text:
    LILLIE v. STATE.
    (No. 4110.)
    Court of Criminal Appeals of Texas.
    June 7, 1916.)
    Criminal Law &wkey;>772(l) — Instructions — Former Jeopardy.
    Where accused shot at his wife three times, only one of the shots striking the wife, but two others striking and killing a little girl nearby, a charge in a prosecution for killing the girl that unless the shot that killed her was separate and distinct from the one that struck accused’s wife, to acquit him, sufficiently presented his plea of former conviction of assault with intent to murder his wife, for the two offenses would not constitute the same transaction, unless the shot that struck accused’s wife killed the girl.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1812, 1817; Dec. Dig. i&wkey;> 772(1).]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Monroe Lillie, alias Monroe Shavers, was convicted of manslaughter, and he appeals.
    Affirmed.
    C. D. Works, of Hillsboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of manslaughter, tie was indicted and tried for the murder of Jennie Allen, a negro girl about eight years old. The court committed no error in overruling his motion for a continuance. His motion was so wholly insufficient that it is needless to state or discuss it.

The undisputed testimony shows that at a supper at a negro’s house at night appellant shot at his wife three distinct times (though he said only twice). The first shot struck his wife in the leg above her knee. The second shot struck the little negro girl in the side of the head, the ball passing entirely through her head, from which she instantly fell and died. The third shot struck the child in the leg just above the ankle. The testimony clearly shows that the situation of his wife from the negro girl when he fired the first shot at his wife was such as that it was not the first shot that struck both his wife and killed the negro girl. The proof excludes the idea that it was the same shot.

Appellant was first indicted and convicted of an-assault with intent to murder his wife. The jury fixed his penalty at two years in the penitentiary, evidently on the theory-that if he had killed her he would have been guilty of manslaughter. He pleaded former conviction as his defense herein.

No complaint whatever was made of the court’s charge or exception taken thereto. He requested two charges. In one he requested the court to charge the jury: “If you believe from the evidence that Jennie Allen was shot in the same transaction in which Bosa Shavers [his wife] was shot” to acquit him. The court correctly refused this and gave his only other special charge in the language he asked it, wherein he told the jury that unless you believe beyond a reasonable doubt that the shot that killed Jennie Allen was a separate and distinct shot from that shot that struck Bosa Shavers, to acquit him, with a proviso to it just as he had asked it.

The fact that appellant killed the child on the same occasion in which he shot at his wile would not be the same transaction when as the proof shows the shot that killed the child was a separate and distinct shot from that which struck his wife. The special charge given by the court at his request was in effect submitting his plea of former conviction, and he got the benefit of his plea by this charge. Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Taylor v. State, 41 Tex. Cr. R. 564, 55 S. W. 961; Ashton v. State, 31 Tex. Cr. R. 482, 21 S. W. 48; Samuels v. State, 25 Tex. App. 538, 8 S. W. 656; Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125; Ford v. State, 56 S. W. 918; Harris v. State, 50 Tex. Cr. R. 411, 97 S. W. 704; Parks v. State, 57 Tex. Cr. R. 569, 123 S. W. 1109; Miller v. State, 72 S. W. 856; 12 Cyc. 289; Bishop’s New Crim. Law, 1061; Hunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17.

The judgment is affirmed.
      (gssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    RESENDEZ v. STATE.
    (No. 4131.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.)
    1. Homicide <&wkey;>165, 166(3) — Evidence—Motive.
    In a prosecution for the murder of his wife, defendant’s statement, made on her request to sign a waiver so that she might secure a divorce, that he would not sign any divorce, and that she should be careful, because she would know what she was going to get, was admissible as bearing upon the relation of the parties and the defendant’s motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 319, 323; Dee. Dig. <§^>165, 166(3).]
    2. Cbiminai, Law &wkey;1091(4) — Bill oe Exceptions — Sueficienot.
    A bill of exceptions, alleging error in admitting a conversation between defendant and the deceased, relative to defendant’s signing of a waiver in her divorce case, could not be considered, where the bill did not state the conversation nor any facts in connection with it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. <3&wkey; 1091(4).]
    3.Homicide &wkey;>165 — Evidence—Sedation oe Parties.
    In a prosecution for the murder of his wife, evidence that defendant, about two weeks before, had gone to his own house with a policeman and had taken his clothes away with him was admissible as bearing upon the relation of the parties.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 319; Dec. Dig. &wkey;>165.]
    4. Criminad Law <&wkey;1091(4) — Bidd oe Exceptions— Sufficiency.
    A bill of exceptions reciting that a witness was permitted to testify that, about two or three days after defendant had taken his clothes from his house, he stopped his wife, the deceased, and her sister, and sought to have a conversation with his wife, but which did not state the conversation, presented nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. <&wkey;1091(4).]
    5. Criminad Law &wkey;>1091(5) — Sufficiency ■oe Bild op Exceptions — Evidence.
    A bill of exceptions, reciting that defendant’s witness stated that in his official capacity, he had had a conversation with defendant before the homicide or defendant’s arrest, that it was expected to show by such witness that, a few days before the homicide, defendant called upon witness, a deputy sheriff, and requested that he arrest one for coming to Ms house and raising a disturbance and trying to kill him, and that he had discovered such person conversing in a low tone with his wife at a late hour of the night, but which did not state the purpose in offering such testimony, presented nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832; Dec. Dig. &wkey;1091(5).]
    6. Criminal Law &wkey;>1091(4) — Bill oe Exceptions— Sufficiency.
    A bill of exceptions, reciting that, while defendant was testifying, the state asked whether he had not made repeated threats to kill his wife and that objections thereto were overruled, but not setting out the answer, presented nothing for review.
    [Ed. Note. — For other eases, see Criminal I,aw, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. &wkey;1091(4).]
    7. Criminal Law <&wkey;1091(4) — Bill of Exceptions — Sufficiency—Character of Evidence.
    A bill of exceptions, reciting that the state’s witness, in answer to the prosecuting attorney, said that he had been at defendant’s house until about 10 o’clock at night, and that, over defendant’s objection, such witness stated that he had gone to treat defendant’s wife who was sick, without showing its connection or relevancy, or how the testimony could be harmful, presented nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. &wkey;1091(4).]
    8. Homicide <&wkey;250 — Sufficiency of Evidence.
    Evidence in a prosecution for wife murder held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. <&wkey;250.]

      Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Calixtro Resendez was convicted of murder, and lie appeals.
    Affirmed.
    C. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, and given 99 years in the penitentiary.

A bill of exceptions recites that the witness Barron was permitted to testify that, about a week prior to the killing, the defendant had been requested by the deceased to sign a waiver so that she might secure a divorce, and appellant at the time it was offered objected because it was irrelevant, immaterial, and had no bearing on or connection with the crime with which the defendant is charged, nor did it tend to establish a motive for such a heinous crime as that of which the defendant was accused, nor did it show malice towards his wife. These objections being overruled, the witness stated defendant refused in the following language: “I will not sign no divorce, but you be careful, because you will know what you are going to get.” Thib statement was admissible. The bill is hardly sufficient to present the connection in which this testimony got into the case or why it was inadmissible. There are no surrounding facts stated as to why it was or why it was not admissible, or its bearing or want of bearing upon the issues of the trial. It, however, does apparently show on its face that it was admissible as bearing upon the relation of the parties to each other, they being husband and wife, and the divorce proceeding's about which the waiver was asked. It may have furnished or assisted in furnishing a reason for affecting or as having a bearing upon the relations of the wife to the husband, and the feeling that may have prompted him in going to her house at night and killing her. The bill recites that this conversation occurred, and his refusal to sign the waiver, about a week before he killed' his wife.

The next bill recites that the court erred in permitting to go to the jury the conversation between defendant and the deceased relative to the signing of the waiver in her divorce case; and, at the time it was offered appellant objected, setting out various reasons why he objected. The conversation is not stated, nor any of the facts in connection with it further than that there was a conversation. In order to enable this court to intelligently revise this question, the conversation and its relation to the case should have been stated.

Another bill recites that the same witness, over objection of appellant, was permitted to testify that, about two weeks before the killing, defendant came to his own house with a policeman and took his clothes away with him, and the conversation relative to same which defendant had with his wife. The defendant, at the time it was offered, objected. There is nothing stated that shows how this affected the case before the jury or could have done so. It was admissible to show that he went to his house just prior to the killing and took his clothes away from home. From this it might be inferred there was a separation between the parties, at least showing that they were not then living together. The conversation that occurred at the time may have been admissible or it may not have been.

Another bill recites the same witness, Barron, was permitted to testify that, about two or three days after defendant had gotten his clothes from his house, defendant stopped his wife, the deceased, and her sister, as they were coming to town, and sought to have a conversation with his wife. Various objections were urged. The conversation is not stated, and we cannot review the matter.

Another bill recites the defendant placed a witness named Diaz on the stand, and propounded to him the following question: “Prior to his, the defendant’s, arrest, and prior to this killing, or homicide, did you have a conversation with him, the defendant?” The witness replied, “I did.” The witness was then asked: “In your official capacity?” To which the witness replied: “Yes, sir.” Then the witness was asked: “What was it?” The state objected for various reasons. The bill then recites that it was expected to elicit from the witness the statement that, a few days prior to the alleged homicide, the defendant called upon the witness in his official capacity as deputy sheriff of Bexar county, and requested that he arrest one Rodriguez, a musician, for coming to his house, or in front of his house, and raising a disturbance and trying to kill him, and that the said Rodriguez was caught at the gate talking in a very low tone at a very late hour at night with his, defendant’s, wife. The purpose of offering this testimony is not stated. The object and purpose, however, should be stated in a bill of exceptions, unless such purpose is manifest or obvious, where testimony has been rejected when offered by the defendant. Just what the purpose was in offering it would be but inference, as defendant stated no reason why he offered the testimony.

Another bill recites that, while the defendant was testifying, the state asked him the following question: “Hadn’t you made repeated threats to kill your wife prior to that time?” Objections were urged to this, which were overruled. The answer of the witness, however, is not set out in the bill. ■It simply recites that the question was asked. Whether he answered that he had made or had not made the threats is not shown.

Another bill recites that, while the state’s witness Moran was testifying, the prosecuting attorney asked him the following questions: “Were you at tier (the deceased’s) house prior to her death?” The witness responded: “I stayed there until 10 o’clock that night.” The witness was then asked: “State what you were doing at her house that night.” To this defendant objected because it was immaterial and irrelevant. The court overruled the objection, and the witness answered: “I just went to doctor that lady that night; she was a little sick.” What connection this had with the case, or its relevancy, is not shown by the bill of exceptions, nor are any of the facts set out to show or indicate why the testimony could possibly be hurtful. In the absence of this character of showing, the bill will not be reviewed.

These cover the questions raised by the record, and none of them show any reason why the judgment should be reversed. The evidence is ample to sustain the verdict of the jury. The appellant was the second husband of the deceased, her prior husband having died. He had been married to her about four years, his wife being the mother of a couple of children at the time he married her. There came no children from the second marriage. Dissensions arose between them with reference to the children, and appellant did not seem to contribute anything particularly to the support of the family. But, be that as it may, these dissensions reached a culmination a short time before the homicide and it seems deceased brought suit for a divorce, which appellant refused to sign, making the qualified threat as set out in one of the- bills of exception above stated. Prior to the homicide, appellant had gone to their home accompanied by an officer, had obtained his clothes, and carried them away. On the night of the homicide he went to the house where deceased and her children were living, entered the house, and killed the deceased by stabbing her with a knife. The sister of deceased, Eufracia Barron, was an eyewitness to the matter. Deceased seemed not to have been well that night, and one of the witnesses who testified in the case had been at her house administering to her wants until about 10 o’clock, when she left. Along near midnight, appellant came and called the deceased. Her sister, Eufracia Barron, testified to witnessing the transaction, giving details as to the transaction. We think the testimony sustains the verdict. The appellant testified in his own behalf. He says he went to the house that night, and, when outside of the house, he heard a conversation in a low tone of voice, and thought he heard somebody kissing his wife, and he went in the house to see about that and a man ran out, and, in striking at what he thought was the man, he happened to strike his wife. This was his side of the ease. The jury evidently did not believe it; they could have believed his story had they seen proper to do so, but they discarded it, and there is no reason why this court should disturb their finding under the facts of this case.

The judgment, therefore, will be affirmed.
      <3&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DE LEON v. STATE.
    (No. 4127.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.)
    Criminal Law <&wkey;1097(6) — Appeal—Statement or Pacts.
    The grounds of the motion for a new trial, in the absence of a statement of facts, cannot be considered.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2947; Dee. Dig. &wkey;>1097(6).]
    Appeal from District Court, El Paso County; W. D. Howe, Special Judge.
    Mateo De Leon was convicted of hog theft, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of hog theft, his punishment being assessed at two years’ confinement in the penitentiary.

The record contains neither a statement of facts nor bill of exceptions. The grounds of the motion for new trial, in the absence of the statement of facts, cannot be considered, and some of them set forth matters which could not be reviewed in the absence of bill of exceptions.

The judgment on the record as presented will therefore be affirmed.


author: PREÑDERGAST, P. J.

text:
    WEBB v. STATE.
    (No. 4096.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.)
    1. Criminal Law <&wkey;369(8) — Evidence—Other Defenses — Rape.
    In trial for assault to rape, evidence of other offenses against the prosecutrix committed at about the same time is admissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 822, 823; Dec. Dig. 369(8).]
    2. Rape <&wkey;44 — Evidence — Social Relations.
    In a prosecution for assault to rape, evidence of no change in social relationships between family of defendant and family of prosecu-trix after the family of the latter had notice of the alleged assaults is admissible, to be considered in determining whether any assault was made, and its consideration should not be limited to impeach members of prosecutrix’s family, except where such testimony amounted only to impeachment.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. § 63; Dec. Dig. <&wkey;44.]
    3. Criminal Law <&wkey;369(l) — Evidence—Admissibility — Other Offenses.
    In a criminal prosecution, evidence of other offenses, or offenses of a like nature, are as a rule inadmissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. &wkey;>369(l).]

      4. ORiminal Law <&wkey;371(l) — Evidence—Admissibility— Other Offenses.
    In a criminal prosecution, where intent is an element, and there is testimony tending to show that an act otherwise illegal was committed with innocent intent, evidence of other offenses of like nature are admissible on the question of intent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830, 831; Dec. Dig. <i&wkey; 371(1).]
    5. Criminal Law <&wkey;371(9) — Evidence—Other Offenses — Assault to Rape.
    In a prosecution for assault to rape, evidence of other similar offenses against other persons than prosecutrix are admissible on the question of intent, where defendant’s testimony tends to show that his otherwise illegal acts were without wrongful intent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830, 831; Dec. Dig. 371(9).]
    6. Rape <&wkey; 16(5) — Assault to Rape — Female Under Age of Consent — Force.
    Where a man takes hold of a girl under 15 years of age and handles her in such manner as to show a present intent on his part to have sexual intercourse with her, he is guilty of assault with intent to rape; proof of defendant’s intention to use whatever force was necessary to obtain sexual intercourse being unnecessary.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 17 ; Dec. Dig. <&wkey;>16(5).]
    7. Rape <&wkey;59(23) — INSTRUCTIONS — Aggravated Assault.
    In a prosecution for assault to rape, an instruction on aggravated assault is proper, where there is the evidence tending to show that defendant’s acts towards prosecutrix were without intent to rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 99; Dec. Dig. &wkey;59(23).]
    8. Criminal Law <&wkey;673(5) — Rape—Instructions Limiting Evidence — Intent—Other Offenses.
    In a prosecution for assault to rape, the jury should be instructed that evidence of other similar offenses against prosecutrix should be considered only to determine defendant’s intention to have sexual intercourse with her at the time of the assault for which he is on trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1876; Dec. Dig. &wkey;>673(5).]
    9. Criminal Law t&wkey;673(5) — Rape—Instructions Limiting Evidence — Other Offenses — Intent.
    In a prosecution for assault to rape, the jury should be charged that evidence of other offenses may be considered in determining whether defendant intended to have sexual intercourse with prosecutrix, not whether he attempted to have such intercourse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1876; Dec. Dig. &wkey;673(5)J
    Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.
    Louis Webb was convicted of assault to rape, and he appeals.
    Reversed.
    Scott & Brelsford, of Eastland, and W. P. Mahaffey, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PREÑDERGAST, P. J.

This is an appeal from a conviction for an assault to rape a girl under 15 years of age. We will not state fully nor discuss the testimony, in view of the fact that the case must be reversed. Neither will it be necessary to discuss the several bills of exceptions as to the introduction of testimony and other matters. Some of these bills are extremely lengthy. Nearly all are explained and qualified by the judge. However what we say will émbrace all the matters raised, so as to be a guide for another- trial.

In trials for this character of offense, other acts upon her than the one upon which the prosecution is based, occurring along about the same time, are admissible, under the case of Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, and that line of decisions following it. Therefore the testimony of the assaulted girl, wherein she testified to an assault upon her at a gin and also in the pasture, were admissible.

It was shown that the families of both appellant and the alleged assaulted girl, Thelma Parish, lived in the same town just across the street from one another, both families having children, girls and boys, and that the families had for years been intimate and frequent visitors, one to the other. Appellant claimed that after the alleged repeated assaults upon Thelma, and notice thereof to her mother and other members of her family, the social relationship between the respective families, including the father and mother and all the children of each, continued somewhat the same as before said claimed assaults. We think such testimony was admissible to enable the jury to determine whether or not the alleged assault had occurred, and it was improper for the court to limit the jury to the consideration of such testimony solely for the purpose of impeaching the mother or other members of the family of Thelma. Of course, if some particular portion of such testimony amounted only to a specific impeachment of some given fact, by other witnesses, then it would be proper in those particulars for the court to restrict such testimony for impeachment alone; but otherwise it would be improper to restrict such consideration for that purpose. It could be considered by the jury to determine -the credibility and weight to be given to the respective witnesses, and would be embraced under that general charge of the court, that the jury are the judges of the credibility of the witnesses, etc., and should not be otherwise restricted, as stated.

'The rule in this state is well established that ordinarily other offenses, or offenses of a like nature, cannot be introduced in evidence against an accused unless in certain contingencies. Among them is the question of the intent of the accused, in which instance an exception to the rule is as well established as the rule itself, to the effect that when intent is an element of the offense, and the testimony of an accused, or other testimony, should tend to show that an act otherwise illegal was committed without any intent to commit the offense charged, then such other like acts can he proven for the purpose of showing the intent of accused.

Appellant did not testify. It is unnecessary for us to determine now whether or not the question of what the girl testified he did was with an innocent intention or not. If on another trial he should testify and claim such innocent intent, or otherwise he should make such contention, then such other acts would he admissible. On the other hand, if no such issue is raised by the testimony offered in behalf of appellant, the testimony would not be admissible. We say this in view of the testimony of the girl Nellie Horn. Her testimony may or may not be admissible under the theories we have just above stated. If admissible and attacked a? she was, then the testimony of Dr. Bettes and Newt Mahaney would Be admissible to support her; but, if it should develop that her testimony on another trial is inadmissible, then, of course, that of Dr. Bettes and Mahaney would also be inadmissible. The rules of law applicable to such matters are clearly laid down in Gray v. State, 178 S. W. 337, and many other cases. What we have said as to the testimony of Bettes and Mahaney applies also to the testimony of Nellie Horn shown by appellant’s fourth bill of exceptions.

It is now considered the settled doctrine of this court that if a man take hold of a girl under 15 years of age and handle her in such manner as under the circumstances to show a present intent on his part to have sexual intercourse with her, with her consent or without it, he would be guilty of an assault with intent to rape. It is not necessary that other force should be used, like it would be if the woman was more than 15 years of age. This is settled by such cases as Hightower v. State, 65 Tex. Cr. R. 323,143 S. W. 1168, Cromeans v. State, 59 Tex. Cr. R. 611, 129 S. W. 1129, Love v. State, 68 Tex. Cr. R. 228,150 S. W. 920, Collins v. State, 66 Tex. Cr. R. 602, 148 S. W. 1065, Duckett v. State, 68 Tex. Cr. R. 331, 150 S. W. 1177, Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882, and other cases. This case was tried by the lower court on the law as thus laid down. We regard the doctrine as so well established as to need no further discussion. The appellant, both in his attack on the court’s charge and in special charges requested, contended the reverse, and that it was necessary to show such force as to show that a man intended to have sexual intercourse and to use whatever force was necessary to accomplish it. Therefore, all of his attack on the court’s charge on his theory is not the law, and his special charges on the same theory were correctly refused.

We are also of the opinion that the evidence in this case did not raise the question of aggravated assault and that the court committed no error ip not submitting such an issue to the jury. Of course, on another trial, if it should develop, as stated above, that the appellant should testify, or introduce other testimony, tending to show that his intention was not that of having sexual intercourse with the girl, but some other intent, then it would be necessary for the court to submit the issue of aggravated assault.

There is one other question we think it necessary to mention. In the event the testimony of Nellie Horn should be admitted upon another trial, then it would be proper for the court to limit the jury to the consideration of her testimony and that also of Thelma as to the claimed assaults at the gin and in the pasture, for the purpose alone of showing, or tending to show, whether or not appellant’s intention was to have sexual intercourse with Thelma at the time he committed the alleged assault upon her in the kitchen. It seems the court so limited by oral instruction to the jury that testimony when it was admitted, but when he charged the jury in Ms main charge, he told them in effect that they could consider all that testimony “in determining whether defendant did in fact attempt to have sexual intercourse with said Thelma.” This charge must, of course, be corrected on another trial. The evidence, if admissible, was not for the jury to determine whether appellant attempted to have sexual intercourse with her, but whether or not it was his intent to do so.

Por the errors pointed out, the judgment is reversed, and the cause remanded.
      <S=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    BLOSS v. STATE.
    (No. 4109.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.)
    Criminal Law &wkey;>1131(4) — Appeal—Criminal Prosecution — Recognizance.
    Where accused, after conviction, instead of entering into a recognizance, gives an appeal bond and is released from custody, his appeal will be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2974, 2976, 2977; Dec. Dig. &wkey;1131(4).]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Edward Bloss was convicted of pandering, and appeals.
    Dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of pandering, and his punishment assessed at five years’ confinement in the state penitentiary.

The record contains no bills of exception, and no statement of facts accompanies the transcript.

The indictment charges an offense, and un-tier such circumstances there is no question presented we can review.

It is further made to appear that while the court was in session, appellant, instead of entering into a recognizance, gave an appeal bond and was released from custody. Consequently, the state’s motion to dismiss the appeal must be sustained.

The appeal is dismissed.
      <§^>For other cases see same topic and KEY-NUMBER in all Hex-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. JACKSON & ALLEN.
    (No. 5688.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 7, 1916.
    Rehearing Denied June 21, 1916.)
    1. Carriers <@=>228(3) — Carriage oe Live Stock — Action—Evidence—Limitation oe Liability.
    Under the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 708, 731, fixing the liability of carriers as it exists at common law, and making void any special agreement to the contrary, all portions of a shipping contract relating to the reciprocal rights and duties of the parties are inadmissible in an action for damages to shipment of live stock.
    (Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. 228(3).]
    2. Carriers <§==3228(1) — Carriage oe Live Stock — Action—Presumption.
    Where a carrier accepts uninjured cattle for shipment and delivers them injured, its negligence is presumed.
    CEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 957, 958; Dec. Dig. .@=>228(1).]
    3. Carriers <@=228(5) — Carriage oe Live Stock — Action—Presumption.
    In such case nonliability of the carrier because of negligence of the shipper was not established by mere proof that the cattle when shipped were securely tied by the shipper, and while in the exclusive charge of the carrier became untied, since this did not show negligence of shipper, and, if it had, there was no proof that such negligence caused the damage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. <@=>228(5).]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Action by Jackson & Allen against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed,
    Boyle & Storey, of San Antonio, and Jeffrey, Jeffrey & Fielder, of Lockhart, for appellant. A. E. Holland, of Luling, for ap-pellees.
   SWEARINGEN, J.

On October 31, 1914, appellees filed a petition against appellant, alleging substantially that appellant was a common carrier for hire, and that on the 13th day of March, 1914, appellees intrusted to appellant 36 head of cattle for transportation from Luling, Tex., to Ft. Worth, Tex.; that the cattle were in good and merchantable condition when delivered to and accepted by appellant; that through the negligence of appellant the cattle were injured and some of them killed before redelivery to appellees at destination, causing appellees damage in the sum of $241.

Appellant denied that it transported the cattle; denied that it negligently handled the cattle, but averred that it transported the cattle with care and prudence, and averred that the cattle were received by it, and that it transported them under a written contract between it and appellees, and that this contract prescribed the respective duties, rights, liabilities, and obligations of both appellees and appellant in regard to transportation of the cattle; that appellees failed to load and care for said cattle while in transit, which failure was the proximate cause of the injury ; that appellees failed to securely fasten said cattle in the car while in transit and this caused the injury; that this shipment was a mixed car of live stock, and that circular No. 4442, adopted by the Railroad Commission, made it the duty of the appellant to require the appellees to securely tie each bull; that appellees did not tie the bulls securely and this caused the injury; that appellees assumed all risks of transporting the cattle which resulted from proper vices, natural propensities, and inherent natures of the cattle. Further, appellant answered that it was the duty of appellees to securely tie the bulls shipped; that appellees attempted to tie the bulls 'securely, but that the bulls got loose from their fastenings; and that it was ap-pellees’ failure to securely tie the bulls that caused the damage.

In the first supplemental answer appellant avers that the car contained dangerous and vicious animals which were not properly or securely tied, and that the injuries and damages were caused by appellees’ failure to securely tie the bulls, which by their vicious acts and natural propensities caused all the damage.

Special issues were submitted to and answered by the jury. The trial court rendered judgment in accordance with the jury’s answer against appellant for $205.76.

The facts are that 36 head of mixed cattle, including bulls and cows, were delivered to appellant at Luling for transportation to Ft. Worth. They were in good condition when loaded. Appellees tied the bulls securely in the car as required by that agent of appellant, whose duty it was to inspect the loading and tying. The cattle, as loaded and tied, were accepted by appellant and transported. Upon redelivery at destination several cows were dead and others crippled. At Yoakum, an intermediate point, the agents of appellant discovered that the bulls were loose, five cows were down, three of them dead, and two of them died a few hours later. The bulls were riding the cows. Appellees did not accompany the shipment.

The first error assigned is that the trial court erred in excluding from the jury that portion of the contract relating to the reciprocal rights, duties, obligations, and liabilities of appellant and appellees in their capacities as common carrier and shippers, respectively. The court offered to admit all other portions of the contract, which appellant declined. The court very properly excluded the contract ; for the statute, and not contracts, fixes the liability of carriers as it exists at common law. Any contract which limits or restricts this liability is invalid. This has been the law since 1863. Paschal’s Digest contains the statute. .P. D. 452. It is now, and has been continuously, the law of Texas. Many decisions have construed the statute and announced such to be the law so clearly and unequivocally that none should mistake it. Railway v. Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494; Railway v. Harris, 67 Tex. 166, 2 S. W. 574; Vernon’s Sayles’ Civ. Stat. art. 708; Vernon’s Sayles’ Civ. Stat. art. 731. The first assignment is overruled.

Appellant’s second assignment urges that the court erred in refusing to peremptorily instruct the jury, for the reason, as appears in its propositions, that appellees failed to prove the alleged negligence of appellant. The court should not have given the peremptory instruction. The appellant is liable as an insurer, even though no negligence is affirmatively shown. Negligence of the carrier under the facts as alleged and proven in this case will be presumed. Railway v. Powers, 117 S. W. 459, and many cases cited on page 461; Railway v. Drahn, 157 S. W. 282. Appellant’s counsel in their brief emphatically state that:

“The whole question in this case (the case at bar) is whether plaintiffs (appellees) are required to prove their allegations of negligence.” (Appellant’s Brief, p. 13.)

The statement is correct, and the question has been positively decided against appellant time and time again. See the Powers and Drahn Cases, above cited, the many cases cited therein, and the many cases citing them.

By the third assignment appellant announces the strange doctrine that because the jury found the bulls were securely tied by the shipper when accepted by the carrier, but were not tied hours later while in the exclusive care of the carrier, and because the jury said it did not know how the bulls became untied, therefore the court should have entered judgment for the defendant. The only escape from liability by appellant, after accepting the cattle for transportation, was to prove affirmatively that the injury was due to the negligence of the shipper, which permitted the bulls by their viciousness to inflict the injury. That the bulls got loose after being tied does not of itself prove negligence of the shipper. Neither does the fact that the jury did not know how the bulls got loose. To help appellant, the jury must have found that the bulls got loose through the negligence of the shipper. Then, again, even if the bulls got loose through the negligence of the shipper, it was further necessary for the jury to find specially in the affirmative this issue: Was the injury caused by viciousness of the bulls? This issue was not submitted to the jury by the court in its main charge. Appellant did not object to the main charge. Appellant requested special issues, all of which were given, but this issue was not requested. It must therefore be considered by this court that appellant waived the submission of that issue, and that the court found upon it adversely, to appellant; in other words, we must consider that the court properly found that the cattle were not injured by the viciousness of the bulls. The evidence warranted such a finding. Vernon’s Sayles’ Stats, art 1985. The third assignment is overruled.

The fourth, fifth, sixth, and seventh assignments present arguments upon the evidence which were probably appropriate and pertinent arguments for the jury and were no doubt unavailingly made to it. However, if relevant even in a discussion to the jury, they present no question that would authorize this court to reverse the judgment herein. The fourth, fifth, sixth, and seventh assignments are accordingly overruled.

Appellant’s eighth assignment complains that the jury had no evidence upon which to find that appellant handled the shipment involved herein carelessly and negligently.

Under the facts of this case, it was not even necessary for the jury to have that or a similar issue submitted to them, as it was unnecessary to prove specifically negligence. The court was authorized, under the facts of this case, to presume negligence on the part of appellant. However, the issue was submitted with the consent of appellant, and it therefore waived the objection that there was no evidence to warrant the submission of the issue. There was no error in the trial court presented in the assignment.

The judgment of the trial court is affirmed.
      <@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    FIRST NAT. BANK OF ROSWELL, N. M., v. BROWNE GRAIN CO. et al.
    (No. 1006.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 31, 1916.
    Rehearing Denied June 21, 1916.)
    1. Judgment <S=18(1) — Trial <$^39G(1) — Findings of Court — Plea Eliminated.
    A plea having been eliminated, by the sustaining of exceptions thereto, will not sustain a finding, and the judgment thereon, for defendant.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 34, 35; Dec. Dig. <3^18(1); Trial, Cent. Dig. § 935; Dec. Dig. <®=>396(1)J
    2. Trial <§^396(2) — Findings of Court — Absence of Plea.
    A finding for a drawee of a draft, sued by the payee, who had cashed it for the drawer, that the drawer had a deposit with the payee, sufficient to repay it, is unauthorized, in the absence of plea of such fact.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 935; Dec. Dig. @=3396(2).]
    3. Banks and Banking @=3175(3) — Collecting Deaet — Negligence—Evidence.
    Evidence in an action against a bank for negligence in not collecting a draft, sent to it with bill of lading attached, held sufficient to exonerate it of negligence, on the ground that the drawee obtained possession of the goods shipped on an order from the consignor and drawer.
    [Ed. Note. — For other cases, see Banks and Banking-, Cent. Dig. §§ 635, 640-646; Dec. Dig. @=3175(3).]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Action by the First National Bank of Roswell, N. M., against the Browne Grain Company and. others. From an adverse judgment, plaintiff appeals.
    Affirmed in part, and in part reversed and remanded.
    Jas. M. Muse, B. C. Clifton, and Mort W. Muse, all of McKinney, for appellant. J. R, Gough, Wt R. Abernathy, and G. R. Smith, all of McKinney, for appellees.
   HENDRICKS, J.

One R. E. Levers, of Roswell, N. M., agreed to sell to the Browne Grain Company, of McKinney, Tex., a carload of alfalfa hay for the sum of $247.17, the hay to be shipped from Farwell, Tex., to Simsboro, Tex. The shipment was by Levers as consignor, to himself as consignee, and the bill of lading so stated, with the freight prepaid. At the time of the shipment he drew a draft upon the Browne Grain Company, payable to the order of the First National Bank of Roswell, N. M., for the purchase price of the hay, and which was cashed by the bank; the amount being credited in Levers’ account as a customer of the bank. The bill of lading was attached to the draft, and by the Roswell bank was transmitted to the Collin County National Bank, at McKinney, Tex., for presentation and payment. This draft and bill of lading was returned by the .Collin County National Bank to the Roswell bank on March 21, 1912, uncollected, with instructions that an order should be furnished by the owner of the hay, as a requisite to the delivery of same to the Browne Grain Company, the purchaser.

Aa order was made out by Levers, the consignor in the bill of lading, and got into the hands' of the Browne Grain Company, who presented the same to the railway company, and upon the strength of which the railway company delivered the hay to the grain company. The Roswell bank sued the Browne Grain Company, also the Collin County National Bank, claiming that Levers wrote the order for the hay, delivered the same to it, and that in compliance with the instructions of the Collin County bank it forwarded said order to the latter bank, with a return of the draft and the bill of lading.

The Collin County bank claims that, when said draft and bill of lading were returned, ■ to it for re-presentation to the Browne Grain Company for collection, no order, authorizing the railway company to deliver the hay, accompanied said draft and bill of lading. Browne, of the Browne Grain Company, testified that Levers forwarded said order directly to the Browne Grain Company, and that, when the draft was presented for collection, no order was attached to it, nor to the bill of lading. One of the employés of the bank, who attended to the collection, also testified that no order was attached to the papers. The Browne Grain Company again refused to pay the draft, and the same was again returned to the Roswell bank, and the trial court, without the assistance of a jury, found that the Collin County National Bank, was not culpable with reference to the collection of the draft, or the delivery of the hay by the railway company to the Browne Grain Company, and adjudged that the Roswell bank could not recover against said Collin County bank.

The Browne Grain Company answered that at the time the order was sent by Levers, directly to it, to take charge of the hay, Levers was indebted to the Browne Grain Company in an amount more than the value of the car of hay and that said car of hay was received by the grain company upon a previous understanding and agreement with Levers that there would be a settlement and adjustment between then with reference to said previous indebtedness, of which the Roswell bank had knowledge. The trial court sustained exceptions to this plea, but at the trial, notwithstanding the elimination of the plea, found against the Roswell bank, in favor of the Browne Grain Company. The ninth finding is in substance that plaintiff had notice that" the defendant Browne Grain Company was claiming that Levers was due the grain company in the several sums as set out in their answer, and that Levers had on deposit, in his name, money in plaintiff’s bank, more than enough to repay it for the amount placed to the credit of said Levers at the time the draft was cashed by plaintiff. There is no plea in the record to sustain such a finding, nor the judgment entered thereupon.

If the Roswell Bank had notice of an offset in favor of the Browne Grain Company against Levers, and if Levers had a deposit in the Roswell bank, over which it had control, and out of which said bank could have protected itself on account of the nonpayment of the draft, such a question is academic, on account of the lack of pleading to sustain such a contention. If the trial court had not sustained exceptions to the pleadings, declaring an offset, neither is there any allegation that Levers had a deposit at the time when the Roswell bank elected to pursue its remedy against the Browne Grain Company for the hay.

We have noted carefully appellee’s authorities, but think it unnecessary, in the condition of the record, to discuss the question. The testimony is sufficient to exonerate the Collin County National Bank upon the issue of negligence as to the collection of the draft from the Browne' Grain Company, and there is no complaint by appellant against the railroad company in this appeal.

The judgment of the trial court will be affirmed in favor of the bank and the railroad company, but is reversed and remanded against the Browne Grain Company.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ig^jFor otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    GALVESTON, H. & H. R. CO. v. ANDERSON.
    (No. 7179.).
    (Court of Civil Appeals of Texas. Galveston.
    May 18, 1916.
    Rehearing Denied June 15, 1916.)
    1. Negligence <&wkey;S5(3) — Infants — Care— PRESUMPTIONS.
    A child of very tender years may be presumed as a matter of law not to have sufficient discretion to appreciate dangers obvious to one of maturer age; but no such presumption can be indulged in favor of a boy 14 years old.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 124; Dec. Dig. <&wkey;>85(3).]
    2. Master and Servant <&wkey;154(l) — Injuries to Servant — -Failure to Warn.
    Where a railroad callboy 14 years old knew and appreciated the danger of trains in the yards where he was required to work as well as any one else, the railroad company’s failure to warn him does not constitute negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 308; Dec. Dig. <&wkey;> 154(1).]
    3. Master and Servant <&wkey;95 — Injuries to Servant — Employment oe Minors.
    Where a railroad callboy 14 years old employed about railroad yards appreciated the danger as fully as an adult, and was as capable as an adult of protecting himself, the railroad company cannot be held liable for injuries, on the theory that it was negligent in employing so immature a person.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 141, 160; Dec. Dig. <i&wkey; 95.]
    Error from District Court, Galveston County; Robt. G. Street, Judge.
    Action by James Anderson, by his next friend, against the Galveston, Houston & Henderson Railroad Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    John L. Darrouzet, of Galveston, and Jno. T. Garrison, of Houston, for plaintiff in error. Geo. G. Clough, of Galveston, for defendant in error.

      Application' £or writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by W. J. Anderson, as next friend of his minor son, James Anderson, against appellant railroad to recover damages in the sum of 810,000 for personal injuries to said minor, alleged to have been caused by the negligence of the railroad company.

Plaintiff’s petition alleges in substance that said James Anderson, a minor 14 years of age, was on or about the 27th day of July, 1913, in the employment of the defendant in the capacity of night callboy in defendant’s yards in the city of Galveston, and, while in the performance of the duties of his employment, was struck and run over by a train operated by defendant in its said yards, and received injuries which are fully described in the petition. The acts of negligence upon which the cause of action is based are thus alleged in the petition:
“Plaintiff would represent and show to the court that the injuries received by him were the immediate and proximate result of the negligence of the defendant, its agents, servants, and employés for this, that he was but a child of 14 years of age, and small and undeveloped for one of such years; that the defendant, its agents, servants, and employés were negligent in employing him in such dangerous occupation as that of callboy, which required him to go in and about the yards where trains were switching, and at nighttime; and the defendant, its agents, servants, and employés were negligent in permitting him to go in, upon, and about said yards where trains were switching and at nighttime; that said yards are not lighted, so that employés and persons in and about said yards might see the approach of trains; that plaintiff was inexperienced, and the hazardous and dangerous occupation and employment of a callboy was not made known to him by the defendant, its agents, servants, and employés, and he was not cautioned or warned by the defendant, its agents, servants, or employés of the hazardous and dangerous nature of such employment, and such hazardous and dangerous employment was not realized by him.
“Plaintiff would further represent that the defendant was further negligent in the premises for this, that the train of ears which struck plaintiff and caused the injuries hereinbefore mentioned was not protected with a lookout; that is to say, no person was stationed at the front end of said cars to guard against injuries to persons in and about said yards, and that said train of cars so propelled was not equipped with lamps or headlight, or any other character of warning signal to warn or notify persons, having business in said yards, of the approach of said train; that no whistle was being blown, nor bell rung, and there was nothing whatever upon the front or moving end of said car which struck plaintiff to give any notice or warning of the approach of said train of cars; that the night in question was very dark, and that a proper lookout was not kept by any employé or switching crew of the defendant operating said train, and plaintiff is informed, and upon such information charges the fact to be, that said train consisted of 13 to 15 cars between the end which struck the plaintiff and the engine which propelled the said cars, and that the headlight of such engine, if any there was, was completely obstructed by said cars, and that no signalling device and no light of any character was maintained at the front or moving end of said cars to apprise the employés of the defendant, and particularly the plaintiff herein, of the approach of such cars.
“Plaintiff further charges that the defendant was negligent in the premises in that such switching engine or train was operated with a short crew; that is to say, only two switchmen were working at the time of such injury in conjunction with such switching engine, and that two switchmen to a switching crew are wholly insufficient to properly and adequately give warning signals of the presence and movements of such switching engine and train, on a dark night in an unlighted railroad yard, and to apprise the employés, such as plaintiff, of the movements of such a switching engine or train.”

The defendant’s answer denies generally and specially all of the allegations of negligence alleged in the petition, and also charges, in effect, that plaintiff’s injuries were due to acts of negligence on his part, which are fully set out in the answer, but the nature of which need not he stated in this opinion.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $4,000.

The evidence shows that James Anderson, at the time of his injury, was 14 years old. He had been in the employment of appellant as night callboy in appellant’s yards at Galveston for three months; the duties of his employment being to take messages, call crews, and do other errands which required him to go in and about all parts of appellant’s yards at night. His home, at the time of the injury and for some time prior thereto, was within a few blocks of appellant’s yards, and he was thoroughly familiar with the general use of the yards for switching and transfer purposes, and knew that trains were almost constantly being operated over the various tracks in said yards. On the night he was injured, with the permission of Mr. Cassidy under whom he was working, he started to his home to get his night lunch, which he had neglected to bring with him when he came to his work that evening. While riding on his bicycle along between two of the tracks in the. yard, on his way to his home to get his lunch, he was struck and knocked down by a train which was backing down behind him, and received serious injuries. No one saw the accident. His testimony as to the occurrence is as follows:

“I was going along between Forty-Fourth and the yard office, and before I ever could turn around or anything something behind hit me, and that is the last I remember until I got to the hospital, and they gave me ether and then came to. I was about half way between the yard office and Forty-Fourth street when X was hit. I was right this side of the main line when I was hit, north side of the main line. I was on my wheel. I was heading east to Forty-Fourth and going to go down Forty-Fourth to get my lunch. I was living at 4412 F. I usually took that route in going to and from my work and to and from my lunch; I went down this side of the main line and took Forty-Fourth, and went home to get my lunch, and go from home down there the same way. That is the only way I had to go to work, unless I would go down Thirty-Seventh, and then I would have to go over tracks. When I started out of the yard office that night to go and get my lunch, I never heard, seen, or observed anything until all at once something hit me, and that is all I remember, hit me up here (witness indicated the right side of his face). I don’t know exactly how many feet I had traveled on my bicycle from the yard office before I was struck. I guess it was about 40 feet, or something like that, somewhere along there. I know the yard office sits about in the middle of Forty-Fifth and between Forty-Fourth and Forty-Fifth, and I traveled half way from the yard office to Forty-Fourth. The yard is lighted at nights only by switchlights and lights on trains; but I didn’t see a light on any train or box car either; there was no light at all, only the switchlights. The switchlights are red and green. The switchlights are two feet or a little over from the ground. There is no electric light at Forty-Fourth street and Market. There is one on Forty-Fourth and Winnie. There are no pole lights there in the yard anywhere. The night I was struck, it was.a dark night. When I started out on my bicycle to ride down there to Forty-Fourth street to go get my lunch, I did not see or hear any signals of any sort. I had my lantern with me, one of the switchmen’s lanterns, one that the switchmen use. I had it in my hand on the handlebars. I didn’t come to until they gave me ether in the hospital.”

The undisputed evidence shows that James Anderson was possessed of at least the average mind and intelligence of boys of his age and had no physical infirmity of any kind. He started to the public school when he was seven years of age and made his grade every year except the last in which he attended school, which was his thirteenth year. He testified that he knew the dangers incident to his employment, and that his father tried to persuade him not to continue in the service because it was dangerous. Previous to taking employment with appellant he had been employed in a similar capacity by the Southern Pacific Railway Company. In regard to his knowledge of the danger incident to his work, he states in his testimony:

“I knew just about how dangerous it was as anybody could tell me. They always warned every one over at the Southern Pacific about the danger. I knew it was dangerous without anybody telling me. I had been warned at the Southern Pacific, and warned by my father it was dangerous. They might have told me it was dangerous. I already knew that; but they could have told me about the yard. They never explained nothing when I went to work there. They could have told me the roads not to go, and the exact road to go, and where to go. They could have told me just what tracks they would come on, and what tracks were in use, and what was not. I had been there three months, and it seemed to me they used the main track and all for switching. I had seen that time and again. 'After I had worked there, I seen it. At the time I was injured, I knew that constantly backward and forward trains were moving on their tracks out there. I knew there were no lights, electric lights in the yard.”

In the second paragraph of the charge to the jury, the trial judge states the grounds of negligence relied on by plaintiff as follows:

“(a) That the service was a dangerous one and that in consideration of his immaturity in age, knowledge, and experience the defendant was negligent in employing him in such service at all; (b) that it was negligent in not warning and instructing him with respect to the dangers of the service; (c) in not having its yard lighted; (d) that he was struck by a negligently moving train, which was not protected by a lookout or with headlight or lamps at the end of the train approaching the point where he claims he was hurt, and that no signal was given of such approach.”

The fourth and fifth paragraphs of the charge are as follows:

“(4) The defendant owed to the plaintiff the duty of giving him such warning and instruction with respect to the dangers of the service as the immaturity of his years, and degree of capacity, intelligence, knowledge, and discretion, would require to enable him to perform the service without unnecessary danger; and a failure to discharge such duty would be negligence. But the defendant will be excused from performing such duty, notwithstanding the plaintiff’s immaturity of years, if it appears from the evidenóe that he in fact had the capacity, intelligence, knowledge, and discretion to understand the dangers of the service, provided he did in fact understand and appreciate such dangers and the extent thereof.
“(5) The defendant is liable for such alleged injuries shown by the evidence as were proximately caused in the manner stated as may be shown by the evidence, by the negligence of the defendant, its agents, or servants, if any, except as otherwise herein instructed. It is not otherwise liable in this case. Negligence is the failure to use such care for the safety of another as one of ordinary prudence would use under the same or similar circumstances.”

The first assignment of error presented in appellant’s brief complains of the fourth paragraph of the charge above set out, on the ground that it submits an issue of negligence not raised by the evidence. This assignment must be sustained. The question of the duty of a master to warn a minor or inexperienced servant of the dangers incident to his work has generally arisen in cases in which the failure to give such warning is offered as an excuse for the contributory negligence of the servant. In those cases it has been uniformly held that, unless there is some evidence tending to show that, on account of immature age, the minor was so wanting in intelligence and discretion as to be unable to appreciate the dangers of his employment it is error to submit to the jury the question of the capacity of the minor to appreciate the dangers of the service. A child of very tender years may be presumed as a matter of law not to have sufficient discretion to appreciate dangers that would be obvious and apparent to one of maturer age; but no such presumption can be indulged in favor of a boy 14 years of age. Railway Co. v. Shiflet, 94 Tex. 131, 58 S. W. 945; Railway Co. v. Trigo, 101 S. W. 257.

When the failure to warn is relied on as an independent ground of negligence authorizing a recovery, it goes without saying that such failure on the part of the defendant must have been a proximate cause of plaintiff’s injury. We think the evidence before set out conclusively shows that the failure of defendant to warn plaintiff of the danger of being struck by some train operated in its yards could not have in any way contributed to plaintiff’s injury. This danger was obvious and apparent, and plaintiff admits that he knew just as well about how dangerous it was as anybody could tell him. We do not think there is any room for difference in the conclusion from plaintiff’s own testimony that the failure of defendant to warn him, when it employed him as night eallboy in the railroad yards, that in going about over the yards he must look out for moving trains had no causal connection with plaintiff’s injury. According to his own testimony, he was not put to work in a place of danger of which he was ignorant, or of which he was incapable of appreciating. Such being the state of the evidence, the failure of defendant to warn plaintiff does not constitute actionable negligence, and that ground of recovery should not have been submitted to the jury. Oil Co. v. Barnes, 103 Tex. 409, 128 S. W. 375, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111.

The charge is further objected to under the third assignment of error on the ground that, when the second and fifth paragraphs of the charge are considered together, the charge submits as ground of recovery the alleged negligence of defendant in employing a person of the age and inexperience of plaintiff in a service as dangerous as that in which plaintiff was employed. We think this objection to the charge should also be sustained. As we have before stated, there is nothing in the evidence tending to show that plaintiff was not possessed of the intelligence and discretion sufficient to enable him to fully recognize and appreciate the dangers of the service, or that he was not just as capable of protecting himself from the dangers of the service as an adult. It would be an unwise rule to prohibit the employment of a person under 21 years of age as night messenger or eallboy in railroad yards, on the ground that a person so employed incurred the risk or danger of being struck by a train; and to allow plaintiff to recover in this case, on the ground that defendant was negligent in employing him to do the work, would in effect bar the employment of persons under 21 years of age as night messenger boys in railroad yards.

If any errors are pointed out in the remaining assignments, they are not likely to occur upon another trial; and therefore said assignments will not be discussed.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.
      ÉfcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLX, C. J.

text:
    BLACK v. WILSON.
    (No. 5695.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 14, 1916.
    On Motion for Rehearing, June 30, 1916.)
    1. Bbokers <&wkey;57(l) — Realty Brokeb — Ri&ht to Commission.
    Where a party employed to sell land discovered a party who desired to purchase, and the owner sold to such party, the right to commission accrued, the agent obtaining an ultimate purchaser to whom she only gave an option to purchase, since he became a purchaser through her efforts.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. &wkey;57(l).]
    2. Brokees <&wkey;85(7) — Realty Bbokeb —Action fob Commission — Evidence.
    In an action for broker’s commission, where the owner did not deny that he executed a deed to the purchaser procured by plaintiff, and the secondary evidence was sufficient to show delivery by the fact of its record, such deed was admissible to show that the owner accepted the purchaser procured by plaintiff and delivered a deed to him.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 112; Dec. Dig. &wkey;85(7).]
    3. Brokers <&wkey;85(7) — Action for Commission —Evidence—Materiality.
    In such action, deeds which would not disprove anything testified to by the purchaser pro-’ cured by plaintiff, and had no tendency to show that plaintiff was not the procuring cause of the sale, were properly excluded from evidence.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 112; Dee. Dig. &wkey;85(7).]
    4. Trial <&wkey;29(2) — Conduct of Court — Remarks on Excluding- Evidence.
    Remarks of the trial judge explanatory of his action in excluding immaterial deeds were not improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 81; Dec. Dig. <S=>29(2).]
    5. Brokers <&wkey;53 — Realty Broker— Right to Commission.
    A broker employed to procure a purchaser could recover commission against the owner, though the purchaser procured desired the land and was interested in the transaction before he was procured by the broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. <@=353.]
    6. Brokers <@=>85(6) — Evidence— Declarations.
    In an action for broker’s commission, the court properly rejected statements made by the partner of the purchaser procured, which could not bind plaintiff.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 111; Dec. Dig. <@=o85(6).]
    7. Trial <&wkey;29(21 — Remark of Court.
    The court, in rejecting testimony of statements made by a third person, which could not bind plaintiff, was justified in asking defendant, “How in the world could any statement made to Black by other people bind this plaintiff in this case?"
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 81; Dec. Dig. <@=329(2).]
    8. Brokers <@=385(6) — Evidence — Competency.
    Testimony of the mere mention by plaintiff that'she had been offered by a third person 5 per cent, to sell the land, and that defendant said “he would be as good as” the third person and would give the 5 per cent., was not improper.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 111; Dec. Dig. <@=>85(6).]
    9. Appeal and Error &wkey;1051(3) — Harmless Error — Evidence.
    In an action for broker’s commission, where defendant admitted an option to the purchaser procured, the admission of secondary testimony on the subject was harmless to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4164, 4167; Dec. Dig. <&wkey; 1051(3).]
    10. Brokers <&wkey;85(l) — Evidence — Competency. '
    In an action for broker’s commission, where plaintiff knew whether she had sold to a particular party, and whether defendant had authorized her to sell, he admitting that he had employed her to sell, she was properly allowed to testify to such facts.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106,108, 110, 115; Dec. Dig. &wkey;S5(l).]
    11. Appeal and Error <&wkey;1051(l) — Harmless Error — Evidence.
    Any error in permitting a witness to testify to facts already proved by defendant’s letter was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166; Dec. Dig. <@=31051 (1).]
    12. Brokers <&wkey;49(l) — Realty Broker — Right to Commission.
    A landowner, who contracted to pay plaintiff commission if she sold, was liable therefor, though the buyer whom she procured was buying for a company.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 70; Dec. Dig. &wkey;>49(l).]
    13. Trial <&wkey;252(16) — Instruction — Abstractness.
    Where there was no evidence that plaintiff was limited to three months in which to sell, defendant’s request seeking to inject sucb an issue into the case was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 606; Dec. Dig. <@=3252(16).]
    14. Trial &wkey;>251(l) — Instructions — Evidence to Support.
    Pleadings without proof do not justify the submission of an issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587, 588, 594; Dec. Dig. &wkey;251(l).]
    15. Brokers <&wkey;49(l) — Realty Broker — Right to Commission.
    A landowner, who agreed to pay commission if plaintiff sold his land, was liable therefor, plaintiff having procured a purchaser, though plaintiff’s agency was not exclusive.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 70; Dec. Dig. &wkey;49(l).]
    16. Trial <&wkey;255(13) — Instruction—Duty to Request.
    If defendant desired a definition of “efficient and procuring cause” given the jury, he should have requested it.
    [Ed. Note. — For other cases, see Trial, Cent, Dig. § 639; Dec. Dig. &wkey;255(13).]
    17. Appeal and Error <@=>230 — Reservation of Grounds of Review — Objection to Remarks of Counsel.
    Error cannot be predicated upon remarks of counsel not excepted to when made.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <@=>230.]
    18. Trial <&wkey; 132 — Remarks of Counsel — Withdrawal.
    Error cannot be predicated upon remarks of counsel which were withdrawn.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 315, 316; Dec. Dig. <@=>132.]
    Appeal from District Court, La Salle County; J. F. Mullally, Judge.
    Suit by Lula Wilson against J. R. Black. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Covey C. Thomas, of Cotulla, for appellant. John W. Willson and Fred Chadwick, both of Cotulla, for appellee.
   FLX, C. J.

This is a suit by appellee to recover from appellant the sum of $776.25 alleged to be'due her as commissions on the sale of certain land in Florida, according to the terms of an oral contract by and between appellant and appellee. She alleged a promise to pay her 5 per cent, on the amount of the sale if the land was sold for as much as-$40, and that she sold the land for $45 an acre to James P. Martin, and a deed to the same was executed to said Martin by appellant to the land in question. It was answered by appellant that appellee, her mother, and other heirs of her deceased father, owned a one-fourth interest in 420 acres of land out of a 460-aere tract; that the land, three-fourths of which was owned by appellant, was sold through the efforts of appellant; and that appellee had nothing whatever to do with the sale, and at no time procured a purchaser ready, willing, and able to buy the land. The cause was submitted on special issues, to which the jury answered in effect that appellant promised to pay appellee a. commission of 5 per cent, if she sold the land for $45 an acre; that the promise was made on condition that appellant was to be at no expense or trouble to effect a sale; that appellee was the efficient, procuring cause of the sale that was made of the 460 acres of land to James P. Martin; that appellant went to Florida and devoted about five weehs of his time to selling his part of the land, as well as to selling about 1,360 more acres in which he or a trust company was interested: that he received compensation and expenses, other than such as resulted from the sale of the 460 acres of land for his stay and labor in Florida, and such compensation was enough to reasonably repay appellant for his time, services, and expenses while engaged in selling the lands. In addition, the court found that the appellee sold three-fourths of the 460 acres of land in Florida for $45, and that the commission agreed to be paid therefor amounted to $776.25, and judgment was accordingly rendered for that sum with interest from June 16, 1913.

We conclude that the responses of the jury and the findings of the court are sustained by the facts. This conclusion disposes of the first assignment of error. Appellee discovered a man who desired to purchase the land, and appellant sold the land to him, and it is immaterial whether appellee obtained a man to whom she only gave an option to purchase. He became a purchaser through her efforts. Appellant executed a deed to him, and it does not matter whether he was ready, willing, and able to buy the land or not. That question only becomes important when the trade is not consummated, and can be of no importance whatever when the landowner actually sells to the man procured by the broker. Appellant cannot be heard to depreciate the financial responsibility of the man to whom he sold his land, or to call in question his readiness and willingness to buy.

The second assignment of error is overruled. The copy of the deed from appellant to Martin was not introduced to prove title, but merely to show that appellant accepted the purchaser procured by appellee and delivered a deed to him. Appellant did not deny the execution of a deed to Martin, and the secondary evidence was sufficient to show delivery by the fact of its record. Hall v. Southland Ass’n, 53 Tex. Civ. App. 592, 116 S. W. 831. Appellant seeks to apply rules laid down in actions of trespass to try title to this case.

The two deeds from James P. Martin to appellant were not pertinent or material to any issue in the case and were properly rejected. The deeds would not have disproved anything testified to by Martin and had no tendency whatever to show that appellee was not the procuring cause of thd sale to Martin. The remarks of the court, when he refused to admit the deeds, were merely explanatory of his action and could not have had any effect on the jury. The court did not assume proof of any fact.

However anxious appellee may have been to sell hers and her mother’s interest in the land, that would not prevent her recovery of a commission for the sale of appellant’s interest, nnder his contract with her.

The evidence, the rejection of which is complained of in the sixth assignment of error, was immaterial and had no bearing on the ease. No matter how much Martin may have desired the land before he was procured as a purchaser by appellee, still she would be entitled to her pay for leading him to appellant. It would be a singular doctrine that a land agent could not recover his commission if the purchaser had been interested in and desired to purchase the land before the agent induced him to enter into a trade with the landowner. In spite of his interest in and desire to purchase the land, if appellee was the procuring cause of the sale of the land, she should recover. The remark of the court, that the letter written by appellee to J. S. Taylor had absolutely nothing to do with the case, was correct, and could not have injured appellant.

The court properly rejected the statements made by S. Booth to appellant. His statements could not bind appellee, though he had been James P. Martin himself, instead of being, as claimed, a partner of Martin. This disposes of the eighth and ninth assignments of error. We think the court was justified in asking appellant: “How in the world could any statement made to Black by other people bind this plaintiff in this case?” The remark could not have affected the case of appellant with the jury.

The mere mention by appellee that she had been offered by Taylor 5 per cent, to sell the land, and that appellant said “he would be as good as Mr. Taylor” and would give the 5 per cent., was not at all improper, and the court rightly overruled the objection to it. How could that statement about Taylor have possibly injured appellant?

There was no question about the option to Martin, appellant admitted it, and it is inconceivable how secondary or any other kind, of testimony on the subject could have injured appellant The eleventh and fourteenth assignments of error are overruled.

Appellee knew if she had sold the Hand to Martin, and she knew whether appellant had authorized her to sell the land, and was properly allowed to testify to those facts. The authorities cited have no bearing on the matter. Appellant admitted employing appellee to sell the land.

A letter from appellant to appellee was introduced in evidence which authorized the latter to sdll the land, and stating that whatever she did would be satisfactory, and it is utterly immaterial that Yerdi Wilson was allowed to testify to those facts. They were already proven by the letter of appellant. Nor does the statement that he wrote, after he had received the service, that he did not owe appellee and would not pay it, affect the case. He is still in that state of mind.

There is no merit in the sixteenth assignment of error. The evidence complained of is not open to the objections urged agdinst it. The jury allowed 5 per cent, on the amount of the sale, and not $5 per acre, and testimony on that subject could not have injured appellant.

That the sale was made was beyond discussion or dispute, and the court could assume that fact. The eighteenth assignment of error is overruled. It would be unreasonable to hold that because Martin, to whom the land was contracted by appellee, was buying for a company, appellee should not receive pay for' her services. Payment of a just debt cannot legally be evaded on such an untenable technicality.

The jury in effect found that appellant incurred no trouble or expense in making the sale of his interest in the 460 acres of land. They found that he was fully remunerated for his time and expenses. The nineteenth assignment is overruled. The trade was in reality consummated before appellant went to Florida.

There was no evidence that appellee was limited to three months, and it would have been error to have given the instruction asked by appellant which sought to inject such an issue into the case. Pleadings without proof do not justify the submission of an issue. This disposes of the twentieth, twenty-first, and twenty-third assignments of error, and the twenty-second, which seek to interpolate the question as to whether the land was sold to Martin or the Old Dominion Trust Company, which has been disposed of under another assignment of error. Martin was the ostensible purchaser, and it does not matter for whom he bought the land. The jury found that the land was sold to Martin.

It was utterly immaterial, under the facts, whether appellee had an exclusive agency or not. She sold the land to Martin and earned the commission even if there had been a hundred other agents. The evidence raised no such issue, and the court very properly refused to charge upon it.

If appellant wanted a definition given of “efficient and procuring cause,” he should have requested it, although we are of the opinion that the jury showed by their answer that they fully understood the meaning of the words.

The twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, and thirtieth assignments of error complain of the action of the court in submitting the issues it did to the jury. These issues have been fully considered and held proper and pertinent, the answers thereto forming a sound basis for the judgment.

The remarks of counsel, complained of in the thirty-first and thirty-second assignments of error, were mild and inoffensive and could not have had any tendency to inflame the minds of the jury. The remarks complained of in the thirty-first assignment of error were not excepted to when made, and those assailed in the thirty-second assignment of error were withdrawn. The assignments are overruled.

The matters sought to be raised in the thirty-third and thirty-fourth assignments of error have been fully considered in passing upon other assignments and they are overruled.

The judgment is affirmed.

On Motion for Rehearing.

The facts fail to show that the trip to Florida by appellant was necessary in order to close the trade with Martin; but in a letter, written by appellant to appellee, he stated, regardless of the sale to Martin, that he intended to go to Florida. That letter clearly indicated that appellant desired to visit Florida, in order to make other land trades, and that he intended to spend quite a time there “to look things over well and try and make some money down there.” He could have signed the option to Martin at his home in Texas, but when it was sent to him he failed to sign it and went to Florida. If he incurred any expense or trouble in going to Florida, it was voluntary on his part, and he cannot escape his debt to appellee on that ground. He went to Florida and raised the price on the land $5 an acre on the plea to Martin that he wanted to give appellee $5 an acre for her labor, and if there was any trouble it was caused by appellant. The evidence fails to show that appellant was put to any trouble or incurred any expense to close the trade with Martin. Appellant went to Florida, not to close a trade with Martin, but to consummate other and larger sales.

The motion for rehearing is overruled.
      <S&wkey;For other cases see same topic and KEY-NUMBER- m all Key-Numbered Digests and Indexes

      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    AMERICAN NAT. INS. CO. v. NUCKOLS.

    (No. 5686.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 7, 1916.
    Rehearing Denied June 27, 1916.)
    1. Insurance @=556(2) — Line Insurance— Proof of Loss — Estoppel — Power of Agent.
    Where the company agent was notified of death and viewed the body and said he was satisfied and that loss would be paid, and the adjuster recognized his authority until suit was brought, and then denied it, the company was estopped to deny the agency.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1375; Dee. Dig. @=556(2).]
    2. Insurance @=3549 — Life Insurance — Proof of Loss — Autopsy—Time.
    Where the policy gave the insurer the right to an autopsy, but it was not demanded at the time of death, the insurer could not, six weeks after interment, insist on such right, especially where it was undisputed that the insured died by an accident covered by the policy and the only dispute was whether his neck was broken or dislocated.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. @=549.]
    3. Insurance @=549 — Life Insurance — Proof of Loss — Autopsy—Time—Exhumation.
    To give the insurer the right of exhumation of the insured’s body, such right must be clearly expressed in no uncertain words in the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. @=549.]
    4. Insurance @=549 — Life Insurance — Proof of Loss — Autopsy—Time—Exhumation.
    Insurer’s right to exhume insured’s body, if covered by right to autopsy, can be exercised only at once and upon showing that it will show fraud or mistake.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. @=549.]
    5. Insurance @=549 — Life Insurance — Proof of Loss — Autopsy—Time—Exhumation.
    Where insurer pleaded that doctors’ conflicting statements that insured died from broken neck, and from dislocated neck, meant the same thing, it could not base its right to an autopsy on such conflicting statements.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Digl @=549.]
    Appeal from District Court, Travis County ; Chas. A. Wilcox, Judge.
    Action by Maggie Nuckols against the ' American National Insurance Company. 'Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Williams & Neethe, of Galveston, and N. A. Stedman, of Austin, for appellant. S. W. Fisher, N. A. Rector, and Robt. L. Thompson, all of Austin, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

‘ This suit was brought by ap-pellee, the surviving wife of Claude A. Nuck-ols, deceased, to recover the sum of $1,000 insurance on his life, $250 as attorneys’ fees, and 12 per cent, on the $1,000 as damages for a failure and refusal to pay the amount of the insurance. It was alleged that deceased had obtained from appellant a policy insuring him against bodily injuries inflicted through external, violent, and accidental means; that on May 24, 1914, while said policy was in full force and effect, deceased came to his death through external and accidental means, as provided in the policy, and within a reasonable time after his death, namely, on the same day on which Claude A. Nuckols was killed, and at a time prior to the burial of his body, appellee gave appellant due notice of the accident and death of said Claude A. Nuckols, and furnished all proof required by the policy; and that payment of the policy had been refused. Appellant admitted the existence and vitality of the policy, but denied valid notice, and set up that part of the policy permitting “an autopsy in. case of death.” The cause was tried, without a jury, and judgment rendered in favor of appellee for $1,045, principal and interest, $120, the statutory penalty, and attorneys’ fees for $250, aggregating $1,415.

The facts show that Claude A. Nuckols was killed on June 24, 1914, by accidentally falling from an engine in the roundhouse of a railroad company, upon which he was working at the time; that his neck was broken or dislocated by the fall, resulting in immediate death; that on the day after the accident, and before the interment of the body, notice was given of the death of Claude A. Nuckols to G. F. Evans, the local agent in Travis county, Tex., of appellant, and the “superintendent of the industrial department” of appellant, and he in company with a relative of the deceased viewed the body and received information as to how Claude A. Nuckols had died, and that two physicians and a justice of the peace had' determined that the neck of deceased was broken. The agent stated that he was satisfied, and that the amount of the policy would be paid upon the proper proofs being made, and the agent made no request for an autopsy and did not request a postponement of the burial in order that he might communicate with the officers of the company in regard to an autopsy.

On May 26, 1914, the two physicians who had examined the body made written statements on blanks, furnished by appellant, in which one physician stated that death was caused by a broken neck, and the other by fracture of the cervical vertebra, and on same day Evans wrote appellant’s claim adjuster, at Galveston, that Claude A. Nuckols had met his death by accident while in the performance of his duties, and requested that the necessary proof blanks ‘be sent to his widow, the appellee. The adjuster received the latter on May 27th. The blanks were furnished appellee, and on May 28th she filled them out, stating therein the cause of death as: “Broken neck caused by fall while at work.” The claim and proofs were at once forwarded by Evans to the claim adjuster, whereupon he wrote to Dr. Hudson, a railroad physician, ashing him the cause of Nuckols’ death, and he replied that he did not know the cause of his death. Afterwards the claim adjuster procured the report made by Hudson to his railroad company. On July 13, 1914, more than six weeks after the burial of the body, the adjuster requested an autopsy, which demand was refused. Evans was recognized as the local agent of appellant in its accident department, and the adjuster made no objections as to receiving notice through him. The notices required by the policy were given in the time designated therein and to an agent of the company. We approve the findings of fact made by the trial judge.

Our conclusions of fact dispose of the first, second, third, and fourth assignments of error which assail the findings of fact as to the agency of G. IP. Evans. The claim adjuster testified:

“At the time of his accident and death, we did not have any one else in Austin other than Mr. Evans as our representative and agent. He was the only one; it is possible there might have been a traveling man in and out. He was the only man we had here at that time, and had probably five or six subagents under him. He was the boss man here in Austin,”

This adjuster was agent in the accident department. The adjuster recognized the authority of the agent until he began to search for something upon which he could predicate a contest, and appellant is estopped from denying Evans’ agency. Continental Casualty Co. v. Bridges, 114 S. W. 170. The question of Evans’ agency was not raised until this suit was brought, and the only reason given by the adjuster why he did not pay the amount of the policy was that the doctors differed as to what killed deceased.

The evidence was ample to show that the neck of Claude A. Nuckols was either dislocated or broken, and in either event was undoubtedly the cause of his death. While there can be no doubt that the accident caused the death of deceased through the blow on his neck, and an autopsy was utterly unnecessary, still as “it is so nominated in the bond” appellant had the right to an autopsy if it had applied for it in a reasonable time after the death. The adjuster, who it seems was the controlling genius of the corporation, knew on May 28th that two doctors had examined the body of deceased and stated that he died from a broken or dislocated neck, and learned in June that the railroad doctor had stated that he did not know what killed deceased, and yet the body had been in the ground Over six weeks when he demanded an autopsy. He knew then, as he and his company have known ever since, that Claude A. Nuckols had lost his life by an accident within the literal terms of the policy, and yet, at that late hour, an autopsy was demanded of a body no doubt in advanced stages of decomposition. No one has ever doubted that the man was killed by an incident for which he was not responsible; appellant even does not deny this. He was insured by appellant against such an accident, and yet, because one doctor said he was killed by his neck being broken, another, by a dislocation of the cervical vertebra, and another, that he was killed by some cause unknown to him, appellant, six weeks after the interment, wanted an autopsy. The demand was utterly unreasonable and was properly refused. No reason was given or attempted for the delay. There was no evidence tending to show that the death came within any exception exempting from payment and as said in the case of Wehle v. U. S. Accident Ass’n, 153 N. X. 117, 47 N. E. 35, 60 Am. St. Rep. 598:

“We hold, in this case, that the provision authorizing an examination of the body of the insured should have been availed of immediately upon the receipt of the notice of the death, which was conceded to have been immediately given, and that the delay in the demand for an examination of the body was, as a matter of law, so unreasonable, in the absence of any facts or circumstances excusing it, as to deprive the defendant of any defense to the action upon that ground.”

If an autopsy had been held, it could not have altered the fact that deceased died by an accident, and it was utterly immaterial whether death was caused by a broken neck or dislocated vertebra. The man was dead, and dead by an accident insured against by appellant.

In the case of Johnson v. Insurance Co., 129 Minn. 18, 151 N. W. 413, L. R. A. 1915D, 1199, Ann. Cas. 1916A, 154, an autopsy was demanded at 10:18 a. m., at a time when friends were arriving for the funeral and the body was being prepared. Compliance with the request would have delayed the funeral, and it was held:

“We are of the opinion, however, that the time and circumstances of the demand were such that its refusal did not operate to defeat plaintiff’s right of action. We must bear in mind that, except for some formal requirements, and except for the chance that the autopsy would develop facts of which we have no knowledge, the right of action upon this policy had fully accrued. The forfeiture of a right of action through the operation of a condition subsequent will be enforced only where the right to such forfeiture is plain.”

It is not pretended that there had been any fraud practiced by the widow of the deceased, or that deceased had not been accidentally killed, or that an autopsy would have revealed anything that would have been of benefit to appellant. Suppose it had been ascertained that deceased died, not from a broken or dislocated neck, but from another cause superinduced by the fall, as must undoubtedly have occurred, what would it have profited appellant? There was no clause in the policy that relieved appellant of liability if the neck of appellant was not broken or dislocated. The provision as to an autopsy was not a warranty, and there was no provision whatever as to exhumation. In order to have the right of exhumation such right must be clearly expressed, and in no uncertain words, in the policy. Joyce, Ins. § 3491. As said in tlie case of Ewing v. Commercial & Accident Ass’n, 55 App. Div. 241, 66 N. Y. Supp. 1056, affirmed in 170 N. Y. 590, 63 N. E. 1116:

“In any case, I think a party who alleges a contract right to invade the tomb, or the graves of the buried dead, should be sure of the language of his written agreement. It should at least be unmistakably clear. The purpose should be apparent, and the terms so plain that inference or conjecture need not be resorted to to discover the true intent of the contracting parties. If the policy in question in plain terms stated to an applicant for membership that by accepting membership the applicant bartered to the insurer the right at any time to dig up and examine or dissect his dead body, it is quite conceivable that there would be few applicants for membership.”

The policy in question has no such provision, and the right to an autopsy cannot be made broad enough to include a disinterment weeks after burial. Root v. Accident Co., 92 App. Div. 578, 86 N. Y. Supp. 1055, affirmed in 180 N. Y. 527, 72 N. E. 1150. As said in Sudduth v. Travelers’ Ins. Co. (C. C.) 106 Fed. 822:

“If there is a fair doubt as to the meaning of the words used in a policy, it should be solved in favor of the insured, because there appears to have been no reason why the plainest words could not have been employed by the company in framing the condition. It may be that the right to dissect a body, even after burial, is or would be an important right to the company; but that would make it all the more necessary for it to express it in language in no way ambiguous or doubtful, or which, in order to effect the company’s purpose, would have to be extended beyond its ordinary import.”

If the right of an autopsy carried with it the right of exhumation of a body, it must certainly be asked for promptly, and then not to satisfy an idle curiosity or to form the basis for a forfeiture, but it must appear that the desecration of the graves of the dead and the pain inflicted on those left behind will reveal something that will show fraud or mistake and that will inure to the absolute benefit of the insurer. This disposes of the sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments of error.

Appellant is in no position to contend that it should be entitled, not only to an autopsy, but an exhumation of the body weeks after its burial, because there is a conflict in the statements of the two doctors as to the cause of death, in that one said it was a broken neck and the other fracture of the cervical vertebra, because in its answer appellant pleads that both statements meaning, as defendant understands, the same thing.

Appellant not only waived its right to an autopsy through its agent Evans, who was satisfied as to the proof as to how Claude A. Nuckols died, permitted his burial without protest or objection, but through the failure of the adjuster to demand an autopsy until long after the interment of the body and then for no reason then or afterwards given for violating the grave and giving pain to the relatives of deceased. This court does not recognize the right of appellant to demand its “pound of flesh” and ruthlessly invade the sanctuary of the dead without any efficient reason given therefor. Deceased, according to all the testimony, died by a fall, not intentional on his part, appellant in such case promised to pay his widow $1,000, and it will be required at its hands.

The judgment is affirmed.
      @=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes