text:
    COZART v. STATE.
    (No. 4132.)
    (Court of Criminal Appeals of Texas.
    Oct. 4, 1916.)
    CRIMINAL Law <&wkey;823(6) — Haemless Ekeoe— Submitting Alibi.
    Even if testimony sufficiently suggested the issue of alibi for its submission, failure to submit it was not reversible error, the jury being instructed that the circumstances must show to a moral certainty that defendant, and no other person, committed the offense, and exclude to a moral certainty every other reasonable hypothesis than his guilt.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1992-1995; Dec. Dig. &wkey;> 823(6).]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    E. C. Cozárt was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, with the lowest punishment assessed.

The uncontradicted testimony shows that during the night of December 29, 1915, Mr. Threlkeld’s chicken house, in San Antonio, was burglarized and some 75 chickens, 65 of them fine black Minoreas, and a can of oil were stolen therefrom at the time. The Min-orcas were worth from $1 to $1.50 each. Threlkeld discovered the burglary and theft before daylight on the morning o.f December 30th, and at once began to search for his stolen property. He soon located 45 of his chickens in Mr. Werbner’s coops. Werbner showed he had bought them from appellant early that morning, and took Threlkeld and the officers to appellant and identified him as the party from whom he had bought them. The other chickens could not be found. Appellant admitted he had bought some “four and one-half or five dozen, more or less,” chickens very early that morning from a man, a stranger, who looked, and was dressed, like a farmer and had a farm wagon. These chickens, found at Werbner’s, were part of them. Appellant’s wagon was searched at the time, and Threlkeld’s stolen can of oil, with wood piled around it, and covered with a coat or wagon sheet, found therein. Appellant’s defense was that he bought the property. -We do not give all the evidence, nor conclusions therefrom.

When the trial judge first prepared his charge, as the statute requires, he submitted it to appellant’s attorneys. They then filed with him their objections thereto — a large number of objections. Upon consideration whereof the judge evidently made changes in his charge, and at least met some of them. The record does ' not furnish us sufficient data from which we can definitely tell what the original charge was, nor all the changes therein. From the objections and charge as it now is, we can see that some changes were made and objections met.

In appellant’s first bill, he claims the judge erred in not peremptorily charging the jury to acquit him, “because the state did not controvert his explanation when first questioned as to his possession of the recently stolen property, and that his explanation was reasonable and probably true from the uncontroverted evidence.” and in refusing his special charge to that effect. Appellant was mistaken in claiming the state did not contest his explanation. It did so vigorously, and the whole evidence was amply sufficient to justify the jury, without doubt, to find, as it evidently did, that his explanation was both unreasonable and untrue. We see no necessity of reciting the testimony. 2 Branch An. P. G. p. 1283, and cases collated. The court properly submitted these questions to the jury in a correct charge such as has uniformly been approved. Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Id., 38 Tex. Cr. R. 73, 41 S. W. 615; Lovelace v. State, 45 Tex. Cr. R. 263, 76 S. W. 756; Roberts v. State, 60 Tex. Cr. R. 23, 129 S. W. 611; Bacon v. State, 61 Tex. Cr. R. 208, 134 S. W. 690. It is useless to collate the large number of other cases to the same effect.

What we have said as to appellant’s first bill disposes of his second and third on the same point.

In his next, he complains the court erred in not submitting alibi in his charge. This was not his defense. His defense was that he bought the stolen property from a stranger, and neither stole the property nor burglarized the house. The judge qualified and explained this bill in quite a lengthy statement. Among other things, he said:

“That there was no evidence in the record to require the submission of the issue of alibi, for the following reasons: The testimony in this case showed that the offense was committed'between 6 p. m. on December 29, 1914, and 6 a. m. on December 30, 1914, and there was no testimony to show that the defendant was anywhere except at the place of the commission of the offense at that time.”

He then proceeded to make further statements, bearing out and supporting that quoted, and followed with a verbatim statement of several pages in question and answer form of the testimony claimed to raise this issue. We have read and considered the whole, and cannot say the trial judge was incorrect. Appellant himself testified. He, by his testimony, in no way raised such an issue. Of all witnesses, he would know where he was, and, if not at' the place when the burglary and theft was committed at the time, would doubtless have testified exactly where he was. The only testimony claimed to suggest the issue was that of his wife. But we think if hers could be considered as suggesting the issue, it did not do so sufficiently to require the judge to submit that question. Davis v. State, 28 Tex. App. 542, 13 S. W. 994; Bishop v. State, 43 Tex. 390; Cunningham v. State, 17 Tex. App. 89; Elam v. State, 16 Tex. App. 34; Coffman v. State, 73 Tex. Cr. R. 303, 165 S. W. 939; Wilson v. State, 60 Tex. Cr. R. 1, 129 S. W. 613; Lopez v. State, 73 Tex. Cr. R. 627, 166 S. W. 154; Treadway v. State, 65 Tex. Cr. R. 208, 144 S. W. 655; and many other cases. Besides the court, in clear and plain instructions, among other things, told the jury they must believe from the evidence beyond a reasonable-doubt that the defendant, by force, in the nighttime, did enter the house of said' Threlkeld, as charged in the indictment, with the intent to commit the crime of theft, before they could convict him, and that he was presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt, and if they had a reasonable doubt of his guilt to acquit him and say by their verdict not guilty. The judge further gave an accurate and full charge on circumstantial evidence, and told the jury:

“The circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. It is not sufficient that the circumstances .coincide with, account for, and therefore render probable, the guilt of defendant; they must exclude to a moral certainty every other reasonable hypothesis except the defendant’s guilt, and unless they do so beyond a reasonable doubt, you will find the defendant not guilty.”

So that in no contingency does this bill present reversible error.

Appellant’s only other bill is too general for review. In it he merely excepted to the court’s refusal to give his special charges— there were several- — or correct his main charge to conform to all his objections.

The judgment is affirmed. .
      <te>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    MICHELIN TIRE CO. v. HEARN.
    (No. 5705.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 11, 1916.)
    BANKRUPTCY <&wkey;426(2) — DISCHARGE — DEBTS Excluded— ‘Fid uciary Capacity. ’ ’
    A dealer to -whom goods were consigned under a contract retaining title in the consignor and requiring the dealer to hold the proceeds of any sale in trust for the consignor and to remit the same less the dealer’s commission is not acting in a fiduciary capacity, so that the debt for goods sold by him is barred by a discharge in bankruptcy under Bankruptcy Act July 1, 1898, c. 541, 80 Stat. 550 (U. .S. Comp. St. 1918, § 9601) § 17, subd. 4, since “fiduciary capacity” in that act implies a fiduciary relationship existing before or independent of the particular transaction out of which the debt arose.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 787, 798-807; Dec. Dig. t&wkey; 426(2).
    For other definitions, see Words and Phrases, First and Second Series, Fiduciary Capacity.]
    Appeal from Washington County Court; W. R. Ewing, Judge.
    Action by the Michelin Tire Company against El L. Hearn. Judgment for the defendant, and plaintiff appeals.
    Affirmed.
    Mathis, Teague & Embrey, of Brenham, for appellant. Searcy & Botts, of Brenham, for appellee.
   MOURSUND, J.

Appellant sued appellee on September 2, 1914, for $529.06, upon a verified itemized account, based upon a certain contract, covering a certain stock of automobile tires consigned and delivered to appellee by appellant.

On September 21, 1914, appellee filed a motion to stay the proceedings, alleging that he had filed his application in voluntary bankruptcy, and had on July 15, 1914, been duly adjudged a bankrupt by the District Court of the United States for the Western District of Texas. This motion was granted.

On May 17, 1915, appellee answered to the effect that the court had on November 27, 1914, granted him a discharge from all his debts; that appellant’s claim was a provable one in bankruptcy, and did not come within any of the classes of claims not affected by a discharge.

The appellant, by supplemental petition, answered in substance that his debt was not affected by the discharge in bankruptcy, for the reason that it was created by the fraud, embezzlement, misappropriation, and defalcation of appellee while acting in a fiduciary capacity.

The cause was tried without a jury, and judgment entered that appellant take nothing by its suit.

Appellant contends the debt sued upon was created by the misappropriation of appellee while acting in a fiduciary capacity, and that therefore it was not affected by the discharge in bankruptcy. The contract upon which the debt is based provided that until a sale of any of the consigned stock all of same should remain appellant’s property; that after sale of any of said consigned stock appellee agreed to hold the proceeds of such sale separate and apart in trust for appellant’s use and benefit; that upon the 10th day of each month the appellee would remit to appellant, at Dallas, the state office, for all sales during the previous month, less certain commissions, at confidential prices, and the appellant would thereupon replenish the stock in his hands with goods similar to those he had disposed of. By subdivision 4 of section 17 of the Bankruptcy Act, debts of the bankrupt not affected by a discharge include those which “were created by his fraud, embezzlement, misappropriation or defalcation, while acting as an officer or in any fiduciary capacity.” It is well settled that the appel-lee in this case was not acting in a fiduciary capacity within the meaning of the Bankruptcy Act.

“The phrase ‘fiduciary capacity’ implies a fiduciary relation existing previously to or independently of the particular transaction out of which the debt arose. It does not embrace debts arising in commercial dealings between principal and agent or factor for selling goods on commission.” 5 Oyc. 898, 899.

In support of the rule announced by Cyc. we cite the following authorities: Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 188, 27 Sup. Ct. 493, 51 L. Ed. 763; Upshur v. Briscoe, 138 U. S. 365, 11 Sup. Ct. 313, 34 L. Ed. 931; Re Butts (D. C.) 120 Fed. 966; Re Basch (D. C.) 97 Fed. 761; Bracken v. Milner (C. C.) 104 Fed. 522; Inge v. Stillwell, 88 Kan. 33, 127 Pac. 527, annotated in 42 L. R. A. (N. S.) 1093.

The judgment is affirmed.


author: HALE, J.

text:
    SUPREME LODGE, K. P., v. COOPER.
    (No. 987.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 11, 1916.)
    Courts &wkey;>97(l) — Stare Decisis.
    The decision of the United States Supreme Court in another case of the same controlling facts will be followed.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 329; Dec. Dig. &wkey;97(l).]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by J. F. Cooper against the Supreme Lodge, Knights of Pythias. Judgment for plaintiff, and defendant appealed.
    The judgment was affirmed. On motion for rehearing, rehearing granted, former opinion withdrawn, and judgment reversed and rendered for defendant.
    Crane & Crane, of Dallas, and H. P. Brown, of Cleburne, for appellant. Flournoy, Smith & Storer, of Ft. Worth, for appellee.
   HALE, J.

In the month of December, 1912, appellee Cooper instituted this suit against appellant to recover damages for the alleged breach of contracts, evidenced by two certain certificates of insurance issued to appellee in the years 1881 and 1887, respectively, by a corporation known as “The Supreme Dodge, Knights of Pythias of the World,” alleging that the corporation was duly incorporated in the year 1870, under the laws of Congress, and by express terms of said law the life thereof expired in the year 1890. February 12, 1915, plaintiff filed his first amended original petition, upon which the case was tried. He alleged the existence of the former corporation until the expiration of its charter, the conduct of its business by the unincorporated society and' the incorporation of the defendant company in the year 1894. The terms of its charter are set out substantially. It is further alleged that on, to wit, August 80, 1881, there was duly executed and delivered to plaintiff by said Supreme Lodge, Knights of Pythias, a corporation as aforesaid, chartered in 1870, a benefit jcertificate in writing, in the endowment rank of said order for $2,000 in the second class of said rank, whereby said corporation insured plaintiff’s life in the sum of $2,000, payable to certain beneficiaries named in said certificate; that plaintiff paid to said corporation the sum of $1.10 per month on said certifiéate from the date of its issuance to the-day of -, 1885, when said certificate was surrendered; that on said last-named date he surrendered to said corporation a certificate issued in 1881, and that said corporation issued to him in lieu thereof, a benefit certificate in the fourth class of the endowment rank in said corporation, in the sum of $2,000, said certificate being No. 7401. He alleged the destruction by fire of this certificate, setting out to the best of his knowledge the terms thereof; that on, to wit, June 9, 1887, the original corporation chartered in 1870, issued to plaintiff its certain other benefit certificate in the fourth class of said endowment rank, in the sum of $1,000, being No. 18079, which said certificate was also destroyed by fire; that at the time of the issuance of said certificate the laws of 1884 of said corporation were in force; that under said laws the rates then in force should remain the same; that under said certificate No. 7461 plaintiff’s payments, as fixed by the law, were $1.90 per month, and under said certificate No. 18079, the payments were $1.35 per month; that he paid said rates on said certificates to said original corporation, and the unincorporated society which succeeded it after the expiration of its charter until June 29, 1894, and has also paid the premiums to the defendant from the date of its incorporation in 1894 until February 9, 1898, the date of the destruction of the two certificates by fire; that soon after said certificates were burned plaintiff made application to defendant for duplicates thereof, and that only one certificate in lieu of the two was issued, in the sum of $3,000; the duplicate certificate being in terms the same as the certificates theretofore held by him and destroyed. He further alleged the loss of the duplicate certificate; that in applying for and accepting, and the defendant, in issuing the certificate in 1898, intended only to supply plaintiff with evidence of his rights under his contracts of insurance theretofore existing as they were evidenced by the certificates which had been destroyed by fire, and that neither plaintiffs nor defendant intended to create a new contract of insurance or to change the terms of the old ones; that from February 9, 1898, he continued to pay to the defendant the sum of $3.25 per month upon his contracts of insurance, as aforesaid, until the-— day of-, 1901, when defendant demanded and plaintiff paid the sum of $4.90 per month upon his said insurance, said payment being made under protest, but continued to be paid until January 1, 1911; that he continued to pay, under protest, the rates according to the laws of 1910 to January, 1911, upon the certificate issued to him in 1898, by defendant; that he tendered the rate due under previously existing laws, which defendant refused to accept; that defendant demanded $18.75 as the amount of plaintiff’s dues for the month of February, 1911, which plaintiff refused to pay and in lieu thereof tendered the amount due under his certificate, namely, $3.25, which was refused by defendant, and he then tendered to the defendant the sum of $4.90, which was also refused, whereupon he offered to make payment of or for any extra or special assessment which may have been made upon him, which the defendant also refused; that defendant .then made known to plaintiff that it would not accept any sum or sums less than $18.75 per month for his insurance, and soon thereafter wrongfully declared the contract forfeited for nonpayment of his dues for the month of February, 1911. Plaintiff prayed for judgment for the amount of any and all payments made by him upon the contracts of insurance mentioned in his pleadings, together with such Interest thereon as the law allows, and, in the alternative, if he should be adjudged not entitled to recover the payment with interest, then that he have judgment for the sum of $2,300 the cost of paid-up insurance, etc.

On February 22, 1915, the defendant filed its second amended original answer, consisting of general and special exceptions, general denial, and special pleas. It is alleged in substance that plaintiff’s causes of action against the defendant were and are barred by the statutes of limitation of four years; that if plaintiff ever had any cause or causes of action against the defendant, plaintiff ought not now to have and maintain the same, for the reason that on or about January 25,1911, Jos. Holt and various other named parties, certificate holders in and members of the insurance department, or endowment rank of the defendant, filed their complaint, on behalf of themselves and of other persons similarly situated, against the defendant in equity, in the District Court of the United States for the District of Indiana, in which complaint said plaintiffs for themselves and other members of the fourth class of the insurance department, or endowment rank, among other things, sought to recover of the defendant damages for the amount of the contributions paid or certificates held by parties in the fourth class or the value of said certificates against the defendant. This part of the plea, by further proper averments, interposes the defense of res judicata. It is further alleged that after the passage of the laws by defendant, and which are complained of .in this case, and after said laws were put into effect, plaintiff paid the rates required of him thereunder and elected to hold defendant liable for the full face of the certificate issued to him in 1898, thereby forming a new agreement and contract with defendant and obligating the defendant to pay plaintiff or his beneficiary, in the case of his death, the full amount of insurance; that plaintiff accepted and acquiesced in the change of rate, causing the defendant to become liable to him under said changed contract, thereby electing to hold the defendant liable under said contract, and estopping himself from claiming any breach by defendant of his alleged prior contracts with defendant; that after said laws of which plaintiff complains were in effect, he tendered to the defendant the amount due upon his certificate of membership under the 'by-laws in force, previous to January 1, 1911, thereby electing to treat his- contract as in full force and effect; that he stood by said election until December 30, 1912, at which time he demanded of the defendant the return of the full amount paid by him under his certificates; that defendant never in any way assumed or became liable upon the contracts made by plaintiff with the original corporation; that it never received any assets or properties of the extinct corporation, nor of the unincorporated society; that in 1898, after the destruction of his certificates by fire, plaintiff applied in writing to the defendant for a new certificate, with change of beneficiary and not for duplicates of his old, destroyed certificates, •and the defendant issued to him such new certificate, thereby entering into a new contract, which terminated and rendered void all previous contracts; that such certificate was subject to the constitution, charter, and laws of the defendant existing in 1898, under the provision of which the defendant had full power, right, and authority to pass the laws of 1910 complained of by plaintiff and which were binding upon plaintiff, and upon his failure to comply therewith he forfeited any and all claims and rights against the defendant; that defendant’s power and authority is derived from and governed by the charter granted it by the Congress of the United States under which defendant was authorized to pass the laws complained of, and that plaintiff, having 'become a member of the defendant corporation, at the date of its inception, and having continuously remained a member from said date until the passage of the laws complained of, said laws were and are binding on him and contrary, to his rights in any claim against the defendant, and are dependent upon conditions in the charter and are governed by the laws of the United States and the decisions of the courts of the United States, and by the constitution and by-laws of the defendant.

It is further alleged that defendant had no authority to receive premiums from plaintiff except upon the condition that he would comply with its charter, constitution, and laws, and that under its said charter and act of incorporation, under and by virtue of the laws of the United States, the express authority was given defendant to amend its constitution and by-laws, and the amendments of such laws as complained of in this case were but the exercise of the right conferred upon it by its charter; that the other provisions of the laws of 1910, which in addition to the raise in rates were alleged as breaches of plaintiff’s contract, had been in full force and effect, and were embraced in the laws of the old corporation for more than four years before the passage of the laws complained of by plaintiff, and that, therefore, any claim by the plaintiff that such provisions breached his contract was barred by limitation; that the measure of damages, even if defendant could be held liable at all, was not the paj'-ments of interest made by plaintiff on all certificates issued to him, but the value of the last certificate at the date of its alleged breach, or at least only the amount with interest paid upon the last certificate.

The court submitted the case to the jury upon special issues, and upon the answers returned judgment was rendered in favor of plaintiff for the sum of $2,392.28, with interest thereon from February 27, 1915, at the rate of 6 per cent, per annum, and all costs of - suit.

By our original opinion, we affirmed this judgment, basing our action mainly upon the decision rendered in Supreme Lodge, Knights of Pythias, v. Mims, 167 S. W. 835. It appears from the above analysis of the pleadings in this case that the same controlling issues are presented as are found in the Mims Case. The parties hereto filed an agreement in the court below, by the terms of which either side should have the right to read in evidence such portions of the statement of facts in the Mims Case as should be pertinent to the issues herein. It appears from the record that practically all of the documentary evidence and oral testimony explanatory thereof, which was introduced in the Mims Case, was also presented herein. The cases, therefore, are in all essential particulars identical.

Since oür original opinion was handed down the Supreme Court of the United States has reviewed and reversed the judgment rendered hy the Court of Civil Appeals in the Mims Case, 241 U. S. 574, 36 Sup. Ct. 702, 60 L. Ed. 1179.

While there are several issues presented by the assignments herein which were not considered in the Mims Case, the effect of the decision by the Supreme Court is to settle this controversy adversely to appellee Cooper upon every question which goes to the foundation of his action. The effect of the Supreme Court’s holding is that appellee became a member of the new corporation when appellant was reincorporated by the act of Congress of June 29, 1894 (Act June 29, 1894, c. 119, 28 Stat. 96), that the new corporation had the right, under the act, to amend its constitution at pleasure, provided such amendments did not conflict with the laws of the United States or of any state, and that under said act it could so amend its constitution as to increase its rates of insurance.

It is further held that the provision in ap-pellee’s contract that his monthly payments should continue the same is not to be regarded as a contract, but as a regulation, subject to the possibility that a raise in rates may be necessary in order to pay benefits, and that the assumption under section 3 of the act could not be deemed the assumption of a contract for immutable assessments.

These being the controlling questions in the case, it is unnecessary for us to consider the other assignments, presenting principally questions of practice, and in deference to the decision of the Supreme Court of the United States, the judgment is reversed and rendered for appellant.
      other cases see same topic and KBY-NTJMBBR in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    UHR v. LAMBERT, Mayor pro tem., et al.
    (No. 5809.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 11, 1916.)
    1. Appeal and Error <&wkey;843(l) — Review-Matters for Determination.
    An appellate court will not decide questions unnecessary to the affirmance, reversal, or rendition of the judgment attacked on appeal.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 3331-3335, 3337-3341; I)ec. Dig. &wkey;3843(l).]
    2. Municipal Corporations <&wkey;184(l) — Ordinances — Charters—Police.
    Where the charter of a city authorized the commissioners of police and fire departments to appoint all members of the two departments, an ordinance authorizing the mayor to appoint special police who should hold office during his term unless otherwise determined by him is invalid as being in violation of the powers of the commissioners of police and fire departments.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 488-490; Dec. Dig. &wkey;184(l).]
    3.Municipal Corporations <&wkey;184(l) — Police — “Special Policemen.”
    Though the charter of a city authorized the mayor to appoint special policemen, an ordinance authorizing the mayor to appoint special policemen to hold office during his term unless otherwise determined by him and to be under his absolute control is invalid, the term “special policeman” not embracing such an armed guard, but being intended to designate one who is not a member of a permanent and organized police force, but merely engages to do temporary police duty in a particular place on a special occasion (citing Words and Phrases, Special Policeman).
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 488-490; Dec. Dig. &wkey;184(l).]
    Appeal from District Court, Bexar County; W. P. Ezell, Judge.
    Action by Robert E. Uhr against J. R. Lambert, Mayor pro tem., and others. Prom a judgment issuing an injunction, plaintiff appeals.
    Affirmed.
    Jos. Ryan, Prank H. Wash, and Scott & Dodson, all of San Antonio, for appellant. George R. Gillette, R. J. McMillan, and Robt. G. Harris, all of San Antonio, for appellees.
   PLY, C. J.

Appellant, as plaintiff in the court below, sought- to obtain an injunction restraining and prohibiting the mayor and mayor pro tem of the city of San Antonio “from appointing any special police for the city of' San Antonio.” The court granted a temporary injunction—

“restraining each of the defendants, Clinton G. Brown as mayor and J. R. Lambert as mayor pro tem of the city of San Antonio from September 1, 1916, and continuously thereafter, pending final trial hereof, from approving any pay rolls for the city of San Antonio, disbursing city of San Antonio funds, having thereon the names of any special policemen now acting or hereafter appointed under said ordinance, and from approving any vouchers or warrants drawn against the funds of said city in payment of services rendered after September 1, 1916, as special policemen under said ordinance upon plaintiff giving bond in the sum of $500.”

The judgment was not in terms responsive to the pleadings, as appellant asked for an injunction prohibiting the appointment of special policemen, while the court enjoined the approval of any pay rolls for special policemen appointed under and by the authority of a certain ordinance hereinafter comment-. ed upon.

Appellant makes no attack upon the judgment rendered by the court, the only assignment of error being:

“The court erred in holding that section 25 of the charter of the city of San Antonio was not repealed by the adoption of the amendments thereto introducing commission form of government.”

The. holding as to the validity of section 25 is no part of the judgment, but merely is a reason given for rendering tlie judgment, and the judgment can and will be sustained by this court without reference to the existence of section 25. The whole object of the appeal seems to be to obtain an opinion of this court as to the validity of section 25 of the charter, and no complaint is made, through an assignment of error, that the judgment does not in terms restrain appellees from making appointments under the ordinance. It is not incumbent on an appellate court to decide questions not necessary to the affirmance, reversal, or rendition of a judgment, and all the relief to which appellant is entitled can be given without passing on the validity of section 25.

The petition assails the validity of section 25, because it was the basis of an ordinance providing for the appointment of special policemen, and the attack is made on appointments under and by virtue of the ordinance based on section 25 of the charter, which was a part of the old charter, and is included in the new or amended charter upon the hypothesis that it is not in conflict with any of the provisions of the amendments. That section gave the mayor the authority to appoint special policemen, not a permanent body of armed men in such numbers as might suit the will and purposes of the mayor. In arriving at the conclusion that the ordinance was invalid, it was not necessary to pass upon the validity of section 25; for, however valid it might be, it does not authorize the enactment of an ordinance that would place the mayor in command of a permanent armed constabulary force, unlimited in numbers, as thoroughly under his authority and control as any military organization could be under the control of its officers. Such an ordinance would undermine a commission charter, and would be subversive of popular government.

Appellees have filed a cross-assignment attacking the judgment of the court granting the injunction against paying the salaries of special policemen. The charter of the city of San Antonio, as amended in 1911, gave the commissioner of the police and fire departments the authority to appoint all the members of the two departments. Brown v. Uhr, 187 S. W. 381. Such being the case any ordinance which attempts in any manner to curtail, weaken, or destroy the appointing power placed in the commissioner is null and void. On June 30, 1916, the Commissioners of the city of San Antonio passed an ordinance in regard to special police, which is in direct conflict with section 16 of the city charter. It sought to clothe the mayor with the power to appoint and commission certain policemen, to hold office during the mayor’s term of office, unless otherwise determined by him, and who are placed under the absolute control and direction of the mayor. It was in fact an attempt to create another and separate body of policemen from the one contemplated by the charter, which body of men would not be under the control of the commissioner of the police department, but would be absolutely independent of him. Such a body of men would not be comprehended within the terms of section 25 of the charter, if it be valid; for it was never contemplated, even under aldermanic rule, that the mayor should have under his absolute control, during the whole of his incumbency in office, a body of armed men appointed by him and whose tenure of office would depend upon his autocratic will alone. The members of this contemplated organization are designated “special policemen,” but they are not what is usually meant when using the word “special.” They are like unto all general policemen, save and except that they are at the absolute disposal of the mayor. Special policemen, as named in section 25, are those designed for a particular purpose, as in opposition to those designed for the general duties of regular policemen. The “special policemen” intended by the ordinance were to be clothed with all the power and duties of regular policemen, in no manner differing from them except that they were to be the mayor’s own police, dependent on him for their appointment and continuance in office. The term “special policeman” is used to designate one who is not a member of a permanent and organized police force, but who merely engages to do temporary police duty in a particular place on a special occasion. Words and Phrases, vol. 7, p. 6586. That is the meaning of the term as used in section 25, or wherever it may he used. The ordinance is invalid whether section 25 is in effect or not. The effect of the ordinance, if enforced, would he to displace the charter adopted by the people of the city of San Antonio, and put the mayor in command of a body of policemen as permanent as his will might dictate. The ordinance is not only antagonistic to the provisions of the charter, hut is destructive of the genius of commission government.

The judgment will be affirmed.
      <&wkey;>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FATHERREE v. PICKENS.
    (No. 5713.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 11, 1916.)
    1. Appeal and Ekkor <S=>1171(2) — Review— Teivial Amounts.
    An error of 30 cents in a judgment is too trivial an amount to warrant the appellate court in considering it.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4547, 4548; Dec. Dig. <§=» 1171(2).]
    2. Costs <@=231r — On Appeal — Modification op Judgment.
    Where through errors in computation a judgment for plaintiff was too large, and all of the excess except 30 cents was cured by remittitur, costs of an appeal by defendant will be taxed against Mm, though the appellate court reduced the judgment.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 892-899; Dec. Dig. @=234.]
    Appeal from Zavala County Court; O. A. Stubbs, Judge.
    Action by R. A. Pickens against W. T. Fath-erree. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Geo. C. Herman, of Batesville, for appellant. M. L. I-Iarkey, of Crystal City, and G. B. Penley, of Uvalde, for appellee.
   PLY, C. J.

This is an appeal from a judgment on a promissory note; the only error really presented being that appellee recovered 30 cents more interest than he was entitled to. No effort was made to correct the error in the amount of the interest when a remittitur was made of an excess in the judgment. The amount is too trivial and insignificant for an appellate court to be devoting its time and attention to it. Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643.

The judgment was by default on a debt that was evidenced by a promissory note, and the error in the amount of the judgment arose from a credit on the note being •overlooked. The motion for new trial was .sought on the ground of the excess, and it was promptly cured by a remittitur of all excess except 30 cents. The remittitur was properly allowed, and, if this court desired to reduce the judgment by 30 cents, judgment for costs of appeal would still be rendered against appellant.

The judgment is affirmed.
      ©sjEor other oases see same topic and KEY-NUMBER in all Key.-Numbered Digests and Indexes


text:
    BOERGER v. VANDEGRIFT.
    (No. 5699.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 11, 1916.)
    1. Appeal and Error @=994(3) — Review— Findings.
    Where a case was tried to the court without .a jury, findings based on the credibility of witnesses are conclusive on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3904^-3905]4; Dec. Dig. ■@=994(3).]
    2. Contracts @=75(2) — Consideration—Validity.
    A subsequent agreement by a creditor to accept less than the amount of his debt must be supported by a consideration to be valid; therefore an agreement by a lessor to accept a sum less than the face of rent notes in consideration ■of the lessee’s surrendering possession at a fixed time is unenforceable, where, by the terms of the lease, the lessee was bound to surrender possession at that time.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 2S0-2S5; Dec. Dig. @=75(2).]
    3. Appeal and Error @=690(1) — Review — Record.
    In disposing of an assignment of error complaining of the admission of testimony, the appellate court is confined to the testimony as stated in the bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897, 2904; Dec. Dig. @= 690(1).]
    4.Appeal and Error @=1051(1) — Review-Harmless Error.
    The admission of testimony as to statements made by the defendant’s agent to plaintiff’s counsel was harmless, where the testimony correctly stated defendant’s contentions, and related to the terms of written instruments which were before the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165; 4166; Dec. Dig. @=1051(1).]
    5.New Trial @=108(3) — Newly Discovered Evidence — Right to.
    A new trial will not be granted on the ground of newly discovered evidence tending to establish an agreement which was unenforceable because of want of a good consideration.
    [Ed. Note. — For other cases, see New Trial, Cent Dig. § 226; Dec. Dig. @=108(3).]
    Appeal from Wharton County Court; W. G. Davis, Judge.
    Action by Samuel Vandegrift against George A. Boerger. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Hall & Barclay, of Wharton, for appellant.
   MOURSUND, J.

Appellee sued appellant upon a promissory note for $500, and appellant pleaded that said note had been given by him to appellee, together with another note for the same amount, in payment for the lease of 160 acres of land, which lease entitled him to retain possession until December 31, 1914; that after the execution of said notes appellee agreed with appellant to reduce each of such notes to the extent of $100, in consideration of the agreement by appellant to give possession of the leased premises to appellee on December 1, 1914, instead of December 31, 1914; that he had complied with his agreement by delivering possession prior to December 1, 1914, and had tendered to appellee $400 in payment of the amount due on the note sued on according to such agreement, but appellee declined to accept such amount.

Appellee denied that he ever made such agreement as was alleged by appellant; denied that appellant was entitled to retain possession of the leased premises until December 31, 1914, and alleged that under the lease contract he was entitled to possession on December 1, 1914; alleged that some time after the maturity of the first note appellant falsely represented to hijn that another landlord in the neighborhood, named Woodfin, had reduced the rent to be paid by his tenants on account of the wet season and poor crops, and appellee agreed that, if said Wood-fin reduced the rent, he would do likewise, and would reduce the first note to $400, and if appellant would pay the other note promptly on November 1, 1914, the date of its maturity, he would reduce the same to the extent of $100; that in fact Woodfin did not reduce rents, and appellant did not pay the second note when due.

Upon a trial without a jury judgment was rendered in favor of appellee for the full amount sued for.

Appellant contends that the judgment is not supported by the evidence. The evidence was conflicting, each of the litigants testifying in accordance with the allegations of his pleading, and each was supported by other testimony tending £o sustain his contention. The court passed upon the credibility of the witnesses, decided against appellant, and such finding is binding upon us. In addition, it appears that appellant, in order to escape liability upon his promissory note for $500, pleaded that a new contract had been entered into, under the terms of which he was to pay only $400 in satisfaction of the note due November 1, 1914. The only consideration pleaded was that he' agreed to deliver possession of the leased premises on December 1, instead of December 81, 1914, which last-mentioned date he alleged was the one fixed by the lease contract for the surrender of possession. He did not allege that any mistake had been made by the scrivener in reducing the lease contract to writing, nor even that the contract was ambiguous. The lease contract introduced in evidence provides for the delivery of possession on December 1, 1914. It therefore appears that the only consideration pleaded by appellant for the subsequent agreement was the promise by him to do something which he was already bound by his written contract to do. Therefore he failed to prove any consideration for the alleged agreement to reduce the note to the extent of $100. That such a subsequent agreement must be based upon a valid consideration is well settled by the decisions of our courts. Whitsett v. Carney, 124 S. W. 445; Walker v. Tomlinson, 44 Tex. Civ. App. 446, 98 S. W. 906; Terrell, Atkins & Harvin v. Proctor, 172 g. W. 996. The first assignment is overruled.

By the second assignment complaint is made of the admission of the testimony of J. H. H. Dennis, attorney for appellee, with respect to a conversation between B. R. Taylor and himself concerning the note and lease contract. It appears that Taylor had written the note and lease contract; that appellant had deposited $400 with him in his capacity as banker, to be paid appellee upon delivery of the note, this being done after appellee had declined to accept the $400 tendered him 18 days after the maturity of the note; that Taylor called on Dennis and told him that appellant contended the note was not due until December 1, 1914, and the lease was not to be surrendered until December 31, 1914, and had asked him to look at such instruments; that Dennis permitted Taylor to examine the papers; that he called Taylor’s attention to the fact that the note and lease contract were as claimed by appellee, and not as appellant said they were; and that he told Taylor he had drawn a good contract. The foregoing is the testimony of Dennis as disclosed by the bill of exceptions. The assignment of error contains the statement that Dennis testified Taylor was the agent of appellant, and also that Dennis testified he and Taylor “laughed and joked about the date of the maturity of the note and the compromise of said rental contract.” We must confine ourselves to the consideration of the testimony stated in the bill of exceptions. Such testimony was objected to on the ground that the statements by Dennis and Taylor were made in the absence of appellant, and not acquiesced in by him, and because the testimony tended to convey to the court the impression that appellee was correct in the interpretation of the contract as to the date of its expiration, and that appellant was in error as to the terms thereof. The statement by Taylor that appellant contended the note was not due until December 1st, and that possession under the lease was not to be surrendered until December 3lst, could not have injured appellant, for his testimony is in accordance with these contentions. The court had the note and contract before him, and could not have been misled in the construction thereof by what Dennis told Taylor or by the fact that Taylor failed to dispute the construction placed upon the instruments by Dennis. The assignment is overruled.

By the last assignment appellant complains of the failure to grant a new trial on account of newly discovered evidence. The witness whose testimony is desired would have testified that he heard appellant and appellee make a subsequent agreement in substance as pleaded by appellant. As before pointed out, there being no consideration shown for such agreement, it is immaterial whether or not it existed. The assignment is overruled.

Judgment affirmed.
      <E=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. WHORTON.
    (No. 1071.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1916.)
    Appeal and Error <@=o274(1) — Exceptions, Bill oe <@=>20 — Statement op Facts.
    A statement of fact approved by the trial court, of presentation of objections and of exceptions, relative to requested instructions, all before submission of the general charge, is sufficient to constitute proper exceptions, as well as a bill of exceptions.
    [Eel. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1631, 1633, 1634, 1641; Dec. Dig. <@=274(1); Exceptions, Bill of, Cent Dig. §§ 21-28; Dec. Dig. <@=¿>20.]

      Appeal from Sherman County Court; C. H. Rowland, Judge.
    Action by W. A. Whorton against the Chicago, Rock Island & Gulf Railway Company. Prom an adverse judgment, defendant appeals.
    Heard on motion of appellee. Sustained in part.
    R. E. Stalcup and J. Y. Powell, both of Dalhart, and Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. Stahl & Elliott, of Stratford, for appellee.
   On Motion to Strike Exceptions from Transcript.

HENDRICKS, J.

The railway company at the trial excepted to special charge No. 1, requested by the plaintiff, and submitted by the court to the jury, with the criticism by the appellee in its motion that the exceptions should be stricken from the record as insufficient under the statute.- The following constitutes the action of the court upon the exceptions:

“The foregoing exceptions are examined, approved before the submission of the general charge and are ordered filed.
“C. H. Rowland, County Judge.”

At the trial, the defendant railroad company also requested two separate special charges refused by the trial court, with the following addendum to each charge, exhibiting the action of the court in his refusal:

“The foregoing charge having been by me examined before the submission of the general charge, and the same having been by the court refused, the defendant then and there excepted in open court to the refusal to give such special charge, and here tenders his bill of exceptions, which is by the court examined and approved.
“[Signed] C. H. Rowland, County Judge.”

The point is made that the instruments do not constitute bills of exceptions within the requirements of the decisions and the statutes, not being in the form of bills of exception and not shown to have been submitted to the opposite party as required in bills of exceptions; and that they do not contain any showing that the objections of appellant were presented to the court at the conclusion of the evidence and before the argument of the cause to the jury.

The appellee cites the case of Mutual Life Insurance Company v. Rhoderick, 164 g. W. 1068, as decisive in this case^ on some of the questions involved. There is a misconception of the holdings as applied to the record in that case. The document of the pleader in that case did contain the exceptions and objections, with the further declaration that they were presented in open court prior to the reading of the main charge. The action of the court in that instance was manifested only by the word “refused.” It was said:

“It is true in this instance the paper embodying the objections stated that the appellant presented the same prior to the reading of the main charge to the jury, and fully stated that the-objections were overruled, and that the defendant excepted thereto in open court. The only action, however, manifested by the trial judge, is the refusal of the objections, and it is clear-that this could not be construed as a bill of exceptions, and, for aught this court may know, the refusal may be predicated upon the fact that the objections were tendered after the charge was read to the jury.”

In that case there was no approval by the trial court of the recitations in the pleading mentioned as statements of fact; simply a refusal.

In this case the trial judge approves a-statement of fact to the effect that the objections and exceptions were presented before the main charge was read to the jury, and, taking the instruments as a whole, we think they are sufficient to constitute proper-exceptions, as well as a bill of exceptions. No form of words is necessary for a bill of exceptions, and if the written statement of the objections to the decision of the court, made by a party to the cause, is properly-certified to by the judge who makes -the decision, and if sufficient matter is contained to-show the relevancy and bearing as to the-point! presented, the higher court will review an alleged error brought forward.

As to the objections made by appellant to the main charge, and excepted to in this-proceeding by the appellee in its motion, the-case of Railway Company v. Dickey, 187 S. W. 184, by the Supreme Court, we think is sufficient.

However, the objections made by appellant to special charge No. 2, requested by-appellee and given by the court, are insuf-ciently presented in the transcript to meet, the requirements of the statute, and to that extent the motion of appellee is sustained.

Sustained in part, and overruled in part-
      <£=AFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    BAKER et al. v. IVES.
    (No. 618.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 19, 1916.)
    1. Railroads <§=>281(5) — Assault by Servant — Liability.
    A watchman whose duty it was to look out for and arrest trespassers and thieves in railroad yards, having through want of proper-care or exercise of proper discrimination mistaken for a depredator an innocent traveler, having a right to go through the yards, and assaulted him, was acting within the scope of his employment, rendering his employer liable.
    [Ed. Note. — For other cases, see Railroads,. Cent. Dig. § 908; Dec. Dig. <§=>281(5).]
    2. Assault and Battery <§=>40 — Damages-— Excessive Verdict.
    Though no serious permanent injury was inflicted, a brutal and unprovoked assault having been committed on one rightfully traveling-through railroad yards, he having been fired on,, and clubbed into insensibility, his person searched and the contents of his pockets removed, and-this accompanied by violent and abusive language, and he on being released being ordered in a most insulting and humiliating manner to leave the yards, a verdict for $1,000 damages cannot be held excessive.
    [Ed. Note — For other cases, see Assault and Battery, Cent. Dig. § 55; Dec. Dig. <§=>40.]
    Appeal from Anderson County Court; E. V. Swift, Judge.
    Action by W. A. Ives against Jas. A. Baker and another, receivers. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Morris & Sims, of Palestine, for appellants. Funderburk & Strickland, of Palestine, for appellee.
   HIGGINS, J.

This was a suit by appellee for damages for personal injuries sustained as the result of an assault. The action was against the appellants, as receivers of the International & Great Northern Railway Company. Plaintiff alleged: That a part of the railroad property of said company operated and held by the defendants as receivers, consisted of railroad yards, extending from the depot in Palestine westward about one-fourth of a mile to a street crossing, which yards were covered with switches and tracks, there being usually and ordinarily numerous trains and cars thereon. That the nearest and most convenient way for pedestrians to pass from and to points near said depot, or in going to or coming from points at and near the west end of said railroad yards, is and was on or about said 7th day of December, 1914, to pass along and between said railroad tracks, and at said time and since long prior thereto, the defendants, in their operation of said railroad, and with full knowledge of the fact and custom, had permitted such travel through said yards along said tracks and at least gave implied consent for plaintiff and the public generally to so use said ways. That defendants, for the protection of the property of said railroad company and property in their custody and control, from loss and injury by trespassers and thieves, had, at said aforementioned date and since prior thereto, in their employ, one Tom Grace, as guard and watchman, whose duty it was, as agent and employé of defendants, to police said railroad yards, grounds, and property, to eject trespassers therefrom, and arrest thieves and depredators operating in said yards. That on or about said 7th day of December, 1914, plaintiff, in the early evening of said day, started to his home, about a mile or a little more out near the west line of said railroad and, as had been his custom for nearly two months prior thereto, went by the freight depot, and thence westward through said railroad yards here-inbefore described. That soon after he had passed the east end of said freight depot, he was halted and arrested by the said Tom Grace and called upon by him to answer questions and account for' his presence at said place, his destination, etc. That the said Tom Grace, without cause or just provocation, thereupon committed an assault upon plaintiff by the display and discharge of a pistol, and by striking, beating, bruising, and wounding plaintiff with a pistol or some other heavy instrument, knocking plaintiff into temporary unconsciousness. That he searched the person of plaintiff, taking such things as he could find, which, however, he returned. That, resulting from said blows, plaintiff received personal injuries. That the said Grace, in inflicting upon plaintiff such injuries, did so willfully and wantonly and in total disregard of plaintiff’s rights of personal security. That the said Grace, in so doing, professed to be so doing in the discharge of the duties of his employment, and at any rate, was acting within the general scope of his employment. The defendants denied that any guard or watchman assaulted the plaintiff, but contended if he did, that he was not actingvwithin the scope nor within the apparent scope of his employment, and if he committed any assault, it was without the scope of his employment; wherefore, the defendants were not liable. Plaintiff recovered judgment for the sum sued ft»-, and defendants appeal.

Error, is first assigned to the refusal of a peremptory instruction in favor of the defendants, it being contended that such charge should have been given, because it appears from plaintiff’s own testimony that if he was assaulted by the defendants’ night watchman, Grace, he was assaulted at a time and place where he had a legal right' to be; that from the evidence, he was neither trespassing, depredating, or stealing anything and therefore, if the watchman, Grace, did strike him, as he alleges, without provocation, the defendants are not liable, because such action of Grace was clearly without the scope of his employment and authority, and without the apparent scope of his employment and authority, as he was employed for the purpose of removing trespassers, arresting thieves, and preventing depredators from operating in said yards, all of which plaintiff was not.

II. A. Watts, chief special agent of defendants, by whom the watchman, Grace, was employed, testified as follows:

“I instructed Mr. Grace at the time of his employment to watch out for these merchandise cars never making an arrest of anybody unless he actually caught him in the act. I also instructed him that the main line, south, west, and north had become a public thoroughfare from long usage and to lot travelers pass along there, but any one he caught meddling and depredating to put them out. * ♦ * He (meaning Grace) had no authority whatever to stop or question any one passing along through the yards in the regular way; that was against instructions.”
“I employed him the 11th day of November, 1914, as night watchman, Palestine yard, because so many cars were being broken open and robbed and burglarized and goods carried away, and it was necessary on account of depredations. * * * Tes; I have heard of several cases of people asking the railroad employés for matches at night and trying- to get their watches or rob them; that is a favorite way and an old way. Tes, it was left to Mr. Grace’s judgment on the instructions I had given him to decide whether a man was out of the way or a suspicious looking character or not.”

G. Escott, witness for appellee, testified:

“I have been night watchman for the International & Great Northern Railroad Company. To the best of my recollection, I worked for the company for 5 years as night watchman. I served also as day watchman 15 or 16 years; quite a long time. * * * Tes; I am familiar with the duties as night watchman. * * * If the night watchman saw any suspicious men around, it was his duty to put them out. * * * As I understood it, the watchman was the only man that was to determine whether a man was a suspicious looking man or not. He was the only man down there to pass on it.”

Richard Comer, witness for appellee, testified:

“I am a cousin to Mr. Ives. I was with him the 7th of December, 1914. I got with him that night at the oil mill. I left the oil mill with him about 7 o’clock. * * * We passed by the corner of depot that evening and saw Mr. Grace and Mr. Crady at the end of'the depot. * * * I asked them for a match. Mr. Grace gave me one. Tes, Mr. Grace, that man right there. At the same time, the other man looked down into my face. Prom there we went on up the track. * * * We had gone three or four car lengths when Mr. Grace and Mr. Crady hallowed to us to wait and we kind of slowed down. * * * Thought it was some of the boys wanted to go with us, and they came up there,' and one of them he hauled off and shot down between us, and then asked my cousin where he was going, and he said home, and he asked him which way did he live, and my cousin said out on Cart-mell’s place, and then he hit him in the head with a gun. * * * When he knocked him down, he searched him and Mr. Crady held the stuff while Mr. Grace did the searching. Mr. Grace searched me and took off of me some little change. I don’t just know what they did take off us. Took Ives’ watch and took my pocketbook. I had $2 or $3. I don’t know exactly. Then they gave everything back to us. Asked my cousin what was going to do then and my cousin told him was going to the doctor’s office and have his head dressed, and then Mr. Grace asked Mr. Crady what would (we) do with them, and I don’t know what Mr. Crady said, but then he told my cousin after he had gotten on his feet, told us to get on down the road. lie (Grace) said his business was a railroad something. I don’t remember what; a special something. I don’t remember what his words were.”

W. A. Ives, appellee, testified:

“I started honle, came out by .Schuh’s meat market, got some meat, then went on up Front street there to the First National Bank. I reckon it is, right on the corner across the depot and bought some hot tómales; * * * then we went on up to the street that leads out across there by the freight office. East of the freight office, we saw two men sitting there. Richard Comer was with me. * * * We passed the men there. Mr. Crady was talking to another man. It was that man there. They were Mr. Grace and Mr. Crady. They were leaning up against that coal bin. Comer asked them for a match. I don’t know which one gave him the match, but we had gone on about three car lengths up the track, west track, when Mr. Grace and Mr. Crady stopped us and wanted to know where we was going. They walked up and said, ‘Boys, where are you going?’ I said, ‘Going home.’ He said, ‘Where do you live?’ I said, ‘Down the track about a mile.’ He brung out an oath' and said, ‘What do you call down the track about a mile, * * * and where do you live?’ I said, ‘Down the railroad track about a mile.’ He took out his searchlight and sized me up, and then he took out his gun and shot and hit me. He shot the ground right between me and Comer, and then hit me with thp gun, * * * and when I regained consciousness * * * he said, ‘What are you going to do now?’ * * * I said, T am going to the doctor’s office and get my head tied up.’ * * * So they marched us on down to the crossing, and then sort of turned off to the roundhouse.”

We think the testimony quoted clearly sufficient to raise an issue as to the liability of appellants for the act of Grace in committing an assault upon the appellee. Railway Company v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Lipscomb v. Railway Company, 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804; Railway Company v. Parsons, 109 S. W. 240. In the case first cited, a brakeman had forcibly ejected the plaintiff from a moving freight train, causing him to fall beneath the wheels, whereby he was seriously injured. The suit was for damages caused by this act. The brakeman was not authorized to eject plaintiff, although it might have been said that it was done in the interest of the master. In discussing the liability of the master in that case, Chief Justice Gaines said:

“To hold the master liable for the act of his servant, it is not necessary that the servant should have authority to do the particular act. The act of the servant may be contrary to his express orders, and yet the master may be liable. But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed. For the mode in which the servant performs the duty he is engaged to perform, if wrongful and to the injury of another, the master is liable, although he may have expressly forbidden the particular act.”

In the case of Lipscomb v. Railway Company, supra, Lipscomb was shot at the station of the railroad company at Rice, about 5 o’clock in the morning by one Gatlin, who had been stationed in the building by the agent of the railroad company to keep watch for and catch burglars. The station had been entered several times, and goods in the possession of the express company had been stolen, and Moore, the agent, for several nights before the killing of Lipscomb had kept watch in the station until 12 or 1 o’clock, and had caused Gatlin and one West to arm themselves and guard the station for the remainder of the night. His only instructions to them were to catch the burglars. Lipscomb and Davenport were the engineer and fireman, respectively, upon a freight train of the railroad company which was traveling northward through Rice to Ennis. At a point south of Rice, the boiler became so impaired as to render it impracticable to carry the train through, and, mpon telegraphic orders from headquarters at Ennis, those in charge of it left the cars composing the train at one of the stations and proceeded northward with only the engine and caboose. When Rice was reached, the boiler had failed so that it was impossible to carry it further, and the engine and caboose were carried past the station and bached into the switch north of it. The engineer and fireman then went together to the station to report the condition and get orders, which, according to some of the evidence, was in line of their duty. Finding the doors of the waiting room locked, they went to the window and made a noise which awakened Gatlin, who, with West, was asleep in the room, and he, mistaking them for burglars, fired his gun at Lipscomb whom he saw at the window, and inflicted the wounds from which he died.

The Court of Civil Appeals (62 S. W. 954) held that the shooting of Lipscomb was the willful and intentional act of Gatlin, and therefore the railroad company was not responsible for it. Justice Williams, in overruling this holding of the Court of Civil Appeals, used this language:

“The statute making such company responsible for the negligence of its servants at once brings into consideration the relation of master and servant and some part, at least, of the common law governing that relation. The master or principal is made responsible for the negligence of the servant or agent — that is, for negligence of the latter happening while they are acting in such capacity. The rule of respondeat superior, to some extent at least, is thus imported by the statute into such cases. As it is established by the better authorities and enforced in this court, that rule does not make the responsibility of the master depend on the question whether an injury inflicted by the servant was willful and intentional or unintentional, but upon the question whether the servant, when he did the wrong, acted in the prosecution of the master’s business and within the scope of his arrthority, or had stepped aside from that business and done an individual wrong. Railway v. Cooper, [88] Tex. 610 [32 S. W. 517], and authorities there cited; Haehl v. Wabash, etc., Ry., 119 Mo. 325 [24 S. W. 737]. There is much authority, however, for the proposition that, under the common law, the master is not liable for the malicious and intentional torts of the servant, although committed while engaged in forwarding the master’s business; and it is by no means clear that the rule of respondeat superior as first stated is made to apply in its full force in actions given by our statute for injuries resulting in death. Assuming for the purposes of this case that it does not, and that a killing by a servant which is willful and not negligent is not within the statute, it is still true that if the killing in question can be regarded as a negligent one, there is a ease for the determination of the jury under the statute. The servant acts for the master in executing instructions or rendering service. If he does this without the exercise of due care, he is guilty of negligence. The act which he does may be intentional, but if it is done without the observance of precautions necessary to a due execution of his instructions or exercise of his authority, this absence of care makes his act a negligent one. In the present case, Gatlin’s instruction was to watch the station and catch burglars. This necessarily involved the exercise of the discrimination necessary in distinguishing burglars from innocent persons, and in making the arrest and determining the degree of force called for by the circumstances. If, through want of proper care, he mistook Lipscomb for a burglar and used a degree of force not justified by the situation, his act may justly be deemed a negligent exercise of the authority derived from his master. This view is sustained by both classes of authorities just referred to. McManus v. Crickett, 1 East, 67; Croft v. Alison, 4 Barn. & Ald. 590. In the latter case, the doctrine is thus stated: ‘If a servant driving a carriage in order to effect some purpose of his own, wantonly strike the horses of another person and produce the accident, the master will not be liable. But if, in order to perform his master’s orders, he strikes but injudiciously and in order to extricate himself from a difficulty, that will be negligent and careless conduct for which the master will be liable, being an act done in pursuance of the servant’s employment.’ In that case, the act of the servant in striking the horses was intentional, but, as it was ‘injudiciously’ done, it was held that it was also a negligent performance of his duty as servant. It seems to us that this brings the case of a shooting by a servant, which was intentionally done because of mistake resulting from want of proper care in carrying out the master’s orders, within the word ‘negligence’ used in the statute. The act is negligent because it is a careless performance of the duty of the servant. We are therefore of the opinion that the Court of Civil Appeals took an erroneous view of this question.”

Under these authorities, we think it clear that the trial court properly submitted the issue of liability of appellants for the act of Grace in making the assault upon appellee. If, in fact, the appellee had been a thief or depredator upon the property of the appellants, or if his conduct had been such as to lead Grace reasonably to believe that he was such, the latter would certainly have been acting within the scope of his employment if he used all reasonable and proper means to protect the company’s property. He was undoubtedly charged by appellants with the authority, and it was his duty to exercise the discrimination necessary to distinguish between burglars, thieves, depredators, and innocent persons, and to make arrests when called for by the circumstances, and to determine the degree of force necessary to be exercised. If, through want of proper care or the exercise of the proper discrimination, he mistook appellee for a depredator or person who otherwise should be dealt with in the manner in which he did deal with him, he was certainly acting within the apparent scope of his employment, and the appellants must be held liable for any want of proper discrimination or improper conduct of his in that respect.

The burden of appellants’ assignment seems to be that as the duty of Grace was to look out for and arrest trespassers and thieves, he, as a matter of law, did not subject his employers to liability for the assault made by him on .appellee, since appellee was neither trespasser nor thief. This position, logically, would simply mean that the master would not be liable for any act of an employé unless it was within the scope of his actual authority. Appellants rely upon the case of Grubbs v. Railway Company, 153 S. W. 694. It will serve no good purpose to discuss this ease at length, and it is sufficient to say that it is clearly distinguishable because in that case the act of the train guard in shooting and injuring the plaintiff, according to the plaintiff’s own testimony, was willfully, wantonly, and intentionally done without any fact or circumstance justifying such conduct under Ms employment to the railroad company.

The second assignment complains of the refusal of a special instruction which reads:

“If you believe from the evidence that at the time and place of the alleged assault, the plaintiff was traveling a public thoroughfare leading through defendants’ yards, and if you further believe that plaintiff was not further molesting defendants’ property, and if you further believe that watchman Grace had no authority to interfere with persons traveling said highway through said yards, then if he did assault the plaintiff, he was not acting within the scope of his employment, then you should answer special issue No. 2, ‘No.’ ”

This charge we think was properly refused, because, as is pointed out above in cases cited, actual authority for Grace to interfere with persons traveling through the yards was not necessary in order to render appellants liable.

It is next assigned as error that the verdict and judgment of $1,000 is excessive. It is true no serious, permanent injury was inflicted upon appellee, hut the testimony shows a most brutal and unprovoked assault upon him. We will not detail the testimony upon this phase of the case. It is sufficient to say that appellee was fired upon with a pistol, clubbed into insensibility, his person searched, and the contents of his pockets removed. This conduct was accompanied by violent and abusive language. After he was released he was ordered in a most insulting and humiliating manner to leave the yards. In view of these facts and the rules announced in like cases, we are not prepared to hold the damages allowed to be excessive. Railway Company v. Martino, 2 Tex. Civ. App. 634, 18 S. W. 1066, 21 g. W. 781; Railway Company v. Gilbert, 64 Tex. 541.

Affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FDY, C. J.

text:
    SAN ANTONIO, U. & G. R. CO. v. HAGEN.

    (No. 5719.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 11, 1916.
    Rehearing Denied Nov. 1, 1916.)
    1. Continuance, <@=>26(3) — Right to —Absent Witnesses.
    A continuance on account of the absence of a witness will be denied when no process bad been issued for the witness, no effort was made to secure bis testimonyj and defendant who was applying for the continuance • declined an offer of the privilege of using the testimony of the witness taken on a former trial.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 74; Dec. Dig. <@=>26(3).]
    2. Trial <@=^260(1) — Insteuctions—Refusal.
    The refusal of a requested special charge is proper where all portions of the charge which were correct were covered by the genex-al charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; 'Dec. Dig. <@=>260(1).]
    3. Master and Servant ¡@=3235(8) — Injuries to Servant — Duty oe Inspection.
    A railroad fireman, injured by the giving way of an apron connecting the tender and the engine, was under no duty of inspection, though he had been told to fix the apron.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 714; Dec. Dig. <@=> 235(8).]
    4. Trial <@=>129 — Argument oe Counsel — Argument in Response to Other Argument.
    In an action for injuries received by a railroad fireman when an apron connecting the tender and engine gave way, defendant’s counsel expressed regret that the apron was not in court so that an ocular demonstration could be made of its tilting characteristics, whereupon plaintiff’s counsel stated that if defendant had really desired the jury to see the apron it would have been brought in as it was on former trial, and that the fact that it was not brought in justified an inference it would tip if stepped on as it did before. Held that, as such argument was provoked by argument of defendant’s counsel, and it did not appear that it affected the jury, it is no ground for objection, though based on facts not in evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. <@=>129.]
    5. Trial <@=>129 — Argument of Counsel — Argument to Meet Other Improper Argument.
    Argument outside of the record, made to meet argument by defendant’s counsel outside of the record, cannot be complained of by defendant on appeal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. <§=>129.]
    6. Appeal and Error <@=>1005(1) — Review— ' Misconduct of Jury.
    A determination by the trial court that the verdict was not agreed upon because of suggestion that plaintiff’s counsel would share in the recovery based on conflicting evidence, cannot be reviewed on appeal, for the finding of the trial court in the matter is final, unless a clear .abuse of discretion appears.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948; Dec. Dig. <@=>1005(1).]
    7. Damages <s=>132(1) — Personal Injuries— Measure.
    An award of $15,000 damages in favor of a railroad fireman who was so seriously and permanently injured that he would never again be able to perform physical labor is not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. <@=>132(1).]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Frank I. Hagen against the San Antonio, Uvalde & Gulf Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Williams & Hartman, of San Antonio, for appellant. John Sehorn and T. M. West, both of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   FDY, C. J.

This is a suit for damages instituted by appellee, who alleged that he was in the employment of appellant as a fireman, and that in the performance of Ms duties it became necessary for him to stand upon a certain apron wMch connected the tender and engine, and that it was the duty of appellant to have the apron securely fastened, but it failed so to do, and when appellee stepped upon tlie apron it gave way and lie was precipitated to the ground and seriously and permanently injured. Appellant pleaded contributory negligence and assumed risk. A trial by jury resulted in a verdict and judgment in favor of appellee for the sum of $15,000.

The evidence showed that appellee was seriously and permanently injured through the negligence of appellant as alleged, and was damaged in the sum found by the jury.

The first assignment of error assails the action of the court in overruling an application for a continuance on account of the absence of Dr. W. B. Russ. No process had been issued for the witness, nor any effort made to secure his evidence, and the court properly overruled the application for a continuance. Appellee offered appellant the privilege of using the testimony of the witness taken on a former trial of this cause, but that offer was declined. The assignment is overruled.

The court properly refused to give the special charge, the rejection of which is complained of in the second assignment of error. Had it been given it would have taken the question of contributory negligence away from the jury, for it, in effect, informed the jury that if B. B. Smith, prior to the injury, told appellee to fix the apron and he failed to fix it, a verdict should be rendered for appellant. The issue was correctly presented by the court in the main, charge. All that was proper to be given in the special charge, whose rejection is complained of in the third assignment of error, was fully embodied in the charge of the court. The duty of inspection did not devolve upon appellee as seems to be assumed in the special charge.

Counsel for appellant, in his argument to the jury, expressed regret that the apron was not in court so that ocular demonstration could be made of its tilting characteristics, and appellee’s counsel in answer to the argument stated that if counsel for appellant had really wanted the jury to see the apron, it could have been brought, as it was on a former trial, and that the fact that it was not brought would justify the inference that it would tip if stepped on, as it did before. This argument was objected to on the ground that there was no evidence that it “tipped up” when it was there before. It does not appear that the argument had any effect whatever on the jury, and we cannot hold that it did. The argument is not to be commended, but it was provoked by appellant’s argument.

The argument complained of in the fifth assignment of error was provoked by appellant’s argument and was in direct response to that argument. If appellee went outside of the record in his argument, he was led out of the way by the argument of appellant.

The sixth assignment of error assails the verdict on the ground that it was agreed to because it was suggested that the attorneys would get one-half of the damages, and it was therefore necessary to give $15,000 to appellee. The court heard the evidence of the jurors, and seven of them swore that nothing was said about attorney’s fees in the jury room; two swore that when it was mentioned a juryman told the one mentioning it to “cut it out,” that such a matter could not be considered, and only one swore that he talked about it to all the jury, and he was flatly cofitradicted by at least six of the jury. The evidence was heard and weighed by the court, and his judgment to the effect that the question of attorney’s fees did not enter into the verdict is conclusive on this court. This court has no authority to question the judgment of the trial court in this matter, unless it is made to clearly appear that its discretion has been abused and the rights of the parties have been disregarded. Railway v. Gray, 105 Tex. Sup. 42, 143 S. W. 606; Traction Co. v. Cassanova, 154 S. W. 1190; Railway v. Blalack, 128 S. W. 706; Railway v. Brown, 140 S. W. 1172. In the Cassanova and Railway v. McKinnell (173 S. W. 937) Cases, the uncontradicted evidence showed that the amount of attorney’s fees was considered by the jury and entered into their verdict. Such is not the evidence in this case. The overwhelming preponderance of the evidence in this case showed that there was no mention of attorney’s fees in the jury room, and it follows that the two jurors who did not testify could not have been affected by something which did not occur. This clearly differentiates this case from the Cassanova Case.

The seventh assignment of error is very general, and should not be considered, although it seeks to raise the same questions determined adversely to appellant under the sixth assignment of error.

The eighth assignment of error is overruled, and the ninth is not considered because too general and indefinite.

The sum of $15,000 is not excessive under the testimony in the case. The injuries were shown to be serious and permanent, and that appellee would never be able again to perform physical labor.

The judgment is affirmed.
      <@^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALENKOWSKY v. TEXAS & N. O. RY. CO.
    (No. 601.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 12, 1916.)
    1. Release @=>17(2) — Eeeect — Injuries to Sebv ant — Avoidance.
    Where the injured servant, on being told by-physicians in the master’s employ that his broken bones had set, and that his limb would be as good in a couple of months as ever, signed a release on payment of a certain sum, and the injury was in fact unhealed, and probably would never heal, he could avoid the release and sue for his injuries; the physicians’ statement being a positive one as of an existing fact and not a mere opinion.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. @=>17(2).]
    2. Release @=>17(2) — Injuries to Servant— Eeeect — Avoid anoe .
    The rule that a false representation by the employer’s surgeon as to physical condition of the servant will not justify avoidance of a release where the surgeon has no connection with the settlement, and the claim agent was ignorant of the representation, has no application if the claim agent procured the representation.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. @=>17(2).]
    3. Release @=>58(6) — Avoidance—Question eor Jury.
    Where the pleadings raised the issue of validity of a release for injuries given by the employ® on representations of the employer’s surgeon that he would soon be as well as ever, such issue was for the jury.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 114; Dec. Dig. @=>58(6).]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Ezrel Alenkowsky against the Texas & New Orleans Railway Company. Judgment on peremptory instruction for defendant, and plaintiff appeals.
    Reversed and remanded.
    Graves- & Graves, of Houston, for appellant. Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Paul Kayser, all of Houston, for appellee.
   HIGGINS, J.

Alenkowsky was an employ® of appellee, and on September 7, 1913, while in the discharge of his duties, his left leg was broken about halfway between the knee and ankle. It was alleged that such injuries were caused by appellee’s negligence. He was immediately taken to defendant’s hospital, and remained there until about February 10, 1914, under the care and treatment of defendant’s surgeons, Drs. Knox and E. J. Hamilton. On Dec. 1, 1913, he accepted from the defendant the sum of $600, and in consideration thereof gave a written release of his claim for damages. In avoidance of this release the plaintiff alleged:

“That for the purpose of procuring said release and of inducing plaintiff at that time and under those circumstances to make such nominal settlement, he was taken by defendant railway company’s claim agent, one - Davis, to its chief surgeon, Dr..R. W. Knox, and to his assistant, Dr. E. J. Hamilton, who together had charge of said hospital, and of plaintiff and the medical treatment of him, and then and there procured from each of them, in plaintiff’s presence, the statement and representation that plaintiff was not permanently nor seriously hurt, and that the bones in his leg had properly knitted and united together, that the leg was not hurt, and within two months’ time would be as good and as strong as it ever was, and that he was on the safe side and could safely make said nominal settlement, and that it was a good settlement for his injuries; that said claim agent used said physicians and their said statements and representations, repeating and reciting same to plaintiff, and then and there, upon the basis thereof and faith therein, induced him to make said settlement and to sign said release; that he relied upon said statements and representations as to the state and condition of his injuries and believed them to be true, and would not have agreed to said settlement, nor signed said release if he had not so believed and relied upon the same. But plaintiff now shows to the court that said release is not valid nor binding upon him, and that he was misled and overreached to his injury in so agreeing to and executing same, for the reason that said statements and representations were not true, that the bones in his leg had not then properly knitted and united together, nor have they yet, nor will they ever do so, nor was or is said ieg unhurt or as good as ever, but the same was then, and is now, permanently and incurably crushed, injured, and impaired, and leaves him for life deformed, a cripple, and unable to do any constant or heavy work, and that its condition and the character of his other injuries are in fact as is alleged in paragraphs 8 and 9 of this petition.”

The cause was tried before a jury, and upon the conclusion of plaintiff’s evidence a peremptory instruction was given in favor of defendant upon the theory that an issue had not been raised with respect to the validity of the release. In accordance with this instruction a verdict was returned and judgment rendered in defendant’s favor, and the plaintiff prosecutes this appeal therefrom.

Plaintiff testified:

“After my injury I was taken to the Southern Pacific Hospital in the ambulance. I didn’t ask anybody to send me to the hospital. The hospital belongs to the shops. I stayed there five and one-half months, and was treated by Dr. Hamilton and Dr. Knox, who are the railroad physicians. I didn’t ask for them. They used to come to the hospital every day while I was there. Both bones in my leg were fractured, my left leg, and there was a laceration of the knee on my right leg. No other doctors ever treated me. * * * The -railroad company paid me $600 for this accident. On the 1st of December, 1913, Mr. Davis, the claim agent, offered me $500, and suggested that I call in some friend of mine to consider this matter. I called in Mr. Ditch, who came, and we went up to Mr. Davis’ office. I said that my leg was still hurting me, and I could not use it. Mr. Davis suggested that we go down to the doctor’s office, two floors below his office. Dr. Knox examined my leg, and told me that in two months my leg would be in perfect condition as if it was never hurt; that at the time it was still raw, but at the end of two months I would not know I was ever hurt. I went back to Mr. Davis’ office with Mr. Ditch, and Mr. Davis then offered me $500 on the strength of the doctor’s statement that my leg was in good condition. When I still complained that my leg was not well, Mr. Davis said that he would give me another $100, but I didn’t consent to do that, because I wanted to make sure that my limb would be well. I then left the office with Mr. Ditch, and coming out we met Dr. Hamilton. Mr. Ditch then asked Dr. Hamilton for advice whether to accept this money — particularly, if the leg would be well in the future, then would he advise him to accept the money. Dr. Hamilton stated that this leg is in good shape, and that it was only for a short while that it would hurt any, that after that period he would not know that he was ever hurt, and advised him to make the settlement. This was the same day the settlement was made. I went up to Mr. Davis’ office when I agreed to that, and he gave me a closed envelope and directed me to some other building. I don’t even know which it is. I came up there, and some one read something to me that I didn’t understand and asked me to sign it, and I signed it; then I went up to Mr. Davis’ office and I got my check. Mr. Ditch was present during all of this time. Mr. Ditch went with me to the doctors. I accepted the statement of the doctors that my leg would be in the same condition in two months that it had been. I certainly would not have accepted the $600 if I had not believed the doctors were correct in their statement. Every time I talked with Mr. Davis, the claim agent, about my case or its settlement, Mr. Ditch was with me. Mr. Davis advised or suggested to me to go to see Dr. Knox or Dr. Hamilton. * * The settlement was agreed upon, and the $600 was paid over to me, and the .release to the company for all damages for my injury was executed by me on the day the settlement was agreed upon, December 1, 1913. I saw Dr. Knox at his office that day. At first Mr. Davis offered me $500. After he had spoken to Dr. Knox, he offered me $600. I did not hear what Mr. Davis said to Dr. Knox. He spoke to Dr. Knox in a place where I couldn’t hear what was said. Dr. Knox examined my leg in the presence of Mr. Davis. Dr. Hamilton stood by, but he didn’t examine me. He just watched Dr. Knox make the examination. Dr. Hamilton at that time said nothing. After leaving Dr. Knox’s office I went back to Mr. Davis’ office, where he offered me $600. Mr. Ditch and I went down, and we met Dr. Hamilton as we were leaving the building. At that time I had not accepted Dr. Knox’s advice, and I had not decided to accept the $600. I asked Dr. Hamilton that, since I was offered $600 in settlement of the case, I wanted to know whether my leg would be in the same condition as it ever was, then I would accept these conditions, and he . said that my leg in two months would be in perfectly good condition as it ever was. Dr. Hamilton had examined me before, but that day he merely watched Dr. Knox examine me. He had examined me about one day before that. I talked to Dr. Knox in the Southern Pacific Building, on the doors below Mr, Davis’ office. I came from the hospital on crutches that day.. On that day Mr. Ditch was with me all of the time. When they told me my leg was in good condition, I decided to accept the offer. The doctors told me that the leg was just weak now ; that it would be in perfect condition. They told me that there was a union, and the fracture had grown together.”

Mr. Ditch, a friend of the plaintiff, was present when the doctor’s examination was made and wh'en the negotiations to settle were had with the claim agent, Davis. He testified:

“Before going to Dr. Knox’s office, we had been offered $600. Dr. Knox’s office is in the Southern Pacific Building, and I and Mr. Davis and Alenkowsky went down there to that office. I did not talk to Dr. Knox. Mr. Davis brought Alenkowsky to the doctor, and the doctor examined his leg. I only stood by. I did not say anything then to Dr. Knox. I heard what the doctor said when he examined his leg. Mr. Alenkowsky was' the man what he talked to. Alenkowsky was talking to him. The doctor said: ‘His leg is all right; in a month or so he will be just as well as ever.’ Yes., sir; that is all he said. Dr. Knox said: ‘His leg is all right; he is only weak in his leg from the break, but that he will be all right in a month or so; he will be just as well as ever.’ Tes, sir; that is all he said. Yes; Mr. Davis said something. Mr. Davis said he would settle. Mr. Davis was there when he examined him. I did not hear Davis say anything. Ble did not say anything in the doctor’s office.”

Dr. Gavin Hamilton, witness for plaintiff, testified:

“I examined the plaintiff’s leg some time ago, about three or four months ago, and again on the 20th or 21st of December. He had a fracture of both bones in his leg. The smaller bone had united with about a half inch overlapping. The right bone was still -, showing that there was not a bony union, but the union was fibrous. The larger' bone was considerably bowed from the shortening of the smaller bone. The small bone is overlapped, but united. I took X-ray pictures (which the witness here identifies). In them is shown the lower end of the callous around it. There is a certain amount of movement in the joint, and when the bone is bowed the shortening leaves lesser space. The smaller bone runs along the side of the larger one, and is on the outer side of the leg. The large bone carries most of the weight of the body. The picture shows the most bowed condition of the larger bone. In the smaller bone there seems to be a firm union, but the ends are overlapped about half an inch. There is a swelling over the side of the fracture of the big bone, and a certain amount of mobility. There was fibrous union there. There was no bony union. There should be no motion at the fracture. The joining together of the small bone shortens the leg and renders the condition of the larger bone such that it cannot heal. The two fragments have to bow, instead of being straight. I measured the shortening, which was about half an inch. A half inch 'shortening makes practically little difference in a man’s leg. He can walk, and walk so you cannot even notice him limp, but the lack of bony union in the leg makes it so he cannot do manual labor, and he could not walk without pain, some pain. Of course, the large bone, with the ends in that position, maintains the support, but he could not walk without pain, and the weakness of the leg makes it so he could not be a laborer at all. I don’t see how a man could work with his leg in that condition.
“I believe his injury will be more or less permanent unless his leg is operated on. I believe he will have to have something done to bring about a bony union. I don’t believe there has been a bony union since the leg was fractured. His leg bowed like it is, even if united by a firm bony union, would still be lessened in efficiency, and be more liable to a fracture. It should not cause him pain if there was a bony union; not at the fracture, though it might in the ankle joint. Without bony union, it would cause him pain.”

The pleading and testimony quoted bring the case within the rule announced in Railway Co. v. Brown, 69 S. W. 651, Railway Co. v. Bright, 156 S. W. 304; Railway Co. v. Reno, 146 S. W. 207; and Wingfield v. Railway Co., 257 Mo. 347, 166 S. W. 1037.

Dr. Knox’s statement, testified to by plaintiff, that the fracture had united and the leg in good condition was the positive statement of an existing fact. It carried the idea that a proper bony union had been effected, which is contradicted by Dr. 'Gavin Hamilton. It was not a mere statement of opinion such as was considered in Railway Co. v. Kramer, 141 S. W. 122.

Appellee also invokes the rule announced in Railway Co. v. Huyett, 99 Tex. 630, 92 S. W. 454, 5 L. R. A. (N. S.) 669, that a false representation by a railway surgeon as to the physical condition of an injured party will not justify the avoidance of a release of damages where the surgeon had no connection with the settlement, and the claim agent was ignorant that such representation had been made. This rule is inapplicable here, because it is apparent that the claim agent had full knowledge of the representation, and both parties apparently acted upon the faith thereof.

An issue having been raised respecting the validity of the release, it was error to refuse to submit the same to the jury.

Reversed and remanded.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes