source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    HOWARD v. STATE.
    (No. 3458.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.
    Rehearing Denied March 24, 1915.)
    1. Deunkaeds @=>11 — Deunkenness in Public Place — Inxobmation.
    A complaint and information charging drunkenness in a public place sufficiently identified the public place by describing it as a restaurant to which people commonly resorted for the purpose of eating and purchasing refreshments.
    [Ed. Note. — Eor other cases, see Drunkards, Cent. Dig. §§ 12-18; Dec. Dig. @=>11.]
    2. Deunkaeds ⅞=>11— Sufficiency ox Accusation-Place ox Oxxense.
    In a prosecution for drunkenness in a public place, it was sufficient, in a complaint and information, to allege that the offense occurred in the county in which the prosecution was brought, without alleging the particular place in the county.
    [Ed. Note. — For other cases, see Drunkards, Cent. Dig. §§ 12-18; Dec. Dig. @=>11.]
    3. Ceiminal Law @=>1066 — Appeal—Resee-
    VATION OX GeOUND-S OX REVIEW — EXCEPTIONS.
    Where accused took no bill of exceptions to any of the proceedings during the trial, bills of exception to the overruling of each ground of his motion for a new trial raised nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2686; Dec. Dig. @=>1066.]
    4. Ceiminal Law @=>925 — New Tbial — Geounds — Misconduct ox Juey.
    The bare mention of the fact that accused did not testify by one of the jurors was not ground for setting aside the verdict, where all of the jurors swore that they were in no way influenced thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2238-2247, 2250; Dec. Dig. @=>925.]
    Appeal from Newton County Court; W. E. Gray, Judge.
    W. C. Howard was convicted of drunkenness in a public place, and he appeals.
    Affirmed.
    Forse & Hamilton, of Newton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

By complaint and information appellant was prosecuted for drunkenness in a public place. They aver that on or about November 7,1914, he did then and there, by the voluntary and immoderate use of spirituous, vinous, and malt liquors unlawfully get drunk, and was then and there found in a state of intoxication in a certain public place, to wit, in a restaurant to which people commonly resort for the purpose of eating and purchasing refreshments. The court did not err in overruling his motion to quash them. It was not necessary to further identify the public place than was done. Nor was it necessary that they should allege the particular place in the county. The allegation that it was in Newton county was all that is réquired.

Appellant complains that the evidence is insufficient to sustain the conviction.- We think it was sufficient.

Appellant took no bill of exceptions to any of the proceedings during the trial. After the conviction he filed a motion for new trial setting up several grounds therefor, and he took a several bill of exceptions to the court’s overruling each ground of his motion for new trial. This raises no such question in a way that it can be reviewed.

In the last ground of his motion he claimed that while the jury was considering their verdict they alluded to his failure to testify. The court, it seems, heard the evidence, and each of the six jurors, only, testified to the same thing, as follows:

“After we received the charge from the court and retired to consider of our verdict, but before we began to consider our verdict, and when we first went out, one of the jurors made menttion of the fact that the defendant failed to testify. This did not influence me in the least in arriving at a verdict.”

This court has many times held that such bare mention or allusion, when the jurors swear it in no way influences them, presents no ground to set aside the verdict. Coffman v. State, 165 S. W. 947, and cases there cited.

The judgment will be affirmed.


author: DAVIDSON, J.

text:
    MEDFORD v. STATE.
    (No. 3397.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1915.
    On Motion for Rehearing, Feb. 24, 1915.
    State’s Rehearing Denied March 24, 1915.)
    1. Ceiminal Law @=>1097 — Appeal—Recoed —Denial ox Continuance. •
    In the absence of a statement of facts, denial of a continuance for the absence of a witness cannot be revised.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. @=>1097.]
    On Motion for Rehearing.
    2. Ceiminal Law @=>1106 — Recoed—Statement ox Facts.
    Where a statement of facts was properly approved and filed in the trial court within the required time, and should have accompanied the record, but the clerk failed to forward it, the clerk certifying to the facts and forwarding the statement of facts will make it a part of the record on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. @=> 1106.]
    3. Ceiminal Law @=>594 — Continuance — Absence ox Witnesses.
    Where the state’s theory was that accused shot at prosecutor with a view of killing him, and that the bullet passed within a foot of where prosecutor stood, while the theory of accused was that the gun was accidentally discharged, and that the bullet did not pass within 8 or 10 feet of prosecutor, denial'of a continuance on the ground of the absence of a witness who would testify in support of accused’s theory was reversible error, where due diligence to procure the witness before trial was shown.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. .§§ 1321, 1322, 1332; Dec. Dig. ©=>594.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    R. E. Medford was convicted of crime, and he appeals.
    Reversed and remanded on motion for rehearing.
    J. W. Donaldson and Cunningham & McMahon, of Bonham, Tex., for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This record is before us without a statement of facts. Under an indictment charging assault with intent to murder appellant was convicted of aggravated assault. In the absence of statement of facts appellant’s assignment of error on the refusal of the continuance cannot be intelligently revised. The matters set forth in the motion for new trial are in the same condition. In order to intelligently review those matters the testimony would be necessary.

As the record is presented, the judgment will be affirmed.

On Motion for Rehearing.

At a former day of the term the judgment herein was affirmed, there being then no statement of facts in the record. It is made to appear that, without fault of defendant, and without his knowledge, the statement of facts was not forwarded with the transcript. The clerk in the court below certifies it was his fault. He thought the statement of facts had been filed, and counsel also relied upon that fact, and were not aware of the clerk’s failure to forward the evidence to this court until the opinion was handed down. It is made to appear that the statement of facts was properly approved and filed in the trial court within the time, and should have accompanied the record. The evidence is therefore before us, and the case will be considered on its merits.

We deem it unnecessary to discuss more than one question, to wit, the failure of the court to continue the case. When called for trial the case was postponed on account of the absence of the witness Upchurch. The motion to continue, the certificate of the doctor, and the evidence on motion for new trial may be concreted into this statement: That the witness was absent through no fault of his or of the defendant; that he had had an operation performed for appendicitis and was unable, on account of that and some complications to attend court. This seems to have been uncontroverted, and may be taken as true. So the diligence was sufficient, and the materiality, we think, is beyond contro-. versy. The state’s theory was that appellant shot at Schrimpsher with a view of killing him. The defendant’s theory was that he did not shoot at him, and, among other material facts, he purposed to show that the discharge of the gun was accidental, and, by some of the testimony, that his wife had taken the gun from him and was undertaking to let down the hammer when it was accidentally discharged. The state also contended by its testimony that the shot was fired passing within a foot of where Schrimpsher stood, missing him and striking the opposite wall of the house. Appellant purposed to show by testimony that that was not true; that the ball did not pass within eight or ten or perhaps more feet of Schrimpsher. All this was very important testimony to the defendant, and had the jury believed this testimony they certainly would have acquitted him. If appellant shot at Schrimpsher under 'the contention of the state, he would have been guilty of an assault. If the matter occurred as he purposed to prove by his absent witnesses, he did not shoot at him and therefore was not guilty of an assault. The issues were sharp and incisive. Appellant was entitled to have this testimony.

The rehearing is granted, and the judgment is now reversed and the cause remanded.
      @^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CISNEROS v. STATE.
    (No. 3468.)
    (Court of Criminal Appeals of Texas.
    March 10, 1915.)
    Criminal Law ©=31184 — Indeterminate Sentence Statute.
    Where the trial court, on conviction for murder, instead of pronouncing an indeterminate sentence fixing the minimum and maximum terms thereof, sentenced accused to the specific term of 99 years’ imprisonment, it will be reformed to correspond with the law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. ©=> 1184.]
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge.
    Abran Cisneros was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is a companion case to those of Serrato, Gonzales, Martinez, and Vasquez, reported in 171 S. W. 1133, 1146, 1149, 1153, 1160, et seq., and several cases since then, wherein appellant was convicted as one of the murderers of the deputy sheriff Ortiz, in Dimmit county, and his punishment assessed at 99 years in the penitentiary.

There is neither a statement of facts nor any bill of exceptions herein. Nothing is raised in the motion for new trial that can be reviewed in the absence of these. The court below, instead of complying with the plain statutory provision as to indeterminate sentences, has in this case, as in all the others, sentenced the aiipellant to the specific term of 99 years’ confinement in the penitentiary.

It will therefore be necessary to reform the judgment in this court to correspond with said law, which being done, the judgment will be affirmed.
      <g=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BODINE v. STATE.
    (No. 3463.)
    (Court of Criminal Appeals of Texas.
    March 10, 1915.)
    Criminal Law <©=3814 — Prosecution — Offenses.
    Where the indictment charged the offense of keeping an assignation house, the submission of the wholly different, though allied, offense of keeping a house of prostitution, was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ¾ 1821, 1833. 1839, 1860, 1865, 1883, 1S90, 1924, 1979-1985, 1987; Dec. Dig. <©=3814.]
    Appeal from Galveston County Court, at Law; J. C. Canty, Judge.
    Mrs. R. T. Bodine was convicted of crime, and she appeals.
    Reversed and remanded.
    T. C. Turnley and King & Hughes, all of Galveston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This prosecution was under an indictment preferred by the grand jury and transferred to the county court at law. The charging part of the indictment is as follows:

“That Mrs. R. T. Bodine, * * * on or about the 15th day of the month of March, in the year of our Lord one thousand nine hundred and fourteen, in the said county of Galveston, * * * then and there was the lessee and tenant, and occupied and controlled a house, building, edifice and tenement, then and there situate; and the said Mrs. R. T. Bodine did then and there keep and was concerned in keeping said house, building, edifice and tenement as a place where men and women meet, anil did then and there meet by mutual appointment, for the purpose of sexual intercourse; against the peace and dignity of the state.”

So it will be seen the indictment charges that the place kept by appellant was an assignation house where men and women met by appointment to have sexual intercourse. The testimony from Grace Bell and her paramour, Sproule, say they met by agreement at Mrs. Bodine’s house, and Sproule rented a room from her which they occupied for illicit intercourse purposes. Mrs. Bodine denies the transaction, and says she has never known of any person making appointment to come to her hotel for immoral purposes, and that she had not knowingly permitted people to make appointments for such purposes at her house. She said that Grace Bell lived with her some time ago, but since she left the hotel she had never seen her, and if she came there with a man or men she knew nothing of it. This is the case on the facts.

The court charged the jury that the indictment charged appellant did on or about the 15th day of March, 1914, in the county of Galveston and state of Texas, keep a disorderly house, a house kept for prostitution, and where prostitutes were permitted to resort and reside for the purpose of plying their vocation, and that the defendant, Mrs. R. T. Bodine, did then and there keep said disorderly house, and she was then and there concerned in keeping said disorderly house for prostitution, and for prostitutes to resort and reside for the purpose of plying tlieir vocation. And further charged:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant, on or about the 15th day of March 1914, in Galveston county, state of Texas, did keep a house for prostitutes, as defined in this charge, then you should find the defendant guilty as charged in the indictment and assess her punishment,” etc.

So it will be seen that the indictment charges appellant with keeping an assignation house where people meet by mutual agreement. The court submitted a house of prostitution kept for common prostitutes to reside and resort, etc. Exception was taken to the court’s charge before it was delivered to the jury, pointing out this variance, and that the indictment had charged one violation of the statute and the court had submitted another. Also they further objected to this charge because there was no evidence to sustain the charge of the court. This is also brought forward in bill of exceptions filed and approved by the trial judge. The charge should conform to the allegations contained in the indictment. The court’s charge should have instructed the jury, before they could convict the appellant, they must find from the testimony, beyond a reasonable doubt, that she kept this house where people meet by mutual agreement for the purpose of illicit intercourse. They could not, under this indictment, convict her on a charge or on testimony either for keeping a house where prostitutes commonly resorted and plied their trade, etc. That is a different phase of the statute. See Ross v. State, 33 S. W. 972.

On account of the errors in the charge, the judgment is reversed, and the cause remanded.


text:
    SHEPHERD v. STATE.
    (No. 3452.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    1. Intoxicating Liquors <©=3239 — Oitenses —Prosecution—Instruction.
    Where the testimony, in a prosecution for violating the local option law, raised the question of agency, and that question was not covered by the charge, it was error to refuse a requested instruction thereon.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. <©=3 239.]
    2. Witnesses <©=3359 — Impeachment—Cross-Examination oe Accused — Former Indictment.
    It is error to require a defendant, charged with violating the local option law, to testify that he had been previously indicted for a similar offense.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. <⅞=350.]
    Appeal from San Augustine County Court; Wm. McDonald, Special Judge.
    Pleas Shepherd was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law; his punishment being assessed at 20 days’ imprisonment in the county jail and a fine of $25.

Three questions are presented: First. Overruling the application for a continuance, which is deemed unnecessary to be considered in the light of a reversal upon two other questions. The absent testimony can he secured upon another trial. Second. The question of agency, which was raised by the testimony, and which was not charged by the court and the special instructions refused. This was error under all the authorities. Third. Defendant, over objection, was required to testify he had been previously indicted for violation of the local option law. Objections were urged, and this matter is presented for reversal. This was error. See Branch’s Grim. Law, § 566, for collation of authorities. Some of these it may be well enough to cite: Tyrell v. State, 38 S. W. 1011; Stewart v. State, 38 S. W. 1144; Lee v. State, 45 Tex. Cr. R. 51, 73 S. W. 407; Jennings v. State, 55 Tex. Cr. R. 147, 115 S. W. 587; Marks v. State, 78 S. W. 512; Hays v. State, 47 Tex. Cr. R. 149, 82 S. W. 511.

The judgment is reversed, and the cause remanded.
      <®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    JOHNS v. STATE.
    (No. 3457.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    1. Courts @=>163 — County Courts — Jurisdiction — Removal op Fence.
    In a prosecution for unlawfully pulling down a fence located on property of which, another had possession, the fact that defendant claimed to own the land did not cause the question of title to be involved, so as to deprive the county court of jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410 — 411, 443, 479, 1294; Dec. Dig. @=> 163.]
    2. Criminal Law @=>371 — Evidence oe Extraneous Crimes — Admissibility to Show lit tent.
    Where, in a prosecution for unlawfully pulling down a fence, defendant contended that he acted under a belief that he owned the land, evidence that he not only tore down the fence around the land claimed by him but also around another tract was properly admitted; testimony of extraneous crimes being admissible to show intent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dee. Dig. @=> 371.]
    3. Criminal Law @=>824 — Instructions — Requests.
    In a prosecution for unlawfully tearing down k fence, failure to instruct that certain evidence was admissible only to refute plaintiff’s contention that he acted under a belief that, as owner of the land, he had a right to tear down the fence, was not error, in the absence of a request for such instruction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. @=> 824.]
    4. Criminal Law @=>922 —, Instructions — Time to Object — Motion for New Trial.
    Where the accused fails to reserve any exception to the charge as given or the failure to submit a particular issue and present a special charge on same, an objection presented in respect thereto in a motion for new trial is too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. @=> 922.]
    5. Criminal Law @=>829 — Refusal of Instructions Covered.
    Where, in a prosecution for unlawfully tearing down a fence, defendant’s claim that he acted in good faith was fairly presented in the court’s charge, to which no objection was made, the refusal of special charges thereon was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=>829.]
    6. Fences @=>28 — Unlawful Removal — What Constitutes.
    Where a person in possession of land under a claim of ownership, and those under whom she claimed, had been in possession for more than 20 years, the act of another in tearing down the fence on the premises as a step toward taking forcible possession was unlawful, regardless of whether he had any title capable of being established in a civil suit. ' '
    [Ed. Note. — For other cases, see Fences, Cent. Dig. §§ 62-67; Dec. Dig. @=>28.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Johnson Johns was convicted of unlawfully pulling down a fence, and appeals.
    Affirmed.
    Ed R. Bumpass, of Terrell, and Huffmaster & Huffmaster, of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully pulling down a fence, the property of Sallie Cole, and his punishment assessed at a fine of $10.

It appears: That more than 20 years ago Julia Ann Johns went in possession of some 20 acres of land in Kaufman county, residing on 10 acres thereof. That during her lifetime a dispute arose between her and appellant, and he was allowed to go in possession of 5 acres of the land. That subsequent thereto, in about 1907, appellant brought suit for 5 more acres; he claiming title to 10 acres of the land. After the suit was brought by appellant, Julia Ann Johns died, and he made Sallie Cole, the prosecuting witness in this case, a party to the suit, as independent executrix of the estate of Julia Ann Johns. The suit was subsequently dismissed under rule for costs, which would leave Sallie Cole as independent executrix in possession of tlie five acres of land and the fence situate thereon. Sallie Cole testified that her mother had placed the fence on this land more than 20 years ago; the witness assisting in building the fence, as well as her brother, Walter Johns. Walter Johns testified to this same state of facts. Appellant does not deny this fact, but admits it to be true. However, he says he was the rightful owner of the land; that the deed which was made to Julia Ann Johns for this land in 1875 was made without his knowledge; that he in fact paid for the 10 acres of land. However, from the record it is shown beyond question that Julia Ann Johns was in possession of the land and the fence thereon when sh& died, and that appellant had then brought suit for the land, and furthermore that Sallie Cole went into possession of the land and fence, as independent executrix of the estate of Julia Ann Johns, and, when appellant’s suit was dismissed, that she remained in possession thereof. The court did not err in overruling the plea to the jurisdiction of the county court, as the title to the land was not involved and could not be awarded in this suit. The evidence was brought into the record in showing who was in possession of the land and fence, and whether or not appellant’s claim that he tore down the fence under an honest belief that he had a right to do so was correct.

It appears by the testimony of Sallie Cole that, since appellant’s suit for the land on which the fence was situated was dismissed under rule for a cost bond, he had torn down the fence in question several different times, and the prosecuting witness had had it placed back; that on this occasion he tore the fence down mainly between sundown and sunup, he giving as his reason that his children were going to school, and he utilized the time when they were not at school, that they might assist him. Sallie Cole testified that appellant not only tore down the fence around this five-acre tract, but he had also torn the fence down around another tract of land in her possession. Appellant objected to this latter testimony on the ground that it was incompetent and too remote. As appellant’s contention was (admitting that he had torn down the fence) that he did so under the belief that he had the right to do so, the evidence was admissible. Mr. Branch, in his work on Criminal Law, says:

“AVhen extraneous crimes tend to show the intent, when intent is an issue, the testimony is admissible” — citing Gilbraith v. State, 41 Tex. 567; Long v. State, 11 Tex. App. 387; Davison v. State, 12 Tex. App. 215; Glover v. State, 76 S. W. 465 ; Penrice v. State, 105 S. W. 797; and other cases.

In Encyclopedia of Evidence, vol. 7, p. 627, the rule is said to be:

“In all eases in which the guilty knowledge or intent of a party in the act or transaction in question is an essential element, evidence of other similar acts or offenses committed by such party is relevant and competent testimony”— citing authorities from many states.

All the acts were committed by appellant after the time his suit was dismissed in the district court and prior to the time this prosecution was commenced, and would aid the jury in determining whether appellant’s claim that he tore down the fence under the belief he had a right to do so was correct, and the testimony was not too remote.

Appellant insists that, if the testimony was admissible, the court should have instructed the jury the purpose for which said testimony was admissible. This is a misdemeanor, and the court is not required to give any charge to the jury, and, if he does do so, the appellant must reserve an exception to the charge as given or failure to submit an issue, and present a special charge on that issue. This appellant did not do, and it is too late to complain of the charge in this respect in the motion for a new trial.

The court’s charge on the issue of appellant’s claim that he acted in good faith, believing he had a right to tear down the fence, was presented in as favorable light as he had a right to demand in the court’s main charge. It was not objected to in any manner at the time it was given, and, under such circumstances, there was no error in refusing the special charges requested.

The appellant’s suit for the land on which the fence was situate, his testimony on the trial that his mother had been in possession of it, and his sister also, shows conclusively that he intended by force, without her consent, to eject her and take possession. This the law does not sanction. In a civil suit for the land, he may, as he contends, be adjudged the owner of the land; yet he admits he knew another was in possession, claiming it as Ijer own; and the courts are created to settle such differences, and he had no authority or right to seek to forcibly táke possession away from one in possession, when the record discloses that she and those under whom she claimed had been in possession of the land for more than 20 years.

The judgment is affirmed.
      @s»Por other cases see Bame topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J. DAVIDSON, J.

text:
    McCALLEN v. STATE.
    (No. 3438.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.
    Rehearing Denied March 17, 1915.)
    Infants <⅜=>18 — Juvenile Offendeks — Prosecution — Jueisdiotion.
    Act April 2, 1889 (Acts 21st Leg. c. 85), incorporated in Code Cr. Proc. 1895, as articles 1145 and 1146, provided that, when a male person under 16 years of age was convicted of felony, and his imprisonment was assessed at 5 years, he should be committed to the reformatory. Act April 5, 1907 (Acts 30th Leg. e. 65), in ten sections defines and prescribes the procedure for trial of a delinquent child. Act April 5, 1907, was copied in the Code Or. Proc. 1911 as articles 1197 to 1206; the earlier act being incorporated as articles 1195 and 1196. The revisers also included the same act in Rev. St. 1911, as articles 2191 to 2201, inclusive. Both compilations were adopted by the Legislature. Acts 33d Leg. e. 112, amended Code Or. Proc. 1911, arts. 1195 to 1207, and at the special session of the Legislature (Acts 33d Leg. [Sp. Sess.] c. 6), Rev. St. 1911, arts. 5221-5234, relating to the same general subject, were amended and re-enacted. Act 1907, §§ 9, 30, appearing in Rev. St. 1911 as articles 2199-2201, were not changed. Code Or. Proc. 1911, art. 1195, as amended, provides that, when a male juvenile under 17 years of age is indicted for a felony, he may set up that fact, and the court shall have the power to dismiss the prosecution and try the juvenile as a delinquent. Rev. St. 1911, art. 5229, contains similar provisions, while article 2Í99 provides that the county or district court may order a delinquent child, charged with crime, to be prosecuted under the criminal laws of the state as other criminals, but that no child under 16 years of age shall be so prosecuted without the order being first entered. Held that, as repeals by implication are not favored, Rev. St. 1911, arts. 2299, 2200, were not repealed, and the district court had jurisdiction to try a juvenile offender.
    [Ed. Note. — Eor other cases, see Infants, Cent. Dig. § 18; Dec. Dig. ⅞^>18.]
    Davidson, J., dissenting.
    Appeal from Gregg County Court; J. H. Mcilaney, Judge.
    Oscar McCallen was convicted, of crime, and appeals.
    Affirmed.
    W. C. Shoults, of Longview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Upon proper complaint and information, appellant was convicted under the misdemeanor statute for making an illegal sale of whisky in prohibition territory, and his punishment assessed at the lowest prescribed by law. There is no statement of facts on the trial of the main case, nor any such statement on any question arising in it; so that we must take the case and questions arising as shown by the record.

As stated, the complaint and information are in every way regular and sufficient, charging appellant with making an unlawful sale of intoxicating liquors in said county after the law prohibiting the sale of such liquor was made a misdemeanor by the proper election, orders, and publication. Neither the complaint nor information in any way indicate the age of appellant. They were both made and filed in the county court on October 20, 1914. The number on the docket of said court was 2590. The case was tried October 27, 1914. On that date appellant filed his sworn motion to dismiss the cause and transfer it to the juvenile court, pleading and swearing that he was then under 16 years of age. It seems that the county judge preliminarily on said date docketed the cause on the juvenile record as No. 9. Whether he heard evidence as to the age of the appellant is not shown. Possibly it may be inferred that he did. What it was is in no way made to appear by this record. Whether he heard evidence or not, and whether it was shown on the hearing thereof that appellant was under 16, or even 17, years of age, is not shown. Whatever the facts may have been, the court, on said date, October 27, 1914, entered on the juvenile record of his court in cause No.' 9 an order stating:

“In the above-entitled cause, it appearing to the court that it is to the best interest of the child, Oscar McCallen, that he be prosecuted Under the criminal laws of the state on a charge of violating the local option law, it is therefore ordered, adjudged, and decreed by the court that said child, Oscar McCallen, be so prosecuted, and that all judgments, orders, and decrees, of this court heretofore entered relating to said child as a delinquent child be suspended.”

And. the record shows that he was tried in the county court in the number and style of the cause in which the original papers were filed. He waived a jury, and tried the case before the court. The court found him guilty, and, as stated, assessed his punishment at the lowest fixed by law.

He made a motion for a new trial on the grounds: First, that the court erred in overruling his motion to quash the complaint and information, on what ground it is not stated, and the record does not disclose; second, because of said judgment against him, claiming that the cause against him was originally filed in the county court as a misdemeanor case, that he filed his motion to dismiss the cause from the county court docket for the reason that he was under 16 years of age, that said court was without jurisdiction to try the cause, and that the case ought to be transferred to the juvenile court, claiming also that the court did transfer the cause and proceeded to try him on that docket; third, that the judgment was contrary to the law, in that he could not be punished by fine and imprisonment under the juvenile act, and that he should be proceeded against under that act exclusively. This motion was sworn to by appellant’s attorney. The court overruled the motion. 1-Ie excepted, gave notice of appeal, and brought the case here.

We could well conclude from this record that, notwithstanding appellant filed a sworn plea that he was under 16 years of age, when the court heard the evidence thereon, the proof did not sustain his plea, and upon that view alone properly affirm this judgment. However, there is such an intimation in the record that tire appellant was under the age of 16 years, and the matter is of such importance that we deem it appropriate to discuss and determine the question on the assumption that appellant was under the age of 16 years.

Prior to 1889 all persons convicted of crime, even under the age of 16 years, were liable to the same punishment as those above said age. If of felony, they had to be confined in the penitentiary; if of a misdemean- or, they were compelled to pay a fine and suffer a jail imprisonment, as might he imposed under the law. By Act April 2, 1889, p. 95, § 12, as amended in 1895, page 94, and incorporated in our C. O. P. 1895 as article 1145, it was for the first time required that, when a male person under 16 years of age was convicted of a felony, and his punishment assessed at imprisonment of 5 years or less, that he should not be confined in the penitentiary, but in the reformatory established and located at Gatesville, Tex. That act made no provision about a misdemeanor conviction.

The first act about juveniles was enacted by the Legislature April 5, 1907 (Laws 1907, p. 137), in ten sections, defining and prescribing the procedure for the trial of a “delinquent child.” Said articles 1145 and 1146 of the C. C. P. were amended by Act March 17, 1909 (Laws 1909, p. 100). The very next act of the same Legislature amended section 9 of the 1907 delinquent child act, and the next act (Laws 1909, p. 103), changed the name of the Gatesville institution, and prescribed regulations therefor.

The revisers of 1910-11 bodily copied the said act of 1907 in the O. G. P. as articles 1197 to 1206, inclusive, and copied said articles 1145, 1146, as amended in 1909, in the same chapter, as articles 1195 and 1196. At the same time they also embodied in the Revised Civil Statutes said act of 1907, as articles 2191 to 2201, inclusive, and the Legislature adopted both as thus contained. There is no difference between these several provisions in the R. S. and those copied in the procedure above noted. Contemporaneous with these several acts, the Legislature, in 1909 (Laws 1909, p. 103), amended the Revised Statutes, regulating the control of said Gatesville institution, and changed the name of it. This act was embraced in the-Revised Civil Statutes of 1911 under articles 5221 to 5234, inclusive.

Again, on April 2,1913 (Laws 1913, p. 214), the Legislature amended said articles 1195 to 1207 of the O. G. P., in lieu of those articles as they appeared in the Code entirely, making changes therein, except article 1205, which was expressly repealed. And on August 16, 1910, at the special session of the same Legislature, the said articles of the Revised Statutes 5221 to 5234 were amended and re-enacted with changes, and article 5234a was added thereto. Evidently it was the intention of the Legislature that all these laws were to be construed together as one whole. The said sections 9 and 10 of the act of 1907, embodied as articles 2199 and 2200 of the Revised Civil- Statutes, have neither been amended expressly nor repealed expressly. Taking the various enactments, we conclude that it was the intention of the Legislature not to repeal said articles 2199 and 2200. It is a universal rule that repeals by implication are not favored.

Said article 1195, O. O. P., as enacted in 1909 (Laws 1909, p. 100), and embraced in the Revised O. O. P. of 1911, provided that, when a male juvenile under 16 years of age was indicted for a felony, he, or any one for him, might file a sworn statement setting forth that he was under the age of 16. Thereupon the judge was required to hear the evidence, and, if satisfied that the defendant was less than 16 years of age, “said judge shall have authority to order such prosecution dismissed,” etc. This article, as amended by Act April 2, 1913 (Laws 1913, p. 214), was changed so that, if the male was under 17 years of age, he, or any one for him, could file such sworn statement, and the judge should hear evidence, and, if satisfied that he was under 17 years of age, “said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent,” etc. The language in this latter article would ordinarily be construed as mandatory or imperative; but, as stated, the Legislature left in full force said article 2200, Revised Statutes, which expressly provides that, whenever it shall appear to the district court that any person prosecuted in such court for a felony is under 16 years of age, “such court shall have authority to order such prosecution dismissed and to order such child to be committed to the juvenile court of the county * * * for such action and disposition as said juvenile court may think proper in the premises.” Again, by an act of the same Legislature at its special session August 16, 1913 (Laws 33d Leg. [Ex. Sess.] c. 6; Vernon’s Sayles’ Ann. Giv. St. 1914, art. 5229), by the amendment of article 5229 of the Revised Civil Statutes it was expressly enacted:

“Hereafter all male persons under the age of 17 years who shall be convicted of a felony, or other delinquency in any court within this state unless his sentence be suspended, as provided by law, or otherwise disposed of or unless by reason of the length of the term for which he is sentenced, is required under the law to be confined in the state penitentiary, shall be confined in the Texas Training School for Boys [the said Gatesville institution].”

And said article 1195, as amended April 2, 1913, clearly contemplates that a mere juvenile under 17 years of age may be legally indicted by the grand jury for any felony he may have committed. And it further contemplates clearly that, if found guilty of a felony, his punishment may be assessed at more than 5 years, when the offense carries a, greater punishment, for it provides that, if he be found to be a delinquent, and sentence be not suspended as provided by the laws of this state in cases of felony on first offense, then, and only then, shall he be committed to said Gatesville institution; clearly contemplating that, if his penalty is fixed at greater than 5 years, he shall be incarcerated in the penitentiary. Taking the whole legislation, we cannot believe that the Legislature intended that a male person under 17 years of age shall not, under any circumstances, be punished as a felon. Illustrations could be made which, it seems to us, would preclude such an idea. For instance, suppose that a male not quite 17 years of age and a female not quite 18 years of age should together, with firearms, rob some girl under 15 years of age. Then by force take her into some secluded place, and the woman, just under 18 years of age, should hold the little child, while the male just under 17 years old, should ravish her by force, and then, fearing the little girl had recognized them, and that they would be prosecuted for robbery and rape, they should then piurder her, thus committing three of the most horrible crimes known to our law or to civilization. And that this might be the case is no unreasonable supposition, for in Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858, and the companion case of Hutcherson v. State, 62 Tex. Cr. R. 1, 136 S. W. 53, it was shown that Hutcherson, a man, was assisted by Mrs. Campbell, who was then only a young woman about 16 years of age, committed rape upon a young girl under 15 years of age, and both were convicted therefor. And in Morris v. State, 39 Tex. Cr. R. 371, 46 S. W. 253, Morris, a man, first raped a little 6 year old blind girl, and then murdered her, because she threatened to tell her mother on him, and he was convicted for the murder with the death penalty assessed.

Again, as to charges for misdemeanor, said article 1205, C. C. P., in the Revised Code of 1911, provided that, when any male juvenile under 16 years of age shall commit a misdemeanor, he shall be tried in the county or district court having jurisdiction, under the laws of this state. This article was expressly repealed by said act of April 2, 1913, but, as stated above, said article 2199 of the Revised Civil Statutes was not amended nor expressly repealed. It provides:

“The county or district court, when it deems it proper and necessary, may order a child coming under the definition of this chapter [a delinquent], and which is charged with the commission of a misdemeanor, to be prosecuted under the criminal laws of this state as other persons charged with misdemeanors are prosecuted; but no child under 16 years of age shall be so prosecuted, without such order being first so entered.”

In our opinion, this article is still in force. It is clear that the trial judge in this case acted upon this statute, and made the order that appellant should be prosecuted, and was, as directed by this article.

Therefore this case must be affirmed; and it is so ordered.

DAVIDSON, J.

(dissenting).

The statutes discussed in the opinion and the opinion itself, I think, manifestly show that these statutes are so incongruous, antagonistic, and unintelligible they cannot be held operative, and should be held inoperative under requirements of article 6, Penal Code of 1911. These statutes, as I understand them, cannot be harmonized or construed to be valid. The Legislature should pass such legislation as would obviate these incongruous matters.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SPIKES v. STATE.
    (No. 3454.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    1. Criminal Law <g=>617 — Time of Trial.
    Where counsel for defendant announced ready for trial and made no request for additional time or any representation that he had not had time to prepare for the trial, such suggestion came too late after verdict, where it was not contended that appellant or his counsel was in any way surprised by the state’s testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1375; Dec. Dig. <§=>617.]
    2. Criminal Law <§=>958 — New Trial — . Grounds — Newly Discovered Evidence.
    Where alleged newly discovered testimony was known to defendant before the trial, and where the affidavit of the witness that she would give such testimony was not attached to the motion, or any reason given why it was not so attached, no sufficient reason for the granting of a new trial appeared.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. <§=> 958.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Spikes was convicted of theft from the person, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense’ of theft from the person, and his punishment assessed at two years’ confinement in the penitentiary.

The statement of' facts accompanying this record is prepared in violation of law, being in question and answer form. This is not permissible under the statute. However, the two questions presented in the motion for a new trial could be considered, if properly presented. The first is that appellant employed an attorney and relied on him to defend him, but on the day of the trial the attorney declined to do so, and the court then appointed an attorney to represent appellant. In the motion for a new trial it is contended that this attorney should have been given more time to prepare appellant’s defense. If counsel was not granted sufficient time, he should have moved to postpone the case before trial. As he announced ready for trial, without any request being made for additional time, or any representation to the court that he had not had ample time to prepare for the trial, such suggestion comes too late after verdict, as it is not contended that appellant, or his counsel, was in any way surprised by the testimony offered in behalf of the state.

In his amended motion for a new trial he alleges newly discovered testimony. The testimony that is alleged to be newly discovered was known as well to the defendant before the trial as after verdict. It is alleged that the party named delivered to him a certain amount of money on the day of the alleged theft. The affidavit of the witness that she would so testify is not attached to the motion, and no reason given why the affidavit is not attached. Under such circumstances, this ground of the motion presents no sufficient reason for the granting of a new trial. Cotton v. State, 4 Tex. 260; West v. State, 2 Tex. App. 209; Dove v. State, 3 Tex. App. 501.

The judgment is affirmed.
      <^=For other eases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    HOWARD v. STATE.
    (No. 3459.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    Criminal Daw <§=>419, 420 — Evidence — Hearsay.
    In a prosecution for assault and battery, testimony of witnesses as to statements made to them relative to the assault, by the person alleged to have been assaulted, being hearsay, should have been excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <§=> 419, 420.]
    Appeal from Newton County Court; W. E. Gray, Judge.
    W. W. Howard was convicted of aggravated assault and battery, and appeals.
    Reversed and remanded.
    Forse & Hamilton, of Newton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The information and complaint charge appellant, who was then and there an adult male, did commit an aggravated assault and battery in and upon the person of Carrie Howard, who was a female. The evidence shows they sustained the relation of husband and wife. She did not testify in the ease. There was no testimony introduced of a positive nature that appellant made any assault upon his wife. There are some circumstances from which it might be deduced that about half after 1 or 2 o’clock in the evening the voice of a female, supposed to be appellant’s wife, was heard at his residence. She was screaming or making a noise. It was shown that subsequently she had some bruises on her person. Witnesses were permitted to testify to statements which they said Mrs. Howard made to them, indicating that he had caught her by the hair and jerked her down. Two or three of these witnesses were permitted to testify to statements made by Mrs. Howard to. them, which would indicate that appellant 'had assaulted her. This testimony should have been excluded on the objection of appellant. Bills of exception were reserved on various grounds. These rulings of the court necessitate a reversal of the judgment. The testimony was purely hearsay. This is so obviously so, it is unnecessary to cite authority. Without these hearsay statements of the alleged assaulted party, the state does not show, except as above stated in this opinion, that there was any assault made. The court in his charge gave all the definitions of assault, among others, the use of a deadly weapon, etc. There was no evidence in the case that any deadly weapon was used, nor any intimation even from the hearsay statements. These bills, with reference to the hearsay statements of Mrs. Howard as to what the defendant did to her, show they were made in his absence and over his objection. It is deemed unnecessary to go into a discussion of these matters. Such hearsay statements are not admissible, and should have been excluded.

The judgment is reversed, and the cause remanded.


author: HODGES, J.

text:
    SMIDDY et al. v. CHAPMAN.
    (No. 1422.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 8, 1915.
    Rehearing Denied March 18, 1915.)
    Vendor and Purchaser <§=>228 — Estoppel— Bona Fide Purchaser.
    Where the defendant purchased land with notice that a deed of release of a valid lien executed by a former owner and placed of record had been executed by mistake, such deed worked no estoppel in favor of defendant as against plaintiff retaining and claiming a lien upon the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dee. Dig. <§=>228.]
    Appeal from District Court, Hopkins County; Wm. Person, Judge.
    Action by W. J. Chapman against Thomas J. Smiddy and others. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    D. Thornton, of Sulphur Springs, for appellants. R. D. Allen, of Sulphur Springs, for appellee.
   HODGES, J.

The appellee, W. J. Chapman, instituted this suit in the court below against H. W. Chapman, I. J. Wallace, and the appellant Thomas J. Smiddy. The purpose of the suit was to recover a judgment against H. W. Chapman for the sum of $610.-05 due upon a promissory note, and to foreclose a vendor’s- lien as to all the parties against a tract of 45 acres of land situated in Hopkins county. In a trial before the court without a jury a judgment was rendered in favor of the appellee for the amount of the judgment prayed for and for a foreclosure of the vendor’s lien. That portion of the suit only which sought a foreclosure of the lien was resisted in the trial below.

The facts developed were substantially as follows: W. J. Chapman, S. B. Chapman, and their sister, Mrs. Minnie Page, owned 95 acres of land in Hopkins county, of which that in controversy 4s a part. They jointly sold this land to H. W. Chapman and J. E. Chapman, and took as a part of the purchase price three promissory notes for $500 each. Each of these joint owners held one of the notes, but it appears that they considered themselves as joint owners in all of them. In the early part of 1904 I-I. W. Chapman and J. E. Chapman divided the 95 acres of land between them; J. E. Chapman taking 50 acres and H. W. Chapman 45 acres. Some time later J. E. Chapman sold his 50 acres to Walter Page, the husband of Mrs. Minnie Page. Page satisfied the balance due for his land by paying a part and his wife agreeing to relinquish her interest in two of the notes held by W. J. and S. B. Chapman. The latter then became the sole owners of the two remaining notes. After having paid off the purchase money due upon his tract of land, Page desired a release of the vendor’s lien theretofore existing. It was agreed by all of the parties in interest that this deed of release should be executed, and Page, accordingly, had one prepared which was signed and acknowledged by the appellee and his brother J. E. Chapman. This deed, however, was destroyed in the burning of Page’s residence some time thereafter, and was never recorded. In order to enable Page to procure a loan, he sought and obtained another release similar to the one which had been destroyed. The scrivener who prepared the instrument, however, through a mistake drew it so that upon its face it purported to release the vendor’s lien upon the entire 95 acres. Page, without discovering this error, presented the deed to the appellee for his signature, telling him that it released the lien only upon the 50 acres which he (Page) owned. The appellee, it appears, was very busy at the time, relied upon the statement made to him by his brother-in-law, and signed and acknowledged the instrument without reading it. The deed was then sent by mail to S. B. Chapman in Oklahoma for his signature The mistake was discovered by S. B. Chapman, and the attention of Page and the appellee called to it. It was then agreed by the parties that a new deed should be executed correctly describing the land to be released. In accordance with that intention, another deed of release was prepared which purported to release the lien only upon the 50 acres owned by Page, leaving it intact upon the 45 acres which had not then been paid out. By some mistake not explained by the testimony, the erroneous deed was placed of record, instead of the one which the parties really intended should be. Subsequent to this transaction S. B. Chapman died. In November, 1912, his widow, Mrs. E. M. Chapman, joined by her children, brought suit for the balance due upon the note held by her husband. In her petition she alleged that she was the sole owner of that note, and sought a foreclosure of the vendor’s lien upon the 45 acres owned by H. W. ’Chapman and which is the land in controversy. A judgment was rendered in her favor, and at the foreclosure sale thereafter the appellant, Smiddy, became the purchaser. He now claims to hold as an innocent purchaser, by reason of the record showing the release of the original vendor’s lien on the entire 95 acres. The appellee, who at that time resided in Oklahoma, knew nothing of the existence of this suit until after the judgment had been rendered and just before the land was to be sold. He attended the sale and gave notice to the appellant, Smiddy, who was intending to purchase the land, of his lien.

There is some controversy between the parties as to just what was said between Smid-dy and.the appellee in the several conversations which occurred respecting the interest claimed by the appellee. But there was ample evidence to justify the court in concluding as a fact that Smiddy had full notice that the deed of release which had theretofore been placed of record was executed by mistake, and that the appellee still retained and claimed a lien upon the land to secure the unpaid balance due upon the note held by him. A purchase with such notice would deprive Smiddy of any right to claim an es-toppel against the appellee because of the condition of the record.

It is unnecessary to discuss the various assignments in detail, as they all present different phases of substantially the same question.

We think the testimony fully justified the court in rendering the judgment he did, and that judgment is affirmed.
      <g=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON.
    (No. 7265.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 30, 1915.
    Rehearing Denied March 6, 1915.)
    Master and Servant <©=>286 — Inexperienced Servant — Duty to Warn — Unusual Danger — Question eor Jury.
    Whether there was a risk of more than ordinary character, of which an inexperienced servant, directed to tighten nuts on handholds on a box car, should have been warned, held, under the evidence in an action for his injury from a fall when a rusty nut broke, one for the jury.
    [Ed. Note. — For other cases, see Master and Servant,- Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dee. Dig. @=»2S6.]
    Error from District Court, Grayson County; M. H. Garnett, Judge.
    Action by F. M. Johnson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    C. C. Huff, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for plaintiff in error. Freeman & Batsell, of Sherman, for defendant in error.
   TALBOT, J.

The defendant in error, hereinafter called plaintiff, brought this suit against the plaintiff in error, hereinafter called defendant, to recover damages on account of personal injuries alleged to have been received by him July 11, 1913, while he wa.s in the employ of the defendant as a car repairer. Plaintiff alleged, in substance, that he was a young man just past 21 years of age at the time he received the injuries of which he complains, and prior to June, 1913, was wholly without experience in railroad work; that in June, 1913, he entered the service of the defendant as a common laborer at its shop in the city of Denison, Tex., his work consisting mainly in getting material for other employes; that the defendant, its agents and employes, knew of his inexperience and lack of knowledge in reference to railroad work, and, so knowing, one of its foreman, named Conley, on the 10th day of July, 1013, directed plaintiff to go to defendant’s yards at Ray and begin work as a car repairer under the direction of another foreman of defendant, named Jones; that on-the morning of July 11,' 1913, said Jones put plaintiff to work tightening nuts on handholds on a box car with a monkey wrench; that while engaged in tightening and screwing down a nut on a handhold on the top of said car, as directed by said foreman, Jones, and while standing on the third handhold from the top of said car, and retaining his position by holding to a handhold with his left hand and tightening said nut with said wrench with his right hand, said nut broke, parted, and caused plaintiff to fall backward to the ground a distance of eight or nine feet, seriously injuring him, without fault on his part; that at the time he was directed to do said work he was wholly without experience as a car repairer, knew nothing of the duties and hazards incident to said work, and that both of said foremen of the railway company knew of his lack of knowledge and of his inexperience; that said work was unusually dangerous to one inexperienced as plaintiff was, and plaintiff, by reason of his inexperience, did not know and appreciate the risks and dangers incident thereto; that said nut which broke and caused plaintiff to fall to the ground and be injured was old, defective, worn, unsafe, and not fitted for the use and purpose for which it was designed and used, and said condition of the same rendered it dangerous and unsafe to plaintiff in doing the work he was engaged in doing at the time he fell; that by reason of the premises it became the duty of the defendant company, its said agents and foremen, to instruct and warn the plaintiff of the risks, hazards, and dangers incident to the work he was required to do, but that such duty was not performed, and, as a proximate result thereof, plaintiff was injured as alleged.

Defendant answered that it had no information as to whether plaintiff fell from a car by reason of a defective nut that he was fixing, but believed and charged the fact to be that, if plaintiff did fall, the fall was occasioned by reason of his wrench slipping in tightening a nut on the car on which he was working at the time of the accident; that it is informed and believes, and charges the fact to be, that plaintiff understood the nature of the work in which he was engaged at the time of the accident and injury, if any injury he sustained, and the dangers incident thereto. It denies that the nut with which plaintiff was working at the time of the accident was old and defective, and that its condition caused plaintiff’s injury, and denies that it was guilty of negligence in permitting the nut to be in the condition it was in at the time of plaintiff’s injury. It denies that there was a very great and unusual danger in the work plaintiff was engaged in or that it was its duty to warn plaintiff. Defendant further pleaded; that the injuries complained of by plaintiff, if any such were in fact sustained, were proximately caused and contributed to by plaintiff’s own negligence and want of ordinary care in do- ’ ing the work he was engaged in at the time of the accident, and that said injuries, if any were received, resulted from one of the risks assumed by plaintiff; that plaintiff had full notice, or by the exercise of ordinary circumspection on his part would have had full notice, of the defects and risks complained of in ample time to have avoided injury by reason .thereof.

The case was tried before the court and a jury March 23,1914. At the conclusion oí the evidence the defendant requested the court to give a special charge directing the jury to return a verdict in its favor. This charge was refused, and the issue of negligence on the part of the defendant in failing to warn the plaintiff, and the issues of assumed risk and contributory negligence on the part of the plaintiff were submitted to the jury. A verdict and judgment having been rendered for plaintiff, the defendant prosecuted this writ of error.

There is but one assignment of error presented. That assignment challenges the correctness of the court’s action in refusing to instruct a verdict in favor of the defendant as requested by it. The propositions advanced under the assignment touching the merits of the case are:

First. “The rule requiring the master to use ordinary care to furnish the servant with safe means and appliances for the performance of his duty has no application to those things that the servant is employed to inspect and repair.”
Second. “The duty to instruct and warn the servant does not rest upon the master, except where the work the servant is engaged in is attended with great and unusual danger which is known to the master and not known to the servant, and to guard against which special knowledge on the part of the servant is required.”

We are of opinion there was no error in refusing the peremptory instruction. It is not claimed by any assignment of error presented in this court that the evidence showed conclusively that the plaintiff was guilty of contributory negligence, or that he assumed the risk incident to the work he was directed' •to do. These issues were submitted to the jury and resolved in favor of the plaintiff. The contention, in effect, is simply that it was not incumbent upon the defendant, under the undisputed facts in the case, to instruct the plaintiff in the work he was required to perform or to warn him of its attendant hazards. Therefore defendant, in failing to give such warning, had not been guilty of actionable negligence, and was not liable in damages for the injuries of which the plaintiff complains. It is well settled, we think, as contended by the plaintiff, that the duty to instruct and warn the servant rests upon the master when the work the servant is engaged in doing is attended with unusual danger, which is, or by the exercise of proper * care should be, known to the master, and not known to the servant, where by reason of his inexperience the servant is actually and excusably ignorant of such danger.

The statement of facts sent to this court contains only the testimony of the plaintiff. According to his statements, as pointed out by his counsel,’ he was 21 years and 2 months old at the time he entered the service of the defendant. Before that he had no experience in railway service whatever. Untii he was about 16 years of age he lived on a farm, and did such farm work as boys of that age usually do. After that he attended school and did a little work as driver of an express wagon in Oklahoma. He worked as a common laborer for defendant 2 or 3 weeks in the machine shops at Denison. He was then transferred to the car-repairing department in the defendant’s yards at Ray. At the time he was employed as a car repairer, he told the foreman who employed him, and the one undér whose direction he was working, that he had had no experience as a car repairer, and asked the foreman who was directing his work to come around pretty often to advise him. The foreman who employed him told him there would be a man to show him what to do in the car-repairing department and that he would soon “catch onto it.” He had never had any experience as a carpenter. The first day of his service as a car repairer was spent ' in furnishing material for and waiting upon other car repairers. He had never seen any nuts on handhold bolts tightened. He testified :

“I did not know of any danger involved in that. He did not tell me anything about it. He did not give me any warning whatever or instructions. I was standing on the third step from the top ‘of the box car,’ holding with my left hand on top and tightening ‘the nut on bolt’ with my right. This nut was kind of rusty, and it took a right smart of strength to turn it. I had to pull on several of them a little hard, and this one broke. The nut on the handhold broke, and my hold gave way, and I fell kinder on my hip and side. I fell sort of backward. I struck the ground with much force. At that time I weighed 182 pounds. When this nut broke or parted, I was about 10 feet from the ground.”

On cross-examination he testified:

“As to whether I knew that rusty iron in the course of time would get rotten, I don’t know. I never fooled with any rotten iron, and never had any experience with any. As to whether I knew without any experience that a piece of iron laying out in the weather a long time would get rotten — wasn’t as good as a piece that hadn’t been used 'and grown rusty — I didn’t know it was rotten. As to whether it wasn’t as strong as a piece of iron that had not layed out and wasn’t rusty, I didn’t know that it made much difference. With reference to whether 1 thought a rotten piece of iron was just as strong as a piece not rusty, I didn’t know it was eaten very deep. It would be owing to how deep it was eaten. I have never seen a rusty piece of iron that was nearly ready to fall to pieces. I knew, if I fell' off that ladder, it was liable to bruise me up some. I didn’t have any reason to think I would fall. I knew, if I fell, it would hurt me.. I know now, if the wrench slipped on the handhold, I would fall. I knew then, if I lost my hold on that ladder, I would fall. * * * As to what complications there were about them (meaning tools), I did not have enough experience to know. ⅜ ⅜ ⅜ If I had had any experience, and would have known those taps were rusty and liable to break, or if I had been told so, I could have prevented the fall; if I had been told so; I didn’t know anything about that. I didn’t know it was rusty enough to pull apart. ⅜ * * As to whether I mean to say I didn’t expect that to break, I didn’t see why it should.”

The rule applicable to inexperienced or youthful servants is laid down in 26 Cyc. page 1173, as follows:

“Where the master knows, or ought to know, the dangers of the employment, and knows, or ought to know, that the servant, by reason of his immature years or inexperience, is ignorant of, or unable to appreciate, such dangers, it is his duty to give him such instruction and warning of the dangerous character of. the employment as may reasonably enable him to understand its perils. But the mere fact of the servant’s minority does not charge the master with the duty to warn and instruct him, if he in fact knows and appreciates the danger of the employment; and generally it is for the jury to determine whether, under all the circumstances, it was incumbent upon the master to give the minor, at the time of his employment, or at some time previous to the injury, instructions regarding the dangers of the work, and how he could safely perform it.”

That the work the plaintiff was doing when hurt was more than ordinarily dangerous, and that the defendant knew, or ought to have known, the dangers incident thereto, can hardly be denied. And that the defendant knew the plaintiff was inexperienced in said work is established by the undisputed evidence. And if the uncontroverted evidence docs not conclusively show that the plaintiff, by reason of his inexperience, was ignorant of or unable to appreciate the dangers of his employment, it was sufficient to require the submission of those questions to the jury for their determination. The evidence also warrants the conclusion that the nut which broke and caused the plaintiff to fall had become rusty and weakened by decay, and that such condition was neither known to plaintiff, nor obvious to persons of ordinary intelligence. But the law is that if, through youth, inexperience, or other cause, a servant is incompetent fully to understand and appreciate the danger, although patent and obvious, it is the duty of the master to warn and instruct him fully, and, failing so to do, he is liable. 26 Cyc. 1176; Wood, Master and Servant, § 349.

The plaintiff testified, in- effect, that he had no reason to believe or know that the nut he was attempting to tighten would break, although he knew that if he fell from his position on the car he would be injured, that he had never seen a nut on the bolt of a handhold tightened, did not know that there was any danger involved in such work, and that he had received no warning whatever in regard thereto. He further testified that he had had no experience with rusty or rotten iron and did not know the nut in question was rotten. As to whether he knew the nut was not as strong as one that had not been exposed to the weather, and was not rusty, he said: “I did not know it made much difference.” He also stated that if he had had any experience, and had known- the nut was rusty and liable to break, or if he had been informed that it was liable to break, he could have prevented the fall; that he did not “know ánything about that, and did not see why it should break.” So the evidence presents a ease where the master directed an inexperienced servant to tighten a nut of a handhold on top of a box car some 12 or 15 feet from the ground, which the master knew, or ought to have known, had become rusty, weakened, and liable to break because of long use and exposure to the weather. He failed to inform the servant of the condition of the nut, or to warn him that it was liable to break, or otherwise suggest to him the dangers incident to the work, and, as a probable result of such failure, the servant is injured.

Such a case, we think, comes “within the principle, so often declared, that the master, engaged in a dangerous business, must not expose an inexperienced servant to the hazards of it without warning him of their existence and instruction as to the means of avoiding them.” The ease is therefore distinguishable from San Antonio Gas Co. v. Robertson 93 Tex. 503, 56 S. W. 323, and not ruled thereby. Surely it cannot safely be said, as a matter of law, that the risk to which the defendant in error was exposed was of so ordinary a character as not to require some warning of the probability of the breaking of the nut.

We do not believe we would be warranted in reversing the judgment of the district court, and it is affirmed.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    SOVEREIGN CAMP WOODMEN OF THE WORLD v. LILLARD et al.

    (No. 5384.)
    (Court of Civil Appeals of Texas. Austin.
    June 17, 1914.
    Rehearing Denied Feb. 24, 1915.)
    1. Insurance <§=>723 — Mutual Benefit Insurance-Statements in Application.
    Where the application to a fraternal insurer contained a provision whereby the applicant warranted that all representations were true, false representations as to his use of intoxicants and previous medical history will avoid the certificate, where they were such that it would not have been issued had the truth been told.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. <§=>723.]
    2. Insurance <§=>723 — Mutual Benefit Insurance-Applications.
    It is the duty of one applying for a policy to be issued by a fraternal insurer to read over the answers written in the application before signing, and, in case of failure to read over such application, the applicant is bound by the answers as written.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. <§=>723.]
    3. Insurance <§=>695 — Mutual Benefit Insurance — Examining Physicians.
    A private physician who, in the absence of the regular examiner, examined the applicant for a policy to be issued by a fraternal insurer is not the agent of the insurer, where he was procured by a friend of the applicant.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1836; Dec. Dig. ⅞⅝^693.]
    4. Insurance <®=o'724 — Mutual Benefit Insurance-Liability of Insurer.
    Where the certificate issued by a fraternal insurer, which was referred to in the application, provided that no local officer or employs was authorized to waive any of the conditions of the certificate or by-laws, a medical examiner, by falsely answering questions in the application, which Was signed by the applicant, and which declared that the applicant warranted the truth of all representations therein, cannot estop the insurer from relying on the falsity of such representations to avoid the policy; such action being without the scope of the examiner’s authority.
    [Ed. Note. — For other cases, see Insurance, Cent.Dig. §§ 1837,186(5-1868; Dee.Dig. <⅜=>724.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by J. W. Lillard and another against the Sovereign Camp Woodmen of the World. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. Eidson & Eidson, of Hamilton, for appellees.

       Writ of error pending in Supreme Court.

   RICE, J.

On the 22d day of August, 1910, appellant issued to E. P. Lillard, now deceased, a certificate of insurance for $2,000; his mother, Mrs. W. A. Lillard, being named as beneficiary therein. 1-Ie died on the 10th day of April, 1912, at which time he had paid all dues, assessments, etc., and was a member in good standing in said order. Proofs of death having been made, and refusal of payment on the part of appellant, this suit was brought by his mother, joined by his father, J. W. Lillard, to recover the amount named in said certificate.

The appellant based its defense chiefly on the contention that E. P. Lillard, the deceased, in his application, made certain statements which he warranted to be true, and upon the faith of which the appellant acted in issuing the certificate, all of which it is alleged were material to the risk. These were: First, that he had never had fits or convulsions or any other disease or injury; second, that he had not consulted or been attended by a physician for any disease during the past five years; and, third, that he did not drink wine, spirits, or malt liquors of any kind or in any quantity — all of which statements were alleged to be untrue, and known by tbe insured to be so at the time he made them.

Appellees contend, however, that neither they nor the insured were bound by said statements, because the physician who made the examination of deceased failed to ask him any of the above questions, but wrote tbe answers thereto himself in said application and he (deceased) signed said application in ignorance of its contents, never having read it over, and was therefore not bound thereby. Besides, appellees allege that said physician was the camp physician and agent of appellant, for which reason it waived such, defense, and was estopped to urge it.

There was a trial before tbe court without a jury, resulting in a judgment, in favor of appellees in the sum of $1,500, from which this appeal is prosecuted.

The first four assignments question the correctness of the judgment on the ground, that by the express terms of the beneficiary certificate, it was provided that it should be forfeited in tbe event any of tbe statements and declarations contained in the application for membership, and upon the faith of which the certificate was issued, were shown to be untrue. The deceased was solicited to become a member of tbe Woodmen of the World, and, a formal application for such admission having been favorably considered by the local camp, he, together with a friend, one Hammaek, went to the office of the local camp physician for examination, but found him absent. They then sought a private practitioner, who made the examination for him and wrote out the answers to the questions and certified to their correctness, after which the deceased, though above average intelligence, and able to read and write, signed same without reading it. The other questions in the application, relating to the age of the parents and grandparents of the deceased, were read over to him, and his answers thereto written down; and, while there is some conflict in the evidence as to whether or not the second question above set out was read over to the insured before his answer thereto was written down by tbe physician, there seems to be none as to the other two questions, it appearing that the answers thereto were made by the physician himself, without reading them over to the insured. There was testimony to the effect that this physician had been previously applied to by Hammaek to know whether or not deceased could pass the examination, on the ground that it. was generally known that he had had epileptic fits, and the physician assured I-Iammack that, if he made the examination, deceased would get through. This, however, was denied by the physician, but the court found that, while said physician may not have known of Lillard’s condition from having seen him have a fit, yet that he had heard and knew of the same by general repute.

The proof establishes beyond controversy that, for a number of years prior to this examination, Lillard had indulged in drinking intoxicating liquors; that he had had and was subject to epileptic fits; and that he had consulted a physician within less than five years from the date of such examination relative to such disease, who had advised him that he had epileptic fits, and that he should quit drinking, so that, the answers to each of said questions were shown to have been untrue. Tbe Sovereign Physi•cian of appellant testified that no certificate could be issued by said order until be had approved tbe application therefor; that be did approve and pass upon tbe application of E. P. Dillard; that, if said application bad contained tbe answer “Yes” to either of tbe questions above set out, be would not have approved tbe application or authorized tbe issuance of tbe certificate. It was shown that Dillard during tbe examination observed tbe physician in writing down and filling out tbe blanks, and writing tbe answers to tbe questions above set out. Over tbe signature to bis application was the following:

“I hereby certify, agree and' warrant that all the statements, representations and answers in this application, consisting of two pages,' as aforesaid, are full, complete and true, whether written by my own hand or not.”

Tbe beneficiary certificate sued upon specifically referred to tbe application, and contained tbe following statement:

“If any of the statements or declarations in the application for membership, and upon the faith of which this certificate was issued, shall be found in any respect untrue, this certificate shall be null and void, and of no effect, and all money which shall have been paid, and all rights and benefits which have accrued on account of the certificate, shall be absolutely forfeited without notice or service.”

It also provided that tbe constitution and laws of tbe order should be part of tbe contract. Tbe constitution and laws of tbe order, among other things, provided:

“Sec. 26a. Applications must be approved by the Sovereign Physician before the beneficiary certificate shall be issued, and he shall have power to determine the amount of benefits. Applications that bear evidence of irregularities or indicate physical unsoundness shall be rejected.”
Section 60: “This certificate is issued in consideration of the representation, warranties and agreements made by the person named herein in his application to become a member,” etc.

Tbe application likewise contains tbe following provisions:

“I agree that any untrue statements or answers made by me in this application or to the examining physician, or any concealment of facts in this application or to the examining physician, intentionally or otherwise, * * * or if I fail to comply with the laws, rules and usages of the order now in force or hereafter adopted, my beneficiary certificate shall become void, and all rights of any person or persons thereunder shall be forfeited.”

It appears that, while Lillard did" not request to see or read tbe application or paper from which said physician propounded tbe questions to him at tbe time he examined him, no one prevented him from doing so; nor was tbe application falsely read, or any misstatements as to its contents made to him by tbe physician, or any one else, before bis signing same.

Tbe law seems to be settled in this state that, under tbe circumstances disclosed by this record, tbe court erred in rendering judgment against appellant. Tbe statements in- tbe application were material, and without which tbe risk would not have been assumed by tbe order. See Praetorians v. Holmig, 100 Tex. 623, 103 S. W. 477; Id., 105 S. W. 846; Security Mut. Co. v. Calvert, 39 Tex. Civ. App. 382, .87 S. W. 899; Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893; Scottish Union Ins. Co. v. Wade, 127 S. W. 1186; Supreme Ruling Mystic Circle v. Hansen, 153 S. W. 351; Supreme Council v. Gambati, 29 Tex. Civ. App. 80, 69 S. W. 114; Supreme Lodge v. Payne, 101 Tex. 449, 108 S. W. 1160, 15 L. R. A. (N. S.) 1277; Ætna Ins. Co. v. Holcomb, 89 Tex. 404, 34 S. W. 915; Guinn v. Insurance Co., 31 S. W. 566; Morrison v. Insurance Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63; Fitzmaurice v. Mutual Life, 84 Tex. 61, 19 S. W. 301; Delaware Ins. Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. 867; Ash v. Fidelity Mutual, 26 Tex. Civ. App. 501, 63 S. W. 944; Sovereign Camp W. O. W. v. Gray, 26 Tex. Civ. App. 457, 64 S. W. 801.

In Equitable Life Ins. Co. v. Hazlewood, supra, it was held that one warranting statements in tbe application to be true, whether written by himself or not, is bound by a false statement written by another in such application, and such statement, if' shown to be false, avoids tbe policy.

“One signing application warranting answers and statements to be true, agreeing that such answers should be the basis of the contract, if such statements are shown untrue, the court should have instructed a verdict for defendant.”

See Supreme Lodge Knights and Ladies of Honor v. Payne, 101 Tex. 449, 108 S. W. 1160, 15 L. R. A. (N. S.) 1277; Mutual Life Co. v. Pinson, 94 Tex. 555, 63 S. W. 531.

In Supreme Mystic Circle v. Hansen, supra, it is held, as shown by tbe syllabus, that false representations in a petition for reinstatement in a mutual benefit association- will avoid tbe insurance when material, though ignorantly made, especially where their truth is expressly warranted, and made á condition precedent to tbe issuance of tbe insurance contract.

In iEtna Ins. Co. v. Holcomb, supra, it is held that tbe insured is bound by tbe terms of bis policy, whether be knows them or not, when no facts are shown which would prevent bis knowing same.

In Morrison v. Insurance Co., supra, it was held that every person capable of making a contract, in tbe absence of fraud, misrepresentation, etc., is held to know tbe words used in such contract, their meaning and legal effect.

In Fitzmaurice v. Mutual Life, supra,, it was- said that tbe binding force of statements and answers cannot be avoided by evidence that tbe applicant did not know tbe contents of tbe application.

In Delaware Ins. Co. v. Harris, supra, it is said, when insured is put upon notice that certificate is issued on statements in application, be must see that' answers and statements are correctly recorded, and, if lie fails to do so, cannot claim estoppel.

In Ashe v. Fidelity Mutual, supra, it is held that statements .to' the effect that the insured has not been attended by a physician within a certain time are material, and, if false, would render the policy void. To the same effect is Sovereign Camp v. Gray, supra.

Notwithstanding the statements were material and untrue, and the insured warranted them to be true, and the policy was issued upon the faith thereof, still appellees contend that neither he nor they was or are bound thereby, for the reasons: First,' that he did not write the answers to said questions, but the same were written by the physician, and that he signed the application without reading it; and, second, it is also urged by them that the physician was the agent of the company, whereby appellant waived said provisions of the policy regarding its forfeiture, and is estopped thereby.

With reference to the first contention, it seems clear, under the authorities, that it was the duty of the insured, before signing the application, to read the same over, which, if he had done in this instance, would have disclosed to him the misstatements therein made, and it would have been his duty to have them corrected. Failing to do this, he was guilty of negligence, which, it seems to us, would bar any right to recover under the certificate. In Ryan v. World Mutual Life Ins. Co., 41 Conn. 168, 19 Am. Rep. 490, it is held that the signing of an application without reading it or hearing it read is inexcusable negligence, and that the party is bound to know what he signs. This case is quoted from and cited with approval in N. T. Life v. Fletcher, 117 U. S. 519, 6 Sup. Ct. 837, 29 L. Ed. 934. See, also, Delaware Ins. Co. v. Harris ; ¿Etna Insurance Co. v. Holcomb; Supreme Ruling, etc., v. Hansen; Fitzmaurice v. Mutual Life Ins. Co., supra.

Concerning the second contention, the record discloses, we think, that the physician who prepared the application was not the agent of the company, and the insured knew this at the time he signed the application.

But apart from this, even if the physician was the agent of the company, under the certificate he had no authority to waive any of the conditions upon which it was issued. The certificate which is referred to in the application has a clause reading:

“No camp nor officer thereof, nor any officer, employs, or agent of the Sovereign Camp, has authority to waive any of the conditions of this benefit certificate, or of the constitution or laws of the order.”

These are sufficient reasons, we think, within themselves, to defeat appellees’ contention in this respect. In addition thereto, however, even if the physician who took the application should be regarded as the agent of the company, still this fact could not be relied upon to sustain appellees’ position, because the court found as a fact that at the time of the application and medical examination of the insured, the acting camp physician was fully advised of the facts as to the deceased’s history; that is, he knew about his fits or spells, knew that he drank, and knew the extent of his drinking. ■ It was therefore incumbent upon him to disclose these facts in said answers. In Ryan v. World Life Ins. Co., supra, where the agent of the company (whose authority was limited to receiving and forwarding applications, countersigning and delivering policies approved by the company, and collecting premiums) fraudulently put down answers to interrogatories in an application which were untrue in themselves and were not in fact answers given by the applicant, and which application the insured signed without reading, it was held that the company was not bound by the policy issued upon such application; the court saying, among other things:

“In this case we are asked to go further than any case has yet gone, and clothe the agent with an authority not given him in fact, and to hold the principal responsible for an act which could not by any possibility have been contemplated as being within the scope of the agency. In most, if not in all, of the cases in which the act of the agent has been regarded as the act of the principal, the act has been the natural and probable result of the relations existing between the parties, or so connected with other acts expressly authorized as to afford a reasonable presumption that the principal intended to authorize it. But it cannot be supposed that these defendants intended to clothe this agent with authority to perpetrate a fraud upon themselves. That he deliberately intended to defraud them is manifest. He well knew that, if correct answers were given, no policy would issue. Prompted by some motive, he sought to obtain a policy by means of false answers. His duty required him not only to write the answers truly as given by the applicant, but also to communicate to his principal any other fact material to the risk which might come to his knowledge from1 any other source. His conduct in this case was a gross violation of duty, in fraud of his principal, and in the interest of the other party.- To hold the principal responsible for his acts, and assist in the consummation of the fraud, would be monstrous injustice. When an agent is apparently acting for his principal, but is really acting for himself, or third persons,. and against his principal, there is no agency in respect to that transaction, at least as between the agent himself or the person for whom he is really acting and the principal.”

The court further says:

“In the second place, if the rule is to be applied to this case, it is by no means certain that it will aid the plaintiff. The fraud could not be perpetrated by the agent alone. The aid of the plaintiff or the insured, either as an accomplice or as an instrument, was essential. If she was an accomplice, then she participated in the fraud, and the case falls within the principle of Lewis v. Phoenix Mut. Life Ins. Go., 39 Conn. 100. If she was an instrument, she was so because of her own negligence, and that is equally a bar to her right to recover. She says that she and her husband signed the application without reading it and without its being read to them. That of itself was inexcusable negligence. The application contained her agreements and representations in an ■ important contract. When she signed it, she was bound to know what she signed. The law requires that the insured shall not only, in good faith, answer all the interrogatories correctly, but shall use reasonable diligence to see that the answers are correctly written. It is for his interest to do so, and the insurer has a right to presume that he will do it. He has it in his ipower to prevent this species of fraud, and the insurer has not.”

While there is no evidence in the instant case tending to show that the deceased knew that false answers were written in said application, yet he was the instrumentality by and through which these statements were given potentiality. If he had read the instrument, which it was his- duty to do, he would have discovered that his answers were untrue; and failure to do this was such negligence as to defeat the right of recovery by his beneficiary in said certificate. In this particular the Ryan Case is cited and quoted with approval in the case of N. Y. Ins. Co. v. Fletcher, supra. ■ To the same effect is the decision of Mr. Justice Jenkins in Modern Woodmen of America v. Owens, 130 S. W. 858, wherein an application was signed, warranting that the applicant was in good health. It was returned for correction later. At the time the corrections were made, the applicant was seriously ill, which fact was known to the local physician. It was insisted that the knowledge of the local physician in this regard was the knowledge of the company, and that, by thereafter approving his application and issuing the certificate, it waived the condition of the application. The court said:

“If the answers in said application are to be treated as having been made as of the date of correction of said certificate, and Owens then had typhoid fever, as both he and the local physician well knew, and he answered that he was not sick, and the physician certified that his answers were true and approved the application, such act was a fraud upon the company, in which the applicant knowingly participated, and would not have been within the scope of such physician’s authority, either actual or apparent.”

In Supreme .Lodge v. Payne, supra, Mr. Chief Justice Brown held that where the medical examiner did not put down the answers exactly as given, but wrote his own conclusions, the company was not estopped from questioning the falsity of the statements, and held the policy void, and said that a peremptory instruction should have been given for defendant.

The above cases, we think, are decisive of the questions here raised, and from them we feel justified in holding that, even if it be conceded that the physician who made the examination was acting as agent of the company, still the company was not bound, under the circumstances of this ease. The case seems to have been fully developed. Therefore it becomes our duty to reverse the judgment of the court below and here render the same in favor of appellant; and it is so ordered.

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

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes