reversible error, says: “The duty of the master is at all times to exercise ordinary care to furnish for the use of the servant safe and suitable machinery and appliances with which the servant is to do his work. Whether or not this duty has been performed must be determined by considering that which has been furnished in connection with the uses to which the servant at the time in question is expected to put it. A pi-ece of machinery wholly suitable and adequate to the purposes for which it is used at one time may be inadequate for other uses at different times; and, when the latter condition exists, the machinery may well be said to be improperly constructed, defective, or dangerous.”

We feel unwarranted in concluding that an employee of ordinary prudence would not have continued to operate the tractor under the circumstances in the record and, in our opinion, the appellant was not guilty of contributory negligence as a matter of law. Beck v. Texas Co., 105 Tex. 303, 148 S.W. 295.

Under the testimony appellees’ contention that the court correctly instructed a verdict in their behalf because appellant had assumed the risk of being injured by the operation of the- tractor is not tenable.

In Orange Lumber Co. v. Ellis, 105 Tex. 363, 150 S.W. 582, 586, the Supreme Court says: “The general rule that the servant assumes the risks incident to his employment' where he enters, or continues in the service of the master, after knowledge of the defective machinery employed in the performance of his work and knowledge of the ordinary danger incident to the use of such machinery, does not consequently imply that he assumes the risk of every possible injury that may result from the use of such defective machinery. Under such circumstances, he does not assume the unusual and extraordinary risks of which the master knows or of which he should know or foresee, unless such risks are obvious, or such servant has actual or presumptive knowledge of such danger. The knowledge which bars the servant of recovery where he enters or continues in the service with defective machinery is the complete appreciation of the risk, and not a mere apprehension of possible danger. The servant assumes the risk of every probable danger, but not of every possible danger.”

In 18 R.C.L. 694, para. 179, the author says: “Although an employee may have had knowledge as of a physical fact of the defective condition of a tool, appliance or place by reason of which he has sustained an injury, it by no means follows that he must have appreciated the danger to which he was thereby exposed. His general knowledge may not have been such as to give him any conception of the peril. * * * Accordingly it has been held that the knowledge of a brakeman of the unsafe condition of the railroad track upon which he was killed, will not defeat a recovery for his death if it was not so dangerous as to threaten immediate injury or if he might have reasonably supposed that he could safely work on it by the use of care and caution.”

For a more extended discussion of assumed risk see Chicago, R. I. & G. Ry. Co. v. Frederick, Tex.Civ.App., 74 S.W.2d 275.

The judgment is reversed and the cause remanded.