author: SADLER, J.

text:
    FREEMAN et al. v. HUFFMAN.
    (No. 11-2578.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. Railroads <@=>400(14) — Action fob Inju- , by — Juey Question.
    In action for injuries by moving of train' while plaintiff was crossing between tender and coal car, whether defendant’s brakeman saw plaintiff between the cars was, under the evidence, for the jury.
    2. Railroads <@=>400(14) — Action fob Injuries — Jury Questions — Discovered Peril.
    In action for injuries received upon the unexpected moving of a train while plaintiff was attempting to cross between the tender and a coal car. whether the brakeman, upon seeing plaintiff between the cars, could have prevented injury, should have been submitted to the jury, where ordinary minds might have differed as to the conclusion to be drawn from the evidence.
    3. Railroads <@=>400(8) — Action for .Injury —Jury Question.
    In action for injuries received upon the unexpected moving of a train while plaintiff was attempting to cross between tender and coal car, evidence, held insufficient to raise issue whether brakeman upon seeing plaintiff knew train was likely to move, and whether, if he had so known, he could have prevented train from moving.
    4. Railroads <@=>400(14) — Action for Injuries — Discovered Peril — Jury Question.
    Where evidence was insufficient to raise issue of whether brakeman, an employé of defendant railroad, knew, upon seeing plaintiff between coal car and tender1, that train was likely to move, and whether if he had so known he could have prevented train from moving, court was not authorized to submit'issue of discovered peril.
    5. Appeal and Error <@=>1053(1) — Review— Harmless Error.
    The admission in evidence of a city ordinance was harmless, where court withdrew it from consideration of jury.
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by J. K. Huffman against T. J. Freeman, receiver, and others. Judgment for plaintiff affirmed by the Court of Civil Appeals (156 S. W. 367), and defendants bring error.
    Reversed.
    J. K. Huffman recovered judgment in the district court against the International & Great Northern Railway Company for personal- injuries. There were two trials. On the first trial, plaintiff having recovered, an appeal was taken, and the Court of Civil Appeals reversed and remanded the case. 61 Tex. Civ. App. 200, 130 S. W. 195. In that opinion the court held that plaintiff was guilty of contributory negligence as a matter of law, but that the evidence raised the issue of discovered peril. On the second trial the court submitted the case to the jury wholly on the issue of discovered peril.
    On appeal to the Court of Civil Appeals, the second judgment in favor of plaintiff was affirmed. 156 S. W. 367. In the latter appeal, as in the first, the defendant below asserted the proposition that the evidence was wholly insufficient to 'authorize the submission of the issue of discovered peril or to sustain the verdict and judgment. That proposition is now' before us for consideration.
    The evidence on the issue of discovered-peril as developed on the trial is as follows:
    Plaintiff testified:
    “While working at this mill on the 4th day of December, 1908, I was injured. It was in the early morning between 6 and 6:30. At that time of the year it was not good light at 6:30, and on that particular morning it was cloudy, making it dark enough to have to have a light to see by. On that morning I was working at the meal cookers, and there was one of the men working for me at the mill came and told me that they wanted me to come out and weigh a car. * * * I quit work right at once and started out to weigh the car. This was a car of cake that had been loaded the day before to bo shipped out over the International & Great Northern Railway. I went out of the middle door of the mill, which is the main entrance, and when I got outside there was a train on this spur track consisting of an engine, coal tender, coal car, and a car of cake. The engine was facing east back toward Rock-dale, and the rear of the train was west, and the coal car was next to the coal tender of the engine, and this car of cake that I was going to weigh was the last car on the west end of the train and looked like to me that it was right on the scales. The train was standing perfectly still. * * * The engine tender and coal car were right opposite or about opposite this middle door where I came out of the mill. There was an electric light hanging right there in that window by the door, and also one there at the door; but I don’t know whether the door was closed at the time or not. I can’t say about that, but there' was plenty of light out there. I could see everywhere up and down the mill from that door back to the west.
    “When I started to go through there between this engine tender and coal car — there is a handle bar fastened upon the side of the car to catch hold of and also one on the tender— I caught hold of both of these handle bars, one with my right and the other with my left hand, stepping with my right foot onto this running board, and then I placed my left foot on the shoulder of the drawhead which couples the two cars together and is about two or three feet from the running board and which is the only place where I could put my foot. That shoulder has a play of about four or five inches. I put my left foot on the knuckle or shoulder of the coal car and was pulling myself up, and about the time I was pulling myself up with all the weight on my left foot, they made a movement of the car, causing my foot to slip off of this knuckle, and after I had Maced my left foot on the knuckle or shoulder of this coal car and was pulling myself up — I was possibly up halfway and had pulled my weight up off of my right foot — I saw the brakeman pass by this opening where I was going through, on the opposite side of the train, passing from the east or front end of the train down toward the scales in the rear of the train and had a lantern in his right hand, and in passing that opening where I was he had his face turned in my direction, and I caught his, eye as he passed by. I mean by that he was looking in my direction, and I looked in his eyes. His eyes were open, and I saw his eyes. Just shortly after this brakeman passed, they moved the car, and the movement jarred my foot off this knuckle down between the drawhead and the coupler. I do not know what direction they moved the car, but I judge it moved about six inches. * * * Tne name of the brakeman that passed on the opposite side of the train from me while X was crossing through was Dolan. I have seen him since this accident. As to how long. this brakeman had passed beyond this opening where I was after I saw him, it hadn’t been very long. I judge he had time to have went something like three or four steps, about eight feet. From the motion he made as he came by walking, he had time tq have taken about three or four steps. * * *
    “When an engine and couple of cars came in on that spur track, if you were on the north side of the track, a train would cut your view off of anything on the mill side through the opening of the cars. I have never measured the width of these open&gs between the cars, but, judging the way I caught hold of the cars, I judge the space is about four feet wide. The sides of that tender and coal car was solid. They didn’t have any slats in them. * * * Mr. McMillan was with me when I left the mill. We had the doors closed that morning, but I don’t remember whether we closed the door behind us as we went out or not. The rear end of the engine tender was nearly opposite the door that we came out of, virtually in front of the door. * * * I did not see a single member of the train crew on the ground on the mill side of the train. I could not swear that the engineer saw me. * * * Mr. McMillan was right behind me when I came out of the mill. X went out first. He was along with me the whole time. * * * I was trying to get over there to weigh this car just as quick as I possibly could. * * * I had got up with my weight on my left foot which was on the knuckle of the • coupler when they made the movement, and could not have been there as long as a couple of seconds. It was done on the instant; that is, when it caught my foot. It was a short time from the time I put my foot on the running board of the tender and pulled myself up, but I could not say how long. * * * There was no part of the train crew on the ground on the mill side when I came out of the mill. When I was in the act of pulling myself up, I saw the brakeman pass on the opposite or north side of the train with a lantern in his hand, in his right hand. He was right close up to the car, but he wasn’t rubbing them. He had 'his lantern in his hand away from the car, hanging down by his side, and it must have been two feet off the ground. * * * I was pulling myself up to go over on the other side as hp passed. I had just raised my right foot in making an effort to step over, but I had not got up in a standing position at all. * * * I cannot say how long that man was under my observation, possibly just a second. I just saw him as he passed by the open space. * * * ]trom the time I entered the space and got up on the coupler, it was a matter of just a few seconds.”
    This witness made a statement December 21, 1908, in which he said:
    “I stepped on the step of the engine tender with my right foot and placed my left foot on the drawhead, but as I started to pull myself up my left foot slipped down between the drawhead and a part of the car, and at the same time the train moved a few inches and caught my foot, mashing it. * * * I saw a brakeman pass toward the scales on the opposite side of the train from me just before my foot was caught, but I do not know if he saw me or not. I don’t think any of the trainmen knew I was between the cars. * * * If my foot had not slipped off the drawhead, I would not have been injured, even if the train had moved.”
    Continuing, the witness testified on this trial:
    “That window was right opposite the opening where I went through between the engine tender and the coal car, and the light shone through that window, and it was perfectly light at that place. I couid see distinctly all the way through the opening of that car.” (The witness testified on first trial.) “On that trial,-in answer to the question, ‘You are willing to swear that you saw his eyes, but yon won’t swear that his eyes saw you?’ referring to the brakeman passing on the opposite side of the train, I answered: ‘No, sir; I won’t swear to that.’ ”
    D. B. McMillan testified:
    “Mr. Huffman came right out of the mill and walked right over and stepped on the running board of the engine tender with his right foot and started to go across. I did not see any of the train crew on the side of the train that I was on, nor did I see any brakeman pass. I was standing right there at that space between the engine tender and the coal car where he went through, and I did not see any brakeman pass that space on the opposite side of the train with a lantern in his hand. As soon as I seen Mr. Huffman was caught, I started to the engineer just as fast as I could walk; but the train had already moved that time. The engineer was looking £.t the fireman and was facing toward the scales away from the mill. He had his back to the mill and was facing north. Mr. Huffman had got on the running board before the train moved, but just as he put his foot on the bumper the train moved; it was just a matter of a few seconds, very few at that.”
    H. E. Dolan testified:
    “The movements of trains is largely by, signals. At night we. use lanterns, and each brakeman is equipped with a signal lantern. The engineer operates the train, and the brakeman gives him signals for the movement of the train. If they would want to keep the train at rest, they would give the engineer the stop signal, which is just a swinging motion of the lantern. To indicate extreme danger, you give that signal faster, which is called the ‘Watch Out’ signal; but it is made by the same swing of the lanterns. The stop signal is the final signal. The engineer stops when he gets that signal and does not move it any more until he gets the signal to move. The crew was working by signal on the morning of the accident. It wasn’t daylight, and they were working by lantern signals. * * * When a signal is given, the fireman sees it immediately if he is looking, but he has got to repeat that signal in words to the engineer after he takes it. The engineer is right across the cab from the fireman. All the fireman has to do is to tell him to stop or go. * * * It ought to take five or ten seconds to communicate the signal to the engineer where it has to go through- the fireman; that is, if the signal was caught immediately.”
    R. E. Dolan testified:
    “We were all working on the scale side or north side of the track. The cars would be between us and the mill. I did not see anybody going over those cars that morning when we coupled onto the coal car and walked up toward the scales where the scales were and watched them weigh the car. I did not at any time, while I was working on the north side of the track, observe or have my attention called to a man in between the cars. * * * When we coupled onto the coal car, before we got to the oil mill, I walked on down to where the cake car was. I don’t know who coupled onto the car of cake. We were all on the tender or going down with the tender and were taking no other cars in with us except this coal car that was in the clear. If Brenham coupled those cars, I walked from the tender down to the cake car and had to walk across that space where Huffman got hurt. I had my lantern with me and could see clear across the space, if I was looking that way. It was not necessarily my duty to look that way. I don’t think it was my duty, after the car was coupled on, to look across there. There was no reason to keep a watch out there after the car was coupled on. It is not a part of my duty, as I pass from one part of the train to another, to look through the cars as in switching it isn t. I did not see this man in there between those cars. I don’t know where he was at. I didn t see him.”'
    The entire train crew testified that they did not see Huffman between the cars and did not know that he was between the cars until after the injury, when their attention was called to him where he was sitting on the ground on the north or scale side of the train. This is all of the testimony shown in the record which is material on the question of discovered peril.
    Eor a diagram showing the location of the mill, scales, and premises, reference is had to the opinion of the Court of Civil Appeals, 61 Tex. Civ. App. 200, 130 S. W. 195.
    Doremns, Butler & Henderson, of Bryan, and Fisher & Fisher, of Austin, for plaintiffs in error.
    J. W. Garner, of Rockdale, T. S. Henderson, of Cameron, and J. L. Lockett, of Ft. Worth, for defendant in error.
   SADLER, J.

(after stating the facts as above). In the opinion on the.first appeal, the Court of Civil Appeals, in passing on the question of whether or not the cause should have been submitted on the issue of discovered peril, said:

“While not intimating any opinion as to the probative force of the evidence on this phase of the case, we think it was sufficient to require the submission of the issue of discovered peril to the jury.”

And in the second opinion the court finds that the facts upon the second trial were substantially the same as in the first trial.

In the last opinion, the Court of Civil Appeals seems to base its affirmance upon the rule of stare decisis, and since “the trial court followed directions given in the opinion upon the former appeal in this case, and submitted only the issue of discovered peril,»’ affirmed the judgment.

It becomes necessary to analyze the evidence set out above in order to determine whether or not there was sufficient evidence before the court to authorize it to submit the issue of discovered peril to the jury. ■

The evidence is undisputed that at the time of the accident there was sufficient light between the coal car and tender for the brakeman to have seen the plaintiff while he was between the cars. Plaintiff says that, at the time he was between the cars, and “after I had placed my left foot on the knuckle or shoulder of this coal car and was pulling myself up — I was up possibly halfway and had pulled my weight up- off of my right foot — I saw a brakeman pass by this opening where I was going through on the opposite side of the train.” “He had a lantern in his hand, and, as he passed that opening where I was, he had his face turned in my direction, and I caught his eye as he passed by. He was looking in my direction, and I looked in his eyes. His eyes were open, and I saw his eyes,”

Dolan, the brakeman, says:

“I had my lantern with me, and I could see clear across the space if I was looking that way. * * * I did not see this man in there between those cars.”

Under the evidence, as thus presented, in our opinion, it became a question for the jury to determine as to whether or not the brakeman saw the plaintiff. It is true that there is no direct, positive testimony by the plaintiff that the brakeman, at the time he passed did in fact see him; but plaintiff did, testify to circumstances, which, if true, taken in connection with the testimony of the brakeman, might be sufficient to require the jury to determine that fact. Plaintiff says that the brakeman was looking in his direction, that he was close to the place where plaintiff was, that it was perfectly light at that place, that he saw the brakeman’s eyes, and that he looked right into the brakeman’s éyes. The brakeman says that it was sufficiently light at the place where plaintiff was injured for him to have seen between the cars. In this state of the record, we are unable to say that this issue should not have been presented to the jury. We therefore conclude that, so far as that element in discovered peril is concerned, the evidence justified the court’s charge.

There is another element, however, which it becomes necessary to establish before the rule of discovered peril can be invoked in support of plaintiff’s cause. That is, whether or not, even though the brakeman saw plaintiff he knew of Ms perilous position, and could, by the use of every means at his disposal, have prevented the injury. Stating it another way: Although the brakeman may have seen the plaintiff between the cars, may have seen Mm with Ms foot on the draw-head, may have known that to be a dangerous position, and perilous to tire plaintiff in the event the cars should be moved, did he know that the cars were about to he mbved, and did he have time to have prevented the injury by the use of every possible means at his command?

If the circumstances presented by this record are such that reasonable minds might draw a different conclusion respecting' the failure of the brakeman to have been able, by the use of all the means at his command, to have prevented the injury, then it becomes a question • for the jury to determine upon the facts adduced, and the court should have so presented the matter as to have enabled the jury to determine this issue. However, if, under the facts and circumstances as presented by this record, there is no room for reasonable minds to differ in the conclusion that the injury could not have been prevented by the brakeman after discovery of plaintiff’s perilous position, then the court should have resolved the issue against the plaintiff, since the evidence would not be sufficient to meet the legal measure entitling plaintiff to have the jury pass judgment upon it. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

If there is any room for ordinary minds to differ as to conclusion to be drawn from the facts and circumstances in this record, then the court would not have been authorized to take the case away from the jury; on the other hand, if the evidence is of such character as that all ordinary minds will unite upon the proposition that the brakeman could not have prevented the injury by the use of all the means at his disposal, then . the court should not have submitted the issue to the jury. Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399; T. & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Cowles v. M., K. & T. Ry. Co., 96 Tex. 24, 67 S. W. 1078, 69 S. W. 541; M., K. & T. Ry. Co. v. Eyer, 96 Tex. 72, 70 S. W. 529.

Plaintiff testified on this trial that, when he started to go through between the engine tender and the coal car, and was pulling himself up, and about the time he was pulling himself up with all his weight on his left foot, the cars moved, causing his foot to slip off this knuckle; that he was possibly halfway up and had pulled his weight off of his right foot when he saw the brakeman pass the opening on the opposite side of the train; that the cars moved about six inches; that it was not very long after the brakeman passed before he received his injury; that the brakeman, according to his judgment, had time to have taken something like four steps.

He states that he was trying to get over there to weigh the car just as quick as possible ; that he had got up with his weight on his left foot, which was on the knuckle of the coupler, when they made the move; that he could not have been there as long as a couple of seconds; it was done on the instant; that it was but a short time from the time he put his foot on the running board of the tender and pulled himself up until his foot was caught.

He states that he was pulling himself up to go over on the other side as the brakeman passed; that he had just raised his right foot, making an effort to step over, but had not got up in a standing position at all when the cars moved; that he could not say how long tlie man was under his observation, possibly a second; that he just saw him as he passed by that open space. lie testified that he stepped on the tender of the engine with his right foot, placed his left foot on the drawhead, and, as he started to pull himself up, his left foot slipped down between the drawhead and part of the car, and at the same time the train moved a few inches, catching his foot and mashing it; that just before his foot was caught he saw the brakeman pass toward the scales on the opposite side of the train.

Taking the testimony as strongly as permissible in behalf of the plaintiff, and it shows that when plaintiff stepped with his right foot on the running board of the tender, took hold of the handle bars on either side, placed his left foot on the drawhead between 'the tender and the coal car, had begun to pull himself up by his arms; had relieved the weight from his right foot, and while in the act of pulling himself up, the brakeman passed the open space; that while in this position, and before he was able-to pull himself to an erect position on the drawhead, the train moved, mashing his foot.

From the time plaintiff saw the brakeman (assuming that the brakeman also saw plaintiff), there only remained that length of time intervening between the moment the brakeman saw the plaintiff to the moment the car moved (which under the testimony is shown to have been before the plaintiff had lifted himself to an upright position) in which the brakeman could have acted in an effort to prevent the injury.

There, is an entire want of evidence showing that, at the time the brakeman is claimed to have seen plaintiff, he then knew that the train was to be moved. There is no evidence showing when the brakeman ascertained that the train was to be moved, and the only evidence on that question is the testimony which shows that the brakeman was near the scales when it was moved.

According to the plaintiff’s positive testimony, it was just a second from the time he stepped upon the running board of the tender until he received the injury. However, he shows that, when he saw the brakeman jjass, he then had his left foot on the knuckle or shoulder of the coal car and was pulling himself up; having removed the.weight off of his right foot. When the cars moved, causing his foot to slip off of the knuckle, he had his left foot on the knuckle and was pulling himself up, but had not reached an upright position on the drawhead.

Assuming that the brakeman saw him in the position described by xdaintiff at the time he passed, did he know that the train was about to be moved, and did ‘he have the time, from that moment until the train, did move, in which to have acted in an effort to prevent plaintiff’s injury?

Without going into the field of conjecture, is it reasonable to conclude from this record that Dolan, the brakeman, knew of the necessity of moving the train, or the purpose to do so? We think not. A reasonable assumption, based on the evidence, is that the passing of the brakeman and the movement of the train were in such juxtaposition in relation of time as to have rendered it improbable that the brakeman did know that the train was to be moved.

Should it be assumed that the record raises the issue of Dolan’s knowledge at the time that the train was to be moved, yet, is it not apparent that knowledge on his part of plaintiff’s peril and the movement of the train were so near simultaneous as to lead to the very reasonable conclusion that he was powerless to have prevented the injury?

We are of opinion that if thei brakeman, at the time, had been in possession of all the information necessary to have demanded action on his part, there did not remain time in which he could have prevented the train from moving by the use of any of the means which might have been in his power.

Assuming that the brakeman should have immediately called to the fireman not to move or to hold the train stationary or to give him any character of warning, it would have been necessary for the fireman to have communicated this to the engineer, and it is not reasonable to assume that this could have been done without the period of time intervening between the time plaintiff saw the brakeman and the movement of the train.

It must be a matter of common knowledge that some time must intervene between the receiving of an impression by one and its communication to another, whether such communication be by word of mouth or by some other means. We are therefore of the opinion that, measured by the legal rule, the evidence in this record is not sufficient to raise the issue of the failure of the brakeman to utilize the means in his hands or possession or at his command so as to have prevented plaintiff’s injury.

The evidence, therefore, being insufficient to raise the issue of whether or not the brakeman knew that the train was likely to move and that he could have prevented it from moving, the court was not authorized to submit the issue of “discovered peril” to the consideration of the jury. Having submitted the issue, for the reason hereinbefore given, we are of the opinion that the facts and circumstances are insufficient to support the verdict and judgment in this cause.

The plaintiff in error also complains with reference to the admission in the evidence of the ordinances of the city of .Rockdale.

We are inclined to the opinion that, in view of the record, this evidence was not admissible. Since, however, the court withdrew it from the consideration of the jury, the error became immaterial. The other matters complained of are not deemed of sufficient importance to require consideration.

We are therefore of opinion that the judgment of the Court of Civil Appeals and of the district court should be reversed. It appearing that the evidence has been fully developed, judgment should be rendered in favor of defendants below.

PHIIjTjIPS, O. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <gs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: STRONG, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. R. G. ANDREWS LUMBER CO.
    (No. 20-2634.)
    (Commission of Appeals of Texas, Section A.
    Dec. 11, 1918.)
    1. Appeal and Error <§=>978(3)—Discretion of Court—Misconduct of Jury—Statute;
    Appellate courts are not authorized to disturb the verdict, where the trial court has refused new trial for misconduct of the jury,, unless the court has abused the discretion reposed in it by Rev. St. 1911, art. 2021.
    2. New Trial <@=>47—Misconduct of Jury— Discretion of Court—Statute.
    Denial of plaintiff’s motion for new trial on account of misconduct of juror in talking with witness, who averred that a witness for plaintiff had lied, but whose statement did not go against plaintiff’s substantive case, held not abuse of discretion reposed in court by Rev. St. 1911, art. 2021.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by the R. G. Andrews Lumber Company against the Missouri, Kansas & Texas Railway Company of Texas. To review a judgment for defendant, plaintiff brought error to the Court of Civil Appeals, which reversed (158 S. W. 1194), and defendant brings error.
    Judgment of the, Court of Civil Appeals reversed, and judgment of the trial court affirmed, on • recommendation of the Commission of Appeals.
    Alex S. Coke, of Dallas, and Dinsmore, McMahon & Dinsmore, of Greenville, for plaintiff in error.
    J. H. Beavers, , of Winnsboro, Jones & Jones, of Mineóla, and Harris, Suitor & Button, of Quitman, for defendant in error.
   STRONG, J.

The R. G. Andrews Lumber Company, plaintiff, brought this suit against the defendant railway company, alleging that its planing mill, together with other property belonging to plaintiff, was destroyed by fire negligently set out by defendant company. A trial before a jury resulted in a verdict for defendant. The only question presented for review is the alleged misconduct of one of the jurors during the trial of the case.

The trial court overruled the motion for a new trial, after hearing the evidence on the question of misconduct of the juror. The Court of Civil Appeals held that the new trial should have been granted, ana reversed and remanded the cause. 158 S. W. 1194.

To clearly understand the question presented, it is necessary to state that Jerry Eee, a witness for plaintiff, who was night watchman at the mill at the time of the fire, testified to a state of facts that would have sustained a finding by the jury in favor of plaintiff. In the course of his testimony, Lee stated that his duties as night watchman required him to be constantly present in and about the mill from 6 o’clock in the evening until 0 in the morning; that on the night of the fire (the fire occurred about 11 o’clock at night) he was in the performance of his duties when he discovered the fire; that at the time he discovered the fire he was engaged in. cleaning out the flues of the boiler with a “swab”; that the swab had a wooden handle; that upon discovering the fire he left the swab fastened in one of the flues. For the purpose of corroborating the witness Lee that he was in the performance of his duties on the night of the fire, ana In position to see and know the origin of the fire, plaintiff placed on the stand its general manager, Claud Dodgen, who testified in substance that it was Lee’s duty to be constantly in and about the mill from 6 o’clock in the evening until 6 in the morning, and that he had been faithful in the discharge of his duties prior to the fire. Dodgen further testified that on the day after the fire he found a swab, or a part of it, fastened as described by Lee in one of the flues, and that he was not certain, but was under the impression, that the handle of the swab was an inch iron pipe about 12 or 14 feet long. Dodgen testified to no other material facts in the case.

The testimony adduced upon the hearing of the motion for a new trial relating to the misconduct alleged was in substance as follows: Sterrill Bates testified that he was in attendance upon the trial of the case as a witness; that he became acquainted with J. D. Fox, one of the jurors in the case, during the trial; that he and Fox lived in the same section of the county; that, during the progress of the trial, court adjourned from Saturday until Monday; that he and Fox went home together Saturday afternoon, and returned to court together Sunday night; that on the trip they passed the place where the mill was burned, and he pointed out to Fox where the fire was first discovered, and Fox replied that he knew all about it; that later the case was mentioned, and he stated to Fox that, if all the witnesses swore like Claud Dodgen, they would beat the railwhy company; that the testimony of Dodgen to the effect that the handle of the swab was iron, and was 12 or 14 feet long, was a lie; that he (Bates) knew the handle was made of wood, because'he was at the mill on the next day after the fire, and saw the swab fastened in the flue, and the handle was burned off. Bates further testified that he told Fox he was at the mill for about 15 minutes one night, about 15 days before the fire, and did not see Jerry Lee there on that occasion. He also testified that he and Fox agreed to say nothing about the conversation. The juror Fox corroborated Bates as to what was said between them, except that he did not recall that Bates made any statement about Jerry Lee being away from the mill at any time. Fox also testified that he made no statement to any other member of the jury about what Bates had said to him, and that the statements made by Bates had no influence whatever with him in arriving at a verdict. The record further discloses that Bates had been an employs of the plaintiff for about 5 years, and was such at the time of the fire and at the time of the trial. Bates was subpoenaed as a witness by defendant, but was not used. He was excused by defendant on Saturday afternoon, but required by plaintiff to remain in attendance upon the court, and was placed on the stand by plaintiff as a witness. The Court of Civil Appeals found as a fact that there was nothing in the record to show that the juror Fox was influenced by what Bates said.

The statute leaves it to the discretion of the trial court to set aside a verdict for misconduct of the jury, ana appellate courts are not authorized to disturb the verdict, where the trial court has refused a new trial for misconduct of the jury, unless the court has abused the discretion reposed in it by statute. Article 2021, R. S. 1911. The only purpose of the testimony of the witness Dodgen was to show that the night watchman, Lee, was at the mill the night of the fire, and in a position to see and to know how the fire originated. His testimony as to the material of which the handle of the swab was made was immaterial, except in so far as it tended to establish this fact. This being true, Bates’ statement to the juror Fox that he knew Dodgen swore a He about the material of which the handle of the swab was made, because he was at the mill on the next day after the fire, and saw the swab in the flue, and the handle was burned off, was favorable to plaintiff. The statement strongly tended to establish the identical fact which plaintiff had sought to establish by the testimony of Dodgen, to wit, that the night watchman, tee, left the swab in the flue when he discovered the fire. There was nothing in the statement which could have influenced the juror against plaintiff’s theory of the case. There is no question but that, under the statute, the exercise of the discretion of the trial judge may be reviewed, where it clearly appears that the rights of the parties have been disregarded. Railway Co. v. Gray, 105 Tex. 43, 143 S. W. 606. Whether the rights of the parties have been disregarded is, under the statute, left to the determination of the trial judge, and, unless the record shows an abuse of his discretion, appellate courts are bound by his finding. Kalteyer v. Mitchell, 102 Tex. 390, 117 S. W. 792, 132 Am. St. Rep. 889. The record does not disclose such abuse of discretion on the part of the trial judge as to authorize a reversal of the case on this ground.

We are of opinion that the judgment of the Court of Civil Appeals should be reversed, and the judgment of the district court affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <@=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MONTGOMERY, P. J.

text:
    WATERMAN LUMBER & SUPPLY CO. v. ROBBINS et al.
    (No. 16-2604.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. Executors and Administrators <@=>37<2) — Pinal Discharge — Administrator De Bonis Non.
    A final order discharging administrators of an estate absolutely did not negative probate court’s power thereafter to appoint administrator de bonis non, there being nothing to show estate had been finally closed.
    2. Executors and Administrators <®=>32S— Sale by Administrator De Bonis Non-Land Certificate.
    A sale by an administrator de bonis non under proper order of the probate court of an un-loeated balance land certificate, community property of decedent and his widow, held not void; sale having been properly reported and approved.
    3. Executors and Administrators <§=>328— Administrator De Bonis Non —Rights and Powers.
    Administrator de bonis non, successor of others who had failed to act until • estate was finally closed, had same rights and powers as if he had been originally appointed on death of decedent, and had continued to act until he sold, under order of court, unlocated balance land certificate, community property of decedent and widow.
    4. Husband and Wife <§=>276(4) — Wife’s Control Over Community' — Administration on Husband’s Estate.
    When administration was granted on estate pf husband, wife’s control over community property ceased, and estate passed under jurisdiction of probate court for administration and settlement.
    5. Judgment <§=475 — Probate Court — Presumptions in Pavor of Judgments.
    A probate court is a court of general jurisdiction, and its judgments, within the scope and power granted to it by law, are entitled to the same presumptions in favor of their validity as those of any other court of record of general jurisdiction.
    6. Judgment <§=>499 — Collateral Attack-Evidence Dehors Record.
    A presumption in favor of the jurisdictiog. of courts and the validity of their judgments cannot be overcome in a collateral proceeding by evidence dehors the record that the necessary jurisdictional facts did not exist.
    7. Husband and Wife ®=»276(6) — Community Property — Administration to Pay Debts.
    Community property of husband and wife is subject to administration and sale by administrator of husband or wife under certain circumstances to pay separate debts of either husband or wife.
    8. Executors and Administrators <§=>349(2) — Order of Sale — Collateral Attack — Presumption.
    In trespass to try title constituting collateral attack on long past order of probate court authorizing administrator de honis non to sell unlocated balance of land certificate, community property of decedent and his wife, it must be conclusively presumed that court, before ordering sale, found fact of existence of debts owing by decedent, condition precedent to its power to authorize sale.
    Error to Court of Civil Appeals of Siyth Supreme Judicial District.
    Action by Jane Robbins and others against tbe Waterman Lumber & Supply Company and others. Prom judgment for plaintiffs, defendants appealed to the Court of Civil Appeals, which affirmed (159 S. W. 360), and defendant Lumber & Supply Company brings error.
    Judgment of the Court of Civil Appeals and trial court reversed and rendered in part; otherwise affirmed.
    This case originated in the district court of Shelby county. Jane Robbins and others as plaintiffs brought an action of trespass to try title against the Waterman Lumber & Supply Company to recover a tract of land containing 646 acres located by virtue of an unlocated balance certificate issued to John Buckley. The plaintiffs also sought damages by reason of certain timber having been cut and removed from said land by the defendant. The defendant answered by a general denial and plea of not guilty.
    The pleadings and the facts found by the Court of Civil Appeals are fully set out in the opinion of that court which is reported in 159 S. W. 360.
    We will, however, briefly state the facts upon which our conclusion rests.
    A land certificate was issued to John Buckley in 1838, he at that time being married to Elizabeth Buckley, and this certificate whs community property. A portion of the certificate was located and patented to John Buckley in 1847. John Buckley died early in the year 1860, leaving his wife, Elizabeth Buckley, and several children surviving him. He left a considerable estate, consisting of about 1,400 acres of land and various notes and some personal property, aggregating in value about $5,000. Soon after his death, his wife, Elizabeth Buckley, and one of his sous, were appointed and qualified as administrators of his estate. Some time during the Civil War, his wife having died, Short and Dysart were appointed administrators of the estate. They, as administrators, accepted in payment of notes due the estate several thousand dollars of Confederate money. About 1867, or 1868, they made a final report showing their acts as administrators, and filed their account, which was approved, and an order was made discharging them. There was, however, no order closing the administration. About the year 1873, J. D Defee, husband of one of the daughters of John and Elizabeth Buckley, was appointed administrator of the estate and as such brought a suit against Short and Dysart for an alleged failure on their part to properly account for property received by them as administrators. This suit was settled by compromise. Some time after the death of John Buckley, an unlocated balance certificate for the unloeated part of the original certificate issued to John Buckley was properly issued, and it was admitted that this certificate was community property of John and Elizabeth Buckley. In the year 1880, Defee, as administrator, applied for and obtained a proper order of the probate court of Shelby county, Tex., authorizing a sale of said unlocated balance certificate. The sale was duly made to one W. T. Win-slow, and was properly reported to the court, and the sale approved. The Waterman Dumber & Supply Company owned whatever right to this certificate and the land located by virtue of same which passed by this sale. The land in controversy was located by virtue of this certificate. The plaintiffs, Jane Robbins and others, who are defendants in error in this court, are heirs of John and Elizabeth Buckley, and, as such, inherited a portion of whatever estate was left by them, subject, of course, to administration.
    The probate records of Shelby county were burned in the year 1882, and nothing relating to the estate of John Buckley was saved except the original inventory made ir> the year 1860. This inventory showed various items of property owned by said John Buckley, but did not include the unlocated balance certificate, which. had not at that time been issued. The inventory failed to disclose any indebtedness against the estate.
    All the above facts were either agreed to or were established and found by the trial court and the Court of Civil Appeals. In addition to the foregoing facts, the plaintiffs in the court below, Jane Robbins and others, over the objection of the defendant introduced parol testimony tending to show that at the time of the sale of the certificate in 1880 there were no community debts against the estate of John Buckley, and tending also to show that no claims were ever presented and approved against said estate.
    The district court found as a fact from this parol testimony that there were no community debts against the estate at the time the land certificate was sold, and this finding was approved by the Court of Civil Appeals. The district court also made a finding to the effect that the sale of the certificate to Win-slow did not purport to convey the community interest of Elizabeth Buckley, the wife. This finding, as we construe the opinion of the Court of Civil Appeals, was held unauthorized by the evidence, and after a search of the record we are unable to find any evidence which would support the finding. The trial court rendered judgment for plaintiffs for an undivided interest in the land and for damages growing out of the cutting of timber and removing the same from the land, and rendered judgment for the defendant for the remaining interest in the land. The defendant appealed and assigned errors, and the plaintiffs in the Court of Civil Appeals filed cross-assignments of error. The judgment of the trial court was affirmed. The case is now in this court upon the application of the Waterman Dumber & Supply Company only. Such other facts as may be necessary will be stated in the opinion.
    Davis, Davis & Davis, of Center, Greer, Nall & Bowers, of Beaumont, and Jno. T. Garrison, of Houston, for plaintiff in error.
    Oliver J. Todd, of Beaumont, for defendants in error.
   MONTGOMERY, P. J.

(after stating the facts as above). The Court of Civil Appeals, as we think, correctly held that the granting of letters of administration to J. D. Defee was not void, and also correctly held that the sale of the certificate to Winslow .by Defee as administrator was not a void sale. The reasons for their conclusions and the authorities supporting the same are shown in the opinion. The validity of the administration by Defee is not questioned in this court, nor is the conclusion of the Court of Civil Appeals to the effect that the sale to Winslow passed the community interest of John Buckley.

The plaintiff in error, Waterman Dumber & Supply Company, has assigned as error in this court the action of the Court of Civil Appeals holding that parol evidence was admissible to show that there were no community debts at the time of the sale of the certificate, and also complains of the judgment allowing a recovery by defendants in error of an undivided interest in the land, and of damages.

The fact that, prior to the appointment of J. D. Defee as administrator, others had been appointed who had for some reason failed to act until the estate was finally closed, is of no consequence. Defee, as administrator, had the same rights and powers as if he had been originally appointed upon the death of Buckley and had continued to act until the time of the sale of the certificate.

The case then is one where an administrator of the estate of the husband has been legally appointed during the life of the wife and under proper orders of the court has sold and conveyed community property. On tlie trial in the district court, the regularity of the appointment and qualification, and also the regularity of the sale of certificate, was admitted. It is true that the defendants in error reserved from their admission the claim that the court had no jurisdiction to make the appointment; hut this contention was denied by the Court of Civil Appeals, and is not here complained of. The fact that about 20 years intervened between the time letters were first granted and the sale of the certificate is not, in our opinion, important. Burdett v. Silsbee’s Adm’r, 15 Tex. 617. The delay in this case is, to some extent at least, accounted for by the condition of the country incident to the Civil War, and the disturbed political conditions which existed for a number of years thereafter.

The fact that the inventory failed to show any indebtedness of the estate is not even a circumstance tending to sho\v that such indebtedness did not exist, as under the law in force at that time the inventory was .not required to show what, if any, debts the estate owed. Oldham & White’s Digest, § 740.

There is therefore nothing in the record, so far as is disclosed, which negatives the legal presumptions applicable to the transaction.

When administration was granted on the estate of John Buckley, the wife’s control over the community property ceased, and the estate passed under the jurisdiction of the probate court for administration and settlement. Hollingsworth v. Davis, 62 Tex. 438; Moke v. Brackett, 28 Tex. 443; Lawson v. Kelley, 82 Tex. 463, 17 S. W. 717.

It is settled that a probate court is a court of general jurisdiction; that its judgments within the scope and power granted to it by law are entitled to the same presumptions in favor of their validity as any other court of record of general jurisdiction. Alexander’s Heirs v. Maverick, 18 Tex. 179, 67 Am. Dec. 693; Guilford v. Love, 49 Tex. 735; Weems v. Masterson, 80 Tex. 46, 15 S. W. 590; Martin v. Robinson, 67 Tex. 368, 3 S. W. 550.

In the last case cited, Justice Stayton said:

“When a court of record, having such jurisdiction, has assumed to exercise it in a given case, all presumptions are in favor of the validity of its proceedings; and if the record of such a court shows that the steps necessary to clothe it with power to act in the given case were taken, or if the record be silent upon this subject, then its judgment order or decree must be held conclusive in any other court of the same sovereignty when collaterally called in question.”

.In the case of Hardy v. Beaty, 84 Tex. 567, 19 S. W. 778, 31 Am. St. Rep. 80, it is held that, when all the facts necessary to a proper exercise by a court of its jurisdiction do not appear from the record, it will be presumed that the court ascertained all such facts before rendering judgment.

This presumption in favor of the jurisdiction, of courts and the validity of their judgments cannot be overcome in a collateral proceeding by evidence outside the record that the necessary jurisdictional facts did not exist As said in Murchison v. White, 54 Tex. 83:

“It is believed that a careful analysis of the cases on this subject will show that, in a collateral proceeding, the only contingency in which the judgment of a domestic court of general jurisdiction, which has assumed to act in a case over which it might by law take jurisdiction of the subject-matter and the person, can he questioned, is when the record shows affirmatively that it§ jurisdiction did not attach in the particular ca*se.”

In the same case it is further said:

“This question in such a proceeding must be tried by the recitals in the record itself and the presumptions arising therefrom. If they show a case of jurisdiction, then in a collateral proceeding, upon grounds of public policy, the record purports absolute verity and is conclusive.”

There is a very able discussion of this rule and the reasons upon which it rests by Justice Denman in the case of Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325.

This rule of public policy, we think, is of peculiar force when applied to ancient transactions and to cases like this, where the record has been lost and it was sought by the fallible memories of men to annul the solemn adjudications of a court which has been recognized and acted upon for a long period of time.

The record in this case shows that John Buckley died in 1860, and that his wife survived him for a year, or more; that administration was regularly granted on his estate (which, of course, included the community property not exempt); that in due course of administration the land certificate was sold under proper orders of the court. It is sought in this collateral proceeding to impeach the judgment of the probate court by showing that the court was not authorized to make the sale because no community debts existed. If this sale can, be attacked in this way and the title claimed under it destroyed by parol evidence that no community debts existed, then 'every such sale is open to collateral attack, and no reliance can be placed in the judgments and orders of probate courts. The fact, if it he true, that there were no community debts, would not be conclusive that no debts existed for which the property could legally he sold by the administrator or the husband, as the community property is subject to administration and sale by the administrator of the husband under certain circumstances for the purpose of paying the separate debts of either the husband or wife. Lee v. Henderson, 75 Tex. 192, 12 S. W. 981; Taylor v. Murphy, 50 Tex. 300.

.If the existence of debts was a condition precedent to the power of the court to authorize the sale of the property, we think it must be conclusively presumed in this collateral proceeding that the court found this necessary fact before ordering the sale of the property.

If we ar^ correct ip this view, then it necessarily follows that parol evidence to contradict the presumption arising from the judgment was not admissible.

We therefore hold that the administrator’s sale passed the title to the certificate as against the heirs of both the husband and the wife. In reaching this conclusion, we have not referred to the case of Dickson v. Moore, 9 Tex. Civ. App. 514, 30 S. W. 76, which is directly in point upon the question discussed and in which a writ of error was denied, for the reason that the writ may have been refused upon another ground; that is, upon the ground that the evidence offered was insufficient to overcome the presumption arising from the judgment, even if admissible.

We think it proper to refer briefly to the cases of Moody v. Butler, 63 Tex. 210, and Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367, cited by the Court of Civil Appeals in support of its conclusion that parol evidence was admissible to show that there were no community debts and that the sale only passed the community interest of the husband in the certificate.

In Moody v. Butler, 63 Tex. 210, the facts show that the land in controversy was the community property of Joel .Clapp and his wife, Malinda Clapp. The wife died in March,’ 1852, and Joel Clapp died January 1, 1854, and there was no evidence that at the time of Joel Clapp’s death there remained unpaid any community debts. Joel Clapp’s executor sold the land in controversy. Under these facts, it was held that, in order to authorize a sale of the interest inherited by the children from their mother, it was necessary that there should have been community debts and that the burden of proof was on the parties seeking to give the deed that effect. In support of this proposition, Sanger v. Moody’s Heirs, 60 Tex. 96, was cited. This last case was one where the surviving husband, without administration, sold community property, and the court discussed and applied the general rule long recognized in this state that the survivor without administration had the power to sell Community property for the purpose of paying community debts, and that the burden of proof was on the purchaser to show the existence of such debts.

Justice Willie, in Moody v. Butler, extended this doctrine to the husband’s administrator in cases where the wife died prior to the death of the husband. He lays stress upon the fact that the wife died almost two years before the death of the husband, and that upon her death “her half of the land descended to her children, subject to the payment of community debts.” In1 effect this case holds that, the wife having died almost two years before the husband, the husband’s executor took the land subject to the same right only that the husband had prior to his death, which was the right to sell only so far as necessary to pay community debts.

In Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367, Justice Brown had under consideration the rights of the heirs of the wife who died prior to her husband as against the husband’s administrator, and cited and approved Moody v. Butler, supra. The ground of the decision is that the heirs of the mother were not parties to the administration and were not bound by the orders of the probate court. In other words, these cases in effect hold that when the wife dies, leaving the husband surviving, her community interest vests at once in her children, charged, of course, with the payment of community debts, and that the subsequent death of the husband and the granting of administration upon his estate does not confer jurisdiction over the estate of the heirs. In such case, the husband’s administrator has the same power that! the husband possessed, which is the power to sell only for the purpose of paying debts which are proper charges against the property. These cases, in our judgment, do not control the case under consideration. Here the husband died almost two years before the wife, and under the rule announced in Hollingsworth v. Davis, 62 Tex. 438, Moke v. Brackett, 28 Tex. 443, and Lawson v. Kelley, 82 Tex. 463, 17 S. W. 717, upon the appointment of the administrator of the husband the entire community estate passed under the jurisdiction and control of the probate court. Having such jurisdiction, the judgment of the court in authorizing and confirming a sale of the property is, in our opinion, conclusive.

Our conclusion is that the judgment of the district court and the Court of Civil Appeals, in so far as judgment was rendered in favor of the plaintiffs-for the recovery of an undivided interest of 113.19 acres in the survey of the land in controversy, and for the value of timber cut and removed from the land, should be reversed, and judgment here rendered that plaintiffs take nothing, and that otherwise the judgment should be affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHICAGO, R. I. & G. RY. CO. et al. v. TROUT.
    (No. 2-2545.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. Appeal and Error <§=£>1042(5), 1043(7) — Harmless Error — Refusal to Strike Amendment Not Submitted — Continuance.
    Where issue presented by plaintiff s trial amendment was not submitted in charge, trial court’s refusal to strike amendment, and. its denial of defendants’ application for continuance on ground of surprise, were not reversible error.
    2. Master and Servant <^£>277 — Existence . of Relation — Partnership Between Bail-roads — Sufficiency of Evidence.
    In employe’s action for injuries, brought against several railroad companies as partners in operation of line where injury occurred, evidence held insufficient to show existence of relationship of partners between two of the railroads.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by H. P. Trout against the Chicago, Bock Island & Gulf Railway Company and others. From judgment for plaintiff, defendants appealed to the Court of Civil Appeals, which affirmed (152 S. W. 1137), and defendants bring error.
    Judgments of the Court of Civil Appeals and of the trial court reversed, and cause remanded for now trial on recommendation of the Commission of Appeals.
    Defendant in error brought this suit to recover damages against the Chicago, Bock Island & Gulf Bailway Company and the Chicago, Bock Island & El Paso Railway Company as partners on account of an injury sustained by defendant on May 6, 19-10, on a freight train on a line of railway froth Tucumcari, N. M., to Amarillo, Tex.; the injury occurring in the territory of New Mexico. Plaintiffs in error answered by general denial, special plea denying partnership, and other pleas not necessary to the disposition of the cause. On a jury trial, verdict was returned in favor of the defendant in error against the plaintiffs in error on the 27th day of January, 1912. Suit was filed July 29, 1910, and on January 24, 1912, defendant in error filed trial amendment alleging that he was employed by the Gulf Company and sent to work on the line in New Mexico where he received the injury. Plaintiffs in error moved to strike out the trial amendment, which being overruled, they presented motion for continuance on ground of surprise. The judgment of the lower court was affirmed by the Court of Civil Appeals of the Seventh District (152 S. W. 1137), and reference is had to that opinion for statement of the case. On the trial the proof showed that in the spring of 1910 a railway was being constructed from Amarillo to the Texas line, and from Tucumcari, in the territory of New Mexico, to the Texas line to connect with the road being constructed from Amarillo, Tex.; that portion of the road in Texas being constructed for the Gulf Company, and that portion in the territory of New Mexico for the Tucumcari & Memphis Railway Company. An engineer had in charge the construction of the road; that portion in New Mexico being constructed under the direction of the Tucumcari & Memphis Company, and that portion in Texas under the Gulf Company. The engineer in charge employed and discharged the laborers, and they were paid for their labor by the respective companies for the work done- for each. The Tucumcari & Memphis Railway Company was chartered under the laws of the territory of New Mexico to build, maintain, and operate a line of railway from Tucumcari to the Texas border. At the date of the alleged injury, the road had been completed so far as rail connection was concerned, but had not yet been opened for passenger and freight service and was still under the direction of the engineer in charge of construction.
    Plaintiff was employed by Jake Pancost, who was working under the engineer in charge of construction, and at the time of his employment nothing was said as to what railroad company was his employer. At the time of his injury, he was on a construction train on that part of the road being constructed by the Tucumcari & Memphis Railway Company. He was paid for his labor by said last-named company. The El Paso 'Company did not take charge of the operation of trains on the road until the 8th or 9th of May, 1910. In the latter part of that year, the plaintiffs in error were advertised in a folder issued by a railway advertising company as a part of the “Bock Island lines” and “Bock Island System,” and the road from Amarillo to Tucumcari was shown as a part of said system. At that time that portion of the road from the Texas line to Tucumcari was marked as the El Paso Company line. However, when this folder was issued does not appear. Yet the testimony shows that the El Paso Company was not operating the roád in New Mexico at the time of the injury.
    The court in its charge authorized a recovery only in the event the jury found plaintiffs in error to be partners and that defendant in error was employed by them.
    The court did not submit the issue presented in the trial amendment.
    N. H. Lassiter and Bobt. Harrison, both of Ft. Worth, and Gustavus & Jackson, of Amarillo, for plaintiffs in error.
    Barrett & Jones and J. N. Browning, all of Amarillo, for defendant in error.'
   SADLER, J.

(after stating the facts as above). The first assignment of error complains of the action of the court in refusing to strike out the trial amendment and in overruling the application for a continuance. There was no reversible error in this, since the issue presented by the trial amendment was not submitted in the court’s charge.

Plaintiffs in error complain of the charge of the court in submitting to the jury the question of partnership, complain that the evidence was insufficient to show partnership and to sustain the verdict and judgment. The evidence is insufficient to establish partnership. S. P. Ry. Co. v. Meadors & Co., 104 Tex. 469, 140 S. W. 427; H. & T. C. Ry. Co. v. McFadden & Co., 91 Tex. 194, 40 S. W. 216, 42 S. W. 593; T. B. & H. Ry. Co. v. Warner, 84 Tex. 122, 19 S. W. 449, 20 S. W. 823; W. U. Tel. Co. v. Pennsylvania Co., 129 Fed. 849, 64 C. C. A. 285, 68 L. R. A. 968; Stone v. Cleveland, C., C. & S. L. Ry. Co., 202 N. Y. 352, 95 N. E. 816, 35 L. R. A. (N. S.) 770.

An analysis of these authorities is believed to sustain the proposition that the evidence in this case is insufficient to show the existence of the relationship of partners between the two railway companies. It rather shows that they were independent actors. The evidence, does not sufficiently show that the plaintiffs in error were so acting together as to constitute a holding out of themselves to the defendant in error as partners. The defendant in error earnestly insists that under the holding in Buie v. C., R. I. & Pacific Co., 95 Tex. 51, 65 S. W. 27, 55 L. R. A. 861, the evidence establishes partnership; hut a .careful consideration of that case discloses that the question before the court was not one of partnership, hut rather of jurisdiction over the person, of the Chicago Rock Island & Pacific Railway Company.

In Peterson v. C., R. I. & P. Ry. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841, the Supreme Court of the United States in a very exhaustive opinion holds contrary to the holding in 95 Tex. 51, 65 S. W. 27, 55 L. R. A. 861, supra. Neither of these opinions involves the question of partnership, since it was not necessary to the disposition of the cases.

Prior to the date of the injury alleged and on that date, the Tucumeari & Memphis Railway Company, under charter granted by the territory of New Mexico, was building and maintaining the line of railway from Tucumeari to a junction point with the Gulf Company line at the state boundary common to the territory of New Mexico and the state of Texas; said line of road being ‘wholly within said territory. The El Paso Company is not shown to have had any connection with this railroad prior to May 8, 1910, a date subsequent to that of the alleged injury. The evidence is insufficient to show that the El Paso Company owed any duty to the defendant in error, or that he was employed by it, or that it caused his injury, or that it had any connection with the Tu-cumeari & Memphis Railway Company at the time of his injury. Quanah, A. & P. Ry. Co. v. Price, 192 S. W. 805; Gulf, Colorado & Santa Fe Ry. Co. v. Miller, 98 Tex. 267, 83 S. W. 182; Ft. Worth & Denver Ry. Co. v. Ballou, 174 S. W. 337.

In view of the disposition to be made of this case, the other questions raised on the trial will not be considered, since, probably, they will not arise on another trial.

On account of the insufficiency of the evidence to show liability of the appellants in error as partners and to support the submission of tlie right of defendant in error to recover against plaintiffs in error in that relation, we are of opinion that the judgment of the Court of Civil Appeals of the Seventh District and of the district court should be reversed, and that the cause should be remanded for a new trial.

PHILLIPS, C. <T. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission.
      <ffi=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    VAN ORDEN et al. v. PITTS et al.
    (No. 18-2610.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. Wills <@=3211 — Duty to Offer foe Peo-bate.
    , The only heir of deceased on discovering a will making bequests to others, and naming him as executor, is under moral obligation to offer it for probate, or disclose its existence, that the other beneficiaries may offer it.
    2. Trusts <@=194 — Constructive Trust — Concealing Will.
    The only heir of deceased, on discovering a will making bequests to others and naming him as executor, concealing its existence, and taking and using as his own all the property, became a trustee for the others.
    3. Trusts <@=219(2) — Constructive Trust-Rate of Interest.
    The only heir of deceased, as trustee, because concealing a will making bequests to others and naming him as executor, and using the property, became liable to them for the highest rate of interest allowed by law.
    4. Appeal and Error <@=362(1) — Limit of Rev-iew — Assignments in Petition for Writ.
    The Supreme Court cannot review the decision of the Court of Civil Appeals except on the specific assignments contained in the petition for writ of error.
    5. Trusts <@=219(2) — Constructive Trusts Liability foe Highest Interest — Time.
    Liability as trustee for highest rate of interest of sole heir of deceased, who, concealing will naming other beneficiaries, used the property as his own, is limited to the period from his discovery of the will to his death; the principal and interest at his death becoming a claim against his estate.

      Error to Court of Civil Appeals of Sixth. Supreme Judicial District.
    Action by Annie Ward Van Orden and another against Mrs. Hattie Pitts and another. Judgment for plaintiffs was reversed by the Court of Civil Appeals (158 S. W. 1043), and plaintiffs bring error.
    Remanded to trial court.
    Mrs. Ann Eliza Morphis died in January, 1896, leaving a will by which she, after providing for the payment of her debts, devised to her grandson, John M. Gardner, her homestead and lot adjoining, $1,000, and certain personal property, and to her niece, Annie Ward, then a child eleven years old (now Annie Ward Van Orden), $500 in cash, and interest in a lot in Ballinger, Tex., and certain other property not necessary to specify.
    The will named John M. Gardner as executor. Had Mrs. Morphis died intestate, John M. Gardner would, as heir, have taken the entire estate. About December 25, 1896, John M. Gardner discovered the will of Mrs. Morphis and then learned of its contents. Gardner, after discovery of the will, failed to offer the same for probate and concealed from Annie Ward and from her guardian and representatives the fact of its existence, and as heir took possession of all the property of the estate, which included $1,200 in money and vendor’s lien notes amounting to $400, and the homestead and lot adjoining, and some personal property. He treated all the property as his own and used the cash on hand and the proceeds of the notes for his own purposes.
    John M. Gardner died January 19, 1906, and left an estate worth about $30,000, $13,-500 of which was the proceeds of life insurance policies on his own life. He left a will which was duly probated, by which he gave to Annie Ward Van Orden $1,000 and to various other persons sums aggregating $3,-900, and the remainder of his estate was left to his stepmother, Mrs. Hattie Pitts, the defendant in error herein. Mrs. Hattie Pitts was named as executrix in said will. The $1,000 bequest to Annie Ward Van Orden was duly paid by Mrs. Pitts as executrix in March, 1906. Mrs. Van Orden did not learn of the existence of the will ,of Mrs. Morphis until February, 1912, and soon thereafter procured the will and offered the same for probate, and it was admitted to probate.
    The will of Mrs. Morphis, above referred to, also provided that Annie Ward should have one half of the testatrix’s interest in the estate of S. M. Adkins, deceased, who was a sister of the testatrix. The other one half of her interest was given by the will to the children of William R. D. Ward. The property of S. M. Adkins’ estate, so far as disclosed, consisted of a lot in Ballinger and a lot in Marshall, Tex. The Ballinger lot was sold, John M. Gardner and the guardian of Annie Ward joining in a deed, and Gardner received and appropriated as his own one-third of the proceeds of the sale. The portion of the purchase money for this lot which properly belonged to Annie Ward was $58.16, which was appropriated by Gardner.
    John M. Gardner as a gift conveyed his interest in the Marshall lot to Annie Ward, and also procured a conveyance to be made to her of the interest of the W. R. D. Ward heirs in said lot, for which he paid $200. All these transactions occurred while Annie Ward was' a minor and prior to her marriage.
    The item of $58.16 claimed by the plaintiff as due to her for the interest of Mrs. Van Orden in the Ballinger lot was not sued for in her original petition, but was set up in a supplemental petition.
    Soon after the discovery by Mrs. Van Or-den of the existence of the will of Mrs. Mor-phis, this suit was brought against Mrs. Hattie Pitts, the residuary legatee and executrix of the estate of John M. Gardner, to recover the sum of $500 devised to her by the will of Mrs. Morphis, with interest thereon at the rate of 10 per cent.
    The district court rendered judgment in her favor, which upon the appeal of Mrs. Pitts was reversed and the cause remanded for a new trial. The writ of error in this case was granted by the Supreme Court (161 S. W. xvi) on the application of Mrs. Annie Ward Van Orden.
    P. M. Young and Alvin G. Carter, both of Marshall, for plaintiffs in error.
    Beard & Davidson, of Marshall, for defendants in error.
   MONTGOMERY, P. J.

(after stating the facts as above). The Court of Civil Appeals in its opinion upon rehearing receded from the position that the bequest in the will of John M. Gardner to Mrs. Van Orden of $1,-000 and the payment of same to Mrs. Van Or-den operated as a payment and satisfaction of the amount due her under the will of Mrs. Morphis. The court in its opinion on rehearing in effect holds that the right of Mrs. Van Orden to recover was properly submitted to the jury, and that the charge upon this subject was correct, except in that part wherein it authorized a recovery of interest at 10 per cent.; the view of the court being that the recovery should have been limited to 6 per cent.

Confined as we are to the assignments of error contained in the petition for writ of error, we have only one question to consider, that is: Should the estate of John M. Gardner be required, under the facts found, to pay interest at the highest rate authorized by law. upon the moneys and the proceeds of property devised to Mrs. Van Orden by Mrs. Morphis for the time the same was wrongfully withheld from her?

This involves the question as to whether John M. Gardner occupied the attitude of a trustee of the funds and property so devised.

The facts are that John M. Gardner was the sole heir at law of Mrs. Morphis, and in the absence of a will would have taken the entire estate. The will of Mrs. Morphis was discovered by him about one year after her death, and after such discovery he concealed the existence of such will and failed to offer the same for probate, and took possession of all the moneys and property of the testator, and claimed and used the same as his own, ignoring the rights of the other devisees in the will. Mrs. Van Orden had no knowledge of the existence of the will until a short timé before this suit was instituted.

We think that John M. Gardner, when he discovered the will, was at least under a moral obligation to either offer it for probate or disclose the fact of its existence to the other beneficiaries named in said will and give them an opportunity to offer the same for probate. This conclusion is so clearly in consonance with justice that no authorities ought to be necessary, but the point has been decided. Filhiol’s Succession, 123 La. 497, 49 South. 138; Dodd v. Anderson, 197 N. Y. 466, 90 N. E. 1137, 27 L. R. A. (N. S.) 336, 18 Ann. Cas. 738.

In several jurisdictions an executor named in a will who fails to produce the will for probate is liable to a penalty or indictment. 40 Cyc. 1226.

If John M. Gardner had caused the will to be probated and as executor had taken possession of the estate and used the entire estate as his- own under the circumstances shown in this case, there can be no doubt that he would have held the property as trustee and would have been liable to Mrs. Van Orden for the amount left her by the will of Mrs. Morphis, with interest thereon at the highest rate allowed by law. Reed v. Timmins, 52 Tex. 84; Thomas v. Hawpe, 35 Tex. Civ. App. 311, 80 S. W. 129.

In many states under such circumstances compound -interest is allowed. Estate of (Ricker, 14 Mont. 153, 35 Pac. 960, 29 L. R. A. 622, and note.

Can the fact that Gardner concealed the existence of the will and took possession of the property and used it for his own purposes place him or his estate in a better position than he would have occupied if he had performed his moral obligation to offer the will to probate, or at least disclose its existence? We think not.

In either case, we think he should be held in equity to be a trustee of the funds devised to Mrs. Van Orden. Under the eireum-stances of this case, a court of equity must treat him as a trustee'and .apply the rules applicable to that relation.

“Constructive trusts do not arise by agreement or from intention, hut by operation of law, and fraud, actual or constructive, is their essential element. Actual fraud is not necessary, but such a trust will arise whenever the circumstances under which property was acquired makes it inequitable that it should be retained by him who has the legal title.” 39 Cyc. 169.

In Hendrix v. Nunn, 46 Tex. 147, it is said:

“And it is unquestionably a common and familiar application of ‘their remedial justice’ for courts of equity to force upon the conscience of a party the duty of a trustee in regard to property which has been acquired by artifice or fraud, and where, either from the character of the property or the circumstances under which it is acquired or held, it would be against equity to permit such party to hold it, except as a trustee.”

This salutary principle has been applied in several cases in this state. Kennedy v. Baker, 59 Tex. 150; Satterthwaite v. Loomis, 81 Tex. 64, 16 S. W. 617; and Loomis v. Satterthwaite, 25 S. W. 68.

Having determined that Gardner occupied the position of trustee, we think that under the circumstances of this case there was no error in the action of the trial court in instructing the jury to allow interest at the rate of 10 per cent, per annum, being the highest rate allowed by law.

If this was the only ground upon which the case was reversed by the Court of Civil Appeals, we would advise that the judgment of the trial court should be affirmed; but it appears from the opinion of the Court of Civil Appeals on rehearing that the case was reversed on other grounds, which are not assigned as error in the petition for writ of error in this case. We are not authorized to review the decision of the Court of Civil Appeals except upon the specific assignments contained in the petition for writ of error, and therefore think that the case should be remanded to the trial court.

In view of another trial, however, we will say that we think the recovery of interest at 10 per cent, per annum should be limited to the period from the discovery of the will by Gardner to the date of his death, and the amount of the principal and interest at that date would be a claim against his estate or devisee to be paid as other claims.

We advise that the case be remanded to the district court of Harrison county for other proceedings not inconsistent with this opinion.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the guestion discussed.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & P. RY. CO. v. WILEY.
    (No. 13-2587.)
    (Commission of Appeals of Texas, Section A.
    Dec. 11, 1918.)
    1. Trial <@=>252(11) — Instructions — Evidence.
    In a servant’s action for injuries sustained while attempting to board a switch engine, an instruction, if the engineer increased speed upon observance of semaphore and did not see plaintiff, to find for defendant, was erroneous; mere being no testimony that the speed was increased because of the semaphore.
    2. Master and Servant <@=>293(19) — Instructions — Sufficiency.
    In an action by an employs against a railroad company for injuries caused by sudden increase of engine’s speed while plaintiff was attempting to board it, held, defendant was entitled to an unqualified instruction that, if the engineer did not see plaintiff at such time, they would return a verdict for defendant.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Henry Wiley, Jr., against the Texas & Pacific Railway Company. Prom a judgment of the Court of Civil Appeals (155 S. W. 356), affirming a judgment of the district court for plaintiff, the defendant brings error.
    Reversed and remanded.
    P. H. Prendergast, of -Marshall, for plaintiff in error.
    Lane & Lane and M. B. Parch-man, all of Marshall, for defendant in error.
   STRONG, J.

The plaintiff, Wiley, was injured while attempting to board a switch engine of defendant in its yards at Marshall, Tex. The judgment of the trial court was for plaintjff, assessing his damage at $350.

Plaintiff was about 19 years of age, and was employed at the shops of defendant. He testified, in substance, that it was the custom- of the men working at the shops to ride on the switch engines to and from work; that on the occasion of his injury he attempted to board the engine while it was going at a low rate of speed; and that the engineer saw him and suddenly increased the speed of the engine, causing him to fall and receive the injuries complained of.

The engineer testified that he did not see plaintiff when he attempted to board the engine, and knew nothing of his being there, and did not know that he was injured until about two months after the accident.

The defendant requested a charge to the effect that, if the engineer did not see plaintiff when he attempted to board the engine, the jury would return a verdict for defendant. The court charged the jury on this issue in substance that if the engineer increased the speed of the engine upon observation of the semaphore, and did not see plaintiff at the time he attempted to board the engine, to find for defendant. This charge required the jury to find, not only that the engineer did not see plaintiff at the-time he attempted to board the engine, but also to find that the speed of the engine was increased by the engineer on account of his observation of the semaphore, before they would be authorized to find for defendant.

There is no testimony in the record suggesting that the engineer increased the speed of the engine by reason of the semaphore. This being true, the jury could not find for defendant under the charge given by the court. The theory of defendant was that the engineer did not see plain-tiff when he attempted to board the engine. If this was true, defendant was entitled to a verdict, whether the speed of the engine was increased on account of the semaphore or for some other reason.

We are of opinion that the court’s charge did not correctly present defendant’s theory of the case. Under the evidence, defendant was entitled upon proper request to have the jury instructed, affirmatively and without qualification, that, if the engineer did not see plaintiff at the time he attempted to board the engine, they would return a verdict for the defendant. Traction Co. v. Evans, 108 Tex. 356, 193 S. W. 1067; Railway Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; Railway Co. v. Kiersey, 98 Tex. 596, 86 8. W. 744.

If a correct charge on the issue of contributory negligence is requested upon another trial, it should be given.

We think the other assignments were correctly disposed of by the Court of Civil Appeals.

We are of opinion that, for the error pointed out, the case should be reversed and remanded.

PHILLIPS, O. J. The judgment recommended by the. Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the question discussed.
      <§£=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TAYLOR, J.

text:
    WESTERN UNION TELEGRAPH CO. v. MOBLEY.
    (No. 24-2646.)
    (Commission of Appeals of Texas, Section A.
    Dec. 11, 1918.)
    Telegraphs and Telephones <©=>66(1) — Delay in Delivery — Death Message — Evidence.
    In absence of testimony that sender of telegram announcing death of wife, sendee’s sister, would have delayed funeral, also of testimony as to time of burial, it could not be inferred from language of telegram: “Delia died. * * * If any of you can come answer quick” — whether sendee would have reached place in time, had ho gone.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Suit by J. 'E. Mobley against -the Western Union Telegraph Company to review judgment for plaintiff, defendant appealed to tlie Court of Civil Appeals, which affirmed without opinion, and defendant brings error.
    Judgments of the Court of Civil Appeals and of the trial court reversed, on recommendation of the Commission of Appeals.
    Ramsey & Odell, of Cleburne, for plaintiff in error.
    J. A. Johnson, of Stephenville, and J. C. George, of Brownsville, for defendant in error.
   TAYLOR, J.

This was a suit for damages against the plaintiff in error for negligence in erroneously transmitting a death message. The telegram was dated at Mur-freesboro, Ark., on February 28, 1912, addressed to J. E. Mobley, defendant in error, at Stephenville, Tex., and is as follows:

“Delia died this evening. If any of you can come answer quick. W. F. Kelley.”

The “Delia” referred to in the message was the wife of W. F. Kelley, the sender, and the sister of" the plaintiff Mobley. Within a reasonable time after the message was filed, it was delivered to the defendant in error at Dublin, Tex., where he was temporarily residing, having been forwarded to him from Stephenville; but, ?is delivered to him, the message was dated “February 27th,” instead of February 28th. It was alleged by defendant in error that by reason of this mistake he was led to believe his sister died on the evening of the 27th, instead of the 28th, more than 30 hours before he received the message, and too long for him to then make arrangements to go to her funeral; that he was thereby deprived of the opportunity of attending the funeral, which he would have done, had said message been correctly transmitted.

The trial in the lower court without jury resulted in judgment for defendant in error, which was affirmed by the Court of Civil Appeals without written opinion. The trial court filed findings of fact and conclusions of law; one of the conclusions of fact being as follows:

“If said message had been correctly transmitted to said J. E. Mobley, he would have answered the same immediately, replying he would come, and that he would have started on that night about 1 o’clock, and would have arrived at Murfreesboro, Ark., about 1:25 o’clock on the following- day — that is, on March 1, 1912, and about 36 hours after his departure from Dublin, Tex.; that said W. F. Kelley, the husband of deceased, would have held the remains of his wife unburied until the arrival of said J. E. Mobley at said Murfreesboro, Ark.; and that he (plaintiff) would have been able to able to view said remains and attend the funeral of his deceased sister.”

The testimony is sufficient to establish the defendant’s negligence in transmitting the telegram, but the record is without testimony to support the finding of the trial court that the husband of the deceased would have held the remains of his wife until the arrival of plaintiff, if he had departed for Murfreesboro as soon as he received the message. The record is also without testimony of any character as to when the burial of the deceased took place. In the absence of such testimony, it could not be inferred from the language of the message whether the said Mobley would have arrived at the place of his sister’s burial in time to be present at her funeral, if he had gone to Murfreesboro for that purpose. Western Union Tel. Co. v. Linn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. 58.

In Western Union Telegraph Co. v. Swearingin, 97 Tex. 293, 78 S. W. 491, 104 Am. St. Rep. 876, and Western Union Telegraph Co. v. Norris, 25 Tex. Civ. App. 43, 60 S. W. 982, relied on by the plaintiff, the evidence showed that the remains would have been held unbui-ied, awaiting the arrival of the interested party, and it was not held in either case that the court was authorized to assume that fact from the language of the message without evidence to that effect. The language of the message in this case, standing alone, does not support the finding of the trial court, and the Court of Civil Appeals erred in affirming the judgment, in the absence of supporting testimony.

We are of opinion that the judgment of both courts should be reversed, and the cause remanded to the district court.

PHILLIPS, O. J. The judgment recommended by the Commission is adopted and will be entered as the judgment of the Supreme Court. We approve its holding on the question discussed.