author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    HOLMES v. STATE.
    No. 21192.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Jan. 22, 1941.

      Taylor, Irwin & Irwin, of Dallas, and Ivan Irwin and Wallace B. Moore, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The testimony adduced by the State shows that on Saturday night of September 16, 1939, the appellant, accompanied by his common-law wife and Leon Pease, came into that part of Spiders’ Cafe set apart for negroes fin which James Johnson, lilvira Prim and the deceased, Johnnie Johnson, were sitting at the counter eating and drinking soda water. Appellant approached the deceased with the remark: “I have been looking for you all night and I am going to kill you. * * * You carried Susie (meaning appellant’s wife) home last Saturday night.”

Appellant then struck with a knife at the deceased’s neck but did not cut him at that time because James Johnson struck appellant with a “smoothing iron”. At this juncture, Mr. Spillers, the owner of the cafe, appeared on the scene and ordered ■them to leave his place of business. In their hurried retreat the deceased fell on his back in the street or alley and it was then that appellant stabbed him in the chest and about the heart from the effects of which he died in a very short time.

By his own testimony appellant admitted the killing but claimed that he did so in self-defense. He contended that the deceased threw a glass and a Coca-Cola bottle at him and that James Johnson struck him with a flat-iron before he ever made an attempt to cut the deceased. The testimony, although meager, also raised the issue of accident.

Appellant filed a plea for the suspension of sentence in the event of his conviction. | The jury found him guilty of murder with 'malice and assessed his punishment as above indicated.

Bills of exception Nos. 1, 5, 6, 7 and 8 show that the appellant, in due time, objected to paragraph 14 of the court’s charge relating to an instruction on the law of self-defense. He based his objections on the following grounds : first, that it failed to clearly instruct the jury upon the law of self-defense as applicable to the facts in the case; second, that the charge, as phrased, rendered the same incomprehensible and confusing; third, that it did not clearly instruct the jury that they must view the facts constituting the defendant’s defense from his standpoint alone; fourth, that it shifted the burden of proof to the defendant; and fifth, that it failed to distinctly and in an affirmative manner instruct the jury upon the defendant’s right of self-defense.

The paragraph of the charge complained of is quite lengthy and to set it out verbatim would extend this opinion at too great a length. However, when stripped of all unnecessary verbiage and repetition, it reads as follows: “If you believe from the evidence beyond a reasonable doubt that the defendant cut or stabbed Johnnie Johnson with a knife and killed him, but you further believe from the evidence that at the time of so doing, if he did, the defendant was in danger of being killed or having serious bodily injury inflicted upon his person by Johnnie Johnson and James Johnson or by James Johnson as viewed from his standpoint under all the facts and circumstances within the defendant’s knowledge that James Johnson was acting together with or aiding Johnnie Johnson, or that from words coupled with acts or conduct, if any, of Johnnie Johnson or both Johnnie Johnson and James Johnson, or either of them, and there was created in his mind a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant cut or stabbed and killed Johnnie Johnson, then you must acquit the defendant, or if you should have a reasonable doubt whether or not the defendant was acting in self defense when he killed the deceased, if he did, you must give him the benefit of the doubt and acquit him.”

The court did charge the jury that if they believed from the evidence, beyond a reasonable doubt, that the defendant cut or stabbed Johnnie Johnson with a knife and killed him, but further believed from the evidence that at the time of so doing, if he did, the defendant was in danger of being killed or having serious bodily injury inflicted upon his person by Johnnie Johnson or by both Johnnie Johnson and James Johnson or by James Johnson, as it reasonably appeared to him, viewed from his standpoint, or if from the words coupled with the acts and conduct, if any, of the said Johnnie Johnson or both Johnnie Johnson and James Johnson or James Johnson, if any, it reasonably appeared to the defendant at the time, viewed from his standpoint under all the facts and circumstances within his knowledge, that James Johnson was acting together with or aiding Johnnie Johnson, and it reasonably appeared to the defendant that his life or his person was in danger, and there was created in his mind a reasonable expectation or fear of death or serious bodily injury, and acting under such reasonable expectation or fear the defendant cut or stabbed and killed Johnnie Johnson, then they must acquit the defendant, or should they have a reasonable doubt as to whether or not the defendant was acting in self-defense when he killed the deceased, if he did, they must give him the benefit of the doubt and acquit him.

This charge did not restrict or limit appellant in his right of self-defense to any attack, real or apparent, of either the deceased or James Johnson, nor did it limit appellant’s right of self-defense to what occurred inside or outside of the cafe.

In determining the sufficiency of a charge, it is the duty of the court to construe and consider it as a whole and if, when so considered, it appears that it fairly states the law applicable to the facts, it will be deemed sufficient.

We note that in paragraph 13 of the charge the court instructed the jury that a person, when attacked or threatened with an attack by one or more persons and there is created in the mind of the person so attacked or threatened with an attack a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person so attacked or threatened with an attack in resorting to any means at his command to prevent his assailant or assailants from taking his life or inflicting upon him serious bodily injury, and it is not necessary that there should be actual danger, as a person has a right to defend his life or his person from apparent danger as fully as and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension or fear of danger as it appeared to him at the time, and in such event a party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

The foregoing is a fair and adequate statement of the law of self-defense, and when the same is considered in connection with the succeeding article of the charge applying the law to the facts of which appellant complains, .we believe it is sufficient to protect the appellant in all of his legal rights.

Paragraph 14-a of the court’s charge, which no doubt was added after appellant had registered his objection to the charge, clearly and distinctly* applied the law to the facts of the case. We therefore overrule the appellant’s contention.

By bill of exception No. 2 appellant complains of the court’s charge touching the general reputation of the defendant. His objection to said charge is that it is too indefinite and fails to advise the jury that evidence of the general reputation of the defendant cannot he used as affecting his credibility as a witness. While it is .true that the charge does not specifically limit the jury in their consideration of the testimony as to the general bad reputation, of the appellant as a law-abiding citizen, yet, it did advise the jury that they could only consider said testimony for the purpose of passing upon the issue of the defendant’s application for a suspended sentence and not as evidence in determining the guilt, if any, of the defendant or for any other purpose except the issue of a suspended sentence. There was no testimony offered either by the State or the defendant as to the qppellant’s general reputation for truth and veracity. The only testimony introduced as to his general reputation related to his reputation as a law-abiding citizen. However, when appellant filed a plea for a suspended sentence he laid the predicate for the introduction of testimony relating to his general reputation as a law-abiding person. Although he failed to offer any proof as to his general reputation as a law-abiding citizen, the State availed itself of the opportunity afforded to it as a result of the plea and offered testimony showing that appellant’s general reputation as a law-abiding man was bad.

By bill of exception No. 3, appellant complains of paragraph 16 of the court’s charge relative to the law of aggravated assault and battery. He objected to said charge on the ground that it did not define the words “coupled with an ability to commit a battery.” This bill is qualified by the court who states that the definition appeared in the first draft of his charge; that appellant objected thereto on the ground that there was no evidence to authorize such an instruction; that thereupon he re-drafted his charge and took the same out, and after the definition of said term was eliminated^ appellant then objected thereto on the ground that it was not incorporated in the charge. This bill of exception, with the qualification thereto, was accepted by the defendant and he is bound thereby. However, appellant having objected to the charge and as a result of that objection the trial court took from the charge that part objected to, he cannot be heard to complain because it was done at his instance. An accused cannot invite error and then complain thereof.

Appellant’s objection to the court’s charge relative to the law of suspension of sentence is in' our opinion without merit. We have examined the instruction and deem it a correct pronouncement of the law.

By hills of exception Nos. 1, 10 and 11, appellant complains of the court’s instruction to the jury upon the law of accidental killing. We quote from the charge as follows :

“You are further instructed that no act done by accident is an offense.
“Therefore, I instruct you that if you have a reasonable doubt as to whether the cutting or stabbing of Johnnie Johnson by the defendant, if he was so cut or stabbed, was done intentionally or accidentally, you will resolve the doubt in favor of the defendant and acquit him and say by your verdict, not guilty.”

Appellant objected thereto: first, because it failed to apply the law to the facts of the case; and second, because it was an undue comment upon the weight of the evidence. The only testimony raising the issue is that of the defendant. We quote from his testimony as follows: “Mr. Spil-lers came in and said we would all have to get out. James Johnson then turned me loose and he and Johnnie Johnson started to run out the door. I started to run out with the other people in the cafe and met Johnnie Johnson at the door coming back in. Johnnie Johnson was coming back in the door and swearing at me. He said, T am going to kill you, you son-of-a-b-,’ and he had his hand in his pocket like this (indicating). I was trying to get out of the door at the time and the other people were behind me pushing me. I had my knife in my hand and at the time I thought that Johnnie Johnson was surely going to kill me. Johnnie Johnson and I ran together there in the door and I must have cut him with my pocket knife as we ran into each other. At the time I cut him I was trying to get out' the door and he was trying to come back in.”

Suppose the court had instructed the jury that if they believed from the evidence that appellant cut the deceased when they ran into each other in the doorway of the cafe, then the cutting of Johnnie Johnson by defendant was an accident and they should acquit him. Such an instruction would have been on the weight of the evidence. It occurs to us that the court, under the facts of this case, gave an adequate instruction upon the law of accident.

Appellant’s third contention is that the court attempted to charge on the law of accident and also reasonable doubt and tied the two together in such a manner that the jury could not acquit the defendant on the ground of accident unless they resolved the doubt in his favor. We do not so understand the charge because. the court used the disjunctive “or” and not the conjunctive “and”.

Bill of exception No. 12 is not entitled to consideration because it is multifarious. In this bill appellant complains of the court’s charge with reference to the suspended sentence law and certain arguments by the prosecuting attorney. Moreover, the bill is qualified by the court and as qualified fails to reflect reversible error.

Bill of exception No. 13 complains of certain remarks by the District Attorney in his argument to the jury. The argument complained of is not of such a nature as to inflame the minds of the jury and arouse prejudice against appellant. However, the court sustained appellant’s objections and instructed the jury to disregard the same. Under these circumstances, we do not believe that appellant’s rights were prejudicially affected.

From what we have said it follows that the judgment of the trial court should be affirmed, 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 Motion for Rehearing.

BEAUCHAMP, Judge.

At the appellant’s insistence on motion for rehearing we have re-examined his first proposition on original .submission in the light of his complaint that it was not properly treated in the opinion. It is our conclusion, upon such examination, that the charge given was sufficiently comprehensive on the subject of self-defense. We have but little" difficulty in properly analyzing and understanding the court’s charge, overburdened as it is with repetitions and including matter for the benefit of appellant which was not essential to a proper presentation of the case to the jury. Our greatest difficulty has been in analyzing the objection thereto and reconciling it with the record before us.

It is unfortunate that the writer of the original opinion and counsel for appellant cannot agree on the status of the court’s charge under consideration. We have concluded, however, that we may not be able to eliminate this unfortunate situation by a treatise on the subject of self-defense, and are contented to say that the original opinion properly disposed of this and all other questions in the case in our view.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HAWKINS, Presiding Judge.

license: Public Domain

text:
    Ex parte LAYMAN.
    No. 21422.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    F. L. Kuykendall, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

On October 31, 1940, relator presented to the Presiding Judge of this court an application for a writ of habeas corpus, in which he set up that in 1934 relator had been convicted in the District Court of Somervell County of “robbery with fire arms,” and his punishment had been assessed at imprisonment in the penitentiary for life. Relator then averred, (a) that there was no pleading on behalf of the State upon which to base the verdict of the jury and the judgment of the court in assessing a life sentence, (b) that the verdict and the judgment were not responsive to the pleading and were therefore void.

Upon the averments referred to relator’s request that the writ of habeas corpus issue was set down for hearing, and same was had on December 18, 1940..

It appears that there was no appeal from the judgment of conviction, and unless it be shown that said judgment was absolutely void the writ prayed for should be refused.

The prosecution of relator was under Art. 1408, P.C., which provides: “If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.”

It is relator’s contention that he was convicted of “robbery with firearms”, and that said statute does not authorize imprisonment for life for that offense, but only death or a term of years.

Attached to relator’s application is the indictment under which he was convicted and the sentence of the court. No other proceeding in the trial court is exhibited or otherwise made known to us. We do not know what verdict the jury returned nor what judgment was entered on the verdict.

The indictment against relator, omitting formal parts, averred that he did “make an assault upon G. W. Lewis and his wife, Mrs. G. W. Lewis, and did then and there by said assault, and by violence, and by putting the said G. W. Lewis and Mrs. G. W. Lewis in fear of life and bodily injury, and by then and there using and exhibiting a firearm, to-wit: a pistol, fraudulently and against the will of the said G. W. Lewis and Mrs. G. W. Lewis” take the sum of $1,120 from their person and possession, etc.

It will be noted that said indictment charges ordinary robbery for which imprisonment for life may be inflicted, and then averred the use of a firearm, the State thereby availing itself of the aggravated penalty of death, if it desired to resort thereto.

In many authorities it has been held that the State may under a similar indictment waive, or dismiss, the allegation as to use of a firearm, and proceed against accused as for ordinary robbery. See Sweeney v. State, 103 Tex.Cr.R. 393, 281 S.W. 571; Crouch v. State, 87 Tex.Cr.R. 115, 219 S.W. 1099; Gonzales v. State, 88 Tex.Cr.R. 248, 226 S.W. 405; Weaver v. State, 52 Tex.Cr.R. 11, 105 S.W. 189; Viley v. State, 92 Tex.Cr.R. 395, 244 S.W. 538. It will be observed that the indictment here is different from the one appearing in the case last above cited over which some difference of opinion arose regarding the question then before us in that case. If the State abandoned the charge in the indictment of robbery by the use of firearms and proceeded against relator upon the charge of ordinary robbery, the conviction therefor would not have been void although the evidence may have shown that in fact a firearm was used. Carroll v. State, 42 Tex.Cr.R. 30, 57 S.W. 99; Willis v. State, 129 Tex.Cr.R. 278, 86 S.W.2d 784; Carpenter v. State, 124 Tex.Cr.R. 313, 61 S.W.2d 849.

The sentence pronounced against relator recites that he had been adjudged to be guilty of “robbery”, not “robbery with firearms”, which would indicate that relator had been tried as for ordinary robbery, in which event the punishment assessed was specifically authorized by statute. Art. 1408, P.C.

No sufficient showing is made by relator that he is suffering imprisonment under a void judgment to call for the issuance of the writ of habeas corpus as prayed for, and same is denied.


author: BEAUCHAMP,. Judge. CHRISTIAN, Judge.

text:
    VILLAREAL v. STATE.
    No. 21069.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Rehearing Denied Jan. 22, 1941.

      John A. Pope, Jr., and L. R. Brooks, both of Rio Grande City, and Bismark Pope, of Laredo, for appellant.
    J. T. Canales, of Brownsville, amicus curiae.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP,. Judge.

The motion for rehearing in this case is granted and the original opinion herein, dated May 15, 1940, is withdrawn and the following substituted in lieu thereof.

Upon a trial for murder in the district court of Starr County, the appellant, Santos Villareal, received the death penalty, his victim being Flavio Hinojosa. Both parties are Mexicans. All the pertinent facts took place during a drinking revelry one night in which the principal actors were the appellant, Armando Gonzales, Macerio Barrera, and deceased. •

Armando Gonzales, who was present at all times with the appellant and the deceased, was the state’s principal witness, and the appellant himself signed a voluntary confession which embraced the greater part of his testimony given on the stand in his own behalf.

The story of these events up to and including the finding of the body of the deceased on the following afternoon is a strange ’ and uncanny enactment for the average Texas community, but apparently not so unusual from the standpoint of the parties involved.

Appellant is an alien, having crossed the river from Mexico, where he was born and reared, without a passport some few months prior to the date of the homicide. He first worked for the deceased for a period of forty-six days, but had not received his pay therefor. The matter had been discussed between them in apparently a deliberate manner and the deceased had made promises about when he would be able to pay, while the appellant insisted that he needed his money. No difficulty, however, appears to have arisen prior to this time over the matter and there is no evidence of the existence of any strong feeling between them. Appellant had subsequently worked for different parties, but at the time was sleeping in a small shack at or near the home of Fidel Gonzales.

Armando Gonzales and the deceased met on the evening of September 1, 1938, and, after a conference, went to the home of Fidel Gonzales to see appellant. The deceased stopped some distance away and sent Armando to his shack to tell appellant that Flavio wanted to see him. Appellant went with him to Flavio and the three of them left the place together. They stopped at some place on the highway and Flavio, the deceased, departed from them, going away in a passing truck. No dispute had arisen between any of the parties at this time and defendant returned to his shack. Soon thereafter Armando Gonzales came across the deceased at the home of Ma-cerio Barrera, Flavio inquired for the appellant. They then left for appellant’s shack and when they reached the premises the deceased again sent Armando to the shack for the appellant, who replied to his request, “Tell Flavio I will not go. We will fix matters tomorrow.” When this word was transmitted to the deceased he proceeded to the shack and persuaded the appellant to go with them. They next went, to the home of Macerio Barrera. They joined other parties for a part of the time, got another horse and proceeded to different places where they were drinking and dancing to a late hour in the night. No difficulty of any consequence seemed to have taken place.

While at one place appellant and Armando Gonzales were dancing together and Santos punched Armando with his knife, which caused Armando to quit dancing and go to himself to one side. Deceased came up and inquired what caused him to be to himself and, upon being informed of the fact, he struck the appellant on the brim of the hat. No difficulty resulted from this, and the conversation turned into other matters immaterial to the case.

In proceeding from one place to another the appellant and deceased were riding one horse, the latter in the saddle and the former behind him, while Armando and Macerio were on another in front of them. As they proceeded, leaving the home of Santos Canales, Armando noticed that appellant was trying to check the reins of the horse on which he was riding, and Flavio was protesting that he was the owner of the horse and that Santos was all right. Finally Armando stopped and asked them to come on. At this time he heard Flavio reminding the appellant that he had taken him into his house and cared for him while he was sick for a month, paid his doctor bill, paid for the medicine, saying, “And still you want me to pay you a nickel.” They listened for a time and heard a struggle between the parties. He heard no words while they were struggling. Armando and Macerio soon thereafter saw the body of Flavio beside the road near some cactus. Appellant had left and Fla-vio was dead. Armando and Macerio went to their homes and went to sleep without telling anyone what had occurred.

The foregoing is a resume of the facts as given by the state’s principal witness and is not inconsistent with the other evidence in the case, including the statement of appellant himself, whose voluntary statement in part was offered by the state. Appellant also took the stand and detailed events of the night which are not inconsistent with the state’s evidence, but, in addition, he does testify as to the difficulty; that they were off of the horse rolling cigarettes when the deceased came and put his arm around his shoulders and asked if appellant wanted him to pay him. To this appellant says that he replied that' he did because he needed the money. To that he. testifies that deceased said, “I am not going to pay you; you got a chingado”, and twisted his arm, throwing him down. With that the struggle began and, finding the deceased had the best of him because of appellant’s left hand being out of commission, appellant got his knife out and stabbed Flavio, who was on top of him choking him. He sáid he thought that Flavio -was ’ going to kill him; that he told him he was. He doesn’t remember how many times he cut him, but when he did the deceased released him and appellant made his escape. He wandered about lost for a time and arrived at his shack about 8 o’clock in the morning, when he entered it and went to sleep. The horse which the deceased and appellant were riding joined the other horses and came up in the early afternoon. Upon finding blood on the horse and saddle, an investigation started which resulted in Armando Gonzales leading the parties to the body of the deceased and then the arrest of appellant in his shack.

Dr. N. J. Rodriguez testified as a physician in behalf of the state that he examined the .body of deceased and found several wounds on it. There were bruises on his face and that his breast was skinned, from which the doctor concluded that he had been dragged on the hard ground. One stab wound on the left side, below the shoulder blade did not penetrate very far. In another place there was a small stab wound on the left side. The other wounds were described, the principal one being on the left side which penetrated the heart and produced death. The doctor described some of the wounds and concluded that they, “appeared to be produced by dragging the body along the surface.” Referring-to the fatal wound, he said, “that wound could only have been produced by a right handed man from behind; he was cutting from behind. In my opinion his death was caused by the wound under his left nipple.”

It is the State’s theory that appellant stabbed his victim while riding on horseback behind him, reaching around with his right hand. It is indicated by other evidence that the parties fell to the ground in some sand by the side of the road and that appellant dragged his victim over the hard ground to the place where the body was found. Reliance is had on these facts and circumstances to support the finding of the jury on the issue of malice. These findings are essential to support the penalty assessed.

The conclusion of the doctor as to the position of the parties at the time of the infliction of the fatal wound is testimony on the very issue which the jury was called upon to decide and was inadmissible. No objection was made to it and no bill is presented on the subject. Consequently, it is not within the power of this court to exclude it, but it is properly within the province of this court to consider its probative force on the issue of malice where the contention is made that the evidence is insufficient to sustain the jury’s finding and the assessment of the death penalty.

The appellant had testified that he was on the ground and that the deceased was on top of him with his .arm around his neck choking him; that he cut for the purpose of extricating himself from what he feared to be a death grip. The doctor’s conclusion seems to be in conflict with this testimony and must have been so accepted by the jury and by them considered as evidence of greater value than that given by the appellant. Ordinarily the jury may so decide, but we doubt that the conclusion of the physician as to the position of the parties is sufficient to prove the existence of the facts beyond a reasonable doubt in this particular case, and in view of all of the facts and circumstances which are without dispute. At least, we prefer that another jury pass on such of it as is admissible. This is no new position for the court to take. In Claxton v. State, 103 Tex.Cr.R. 233, 280 S.W. 832, at page 835, we find the following:

“As has been said by this court in a case where the facts are very similar} we are not to be understood as saying that the. evidence may not be strong enough to support a conviction for murder, but that the mind of this court upon an examination of this record is left in such condition that we are desirous that the evidence should be passed upon again by another jury. Maddox v. State, 95 Tex.Cr.R. 429, 254 S.W. 800; Alanis v. State, 82 Tex.Cr.R. 391, 200 S.W. 169; Fox v. State, 95 Tex.Cr.R. 220, 253 S.W. 294; Doss v. State, [43 Tex.Cr.R. 551], 67 S.W. 321; Stewart v. State, 52 Tex.Cr.R. 273, 106 S.W. 685.”

Again, in Powell v. State, 116 Tex.Cr.R. 34, 28 S.W.2d 142, 143, this court approved an opinion from which we quote: “We entertain such grave doubt as to the sufficiency of the evidence that we feel that the case should be passed upon by another jury.”

While the distinction between express malice and implied malice is not now made as formerly (Stephens v. State, 93 Tex.Cr.R. 164, 245 S.W. 687), and the jury may assess the death penalty where the facts and circumstances warrant the implication, yet, it is within the power of this court to reverse a case on the facts and it may become its duty to do so, Art. 848, C.C.P. It would seem that this doctrine is applicable on one issue as well as upon all of the facts of the case taken as a whole, provided the case turns on that issue, and it is proper to consider the entire record with each and every fact which throws light on the subject in determining the force of the evidence on any particular issue. This we have done, and as we now view the record we are unwilling to permit the verdict assessing the death penalty to stand.

In reaching our conclusion in this case we have not overlooked the general rule, frequently announced, that the credibility of witnesses and the weight to be given their testimony exclusively rests with the jury and the lower court. Further, that this court will not pass on the sufficiency of the evidence unless there is an entire failure of proof; and that the amount of punishment is the jury’s special province. However, we do find that this court has upon occasions applied such rules with a degree of laxity where, under the facts of such cases, it appeared that the conviction was unjust or that the punishment was harsh or unreasonable. We are convinced that for these questions there can be no fixed rule so firmly planted that it cannot be, under a proper state of facts, varied.

Judge Morrow made a very wholesome announcement in Taylor v. State, 87 Tex.Cr.R. 330, 221 S.W. 611, at page 613, as follows: “While this court has the right to reverse a judgment of conviction on account of the insufficiency of the evidence (Texas Code Crim. Procedure, art. 939), and it becomes its duty to do so ‘if the guilt of the accused is not made to appear with reasonable certainty’ (Mitchell v. State, 33 Tex.Cr.R. [575] 577, 28 S.W. 475), no fixed rule has been devised which will in all cases furnish a certain standard. Necessarily each case must in a measure be tested by its own facts (Mitchell v. State, 33 Tex.Cr.R. [575] 577, 28 S.W. 475; Hampton v. State, 1 Tex.App. 652; Burrill on Circumstantial Evidence, p. 737; Wills on Circumstantial Evidence, p. 188). However, when a jury, advised of the restrictions which the law places upon them in condemning one on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own, unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency.”

It requires no unreasonable degree of consideration of the facts of this particular case to recognize the “weaknesses”, “omissions”, and “inconsistencies.” In a human consideration of this record we must conclude that such weakness of the evidence does affect the cogency of it. We are not able to say that this doctrine should apply in the matter of determining guilt and deny it in the consideration of the amount of punishment which a jury assesses. It is no new thing for this court to consider the competence of evidence in determining its cogency, particularly where the extreme. penalty has been assessed. Texas Digest, Vol. 13, Criminal Law, page 959; Zollicoffer v. State, 16 Tex.App. 312. The fact that incompetent evidence has been admitted without objection renders its admission harmless, but may not always lift its forcefulness to a superlative degree, or, indeed, add materially to its cogency.

Complaint is made because of the admission in evidence of the incident while the men were dancing, wherein Armando Gonzales was punched with a sharp knife by appellant, which was followed by the inquiry made by the deceased and his striking appellant’s hat brim. The apparent purpose of this testimony seems to be to show that Santos is a bad man, a knife swinger, a wanton killer, perhaps. Such may not be proven against him. Furthermore, this appears to be nothing rnore than-a slight reprimand, even if so intended,, and it apparently caused no difficulty between the parties. They left immediately in a friendly mood and there is no evidence-of it ever being mentioned between them again. Consequently, it is a separate and distinct matter wholly disconnected from the tragic event, and we are unable to see any purpose it could serve as evidence in the case. It does not appear as evidence-sufficiently harmful to warrant a reversal of a case, but it is not pertinent and in-view of the penalty assessed we may properly have doubts about it. The exception, to this evidence should have been sustained.. Branch’s Annotated Penal Code, § 166;. Woodard v. State, Tex.Cr.App., 51 S.W. 1122; Lawrence v. State, 128 Tex.Cr.R. 416, 82 S.W.2d 647; Glover v. State, 125' Tex.Cr.R. 605, 69 S.W.2d 136.

The motion for rehearing in this causé-is granted. The judgment of the trial court is reversed and the case remanded for a new trial.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully re-examining the record! in the light of the state’s motion for rehearing, .we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for 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: ALEXANDER, Justice.

text:
    GRAND INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al. v. MARSHALL et al.
    No. 2259.
    Court of Civil Appeals of Texas. Waco.
    Nov. 28, 1940.
    Rehearing Denied Dec. 31, 1940.
    Thompson, Knight, Baker, Harris & Wright, and J. Hart Willis, all of Dallas, for appellants.
    L. W. Shepperd of Groesbeck, McGown, McGown, Godfrey & Logan, of Fort Worth, and Davis, Jester & Tyson, of Corsicana, for appellees.
   ALEXANDER, Justice.

This is a second appeal of the same case. See Grand International Brotherhood of Locomotive Engineers v. Marshall, Tex.Civ.App., 119 S.W.2d 908. The material facts were fully set out in the former opinion and it will not be necessary to repeat them in detail at this time. A brief statement will probably suffice for this opinion.

A dispute arose between the engineers of the Burlington-Rock Island Railway Company and those of the Chicago, Rock Island & Gulf as to who should man what is known as the “Zephyr” and the “Rocket” passenger trains being run from Fort Worth to Dallas over the C.' R. I. & G. railway lines, from Dallas to Waxahachie over the M. K. & T. railway lines, and from Waxahachie to Teague over the B. R. I. railway lines. The matter was submitted .to the proper committee within the Grand International Brotherhood of Locomotive Engineers, and an award was made awarding one-third of the service to the C. R. I. & G. employees and two-thirds to the B. R. I. employees. Walter Marshall and R. L. Strong, being dissatisfied with the ruling of the Board, brought this suit against Grand International Brotherhood of Locomotive Engineers and certain other parties to,enjoin the Brotherhood from interfering with the plaintiffs’ alleged seniority rights as railway engineers to man the trains in question. At the conclusion of the evidence, the trial court granted a permanent injunction as prayed. The defendants appealed.

At a former hearing, we reversed the judgment of the trial court and rendered judgment for defendants, but on motion for rehearing it was asserted that appel-lees’ case had not been fully developed and that a better showing could be made on another trial. As a consequence, the case was remanded for a new trial. The record does not appear to be materially different from that on the former appeal. We are of the opinion that the judgment of the trial court must be reversed and judgment here rendered for appellants for two reasons.

The appellees have not exhausted their remedies within the Brotherhood and have not satisfactorily accounted for their failure to do so. The Brotherhood of Locomotive Engineers is a voluntary association. Marshall and Strong are members thereof. The purpose of the association is to provide, among other things, for collective bargaining on the part of its members and to secure, regulate and protect their rights as railway employees. While seniority is determined by the length of service of each employee for the railway company by which he is employed and not by membership in the association, yet such seniority rights are preserved and protected exclusively by the' Brotherhood. The rules of the Brotherhood provide a method for settlement within the association of disputes as to seniority and other rights among its members and prohibit a resort to the courts until the method provided for therein has been exhausted. The proper committees within the Brotherhood heard the dispute in question and entered its decree therein. The appellees were dissatisfied with the ruling and resorted to the courts with-. out exhausting their right of appeal within the Brotherhood. The facts in this connection were fully stated in the former opinion of this court and need not be here repeated. The appellees did not materially improve th.eir situation on a second hearing. The most that they did was to show that they would have experienced some delay if they had been required to appeal within the order, and that they would have suffered in the meantime because of lack of full time employment. The delay, however, was not such as to constitute a denial of justice. In fact, the delay which they would have suffered would not have been nearly as long as that which the Brotherood and those who are depending upon it to protect their seniority rights have suffered in the prosecution of this case through the courts.

The appellees by becoming members of the association and accepting its benefits impliedly bound themselves to abide by its decisions in the determination of disputes arising within the society and were bound to exhaust the remedies provided for therein before resorting to the courts for relief. 5 Tex.Jur. 142; 6 Tex.Jur. 430 ; 5 C.J. 1364; 7 C.J.S., Associations, § 34; 7 C.J. 1116, 10 C.J.S., Beneficial Associations, § 65; Screwmen’s Benefit Ass’n v. Benson, 76 Tex. 552, 15 S.W. 379; Sawtell v. Feser, Tex.Civ.App., 235 S.W. 960; Grand Lodge Colored K. P. v. Sanford, Tex.Civ.App., 289 S.W. 456; Fiaser v. Buck, Tex.Civ.App., 234 S.W. 679; Crisler v. Crum, 115 Neb. 375, 213 N.W. 366; Henry v. Twichell, 286 Mass. 106, 189 N.E. 593.

It is true, as above stated, that appel-lees would have suffered some delay if they had been compelled to have exhausted their remedies within the order, but it should be remembered that whatever rights to seniority and service these men have are preserved to them exclusively by the Brotherhood, and that but for the Brotherhood their seniority rights would be worthless. In other words, their seniority rights are not created nor preserved by statute but solely through the Brotherhood. Therefore, they must be held to have anticipated the delay necessarily incident to the prosecution of their claim through the association which preserves to them their rights to seniority. If we were to hold that the Brotherhood did not have the right to regulate such matters and were to undertake regulation-by injunction, we would destroy the association, and with it, its power of collective bargaining and render worthless the seniority rights of its members.

Moreover, we are of the opinion, as held in our former decision, that the appellees have failed to show that they have been deprived of any substantial rights by the ruling of the Brotherhood committee. The appellees are employees of the Burlington-Roclc Island Railway Company and claim their seniority rights as such employees. The dispute is between them and the employees of the Chicago, Rode Island & Gulf Railway Company, herein called the Rock Island. The trains in question run from Fort Worth to Dallas over Rock Island tracks, from Dallas to Waxahachie over M. K. & T. tracks, and from Waxahachie to Teague over B.-R. I. tracks. The question before the committee was, which of such groups of employees should be permitted to man the trains in question? From 1908 to 1914, the T. & B. V. Railway Company, the predecessor of the Burlington-Rock Island, operated a passenger-service from Teague to Waxahachie over its own line and thence by lease agreements over the M. K. & T. line to Dallas and over the Rock Island line to Fort Worth. That train service, however, was discontinued in 1914. Sometime thereafter, the T. & B. V. Railway Company established a new passenger service from Teague to Fort Worth, using the tracks of the Southern Pacific from Waxahachie to Fort Worth. In 1930, the present lease agreement was entered into by which the Fort Worth & D. C. Railway Company' and the Chicago, Rock Island & Gulf Railway Company secured the right to operate trains from Fort Worth to Teague via Dallas and Waxahachie, as hereto-" fore set out. The trains, as distinguished from the tracks, belong to the Burlington-Rock Island, but are leased to and operated by the Fort Worth & Denver City Railway Company and the Chicago, Rock Island & Gulf Railway Company. The employees who operate such trains are paid by the Burlington-Rock Island Railway Company but'the cost thereof is billed to and paid by the Fort Worth & Denver City Railway Company and the Chicago, Rock Island & Gulf Railway Company. The track from Fort Worth to Dallas, a distance of 34 miles belongs to the Chicago, Rock Island & Gulf Railway Company, but is jointly used under a trackage agreement by that company and the Fort Worth & Denver City. The track from Dallas to Waxahachie, a distance of 29 miles, belongs to the Missouri-Kansas & Texas Railway Company and is leased by the Fort Worth & Denver City and Chicago, Rock Island & Gulf Railway companies. The track from Waxahachie to Teague, a distance of 67 miles, belongs to the Burlington-Rock Island, but is likewise leased to the Fort Worth & Denver City and Chicago, Rock Island & Gulf. At the time the lease agreement was first entered into in 1930, there was no regular passenger service between Fort Worth through Dallas to Teague, but the freight service was awarded by the Brotherhood on a crew basis. The award recites that it was “anticipated that a minimum of four crews would be required in the beginning” and in anticipation thereof it was provided that in the event four crews were used two crews would be awarded to B. R. I. employees, one crew to C. R. I. & G. employees, and one crew to F. W. & D. C. employees. Passenger service between Dallas and Teague was assigned to Burlington-Rock Island employees. In 1933, the matter was re-opened and a new decision rendered by the Brotherhood. At that time there was no regular through passenger service from Fort Worth through Dallas to Teague, but it was provided that all extra passenger service between such points should be apportioned one-third to Rock Island employees and two-thirds to Burlington-Rock Island employees. In 1936, through passenger service was established between Fort Worth and Teague over the route indicated. In 1937, the question of apportioning this service was re-opened and a decision was rendered apportioning this service one-third to Rock Island employees and two-thirds to Burlington-Rock Island employees. It is this last decision of which the Burlington-Rock Island appellees complain. It should be noted that the employees of the M. K. & T. Railway Company, over whose road a part of the route ran, were not asserting any right to any part of the mileage. In reaching its decision, the Brotherhood concluded that the 29 miles over the M. K. & T. leased tracks should be treated as neutral territory. The distance from Fort Worth to Dallas over Rock Island tracks is 34 miles, and the distance from Waxahachie to Teague over Burlington-Rock' Island tracks is 67 miles. Consequently, the committee concluded that the through passenger service over the entire route should be apportioned one-third to Rock Island employees and two-thirds to Burlington-Rock Island employees.

It is apparent that the decision of the Brotherhood was not inequitable. If through service was to be established between Fort Worth and Teague, the rights of each of said groups of employees could not be preserved in its then exact status. This is true because the Railway Company could not be bothered with the necessity of changing crews every time the train passed from the tracks of one company to that of another. It was necessary for the matter to be readjusted in some way. Section 35b of the rules of the Brotherhood provide for such adjustment in the following manner: “(b) But wherever one railroad or any portion is absorbed, traffic diverted, consolidated. merged, leased or co-ordinated by or with another railroad, the engineers on the road or roads or any portion thereof, affected thereby, shall retain their rights and seniority, as heretofore, on the roads absorbed, traffic diverted, consolidated, merged, leased, or co-ordinated but when it becomes necessary to readjust the service of the roads affected, the runs shall be manned by engineers of the respective roads in proportion as near as practicable to the mileage run on the territory of each road, * *

The committee complied with the provisions of the above rule in as practicable and equitable manner as was possible. The appellees were members of the Brotherhood and had therefore bound themselves to be governed by such rule. Since there was no inequity in the ruling of the committee, appellees are not entitled to have same set aside in the courts.

The judgment of the trial court is reversed and the injunction is dissolved.


author: MONTEITH, Chief Justice.

text:
    LYKES BROS.-RIPLEY S. S. CO., Inc., v. PLUTO.
    No. 11064.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1940.
    Rehearing Denied Jan. 9, 1941.
    Royston & Rayzor, of Houston, for plaintiff in error.
    Mandell & Wright, of Houston, for defendant in error.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by defendant in error, Edward M. Pluto, against plaintiff in error, Lykes Bros.Ripley Steamship Co., Inc., , under 46 U.S.C.A. § 688, known as the Jones Act, to recover damages for injuries alleged to have been sustained as a result of the negligent handling of a steam hose while serving as a wiper on board the S. S. Lafcoma. He also sought damages for the alleged failure of appellant to render proper medical aid and for certain sums alleged to be due him as maintenance under the general maritime law.

For convenience plaintiff in error will be designated as appellant, and defendant in error as appellee, in this opinion.

Appellee alleged that appellant was a foreign corporation with a permit to do business in Texas and that it owned and operated the S. S. Lafcoma; that on December 21, 193S, while employed by appellant as a wiper on said vessel, he sustained severe burns by reason of the negligent acts of an engine boy which proximately caused the injuries complained of.

Appellant answered by general denial' and general demurrer and prayed for judgment.

In answer to special issues submitted, the jury found, in effect, that appellee, while on board the S. S. Lafcoma, had received burns while handling a steam hose as a result of the negligence of an engine boy in turning on the steam and that said negligence was the proximate cause of his injuries ; that appellee was not intoxicated at the time he received said injuries, and that there was no failure on the part of appellant to render necessary medical aid. Damages were awarded appellee in the amount of $2,000 and judgment was rendered in his favor on said verdict.

Motions for peremptory instruction made by appellant both when appellee rested his case and before the submission of the court’s charge to the jury were overruled by the court.

The controlling question presented in this appeal is whether, in the trial of the case, appellee established by sufficient evidence that he was employed by appellant, Lykes Bros.-Ripley Steamship Co., Inc., and whether the S. S. Lafcoma was owned or operated by appellant at the time appellee received the alleged injuries complained of.

Section 688, 46 U.S.C.A., known as the Jones Act, under which this action was brought, provides a method whereby a seaman, or his representatives in case of his death, may maintain an action for damages for negligent injuries received in the course of his employment.

Said Section 688 reads as follows: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which its principal office is located.”

In construing said Section 688 of this Act it has been uniformly held that an injured seaman is given a cause of action under this section only against one to' whom he occupies the relationship of employee. The Norland, 9 Cir., 101 F.2d 967; Kwasizur v. Dawnic Steamship Co., D.C., 25 F.Supp. 327.

The rights of a seaman under the Jones Act are clearly defined in the recent case of Smith v. Lykes Bros.-Ripley Steamship Co., Inc., 5 Cir., 105 F.2d 604, 606, in which it is held that a seaman has three distinct rights, the first being for maintenance and care arising from his contract of employment, the second being a right of action for injuries received through the unseaworthiness of the vessel, and the third being one given him for injuries received through the negligence of his employer under the Merchant Marine Act (Jones Act), this being a right “to recover indemnity for a personal injury suffered in the course of his employment.”

In order for appellee to recover herein it was incumbent upon him to discharge, by competent evidence in the record, the burden of proof resting upon him to establish, not only that he was injured* as alleged by him, but that he was an employee of appellant, Lykes Bros.-Ripley Steamship Co., Inc., or that the S. S. Lafcoma was owned or operated by appellant. Longhorn Drilling Corporation v. Padilla, Tex.Civ.App., 138 S.W.2d 164; John F. Camp Drilling Co. v. Steele, Tex.Civ.App., 109 S.W.2d 1038.

While there is evidence in the record that appellee was employed by Lykes Bros, and Lykes Bros. Steamship Co., and that the S. S, Lafcoma was operated by subsidiaries of Lykes Bros., the record fails, to show any evidence tending to prove or in reference to the employment of appellee by appellant,' Lykes Bros.-Ripley Steamship Co., Inc., or that the S. S. Lafcoma was owned and operated by appellant. Further, there is no evidence in the record as to the corporate identity of appellant and there is no evidence which in any way refers to the stock ownership of the above-named. companies or to a corporate relationship between appellant and any subsidiary company.

Until the plaintiff, appellee herein, has established prima facie the liability of appellant for the injuries alleged to have been sustained by him by proof of his employment by appellant, Lykes Bros.-Ripley Steamship Co., Inc., it is not incumbent upon appellant to make proof of any facts upon which it relies as a defense to appel-lee’s cause of action. It is the established rule in this state that “a defendant cannot be called on to produce evidence where the plaintiff has failed to bring sufficient proof to prima facie sustain his cause of action. 2 Wharton on Evidence, § 1268.” Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049, 1052; Davis v. Castile, Tex.Com.App., 257 S.W. 870; Missouri, K. & T. Ry. Co. v. Smith, Tex.Civ.App., 101 S.W. 453; Longhorn Drilling Corporation v. Padilla, Tex.Civ.App., 138 S.W.2d 164.

Since appellant was under no duty to present evidence as to its employment of appellee, or as to its ownership of the S. S. Lafcoma, and no presumption can be indulged against it because of its failure to do so, and since no evidence was presented on these issues by appellee, these issues being ultimate' and controlling issues herein, the court was not authorized to presume that appellee was an employee of appellant or to render judgment against it in favor of appellee in the absence of proof of said employment and an affirmative finding thereon by the jury.

In the instant case appellee alleged that appellant owned and operated the S. S. Lafcoma and that he was employed by appellant on said vessel. The fact of his employment by appellant being an ultimate and controlling issue herein, it was incumbent upon appellee to offer proof tending to show affirmatively the truthfulness of these allegations (Davis, Agent v. Castile, Tex.Com.App., 257 S.W. 870), and since no proof was offered and no issue was submitted by the court for determination by the jury as to the operation and ownership of the S. S. Lafcoma or as to the employment of appellee by appellant, Lykes Bros.-Ripley Steamship Co., Inc., the trial court should have instructed a verdict in favor of appellant. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

It follows that, since appellee failed to ■prove facts essential to establish his right to recover from appellant, and since it appears that the case was not fully developed in the trial court, the judgment of the trial court must be reversed and the cause remanded.

Other assignments brought forward have not been considered for the reason that they will, in all probability, not arise in another trial.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


text:
    CITY OF GALVESTON v. O’MARA. SAME v. HEFFERNAN et al.
    Nos. 11056, 11144.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 19, 1940.
    Rehearing Denied Jan. 9, 1941.

      Bryan F. Williams, City Atty., and Frank B. Nussbaum, Asst. City Atty., both of Galveston, for appellant

      Thornton & Markwell, of Galveston, for appellees.
   MONTEITH, Chief Justice.

Two actions were brought by the appel-lees herein in the district court of Galveston County against the City of Galveston for amounts alleged to be due them for services rendered by them as members of the fire department of the city. Cause No. 11,-056 was brought by A. J. O’Mara as captain of the fire department, and cause No. 11,144 was brought by John P. Heffernan and 83 other officers and members of the fire department. The questions involved in both cases below being similar in all re-, spects, the causes have been consolidated in this court.

Appellees in each case alleged that they were employed by the City of Galveston as firemen at salaries ranging from $120 to $200 per month, for which they were required to work six days per week, ten hours per day one week' and fourteen hours per day the following week, with certain exceptions made in case of sickness; that in addition to the above services, which were rendered by them, they were required by the city to work seventy-five additional days between the 20th day of September, 1937, and the 12th day of March, 1939; that the additional services rendered had been beneficial to the city and had been used by it through the action of its board of commissioners and its police and fire commissioner, and that they had received no compensation for such services, which were of the ' reasonable value stated in their pleadings.

Appellant answered 'in both cases by general demurrer and general denial. In the Heffernan case it specially pled that, since appellees had received the full amount of their salaries and had rendered the alleged additional services without notice to the city that they expected to claim additional compensation therefor, they were estopped from claiming such additional compensation.

Both cases were tried by the court without a jury. Cause No. 11,056 resulted in judgment in favor of A. J. O’Mara against appellant city, in the amount of $416.33. Cause No. 11,144 resulted in judgment against appellant city in favor of the respective appellees in various amounts, aggregating $32,654.90.

Appellant, in its assignments of error and the propositions thereunder, presents three alleged main reasons why it should not be held liable for the reasonable value of the services alleged to have been rendered by appellees: (1) that the compensation for appellees’ services must be that fixed and provided for by law and that they could not be based upon contract or upon allowance of reasonable compensation by a court, and that they had failed to show that the compensation sought by them was authorized by any law providing for its payment; (2) that the services for which-they sought recovery were rendered in violation of the Penal Code of the State of Texas, and that therefore they could form no basis for a recovery upon quantum meruit; and (3) that since each of appel-lees had received the full amount of their salaries fixed by the charter of the city without protest, and had rendered such additional services without notice to the city that they expected to claim additional compensation therefor, they were estopped from claiming such additional compensation under either an implied contract to pay therefor or under quantum meruit.

Two questions are presented under appellant’s first contention: (1) Whether, under the charter of appellant city, appel-lees must be classified as public officials holding public office, or as employees or contractors with the city; and (2) whether or not, under the charter and ordinances of the city and the laws fixing the maximum number of days firemen were required to work in any one week, in force during the period in question, they were obligated to work an additional day in each week to earn their salaries.

Appellant’s contention that appel-lees, as members of the fire department of the City of Galveston, were officials holding public office and not employees of the city cannot be sustained.

In 30 Tex.Jur., at page 204, in discussing the classification of municipal employees, it is said: “Who are officers and who are employees is to be determined by the provisions of the charter and the statutes. Where the elective and appointivé officers are absolutely named and fixed by the charter, all others connected with the city government must be employees, agents or servants.”

In defining the term “office” the following rule is laid down in 34 Tex.Jur., at page 323: “Among the criteria for determining whether an employment is a public office are the following: the delegation of a portion of the sovereign function of the government; the requirement of an official oath; that the powers entrusted ,are conferred by law and not by contract and the fixing of the duration ■or term, of office.”

It is said in 30 Tex.Jur., Page 210, that: “Every person connected with the administration, other than those included in the enumeration of the appointive officers, must be regarded as employees, who must he nominated by the commissioners who have charge of the department by which they are employed.”

Section 19 of the charter of the City of Galveston provides that the board of commissioners shall select certain appointive officers of the city, including a secretary, a treasurer, an assessor and collector of taxes, chiefs of the police and fire department, and others enumerated therein. Firemen are not included in this section as appointive officers.

The record shows that the appellees were ■duly nominated and appointed as employees of the fire department of the city, and that they were so employed from September 20, 1937, to March 12, 1939, and that during said period each of the appellees worked eighty-four hours per week, with certain exceptions made in case of sickness.

In the case of Brown, Mayor, v. Uhr, 187 S.W. 381, 384, the San Antonio Court of Civil Appeals, in classifying officers and employees of the City of San Antonio under a charter similar to that of the City of Galveston, held: “In section 7, paragraph 1, the officers who are required to be elected consist of the mayor and four other commissioners, and it is clear that they are the only elective officers for which provision is made; and then in paragraph 1, section 16, herein quoted, the only appointive officers provided for in the charter are specifically named. Every other person connected with the administration under _ the charter provisions must be placed in the designation of employés. The charter could legally and validly call those employed by the municipal corporation officers, employés, agents, or servants, and still that would not strip them of any honors or emoluments or lessen their term of office under the constitution. The charter is explicit as to who are appointive officers, and they could no more be added to or decreased than could the elective officers named therein. The elective officers and appointive officers are absolutely named and fixed by the charter, and all others connected with the city government must be employés, agents, or servants.”

Under the above authorities members of the fire department must be classed as employees whose salaries are fixed by ordinance under the charter of the City of Galveston.

Appellees further contend that the number of days a member of the fire department of the City of Galveston was required to work was definitely fixed by law at six days per week, and that their compensation for said six 'days services was fixed by ordinance and that therefore they were entitled to their full weekly salary upon the completion of said six days work, and to additional reasonable compensation for any subsequent beneficial services rendered by them to the city.

In 1935 the legislature of the State of Texas amended Art. 1583 of the Penal Code, Vernon’s Ann.P.C. art. 1583, which now reads in part as follows: “1. No member of any fire department or police department in any city of more than twenty-five thousand (25,000) inhabitants shall be required to be on duty for more than six (6) days in any one week.”

The above section of this article was in effect at all times material to this appeal. It was stipulated that the City of Galveston had a population during said period in excess of 30,000 and less than 75,000 persons.

In 1920, the charter of the City of Galveston was amended so as to vest in its board of commissioners the power to fix the maximum salary and compensation of the officers and employees of the city, excepting the mayor and commissioners, at an amount not to exceed 33½ per cent above the sums theretofore fixed. An ordinance was adopted by the board of commissioners so increasing the pay of certain employees, including appellees herein.

There is, however, no provision under the charter of the City of Galveston fixing the number of days a member of the fire department may be required to remain on duty in order to earn his salary.

It has been uniformly held that the law and all provisions of the city’s charter pertaining to the employment of agents and servants are a part of its contracts of employment and that both are read into said contracts as fully as though they had actually been incorporated therein. 30 Tex.Jur. 213.

In discussing the rights of a fireman to participate in a pension fund established by statute, the Commission of Appeals, in the case of Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738, 740, held: “The law pertaining to such employment is necessarily a part of the contract of employment and is read into the contract as fully as though it had been actually incorporated therein.”

Appellees’ contention that they are entitled to reasonable compensation for additional services rendered the city by them’ is borne out by McQuillen, Municipal Corporation, 2d Ed., at p. 256, § 545, wherein it is said: “While, as mentioned, a public official may not receive extra pay for services rendered by him, for which compensation by way of salary is allowed by law, sometimes he may recover pay for other services which he may render outside of and in addition to his ordinary official duties which could as well be performed by other persons or the officer.”

Since said Article 1583 of the Penal Code, which limited the time a member of the fire department of the City of Galveston might be required to be on duty to six days per week, was in effect at the time appellees were employed and at the time the ordinance increasing their salaries was enacted, it follows that the construction of said contract of employment which provides for the compensation fixed by said ordinance and limits their working days to six days per week in accordance with said Article 1583 must be adopted as the proper construction thereof, since a construction which would require them to remain on duty more than six days per week would be in conflict with said Article 1583 and would consequently be invalid.

Appellant’s contention that the services for which appellees sought recoveries were rendered in violation of a law which prohibits a fireman from working seven days a week and that therefore they cannot recover herein cannot be sustained.

In both of the cases under consideration, the appellees alleged, in substance, that they had worked for the city for seventy-five days during a specified period for which they had received no compensation. They sought reasonable compensation for their services. In the O’Mara case the appellant pled a general denial and a general demurrer. In the Heffernan case it pled a general denial and a general demurrer, and by special plea claimed an estoppel.

While said Article 1583 of the Penal Code provides that no member of a fire department shall be required to be on duty for more than six days in any week and that a city official who violates the provisions of said article may be fined not less than $10 or more than $100, the violation of said article, if any, appears only incidentally and as an explanation of other facts in the case.

Our courts have uniformly held that an agreement to perform work in violation of' a penal statute is illegal and cannot be maintained. It is the rule, however, that if a party can show a complete cause of action without being obliged to prove his own illegal act, although said illegal act may appear incidentally and may be important in explanation of other facts in the case, he may recover. Texas Employers Ins. Assn. v. Tabor, Tex.Civ.App., 274 S.W. 309, affirmed by the Commission of Appeals, 283 S.W. 779; St. Louis B. & M. Co. v. Price, Tex.Com.App., 269 S.W, 422; Blackwell v. General Motors Acceptance Corporation, Tex.Civ.App., 54 S.W.2d 251.

Further, it is now generally held that illegality is an affirmative defense and that' when the illegality does not appear from the contract itself or the evidence necessary to prove it, but depends upon extrañe-' ous facts, the defense is new matter and to be available must be pleaded. Mullin v. Nash-El Paso Motor Co., Tex.Civ.App., 250 S.W. 472; Blackwell v. General Mo'tors Acceptance Corporation, Tex.Civ.App., 54 S.W.2d 251; 33 Tex.Jur. 671.

Appellant contends that it is, not liable to appellees for compensation for additional services rendered either under an implied contract or upon quantum mer-uit, for the reason that it had no notice that appellees would claim extra compensation for additional services rendered.

It is the established rule in this state that one who has rendered services in addition to those stipulated in an express contract can recover therefor where the services rendered were performed at the request or with the knowledge or consent of the other party (45 Tex.Jur. 328), and that the acceptance of such services by the other party raises the presumption that the services were given and received in the-expectation of being paid for, where the circumstances are such that the person who received them and was benefitted by the services and understood, or ought to have understood, that the services were to be compensated. 71 Corpus Juris, Section 9

The above rule is followed in “Page on Contracts”, Vol. 3, 2d Ed., § 1442, in which it is said: “If services are rendered at the request of the person for whom they are rendered, or if the benefits thereof are voluntarily accepted by such person, there is an implied promise on his part to make reasonable compensation therefor, if no express contract has been made, if the services are such as are ordinarily paid for, and if the party who rendered them was not bound to render them without compensation.”

This principle has been upheld by our Supreme Court under a slightly different state of facts in the case of Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841, 842. The Sluder Case involved the recovery of compensation for legal services rendered the city under a contract which was void because not made in conformity with charter provisions. Suit was brought on quantum meruit. In holding the city liable the court said: “Since the decision in the French Case [City of Sari Antonio v. French, 80 Tex. 575, 16 S.W. 440, 26 Am.St.Rep. 763], our -courts have uniformly announced the doctrine that where a county or municipality receives benefits under a contract, illegal because not made in conformity with the Constitution or statute of the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received. In other words, while such contracts are void, and no recovery is permitted thereon, our courts hold that common honesty and fair dealing require that a county or municipality should not be permitted to receive the benefit of money, property, or services, without paying just compensation therefor. Under such circumstances, a private corporation would clearly be liable under an implied contract. .There can be no sound reason why the 'same obligation to do justice should not rest upon a municipal corporation.”

In the cases under - consideration, the services for which recovery was sought were rendered by appellees with the knowledge and consent of appellant and were unquestionably beneficial to the city. Under the above authorities appellees are entitled to recover reasonable compensation therefor.

Appellant contends that in no event are appellees entitled to recover additional compensation for services rendered during any week unless such services were shown to have been rendered during a week in which they were on duty for more than six days.

The record shows that certain of appel-lees were off duty during specific weeks on account of illness. It does not show that any appellee was off duty during the period in question in excess of thirty days.

Article 108, Section 45, of the Ordinances of the City of Galveston provides that members of the fire department who shall become sick will be allowed thirty days pay, after which time they will be dropped from the pay roll unless, for good cause shown, the board of commissioners shall extend said time.

Since said Article 108, Section 45, of said Ordinances was in effect during all times material to this appeal, it became a part of and must be read into appellees’ contract of employment with the city and they are entitled to all of the benefits thereof, including pay up to thirty days when absent from duty on account of illness.

It follows from above conclusion that each of appellees are entitled to compensation for the full time sought in their pleadings.

The judgment of the trial court will be in all things affirmed.

Affirmed.


author: PER CURIAM.

text:
    TURNER et ux. v. GROVES LUMBER CO.
    No. 13141.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 7, 1940.
    Bird & Bird, of Dallas, for appellants.
    Harry I. Freedman and Franklin E. Spafford, both of Dallas, for appellee.
   PER CURIAM.

Appellants, husband and wife, are here for review of an order appointing a receiver, after notice and hearing. The Lumber Company, plaintiff in the trial court, had previously filed suit on a mechanic’s lien contract, note, and 'deed of trust, claiming that it had sold and delivered building material to the Turners and contractor McKay, furnished labor, pay rolls, and cash, in the construction of a four-room dwelling and eight tourist cabins on acreage of defendants; that a balance of $4,105.11 was past due and unpaid on an original note of $5,000, the. obligations of the lien instruments not having been performed; 'asserting right of foreclosure as owner and holder of a valid contract and constitutional lien on said property and improvements; also praying for receiver under allegations based on Sec. 2, Art. 2293, V.C.S. Defendants’ pleadings on the receivership hearing were, in substance, that all instruments above mentioned were wholly invalid, in that same bore false dates, being executed and acknowledged many months afterward; that the mechanic’s lien' papers show one George McKay as contractor, who was a “dummy” and total stranger to all transactions had with the Lumber Company; also raising the issue of homestead, and fraud in the inception of such purported contract liens. The balance of debt still due does not appear to be controverted by defendants either in plead-, ing or testimony. Although defendants claim a homestead in the mortgaged property prior to the execution of all instruments above mentioned, the point is not stressed on this appeal, unless in their single proposition that such contracts are inherently void.

It is, of course,'improper to discuss at this time the weight and sufficiency of testimony bearing on ultimate issues between the parties. However, the trial court has the discretion on preliminary hearing to determine that certain property should be placed in custodia legis, pending a trial on the merits; in other words, that a prima facie case has been made for the relief sought. We cannot hold, at this stage of the litigation and as a matter of law, that the alleged liens are void because various theories are advanced by plaintiff whereby both the mechanic’s lien and the deed of trust lien may be found valid and effective instruments. In point, and cited by appel-lee, are the following authorities: Art. 5932 (Neg.Inst.Act), sec. 9 (3), 41 C.J. (Mortgages) p. 385, § 197; 10 C.J.S., Bills and Notes, § 129, page 581; 10 T.J. p. 116' (Contracts); 29 T.J. p. 497 (Mechanics’ Liens); 29 T.J. p. 824 (Mortgages); Mundine v. Berwin, 62 Tex. 341, 343; Wilson v. Hinton, 131 Tex. 593, 116 S.W.2d 365.

On the other hand, the defenses of appellants are simply fact questions for adjudication on final trial. At this juncture, the appointment of a receiver, pending disposition of plaintiff’s action to foreclose liens on realty, is a matter primarily within the trial court’s discretion; and no discernible abuse thereof appears in this record. The order appealed from must be affirmed.

Affirmed.


author: JACKSON, Chief Justice.

text:
    AMERICAN CASUALTY CO. v. JONES et al.
    No. 5208.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1940.
    John G. Whitaker, of Dallas, for plaintiff in error.
    Truett Smith, of Tahoka, for defendants in error.
   JACKSON, Chief Justice.

The record shows that on November 17, 1937 the American Casualty Company for an agreed consideration issued to T. C. Mason a life and accident insurance policy by the terms and provisions of which, among other protection, it insured him against injuries and death by accidental means.

The insured was eighty-four old at the time the policy was issued and Mrs. Willie Jones, his daughter, was named as beneficiary by insured who died May 18, 1938 as the result of a fall which caused a fracture of his skull at the base of his brain.

The deceased was out in the yard of the beneficiary on the day he feli and there was a high wind blowing'. The old gentleman staggered and fell, struck his head against a post which fractured his skull and he died in a few hours.

The provisions of the policy material to a disposition of this appeal are as follows:

Part A Accidental Death Benefit . $1,000.00
Part B Natural Death Benefit 300.00
Part C Accidental Death of Beneficiary . 150.00
Part D Loss of Both Hands, Eyes or Feet. 200.00
Loss of One Hand, Eye or Foot. 100.00
“The terminal Maximum Indemnities recited hereabove are subject to modifications, limitations and the provisions hereinafter contained.
******
“Accidental death as referred to in this Policy under Section A, shall mean purely accidental death resulting from and effected solely through external, violent and accidental means, of which there are visible marks or contusion on the exterior of the body at the place of injury, provided that the Insured's death shall result within ten days from date of said accident (suicide, sane or insane, is not covered under this policy). The amount payable for such accidental death shall be the amount specified herein not to exceed the maximum set forth in Part A hereof.
******
“Should death or disability occur after five months and within twelve months from the date hereof the company will be liable for forty per cent of the amount otherwise payable.”

On September 3, 1938 the defendants in error, Mrs. Willie Jones and her husband, B. PI. Jones, hereinafter called appel-lees, instituted this suit in the County Court of Lynn County against the plaintiff in error, the American Casualty Company, hereinafter called appellant, to recover on the policy issued to Ti C. Mason. They pleaded the issuance of the policy, the terms and conditions thereof, the payment of the premium; that it was in full force and effect at the time of the death of the insured and that appellant under its provisions was obligated to pay Mrs. Willie Jones the sum of $400. They also alleged “That the said T. C. Mason, deceased, being the insured under said policy number 1053-A, issued by the defendant, and during the premium paying period of said policy, and between the period of five months and twelve months from the date of the policy, and while no premium was in default on said policy, and while said policy was in full force and effect, did, on the 18th day of May, 1938, sustain bodily injury, solely through external, violent and accidental means, which caused visible marks or contusion on the exterior of the body at the place of injury, by reason of falling upon the ground, causing a fracture at the base of the brain, and that such injury to the. head of the said T. C. Mason, exclusively and independently of all other causes, resulted in the death and caused the death of the said T. C. Mason on said date of May the 18th, 1938, and the defendant, upon his death, by accidental means, then and there became bound and obligated and promised to pay to plaintiff, Mrs. Willie Jones, the beneficiary named in said policy the sum of $400.00, which sum is forty per cent of said $1,000.00 specified under Part ‘A’ of said policy.”

The appellant answered by general demurrer, general denial and pleaded that it was incorporated under and operating by virtue of Chapter 6, Title 78, Revised Civil Statutes of the State of Texas, which allegation is conceded to be true, and tendered $120, the amount it claimed to be due appellee, in court.

In response to the special issue submitted by the court the jury found that the death of T. C. Mason resulted and was effected solely through external, violent. and accidental means. In response to a special issue requested by appellant the jury found that the fall of T. C. Mason was not caused by his physical condition.

On these findings the court rendered judgment against -the appellant and in favor of appellees for the sum of $400 with interest from May 18, 1938, from which judgment the insurance company, by writ of error, prosecuted this appeal.

The appellant assigns as error the action of the court in refusing to direct a verdict in its behalf because it contends the testimony fails to show that the insured’s death was purely accidental and resulted solely through external, violent and accidental means independent of all other causes.

Dr. Turrentine, the physician who attended T. C. Mason on the day of his death, certified in a report to the appellant that he was called to see the insured on February 27,' 1938 and found him suffering -with influenza; that the duration of the last illness continued from that date until May 18th thereafter, the date he died; that the primary cause of the death was a fracture at the base of the skull and the contributing cause was that insured was blown down on that day by a strong wind. The testimony of the doctor on the trial shows that the deceased when he visited him on February 27th was suffering with influenza; that he was eighty-four years old; that he had recovered from the influenza as much as a man of his age could; that the influenza did not contribute to his death but left him in a weakened condition and that his age and physical condition were factors which contributed to his fall.

The appellee, Mrs. Willie Jones, in her report to appellant of the death of her father said the immediate cause of his death was a fracture of the skull by a fall and that the remote cause was due to influenza and that he had been ill from February 27, 1938 until May 18th thereafter. In her testimony she says that he had been sitting up for several days before the fatal accident.

We deem it unnecessary to recite the additional testimony offered since, in our opinion, the evidence is amply sufficient to authorize the submission of the issue to a jury. McVeigh v. International Travelers Assur. Co., Tex.Civ.App., 101 S.W.2d 644.

We recognize that the burden was upon appellees to show that the death of the deceased was 'due, as they alleged, to bodily injury received solely through external, violent and accidental means exclusive and independent of all other causes and, in our opinion, they discharged such burden.

The appellant challenges as error the action of the court in refusing to submit to the jury its special requested issue which reads as follows : “Do you find from a preponderance of the evidence that the fall of T. C. Mason was contributed to by his physical condition?”

In our original opinion we sustained this contention, reversed the judgment and remanded the case to the trial court.

The defendants in error in their motion for rehearing earnestly assail as erroneous this holding contending that the requested issue does not present the question of what caused the death of deceased but inquires only as to whether the physical condition of T. C. Mason contributed to the fall and the issue was properly refused by the court. They cite in support of their position International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282; Manufacturers’ Accident Indemnity Company v. Dorgan, 6 Cir., 58 F. 945, 22 L.R.A. 620; Accident Insurance Company v. Crandal, 120 U.S. 527-534, 7 S.Ct. 685, 30 L.Ed. 740; 1 C.J. 452, 453, § 127; 24 Tex.Jur..704, para. 28.

Without entering into a discussion of the authorities we have concluded for the reasons discussed we were in error.

T. C. Mason was eighty-four years old when the policy was issued. The plaintiff in error had actual knowledge of his age.. It was charged with knowledge of such physical conditions as naturally accompany a person of such age — frailty, weakness, stiff joints and muscles, loss of strength, vigor and agility, and any physical or mem: tal condition of the insured-resulting from age. If such conditions contributed to .the accident or death they would not defeat a recovery. The testimony is that the-insured was eighty-four years old when the policy was issued, had been suffering from influenza, but this did not contribute to his -death but he was left in a weakened condition and his age and physical condition contributed to his fall.

The issue as presented is indefinite, un-' certain and erroneous and submitted an issue without making any distinction between the physical condition of the insured oc-’ casioned from the natural result of age and from the weakness caused by the influenza. Under this record if the,issue had-been submitted and answered in the affirmative it would not have defeated a recovery for the reason the court ctiuld not have determined what produced the physical condition that contributed to the fall.

The court was not required to correct the issue. 24 Tex.Jur. 582, para. 41.

Special issues should be presented in such form as to authorize their submission. 41 Tex.Jur. 150; para. 245.

See also Speer’s Special Issues page 371, para. 251; Groves et al. v. -National Loan & Investment Co. of Detroit, Mich., Tex. Civ.App., 102 S.W.2d 508.

The appellant’s contention under this record that its liability if at all was only $120, is not tenable.

The original opinion is withdrawn, the motion for rehearing granted and the judgment affirmed.


author: GRISSOM, Justice.

text:
    HARPER v. TEXAS & P. RY. CO.
    No. 2071.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 13, 1940.
    Rehearing Denied Jan. 10, 1941.
    Jones & Jones and C. A. Brian, all of Marshall, for plaintiff in error.
    Wheeler, Atchley & Vance, of Texar-kana, for defendant in error.
   GRISSOM, Justice.

Pet Harper sued the Texas & Pacific Railway Company for damages resulting from the death of his son, Dick Harper, caused by a collision between a truck driven by H. C. Mays, in which Dick Harper was riding, and a freight engine of the railway company. At the close of plaintiff’s evidence, the court, on defendant’s motion, instructed the jury to render a verdict for defendant, which it did, and judgment was rendered for the defendant. Plaintiff has appealed.

Plaintiff’s pleadings and evidence raised issues as to the defendant’s negligence, as well as proximate cause and damage to plaintiff. The sole question for decision is whether or not the act of Dick Harper in going to sleep in the truck, knowing that before he reached his destination the truck must be driven over a railway crossing in the town of Atlanta, constituted contributory negligence as a matter of law. (It was apparently upon this theory that the trial court instructed a verdict for defendant.)

On the occasion in question, Dick Harper, a 20 year old negro boy, had been working all day in a gravel pit about twelve miles from Atlanta. The collision occurred about 9:30 at night. The truck was being driven to Atlanta by a white man, Mr. Mays. Mays was a truck driver of eleven years’ experience. He was about 27 years old. The truck was in good mechanical condition and there was nothing about its condition or equipment which indicated that it might not be a safe vehicle, and there is no indication in the evidence that any defect in the truck or its equipment might or did cause the collision. There was nothing in the manner in which Mays handled the truck to indicate to Dick Harper that he was not a competent and careful driver. At the end of the day’s work Mays picked up Dick Harper in his truck and started with him to the town of Atlanta. Several miles from town the negro went to sleep in the cab of the truck and was still asleep at the time of the collision, which resulted in his death.

The Supreme Court, in an opinion by Judge Smedley, in Edmiston v. Texas & N. O. Ry. Co., Tex.Com.App., 138 S.W.2d 526, 529, announced the rule applicable to the question presented as fol-~~Tows:

“The rules with respect to the duty of one riding as a guest in an automobile to keep a lookout have been stated and applied in several cases, some of which are : Davis v. Pettitt, Tex.Com.App., 258 S.W. 1046; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474; Garcia v. Moneada, 127 Tex. 453, 94 S.W.2d 123; Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, application for writ of error refused. The substance of the rules announced by these decisions is briefly stated as follows: While the duty of the guest is measured by the same standard as that of the driver, which is that he is bound to use reasonable care, the care which a person of ordinary prudence would use under like circumstances, the conduct required by the standard is generally very different. The driver is in charge of the automobile and the law imposes upon him the duty when driving on a public highway or street to use care constantly in keeping a lookout. Southland-Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 124, 86 S.W.2d 731. The guest, however, not being in charge of the operation of the automobile, is not required constantly to keep a lookout. Ordinarily he may reasonably and lawfully rely on the driver to keep watch.
, “Associate Justice Funderburk, writing the opinion in International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, 764, in which application for writ of error was refused, quoted with approval the following paragraph from the Restatement of the Law of Torts (vol. 2, pp. 1282, 1283, section 495), which, in our opinion, is a correct declaration of the rule established by the decisions in this state as to the amount of care required of a guest in an automobile: ‘Save'in exceptional situations, a guest or passenger in a vehicle is not required to keep a constant lookout or to see to it that he shall be in a condition to do so. Thus, a plaintiff riding in the front seat may take his attention off the road to look at the scenery or may turn around to speak to a friend in the back or he may go to sleep or read a hook without being guilty of contributory negligence if the driver commits some negligent act which the plaintiff, had he been on the alert, might have had the opportunity to prevent. However, if the plaintiff knows that at a particular point there will be a peculiar danger, which he has no reason to believe that the driver if unaided will perceive, the plaintiff may be guilty of negligence if he does not keep himself in a position to call the danger to the attention of the driver. Save under such exceptional circumstances, a plaintiff is entitled to trust the vigilance and skill of his driver unless he knows from past experience or’ from the manner in which the car is being driven on the particular trip, that the driver is likely to he inattentive or careless.’ ” (Italics ours.)

Also see International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, 764, writ refused; Davis v. Pettitt, Tex.Com.App., 258 S.W. 1046, 1050; Ford Motor Co. v. Maddin et al., 124 Tex. 131, 138, 76 S.W.2d 474; Garcia v. Moncada, 127 Tex. 453, 456, 94 S.W.2d 123; Schumacher Co: v. Shooter, 132 Tex. 560, 564, 124 S.W.2d 857.

It *is urged that deceased knew that before the truck reached Atlanta, or its destination, it must cross the defendant’s railroad track. This is true. It is contended that plaintiff ■ cannot recover because the .deceased knew that at the railroad track there would be a “peculiar danger.” We think defendant’s railroad track was not shown to be a “peculiar danger” within the meaning of said term, as used in the Lucas case and other Texas cases. However, if it be assumed that it is, still said rule does not preclude recovery by plaintiff. There was no evidence showing or tending to show that Dick Harper had any reason to believe that the driver of the truck if unaided by him would fail to perceive such danger. The evidence shows the driver was as familiar with the railroad crossing as deceased. We find from the evidence rio exceptional circumstance which prohibited this 20 year old negro boy from being entitled to trust the vigilance and skill of his mature, experienced .white driver. As heretofore stated, deceased did not know and had no reason to believe either from past experience or from the manner in which Mays was driving the truck on this particular trip that Mays was likely to be inattentive or careless. Mays was in charge of the truck; Dick Harper had no control of the truck, nor did he have any right to control either it or the driver. Moreover, Mays was a white man and Harper, a Texas negro. Under the circumstances Dick Harper was not shown to be guilty of negligence as a matter of law in going to sleep in the truck. We are also of the opinion that it is not conclusively shown that Mays was guilty of negligence.

We think plaintiff’s evidence brings the deceased clearly within the general rule heretofore quoted.

The judgment is reversed and the cause remanded.