text:
    KIMMONS et al. v. ABRAHAM.
    (Court of Civil Appeals of Texas. Galveston.
    May 15, 1913.)
    1. Appeal and Error ■(§ 742) — Assignments op Error — Propositions.
    A proposition that in appointing an administrator de bonis non the court should take notice that the applicant was selected by attorneys whose interest was adverse to the estate is not germane to an assignment of error to the overruling of contestant’s motion to require the attorneys for the applicant to state their authority and whether they represent the. widow, where the answer to the motion admits that they do represent the widow, and are acting for the applicant to whom she has given a waiver of her right to administer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Attorney and Client (§ 113) — Duty to Client — Acting por Parties Adversely Interested.
    Under a statute authorizing the widow to waive her right to administer in favor of any ■qualified person, there is no impropriety in her attorneys selecting some one to act for her, and then representing the person selected in his application for appointment as administrator de bonis non, so long as they do not advise him in any matter concerning the claim of the widow.
    [Ed. Note. — For other cases, see Attorney and ■Client, Cent. Dig. § 229; Dec. Dig. § 113.]
    3. Evidence (§ 332) — Documentary Evidence — Record Books op the County Court.
    Under Sayles’ Ann. Civ. St. 1897, art. 1850, expressly providing that the- record books of the county court or certified copies thereof shall be evidence in any court in the state, an applicant for appointment as administrator de bonis non on trial de novo in the district court can rpad in evidence the orders of the county court made in the administration of the estate from the record books, and need not produce certified copies thereof.
    [Ed. Note. — For other eases, see Evidence, ■Cent. Dig. §§ 1237-1246; Dec. Dig. § 332.]
    4. Executors and Administrators (§ 19)— Renouncement op Right to Administer— Requisites.
    Under Sayles’ Ann. Civ. St. 1897, art. 1916, providing that a waiver of the widow’s right to administer may be made in open court or by power of attorney filed with the clerk of the county court, where an application for letters of administration is tried de novo on appeal to the district court, a waiver filed with the clerk of the district court may be received in evidence.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 78-82; Dec. Dig. § 19.]
    5. Executors and Administrators (§ 20*)— Renouncement op Right to Administer— Identity op Signer.
    A recital in the waiver of a right to administer that the signer thereof was the widow •of the decedent, who had remarried, is not evidence of that fact, and the waiver is inadmissible in an action for the appointment of an administrator de bonis non, in the absence of other evidence identifying the signer.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 83-105; Dec. Dig. § 20.]
    6. Evidence (§ 265) — Admission—Pleading Subsequently Withdrawn.
    Such identity is not established by the allegations in the original answer which was substituted by an amended answer, where the original answer was not put in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.]
    Appeal from District Court, Brazoria County; Wells Thompson, Judge.
    Application in the county court by A. C. Abraham for appointment de bonis non against Elmer C. Kimmons and others, contestants. On trial de novo on appeal to the district court, judgment for the applicant, and contestants appeal.
    Reversed and remanded.
    Elmer P. Stockwell, of Angleton, for appellants. H. Grass, of Alvin, and Munson & Munson, and Masterson & Rucks, all of Angle-ton, for appellee.

      For other cases see same tonic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

Appellee, A. C. Abraham, filed application in the county court of Brazoria county to be appointed administrator de bonis non of the estate of A. J. Kimmons, deceased. This application was contested by the appellants, Elmer C. Kim-mons, Maude Jackson, joined by her husband, Tom Jackson, Yirgie May Abbott, joined by her husband, George C. Abbott, Myrtle Cartee, joined by her husband, Guy W. Car-tee, and Luke Kimmons by his guardian, Elmer P. Stockwell, all of whom objected to the appointment of an administrator de bonis non of said estate on the ground that no necessity for said administrator existed, but asked that, in event further administration of said estate was found necessary, appellant Elmer C. Kimmons be appointed such administrator. The trial in the county court resulted in" an order granting the application of appellee Abraham, and appointing him administrator de bonis non of said estate. The contestants appealed from said order to the district court of said county, and upon a trial de novo in that court a like judgment was rendered. From this judgment the contestants below prosecute this appeal.

The records show that an administration was opened in the county court of Brazoria county upon the estate of A. J. Kimmons, deceased, on April 22, 1903, and Jesse Hobbs was appointed administrator of said estate. Hobbs duly qualified as such administrator on April 28, 1903, and on May 30, 1903, filed an inventory and appraisement of the property of said estate. This inventory, which was approved July 15, 1903, shows the following to be all of the property belonging to said estate:

“Community property: Thirty acres of land being the homestead and described as follows: Lots seventeen (17), nineteen (19), and twenty (20), containing ten aer,es each in the subdivision of Section 25, Abstract 412, granted Edwin C. Lewis, H. T. & B. Survey, value $1,500.00.
“Personal property: One mare of the value of $30.00. Two cows of the value of $30.00.
“On which personal property the Alvin Exchange Bank holds a chattel mortgage for the sum of two hundred and seventy five dollars, also a lot of old plunder consisting of farm implements, old sash, household and kitchen furniture, hot bed for plants in had condition, of the probable value of $10.00.
“Total value $1,570.00.”

On the day the inventory was approved the court on the application of Tj. M. Kim-mons, widow of the deceased, entered an order making an allowance of $300 for a year’s support of said widow and the two minor children of herself and the deceased, and ordering the administrator to pay same out of the assets of the estate. On July 16, 1906, an order was entered reciting that no part of said allowance had been paid; and, there being no funds in the hands of the administrator to pay same, he was ordered to sell the land described in the inventory to raise the money necessary to pay said allowance. No sale of the land was made under this order. On April 16, 1907, the court accepted the resignation of Jesse Hobbs as administrator, approved his report showing what funds had come into his hands and his disposition of same, and released and discharged him from further obligation on his bond as such administrator. This report shows that $100 _ had been paid the widow upon said $300 allowance. Neither the report or the order discharging the administrator shows any disposition of the property of the estate described in the inventory. The contestant, Elmer C. Kimmons, is the eldest son of the deceased, A. J. Kimmons, and the other contestants are the brother and sisters of said Elmer, said sisters being joined in this contest by their respective husbands. Neither the appellee, A. O. Abraham, nor the appellant Elmer C. Kimmons is disqualified to act as administrator of said estate.

The first and second assignments of error complain of the ruling of the trial court refusing to grant a motion filed by appellants to compel the attorneys representing the appellee to show their authority to act as his attorneys, and to disclose whether or not they represented the widow of the deceased, and have a contract with her by which it is agreed that they shall receive one-half of whatever she may get from said estate, and shall “pay their own costs and expenses.” In support of this motion, appellants alleged that they had reason to believe, and, so believing, allege, “that the widow of A. J. Kimmons a number of years ago when the first administration was opened made a contract with Judge H. Grass by which he was to get what he could out of said estate; that he was to pay any costs that might be adjudged against them, and he was to keep one half of whatever he could get, paying to her the other half, and she was to sign such papers as he required and allow her name used in the undertaking. The said H. Grass, acting under such agreement, had Judge Jesse Hobbs appointed administrator on the written waiver of the said widow, and acted as attorney for such administrator in the former proceeding in this court, in which proceding he and the said widow got all that the estate produced. Judge Jesse Hobbs became .dissatisfied, and resigned. Since then a number of efforts have been made by the said attorney to get more out of his contract, and it is alleged that he has now associated with him the firm of Master-son & Rucks and Munson & Munson. Contestants do not know on what terms, but allege that they are employed by H. Grass, and are to get their pay out of said estate. The said attorneys have together selected the said applicant, A. C. Abraham, to act as administrator and have filed a paper purporting to be a waiver from such widow in his favor. And it is alleged that the only authority they have is the contract with the said widow, and the only fees they are to receive are such as they can get out of the said estate, and half of such sums as they may be able to get out of the said estate in way of allowance to widow and minor children and property.” In answer to this motion attorneys for appellee admit that they represent the widow of the deceased in her efforts to have said administration closed and to obtain from said estate the allowance due her and her portion of the property of the estate. They aver that said widow had waived her right to administer the estate in favor of appellee, and that the application for appellee’s appointment was filed with his consent; and the only fee which said attorneys can obtain from the estate for representing the applicant is such reasonable fee as the court may deem proper to allow them. The attorneys who filed said answer, Messrs. Masterson & Rucks and ■Munson & Munson, say that they were employed by their co-counsel, H. Grass, who was not present at the trial of the case, and with whom they had no opportunity to confer after the filing of the motion, but that they have no knowledge of a contract between the said Grass and the widow of deceased by which he was to receive one-half of whatever was recovered by the widow from the estate, and was to pay whatever costs might be adjudged against her.

There is no merit in the assignments. In the first place, the questions sought to be raised by the assignments are not presented by the record. The bill of exceptions taken by the appellants to the ruling of the court on the motion is to the refusal of the court to “require attorneys for the applicant to show their authority to act in this suit.” The answer of the attorneys as before shown fully discloses their authority to act as attorneys for the applicant, and hence there was no occasion for any order of the court requiring them to show such authority. The transcript contains no order of the court on the motion entered in the minutes, but contains a copy of the following order taken from the judge’s docket: “The court refuses the motion to require the attorneys to disclose the fee they are to receive in this case, to which attorney Stoekwell for his clients, the Kimmons, excepts.” The only proposition under the assignment is as follows: “The fact that attorneys whose interest and employment are adverse to the interest of the estate select the administrator is a matter which the court should take notice of in appointing an administrator de bonis non.” This proposition is not germane to the assignments, and we confess our inability to understand either from the record or the brief what act or omission of the court in reference to the motion appellants consider prejudicial to their rights. The record does not show that appellee, Abraham, was selected by the attorneys representing him in this case to act as administrator of the estate; but, if he was selected by them, that fact, taken in connection with the further fact that said attorneys also represented the widow in asserting or protesting her rights in the estate, would not disqualify Abraham from acting as such administrator.

The statute gives the widow the first right to administer the estate, and authorizes her to waive that right in favor of any qualified person she may select to act as administrator, and in exercising this right there is no impropriety in her attorneys selecting the person they deem best fitted to act and of her waiving her right in favor of the person so selected; nor is there any impropriety in her attorneys representing the person so selected in making his application for appointment as administrator. After such person has been appointed, it goes without saying that the attorneys for the widow could not properly represent or advise the administrator in any matter affecting any claim of the widow against the estate, but there is nothing in the record to indicate that the attorneys for appellee are lacking in any sense of propriety in this regard, and that question is not presented either by the assignments or the proposition thereunder.

The third assignment which complains of the ruling of the court in permitting ap-pellee to read in evidence from the record books of the county court of Brazoria county the orders of said court made in the administration of the estate over appellant’s objection that certified copies of the orders should have been offered and not the original orders as they appear in the minutes of said court cannot be sustained. Article 1850 of Sayles’ Civil Statutes expressly provides that “said record books, or certified copies therefrom, shall be evidence in any of the courts of this state.”

The fourth assignment of error complains of the ruling of the court in admitting in evidence, over appellants’ objection, an instrument executed by Mrs. M. L. Bain, joined by her husband, A. W. Bain, nominating appellee, A. C. Abraham, administrator de bonis non of the estate of A. J. Kimmons, and waiving their right to administer said estate in favor of said Abraham. The objections of appellants to the introduction of this instrument were that it was not filed with the county clerk of Brazoria county, as required by the statute, that there was no evidence offered showing that either of the grantors in said instrument had any right to administer said estate, and no evidence that Mrs. M. L. Bain was the surviving wife of said A. J. Kimmons. We think this assignment should be sustained. The objection that the instrument was not filed with the county clerk was not a valid objection to its introduction in evidence. Article 1916, Sayles’ Civil Statutes, which provides that such waiver may be made in open court or by a power of attorney filed with the clerk of the county court of the county having jurisdiction of the estate, applies to a waiver offered in evidence on the hearing of an application for appointment of an administrator by such court, and we think on a trial de novo of such application on appeal to the district court the purpose of the statute is met by filing the waiver with the clerk of the district court in which the cause is tried. It is clear, however, that the instrument in question was not admissible to show any right in appellee to be appointed administrator superior to that of appellant Elmer C. Kimmons, unless it was executed by the widow of the deceased. Articles 1914 and 1916, Sayles’ Civil Statutes. No evidence was offered to show that the M. L. Bain, who with her husband, A. W. Bain, executed said instrument, was formerly M. L. Kimmons, the widow of the deceased. The recital in the .instrument that she was such widow is not evidence of that fact, and in the absence of such evidence the instrument was not admissible as a waiver executed by said widow.

Appellee relies upon certain allegations in the original answer filed by appellants in the county court to show that M. L. Bain who signed said instrument was the same person as M. L. Kimmons, the widow of the deceased. This original answer of the contestants was superseded by an amended pleading filed by them in the district court, and was not offered in evidence on the trial in the district court. If it be conceded, for the sake of argument, that the allegations mentioned were sufficient to establish the fact that Mrs. Bain was formerly Mrs. M. U. Kimmons, the widow of the deceased, they cannot be considered for such purpose because they were abandoned by appellants and were not put in evidence by appellee.

If any error is shown by any of the remaining assignments, it is not such as is likely to occur upon another trial, and it is 'therefore unnecessary to discuss said assignments.

For the error above pointed out, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BROWN et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 1, 1913.
    Rehearing Denied June 19, 1913.)
    1. Railroads (§ 255) — Regulation—Separate Coaches fob Whites and Negroes.
    White’s Ann. Pen. Code 1911, arts. 1010 — 5, 1010 — 9, punishing any person riding in a coach not designated for his race, and punishing any conductor failing to remove from a coach any person not entitled to ride therein, do not prohibit a white peace officer from entering a negro coach in performance of his duty.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 773-788; Dec. Dig. § 255.]
    2. Railroads (§ 255)-^Marshals — Duties— Statutory Provisions.
    Under White’s Ann. Code Cr. Proc. arts. 3, 44, requiring peace officers, which include city marshals, to interfere, without warrant, to suppress crimes, a white city marshal may enter a negro coach within the corporate limits of the city to investigate a prior disturbance therein, and ascertain whether it is necessary to take steps to prevent its recurrence; and the mere fact that a person in the coach, who has been guilty of a disturbance, is then quiet does not deprive the officer of his right to act.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 773-788; Dec. Dig. § 255.]
    3. Carriers (§ 284) — Injuries to Passengers — Liability.
    The failure of a passenger conductor to prevent a white city marshal from entering a negro coach does not render the carrier liable for the death of a negro in the coach kilied by the marshal, unless the conductor could have reasonably anticipated that as a result of his failure decedent or some passenger in the coach would likely be killed or suffer injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. § 284.]
    4. Carriers (§ 284) — Injuries to Passengers — Liability.
    The mere unauthorized presence of a white person in a negro coach is not a violation of any right of negro passengers, and gives them no cause of action against the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. § 284.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Action by Hattie Brown and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Alexander S. Coke and A. H. McKnight, both of Dallas, and Lane, Wolters & Storey and Wm. A. Vinson, all of Houston, for appellant. L. D. Brown, of La Grange, A. J. Wirtz, of Eagle Lake, and Ring, Carothers & Brown, of Houston, for appellees.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by appellees against appellant to recover the pecuniary loss sustained by them by the death of Earlie Hargrove, the son of 'appellee, Hattie Brown, who was joined in the suit by her husband, Jesse Brown, and Carrie Hargrove, the wife of the decedent.

The petition alleges, in substance, that the said Earlie Hargrove was unlawfully killed while riding as a passenger on one of appellant’s trains by B. C. Clark; that G. H. Miller, the conductor of said train, in disregard of the rights of said Hargrove, who was a negro and riding in the compartment or coach on said train set aside for negro passengers, directed and instructed the said B. C. Clark, who was a white person, to enter said negro compartment in violation of law, and to trespass upon, interfere with, molest, and arrest, the said Hargrove; that acting in pursuance of the authority and instructions so given said Clark entered the coach wherein Earlie Hargrove was riding, and while he was asleep in the lap of his wife roughly awakened him, shook him, and commanded him to be searched; that this was done in the view and presence of the conductor, brakeman, porter, and auditor; that the said Earlie Hargrove, fearing the said Clark and the employes of the appellant, submitted to such search, and said Clark, being encouraged, directed, aided, and abetted by the agents of the appellant, wantonly, maliciously, and willfully, without authority of law or justification, shot and wounded said Earlie Hargrove, which wounds produced his death within a few hours.

It was further alleged that said Clark was acting without warrant of law, authority, or justification; that the said Miller, acting as defendant’s conductor in the scope of his authority, and in the discharge of his duty, aided, abetted, encouraged, directed, and supported the said Clark at all times, and in all acts and things done and performed by him, after being called and directed to board said train by the said Miller; that the conductor, brakeman, porter, and auditor were there present, acting in conjunction with and aiding, abetting, encouraging, and directing the said Clark, and by exercise of reasonable care could have prevented the violence and injury, and could and should have prevented said Clark from entering said negro compartment, and should have ejected him therefrom; but that they wantonly, willfully, negligently, and carelessly failed and refused to give said Hargrove protection from said violence and injury, and participated in the shooting.

It was further alleged that the conductor, and other employes of the appellant, knowingly, willfully, and negligently, in violation of the law of this state providing for separate compartments for white and negro passengers, permitted and directed said Clark, a white passenger, to enter and remain in a compartment provided for negro passengers, wherein the said Hargrove was lawfully riding, and failed and refused to eject him therefrom, after knowing that he was unlawfully in such compartment; that the negligent acts, omissions, and failure to perform their duties on the part of the appellant’s agents, servants, and employés were the direct and proximate cause of the death of the said Earlie Hargrove.

The defendant answered by general denial, and specially pleaded that the said Earlie Hargrove was killed at or near the town of Bastrop, while engaged in an altercation and difficulty with B. C. Clark, the city marshal of the town of Bastrop, who was a passenger on said train, and that the said city marshal was compelled to and did kill said Earlie Hargrove in order to save his own life from an attack made upon him by said Hargrove; that none of its agents or employés invited or consented to the said city marshal engaging in said altercation, difficulty, and affray, and did not aid or assist said marshal in any manner while engaged therein, and did not advise or request said marshal to arrest, or attempt to arrest, said Earlie Hargrove, nor consent to said marshal’s attempting to make such arrest; that at the time said marshal • entered the coach in which Earlie Hargrove was riding its agents or employés did not anticipate, and could not reasonably have anticipated, that any altercation or difficulty could or would naturally arise between the said city marshal and said Earlie Hargrove, and did not and could not have anticipated that a difficulty would arise between them, and that either party would be killed as a consequence thereof; that none of its agents or employés was present or participated in said difficulty and altercation, and that its employés could not, by the exercise of the highest degree of care and caution, have prevented the consequences of said difficulty, by reason of the fact that none of its employés were within 20 feet of said parties while they were engaged in said difficulty, and the shot which killed Earlie Hargrove was fired within a very few seconds after the altercation and difficulty began, and sufficient time did not elapse from the time its employés were informed that a difficulty or affray was in progress to the time the shot was fired to enable the employes to reach the place where the difficulty was going on and protect said party; that when they discovered that a difficulty was going on they saw that the parties were struggling over the possession of a drawn pistol, and could not have protected either of said parties or prevented said killing without jeopardizing their own lives, which they were not called upon to do; that the said B. C. Clark, at the time he entered the compartment or the coach where Earlie Hargrove was' riding, was a duly qualified peace officer, to wit, the city marshal of the town of Bastrop, and acting as such officer, and within the scope-of his authority, entered said colored compartment for the purpose of investigating and quelling a disturbance then and there, and immediately prior thereto, going on in said coach; that the said B. C. Clark had been informed by a passenger then on said train that a disturbance among some negroes was going on in the negro coach, and acting on said knowledge and information said officer entered said coach for the purpose of investigating and quelling the disturbance; that he so entered said coach upon his own initiative, and without the advice, consent, or approval of any of the defendant’s agents or other employés in charge of said train.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs for the sum of $2,520.

The evidence shows that on November 7, 1908, the deceased, Earlie Hargrove, his wife, Carrie, and a number of other negroes, were passengers on one of appellant’s trains going from Coupeland to Smithville, in Bas-trop county. These negroes were all riding in the compartment of the coach set apart to them. There is evidence that the' deceased was drunk, or-very much under the influence of liquor. He got on the train at Coupeland, which is 27 miles from the town of Bastrop. Shortly after getting on the' train he vomited in the aisle of the coach, and when told by the conductor that he would have to “cut that out” or be put off the train, according to the testimony of the conductor, he used violent and profane language and defied him to put him off, and as the conductor was leaving this car to go to another part of the train the deceased remarked: “Damn him; I will kill him if he tries to put me off.” There is no evidence that the deceased caused any further disturbance, or that the conductor paid any further attention to him until the car reached the town of, Bastrop. At the latter place B. C. Clark, who was city marshal for said town, got on the train to go to Smithville to meet his sister, who was coming from San Antonio. He got on the front end of the coach in front of the one in which the deceased was riding, but there being a number of passengers on the train he had to "go to the rear portion of the coach to find a seat. Just as he was preparing to take his seat, a passenger in the seat next to the one he was preparing to occupy remarked that there had been a good deal of disturbance in the rear coach. Clark asked, “What’s the nature of it?”' and the passenger replied, “Somebody has been taking in the train.” Clark then said that he was an officer, and would go back and see what it was. When he got on the platform of the rear coach, he found the conductor and asked if there had been trouble in that coach, and was told there had been. He then told the conductor that he would go back and see about it. The conductor asked him if he was an officer, and Clark informed him that he was city marshal of Bastrop and asked who it was that had created the disturbance. The deceased, who was sitting three or four seats from the door and could be seen from the platform, was pointed out to Clark by the conductor. Clark did not tell the conductor that he intended to arrest the deceased, and nothing was said from which the conductor could have reasonably anticipated that Clark intended to commit any trespass upon the deceased. The conductor testified that he told Clark he thought the negro was now quiet, and Clark replied, “I will go in and see the negro and quiet him.” Clark went into the coach and spoke to the deceased, and in a few moments he and the deceased were struggling for the possession of Clark’s pistol, and while so engaged Clark got the muzzle of the pistol against the deceased, or pointed towards him, and fired several shots that gave him fatal wounds from which he died in a short time.

The evidence is conflicting as to what was said and done by Clark and the deceased immediately after Clark got to where the negro was and before the struggle for the pistol began. According to Clark’s testimony the deceased was very much intoxicated, and was sitting between two negro women, who were trying to keep him quiet, and when he asked him, “Negro, what is the matter with you?” he replied, “By God, there ain’t nothing the matter with me.” Clark then told him that he was an officer, and he (the negro) could consider himself under arrest. The negro then said, “By God, show your papers.” Clark then reached around the deceased to search for a pistol, and the deceased caught Clark’s pistol scabbard, and the struggle for the pistol began with the result before stated. According to the testimony of deceased’s wife, Clark made an unprovoked assault upon the deceased and killed him without any cause. The evidence is sufficient to sustain the finding that the arrest of deceased by Clark and the ensuing struggle between him and the deceased occurred while the train was within the corporate limits of the town of Bastrop.

The conductor testified that he did not go into the car with Clark; that he had no occasion to go in there and did not anticipate any trouble. He further testified that he had no opportunity to prevent the shooting of the deceased by Clark. One or two witnesses for plaintiff testified that the conductor entered the car with Clark, and was standing by him when he began the altercation with the deceased, and that he made no effort to protect the deceased. For the purposes of this opinion, this is a sufficient statement of the evidence.

The first assignment of error complains of the following paragraphs of the charge:

“(3) The law provides that all railroad companies operating passenger trains in this state shall provide on such trains separate coaches or compartments thereof for the use of white and negro passengers, and that conductors in charge of such trains shall not permit passengers of the one race to travel in a coach or compartment designated for the use of the other race; and it is the duty of the conductor to prevent a white man from traveling in a coach or compartment designated for the use of negroes. If a white man, while traveling in a coach or compartment designated for the use of negro passengers, with the knowledge or consent of the conductor in charge of the train, unlawfully kills a negro passenger also in such coach or compartment, the railway company is liable for all damages proximately resulting from such killing.
“(4) If the killing of Earlie Hargrove was not done by the said Clark in defense of himself from some’ unlawful and violent attack then made, or apparently made or about to be made, upon him by the said Earlie Hargrove, from which the said Clark might reasonably apprehend death or serious bodily injury, then the killing would be unlawful, and the railway company could be liable for such damages as proximately resulted from such killing.”

These paragraphs of the charge, in effect, instruct the jury to find for the plaintiff, unless they find from the evidence that Clark killed the deceased in self-defense. They assume that Clark had no right to enter the negro coach in which the deceased was riding, and that the conductor was guilty of negligence or a breach of duty to the deceased in permitting him to enter said coach, and charge the appellant with liability for the damages caused appellees by the death of the deceased, regardless of whether the conductor, if he wrongfully permitted Clark to enter said coach, could have reasonably anticipated that any injury to the deceased would probably result from his failure to prevent Clark from entering the car. This charge should not have been given.

Section 5 of article 1010 of the Penal Code of this state is as follows: “If any passenger upon a train provided with separate coaches shall ride in any coach not designated for his race, after having been forbidden to do so by the conductor in charge of the train, he shall be guilty of a misdemeanor and upon conviction therefor shall be fined not less than five nor more than twenty-five dollars.”

Section 9 of said article is as follows: “Conductors of passenger trains provided with separate coaches shall have the authority to refuse any passenger admittance to any coach in which he is not entitled to ride under the provisions of this law, and the conductor in charge of the train shall have authority, and it shall be his duty to remove from a coach any person not entitled to ride therein under the provisions of this act; and upon his failure or refusal to do so shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not less than five nor more than twenty-five dollars.”

These provisions of the statute cannot be construed to prohibit a white peace officer, in the discharge of the duties of his office, entering a coach of a railway train set apart for negro passengers, nor to make it a violation of duty on the part of the conductor in charge of the train to permit the officer to enter such coach.

Article 44 of White’s Code of Criminal Procedure provides: “It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose he shall use all lawful means. Pie shall, in every case where he is authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. * * * He shall give notice to some magistrate of an offense committed within his jurisdiction, when he has good reason to believe that there has been a violation of a penal law. Pie shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court and be brought to punishment.”

Article 3 of said Code, designating what officers are peace officers, includes city marshals.

As before stated, the evidence is sufficient to sustain the finding that when Clark entered the coach in which the deceased was riding the train was in the corporate limits of the town of Bastrop, and conceding that his general jurisdiction and authority as a peace officer was confined to the corporate limitó of said town, if he entered said coach for the purpose of investigating, preventing, or suppressing an offense against the law, he was acting within his jurisdiction and authority. Pie had been told that there had been a disturbance in that car, and that “somebody had been taking in the train.” When he reached the platform on his way back to the car and met the conductor, his information as to the previous disturbance in the car was confirmed. Just at that time it appears that the deceased was quiet, but that fact did not deprive the officer of the right to investigate the previous disturbance and ascertain whether it was necessary to take any steps to prevent its recurrence. The evidence would have authorized the jury to conclude that this was Clark’s purpose in entering the car, and if this is true he violated no law in entering it, and it follows that the conductor was under no duty to prevent or oppose his going into the car.

It certainly was not the intention of the separate coach law to erect a barrier against officers in the discharge of their duty. Clark, in the discharge of the duties of his office, had the same right to go into the negro coach as.into those set apart for white passengers; both w,ere public plaeés, and it was as much his duty to investigate a violation of the law or to take steps to prevent a disturbance in the one as in the other. But if Clark had no right to enter the car, and the conductor was negligent or failed in his duty in not preventing or opposing his entering it, such negligence or failure of duty on the part of the conductor would not render the appellant liable for the death of the deceased, unless the conductor could have reasonably anticipated that as a result of his failure to prevent Clark from entering the car the deceased or some passenger therein would likely be killed or suffer injury of some kind. The mere unauthorized presence of a white person in a negro car is not a violation of any right of the negro passengers, and would give them no cause of action against the railway company. Norwood v. Railway Co., 12 Tex. Civ. App. 560, 34 S. W. 180. If the conductor could not have reasonably anticipated, when he permitted Clark to enter the car, that he would assault the deceased or commit some act injurious to him, the company would not be liable for the death of the deceased, or for any injury to him, unless the conductor failed in his duty to protect the deceased after he discovered that Clark would probably injure him.

We think plaintiffs’ right of recovery in this case depends upon whether or not the conductor, after knowing or having reasonable grounds to believe that Clark would make an unlawful assault upon the deceased, failed to use that high degree of care imposed upon him by law to protect the deceased from injury.

The charge complained of under the third assignment of error repeats and emphasizes the error in the charges above quoted and .should not have been given.

We deem it unnecessary to pass upon the other assignments of error presented in appellant’s brief. What we have said disposes of the only material errors committed on the trial, and if any error is shown by the remaining assignments it is not such as is likely to occur upon another trial.

For the error in the charge above discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: WILLSON, C. J.

text:
    BAKER v. TEXAS & P. RY. CO.
    (Court of Civil Appeals of Texas. Texarkana.
    May 19, 1913.
    Rehearing Denied May 29, 1913.)
    1. Carriers (§ 321) — Injury to Passengers —Colored and White Passengers — Separation — Statutes.
    Rev. Civ. St. 1911, art. 6753, declares that conductors of passenger trains provided with separate coaches for the races shall have authority to refuse any passenger admittance to any coach or compartment in which he is not entitled to ride under the provisions of the law, and it shall be the conductor’s duty to remove from a coach any passenger not entitled to ride therein. Held, that where plaintiff’s wife, a colored person, was assaulted by a white man, improperly riding in a coach for colored persons, the court should have charged the jury to find for plaintiff if they believed defendant knew, or in the exercise of the high degree of care it owed to plaintiff’s wife should have known, that the person guilty of the assault and' his companions were in the coach assigned the negroes, unless they further believed that plaintiff’s wife by her own wrongful conduct provoked the assault, and but for such conduct would not have been assaulted.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    2. Carriers ■(§ 305) — Injuries to Passengers — Assault—Proximate Cause.
    Where plaintiff’s wife, a negress, was assaulted by a white man in a car set apart for negroes, in which she was riding, the carrier’s wrongful act in permitting his presence in .the car was the proximate cause of her injury, unless she provoked the assault by her own misconduct.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1132, 1136-1139, 1245, 1246; Dec. Dig. § 305.]
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Action by Arch Baker against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Chambers & Black, of Clarksville, for appellant. Head, Smith, Hare & Head, of Sherman, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am: Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

While a passenger on one of appellee’s trains moving from Paris to Clarksville, where she resided, appellant’s wife, Ada Baker, a negress, was assaulted and injured by one Pat Melton, a white passenger on the same train. By his suit against appellee appellant sought a recovery of damages for the injury to his wife. A trial before a jury resulted in a verdict and judgment in favor of appellee.

Appellee contended that the assault on appellant’s wife was provoked by insulting language used by her to Melton, and as supporting its contention relied on Melton’s testimony as follows: “After the train left Paris me and Fred Ellison went in a nigger coach. Fred said there was a nigger on the train that he owed, and he said he would go in there and see if he could find him. I do not know Ada Baker. We had started in at the back end of the coach there among the niggers, and I saw a couple of niggers that I knew and stopped and was talking with them, and there was a nigger just in front of us that looked like he was asleep, and I looked over to see if I knew him, and this nigger woman asked me what in the hell I was doing in there, and I told her not anything; that I was not going to bother her; she said she knew damned good and well I was not going to bother her, and I hit her with the bottle. I hit her because I thought she needed it. I was not drunk that night. I was just pretty well organized. I had had three or four drinks that evening.” Appellant contended, and his wife and other witnesses in effect testified, that the assault on his wife was wholly unprovoked by any conduct on her part towards Melton. As further supporting his contention appellant offered, and the court admitted testimony tending to show, that Melton and his companions were drunk, and before, the assault was made on appellant’s wife had made unprovoked assaults on other colored passengers on the train, and in other respects conducted themselves in a manner indicating an utter disregard of the rights of the negro passengers. . Appellant then offered to prove by his witness Jackson “that he (witness),” quoting from the bill of exceptions, “was sitting in the negro coach just behind the coach in which Ada Baker was sitting when Pat Melton struck her with the bottle; that he did not see the blow struck, but that he heard it, and that very soon after he heard the blow struck that this man Pat Melton and the other two boys that were with him came back into the negro coach where he was sitting, and Pat Melton had in his hand an iron pin about the size of a railroad spike and drawed it back as if to strike witness, and one of the other two boys that were with him grabbed the pin and threw it out of the window and broke out the window glass.” This testimony was excluded by the court, on appellee’s objection thereto, on the ground that it was irrelevant and immaterial. The action of the court in excluding it is assigned as error. We think the testimony excluded was relevant and material to the -issue as to whether appellee’s wife by her wrongful conduct provoked Melton to assault her or not, submitted to the jury by the charge of the court. In connection with other testimony in the case it tended to show a reckless and-abandoned state of mind on the part of Melton, to corroborate the testimony of appellant’s wife that she -did not use the language, or anything like it, attributed to her by Melton, and to rebut the contention made that Melton was provoked by wrongful conduct on the part of appellant’s wife to assault her.

It appeared that Melton struck appellant’s wife on the head with a whisky bottle at a time when she was In a coach set apart by ap-pellee for negro passengers on its train. It further appeared that Melton was one of three young white men who, in violation oxf law, were permitted — whether knowingly or not was a disputed issue in the case — by appellee’s employés in charge of the train to be in that coach. In his petition appellant alleged, as one of the grounds upon which he sought a recovery, that appellee was “careless and negligent in permitting the said three young white men to ride in the coach provided for negroes, and that it wrongfully and negligently and in disregard of law violated its duty in permitting these young white men to go into and occupy the negro coach, and it was the duty of defendant’s conductor to remove them from said car, and he carelessly and negligently failed to do so, although he knew of their presence in said car provided for negroes, or might have known it by the exercise of that degree of care required by law.” The court, in effect, instructed the jury to find for appellant if they believed his wife was assaulted and injured as alleged in his petition, and further believed that such assault might reasonably have been anticipated and guarded against by appellee’s employes in charge of the train by the exercise of a high degree of care on their part, unless they believed that appellant’s wife used insulting words to Melton which were calculated to and did provoke him to assault her, and that in using-such words she was guilty of negligence, in which event they should find for appellee.

Section 9 of the statute, requiring railway and certain other companies to provide separate coaches for' white passengers and negro passengers, is as follows: “Conductors of passenger trains, street cars, or interurban lines, provided with separate coaches, shall have authority to refuse any passenger admittance to any coach or compartment in which they are not entitled to ride under the provisions of this law; and the conductor in charge of the train or street car, or interurban car, shall have authority, and it shall be his duty, to remove from a coach or street car, or interurban car, any passenger not entitled to ride therein under the provisions of this chapter, and upon his refusal to do so knowingly shall be punished as provided in the Penal Code of the state.” Article 6753, Rev. Stat. 1911. In view of the allegations in the petition referred to, the testimony, and the statute from which we have quoted, we think the court, instead of instructing the jury as he did, should have told them, in effect, to find for appellant if they believed appellee knew, or in the exercise of the high degree of care it owed to his wife should have known, that Melton and his companions were in the coach assigned to negroes, unless they also believed that, appellant’s wife by her own wrongful conduct towards Melton-provoked him to assault her, and that but for such conduct on her part he would not have assaulted her.

If the assault on appellant’s wife was not provoked by her wrongful ebnduct, the wrong of appellee in permitting Blelton, if it did, to be in the coach, was, we think, the proximate cause of the injury she suffered, and appellee was liable, as claimed by appellant. This seems to be the view taken of the question by the Supreme Court of Kentucky, which has a statute similar to our own. Quinn v. Ry. Co., 98 Ky. 231, 32 S. W. 743, 17 Ky. Law Rep. 811; Wood v. Ry. Co., 101 Ky. 703, 42 S. W. 349, 19 Ky. Law Rep. 924; Bailey v. Ry. Co., 44 S. W. 105, 19 Ky. Law Rep. 1617; Railway Co. v. Renfro, 142 Ky. 590, 135 S. W. 266, 33 L. R. A. (N. S.) 133. As applicable, in much that is said, to the case made by the record before us, and as suggesting the reasons why we think the court should have instructed the jury as indicated, we quote at some length from the opinion of the court in the Quinn Case cited above: “While the mere presence of the intruder into the coach for colored persons, with knowledge of the conductor, would not give to the occupants a cause of action against the corporation, we cannot concur with counsel or the court below that the separate coach law has no application to the facts of this case. It is not necessary, in order to permit a recovery, to show that the conductor knew of this bad treatment of the colored passenger, or from his condition had the right to anticipate it was the purpose of the intruder to produce trouble. He should not be allowed to enter the ear, or to remain there after his presence is discovered. In the transportation of passengers prior to the passage of the separate coach bill, the frequent disturbances arising between the two races, resulting often in serious injuries being inflicted by the one on the other, and the danger to other passengers, led to the enactment of this law as a police regulation, in order to prevent, as far as possible, these altercations upon railroad trains, and to check the disposition of those of the dominant race to offend and humiliate those who were entitled to the protection of the law. No discrimination is made by the law in favor of the one race or the other. Each have the same facilities as to transportation, as to conveniences and accommodations, in the coach to which they are assigned. In order to make this law more effectual, heavy penalties are imposed on the railroad companies for not having separate coaches, and upon the conductors, or those in charge of trains, for not assigning to each white or colored passenger their respective compartment. St. Ky. 797-800. If, as we shall assume was the case, each one of the passengers had been assigned to the coach required by the statute, and the white passenger had left his coach, and gone into the coach with these colored people, without the knowledge of the conductor while he was attending to his duties in the other cars, and had there abused and insulted the appellant, it is plain no action could be maintained against the company; .but, when the white passenger is assigned to the cars set apart for those of another race, the company will be held responsible for his bad conduct affecting the rights of other passengers, although the conductor may be ignorant of what is transpiring; and where the conductor, or those managing the train, knows that one is in the wrong car, it is his duty to expel him, and by consenting to his remaining the company becomes responsible for his conduct so long as lie does remain. If a contrary rule is applied, and no liability exists on the part of the corporation to the passenger, the separate coach law becomes a dead letter, and those who are entitled to its protection have no means of enforcing its provisions but by an indictment, where a penalty may be adjudged in favor of the state. It is made the duty of conductors, under heavy penalties, to execute this law; and, where there is a neglect of duty for which a penalty is imposed, and private injury results from this neglect, a cause of action arises in favor of the person injured. This is the universal rule applicable to such cases, and should be made to apply to the facts of this case.”

For the error of the court in excluding the testimony referred to, the judgment is reversed and the cause is remanded for a new trial.


author: HARPER, C. J.

text:
    ATCHISON, T. & S. F. RY. CO. v. FIEDLER.
    (Court of Civil Appeals of Texas. El Paso.
    May 1, 1913.
    On Motion for Rehearing, May 29, 1913.
    Further Rehearing Denied June 19, 1913.)
    1. Carriers (§ 318) — Personal Injuries — Sufficiency of Evidence. — Injury.
    Evidence in an express messenger’s action for injuries held to show that the injury complained of was caused by the accident on defendant’s train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.]
    2. Damages (§ 130) — Excessive Damages— Personal Injuries.
    In an express messenger’s action for injuries, where the jury found that he was injured in his back and spine, a verdict of $2,-000 would not be disturbed as being excessive.
    [Ed. Note. — For other, cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.]
    On Motion for Rehearing.
    3. Evidence (§ 461)— Parol Evidence to Vary Writing — ambiguity—Release.
    A writing executed by an express messenger in settlement of his claim against defendant railroad for personal injury releasing the company from the consequences of injury at A., and from all manner of actions, suits, debts, and sums of money, was uncertain as to what causes of actions were meant, so that parol evidence was admissible to establish the intention of the parties.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by E. E. Fiedler against the Atch-ison, Topeka & Santa Fé Railway Company, Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Turney & Burges, of El Paso, and Terry, Cavin & Mills, A. H. Culwell, and Jno. G. Gregg, all of Galveston, for appellant Patterson, Wallace & Gardner, of El Paso, for appellee.

      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

This suit. was brought by appellee to recover of appellant damages for personal injuries, and resulted in a verdict for $2,000, from which this appeal is prosecuted.

The evidence offered to sustain the claim tended to show that appellee was injured on May 30, 1909, and again on October 21, 1909, while working for Wells Fargo Express Company, handling baggage and express on appellant’s train. On May 30, 1909, at Vaughn, a light engine ran against the train upon which appellee was riding with such force and violence as to knock him 20 to 30 feet, where he fell upon his back, injuring his spine and back, and causing a rupture. On October 21, 1909, while working for the same company upon appellant’s train, a work train was negligently run into the train and the jar threw him down with such force as to skin his hands and knees.

The appellant complains that the court erred in refusing ⅝ new trial because the great preponderance of the testimony showed that the hernia complained of, and the only substantial injury appellee was then suffering from, was not caused by the accident on appellant’s train. Appellee testified that he was in the act of pulling up trunks when the engine hit the train and knocked him backwards 20 to 25 feet, and injured his back, spine, and ruptured him. The baggage ear was so injured that the train crew coupled it on behind the train, and took it into Albuquerque. That he was laid up so he could not do any heavy lifting all the balance of the year. “I did not carry the car into Albuquerque; another man took charge of the run.” After he got into Albuquerque he walked about five blocks home. He never missed a single run; went out next day. He was not. examined by any physician after either accident. “I first noticed the rupture about a week after the accident at Vaughn. I told the people under whom I worked that I was hurt in my back, spine, and hand. I filled out a statement, but did not know that I was ruptured until next day.” Dr. Oalnan testified; “I examined the plaintiff to see if he had any injuries. Found a rupture on tlie right side, an inguinal rupture, which is a permanent injury, and will incapacitate him for bard labor. He also has tenderness in the spine and back. The tendency of such injuries is to get worse as he grows older. There is no way to fix the length of time a rupture has existed that I know of, and I could not tell anything about when it happened, except from what he told me. Operations can be performed which will practically do away with rupture.

The third assignment complains that the verdict was grossly excessive because the only serious injury complained of by plaintiff was the rupture or hernia, and the testimony tended to show that it was caused by lifting heavy weights and straining by appellee. We do not find the statements made in this assignment borne out by the statement of facts; but, on the other hand, the evidence is that appellee is ruptured and has injury to his back and spine. The jury having passed upon the facts and found that appellee was injured as alleged, and fixed his damages at $2,000, we would not feel authorized to disturb the judgment.

The following written release was interposed by appellant as a bar to this action: “December 31, 1911. For and in full release, discharge and satisfaction of all claims, demands or causes of action, arising from or growing out of all injuries sustained by me of every character and description, whether now apparent or which may hereafter develop, while mail clerk on train No. 9 of the Atchison, Topeka & S. F. Ry. Co. at or near Abajo, New Mex., on or about the 29 day of Dec. 1911, as well as any and all claims of whatever kind or character I may have against the' said railway'company prior hereto and up to and including the date hereof. Settled in full for $75.00. Received of the Atchison, Topeka and Santa Fé Railway Company seventy-five & no/100 dollars in full payment of above claim. In consideration of the payment of said sum of money, I, Edwin E. Fiedler, of Albuquerque, N. M., hereby remise, release and forever discharge said company of and from all manner of actions, suits, debts and sums of money, * ⅜ ⅜ whatsoever in law or in equity, which I have ever had or now have against said company by reason of any matter, cause or thing whatever, whether the same arose upon contract or upon tort. I have read the above voucher, receipt or release, and understand the same. * * * Note: Claimant will please read the foregoing carefully, and having done so, if fully understood, will please insert in own handwriting in the space before the words ‘In Testimony Whereof,’ the following: T have read the above voucher, receipt and release, and fully understand the same.’ ” Appellant paid the $75. Appellee pleaded" false and fraudulent representations .upon the part of the agent of the appellant, and further alleged that, the receipt, and release only applied to the claim mentioned therein, to wit, the injuries suffered' by him, in the accident at Abajo, N. M., and that he signed the same without reading it.

The testimony in respect to the execution of the instrument is as follows:

Appellee: “There was nobody present when I signed this paper but Mr. Riehl, claim agent for the Sante Fé Company. He said to me, ‘How much do you think you ought to have for the injuries at Abajo the other night?’ I says, ‘How much do you think I ought to have?’ He says, ‘About $50; how would that do?’ I says, T don’t know.’ He said, ‘State your figures, and I will write out a check for it right away.’ I says, ‘How will $75 do?’ He said, ‘All right’ He drew out a blank and filled it out, and said, ‘Here sign this to -show that I have settled the claim of the accident that happened at Abajo a few nights ago.’ He says: ‘You will have to write in the words down here, “I have read the above voucher, receipt and release, and understand the same,” ’ so I wrote it as he told me. Not a word was said by either of us about this suit. I did not read the release at that time; I relied on what he told me. The suit now on trial was pending at that time.”

J. A. Riehl, witness for defendant, testified : “I made a settlement with Mr. Fiedler on the 30th of December, 1911. There was no fraud or misrepresentation on my part in behalf of the company in settling this release. I did not read it to plaintiff; he read the release in my presence. I then asked him to note the instructions on the bottom; which he did, and signed it. The only claim that we discussed there was the accident at Abajo, and nothing was said about the accident sued for in this case. I considered that I had taken a release from Mr. Fiedler for what the release called for. I knew at the time that this suit was pending. I had in mind getting a total release from him for everything he had against the railway company up to that time. I thought this matter was dead and had been dropped long ago. I knew it was in the courts but thought Mr. Fiedler had called it all off. If I was going to settle the accident mentioned in your petition at that time I would not have had that form of release. At the time of taking this release I had in mind making settlement for the injuries Mr. Fiedler received as mail clerk, and taking a release in full. That release covers all injuries of every kind and character prior thereto.”

It will be seen that there is a conflict in the evidence as to what occurred when the release was executed. The testimony upon the subject is very much abbreviated, but enough is quoted above to show the trend of the evidence upon the question of release and settlement, which was submitted by the trial judge as follows, to wit: “You will first determine the issues of defendant’s liability under its plea of release and settlement, and on this issue you are instructed: That the written contract of release and settlement pleaded by defendant and read to you in evidence would be sufficient in law to completely absolve and release the defendant from any and all liability for any damages growing out of any injury plaintiff may have sustained on either or both of the days alleged by him in his pleadings, and you will find for the defendant on said issue, and you will not inquire further into said cause of action unless you further find from the preponderance of the evidence that at the time of the execution of said release the plaintiff and defendant’s agent representing defendant understood in making said settlement that the contract of settlement and release embraced only the specific accident described in said receipt as having occurred on. the 29th day of December, 1911, and that neither said agent nor plaintiff agreed, contracted, or understood to settle the claims for damage involved in this suit, and the burden to show that plaintiff and defendant’s agent did not intend to include the claim involved in this suit in said settlement is on the plaintiff. Now, if you find from the evidence that it was not within the contemplation or agreement of the plaintiff and defendant’s agent to include the claim of plaintiff for damages involved in this suit in the said release, you will find for the plaintiff and against the defendant on the issue of release and settlement. However, should you not so find, you will find for the defendant, and if you find for the defendant on the igsue of release and settlement you will not inquire further, but will return a verdict for the defendant. Should you find for plaintiff on the issues of release and settlement, you are instructed as in other paragraphs of this charge.” It will be seen that the charge above quoted submits the question of ‘‘release and settlement” alone upon the theory of the intention of the parties at the time the plaintiff accepted the $75.00 and signed the instrument — that is, whether the parties intended to settle for any accident except the one at Abajo — while the plaintiff pleaded fraud and misrepresentation upon the part of defendant’s agent by which plaintiff was induced to sign. There is no evidence in the record of misrepresentation or fraud as an inducement to plaintiff below to sign the release. In-Houston & Texas Central By.- Co. v. Burns, 63 S. W. 1035, the court says: “We know of no authority or principle of law to warrant the proposition * * * that one executing a written instrument is not bound by it merely because it was executed by him through mistake, believing that it did not contain what was plainly expressed therein, unless the mistake be a mutual oue [which appellee has not pleaded in this case]; but, to the contrary, something more than mistake and ignorance as to the •contents of a written instrument on the part of the maker must be shown before he can •avoid it. If such mistake and ignorance be due to the false and deceitful representations of the adverse party, relief will be granted.” The release in question includes “all manner of actions, suits, debts, and sums of money * ⅜ * whatsoever in law and equity, which I have ever had against said company by reason of any matter, cause or thing whatever, whether the same arose upon contract or upon tort,” and it is written therein by appellee: “I have read the above voucher, receipt or release and understand the same.” In the absence of fraud and. misrepresentation, the appellee cannot now avoid the effect of the writing executed by him by now claiming that he did not intend to do that which he clearly did by executing the instrument.

For the reason assigned, the cause must be reversed and rendered.

McKENZIE, j., did not sit in this case.

On Motion for Rehearing.

We have concluded that our construction (of the release pleaded) on the original hearing of this cause, to the effect that it was a release of the plaintiff’s (present) cause of action, is not in line with the majority and weight of authority as declared by other courts.

The language of the release is clearly sufficient to embrace all claims, demands, and causes of action which plaintiff had at that time; and, having concluded upon the first consideration of the case that the instrument was not ambiguous nor had defendant pleaded and proven fraud or mistake, we therefore held that oral testimony was not admissible to explain the intention of the parties, but upon more careful consideration of the proposition, in the light of additional authorities cited by appellee in motion for rehearing, we conclude that the fact that the release in question in its first recital, to wit, “release the Railway Company from the consequences of injury at Abajo,” is followed by the general and sweeping one, “all manner of actions, suits, debts and sums of money » * * whatever in law or equity,” makes it uncertain as to what causes of action were meant, therefore parol evidence in such cases is admissible to establish the intention of the parties at the time; for, if the parties had intended to release all actions, why not mention the others as well as the one at Abajo, N. M.? The trial court therefore properly admitted the testimony and properly submitted the question to the jury. Quebe v. Railway Co., 98 Tex. 6, 81 S. W. 20, 66 L. R. A. 734, 4 Ann. Cas. 545; E. P. & S. E. Ry. Co. v. Darr, 93 S. W. 170; T. & P. Ry. Co. v. Dashiell, 198 U. S. 528, 25 Sup. Ct. 737, 49 L. Ed. 1150; Jackson v. Stackhouse, 1 Cow. (N. Y.) 122, 13 Am. Dec. 514; Todd v. Mitchell, 168 Ill. 199, 48 N. E. 35; Bassett v. Lawrence, 193 Ill. 494, 61 N. E. 1098; Jeffreys v. Railway Co., 127 N. C. 377, 37 S. E. 515; Railway Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581.

The motion for rehearing will therefore be granted, and the judgment of the lower court affirmed.


author: HARPER, J.

text:
    CREALE v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.
    Rehearing Denied June 11, 1913.)
    1. Criminal Law (§ 683) — Trial — Reception op Evidence — Rebuttal.
    Where the defense brings out the fact that the prosecuting witness in a larceny case delayed having defendant arrested and declined to file a complaint, the state could show that she did so through fear of threats of bodily harm.
    [Ed. Note. — For other cases, see Criminal Law, Cent-. Dig. §§ 1615-1617; Dec. Dig. § 683.]
    2. Criminal Law (§ 1091) — Appeal—Bill of Exceptions — Remarks of Judge.
    A bill of exceptions alleging that improper remarks were made by the court in the presence of the jury, qualified by the court, stating that the remarks were not made in the hearing of the jury, shows no error prejudicial to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 281S, 1819, 1823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Larceny (§ 52) — Evidence—Materiality.
    In a prosecution for larceny of diamond rings, in which defendant claimed that the prosecuting witness gave them to him to pawn, which was denied, evidence that he intended to pay for them is material.
    [Ed. Note. — For other eases, see Larceny, Cent. Dig. §§ 137, 147; Dec. Dig. § 52.]
    4. Witnesses (§ 379) — Impeachment—Inconsistent Statements.
    In a prosecution for larceny of diamond rings in which defendant testified that he never claimed them as his own, evidence that when he pawned them he claimed them as his own, and the circumstances of the pawning, is admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    5. Larceny (§ 75) — Instructions—Larceny by Bailee.
    In a prosecution for larceny of diamond rings which defendant pawned, testimony of the prosecuting witness that after she had refused to let defendant have her rings defendant took them from her fingers, stating that he would have them repaired and return them, and that they went that evening to a picture show, is sufficient evidence on which to base a charge as to larceny.by bailee.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 190, 198; Dec. Dig. § 75.]
    6. Larceny (§ 15) — Larceny by Bailee-Evidence.
    Where defendant, engaged to be married to prosecuting witness, procured diamond rings from her. on pretense of having them repaired at his expense and then pawned them, there being no question of agency, he could be convicted of larceny by bailee.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 39-42; Dec. Dig. § 15.]
    7. Larceny •(§ 74) — Theft from the Person —Evidence—Instructions.
    Where the evidence shows that defendant was engaged to be married to the prosecuting witness, and that, upon noticing that the prongs on her diamond rings needed tightening, stated that if she would let him have them he would have them repaired, to which she replied that she could have it done herself, whereupon he took them from her fingers, there is not sufficient evidence to raise an issue of theft from the person, authorizing the giving of a requested instruction by defendant on that issue.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 197; Dec. Dig. § 74.]
    8.Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    Where, in a prosecution for larceny of diamond rings, the only conflict in the testimony was whether defendant was authorized by the prosecuting witness to pawn them as he did, a charge on circumstantial evidence need not bo given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    F. E. Creale' was convicted of larceny, and he appeals.
    Affirmed.
    O. T. Plummer, of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   HARPER, J.

Appellant was convicted of theft of three diamonds, the property of Mrs. Nora Kilman, as bailee, and his punishment assessed at two years’ confinement in the state penitentiary.

Mrs. Kilman testified that appellant had visited her on a number of occasions, and one night they were seated on the lawn, and he looked at the diamonds on her fingers, and said the prongs needed tightening around the sets, and if she would let him have them he would have it done for her. She stated she could have it done herself', and he caught hold of her hand, pulled off the rings, and insisted on having the work done; that she objected, hut he kept the diamonds. He did not have the diamonds reset, but pawned them to Mr. Young for $100 without her knowledge or consent. Appellant testified that he did not take the diamonds off of Mrs. Kilman’s hand, and he did not promise to have them repaired; that they were engaged to be married, and he told her he would have to go to El Paso to raise some money he needed. She did not want him to go, and asked how much money he needed, and he told her $100, and she pulled the rings off her fingers and gave them to him and instructed him to raise the money he needed on them, and not to go to El Paso, and this he did do. So it may be stated to be an unquestioned fact that the rings were Mrs. Kilman’s, and that appellant pawned them with Mr. Young, the contested issue being whether or not the rings were pawned with her permission or her consent, and as to this it may be stated some of the facts and circumstances tend to prove each theory of the ease. So we would not disturb the verdict on the evidence.

In bill of exceptions No. 1 it is shown that, among other things, Mrs. Kilman testified that she did not have him arrested when she first learned the diamonds had been pawned, because appellant “told me there was no use to send an officer after him because he said he was a Mason, and they would not do anything with him,” and further stated if she did anything to him about these rings he would kill her; that he had friends who are members of a gang in Chicago who have put people out of the way for him, and that “Gyp the Blood” was leader of the gang; that he would bribe a man to get her brother away from home; and- that he would hound her mother the longest day she lived. He also stated that, if she would not do anything, he was expecting a cheek, and as soon as it came he would redeem the rings and return them to her. The court in approving the bill states that on cross-examination appellant had developed the fact she had not promptly had him arrested, and questioned her in regard thereto. They also introduced evidence that Mrs. Kilman at first declined to file a complaint against appellant, having cross-examined her in regard to it. Under such circumstances it. was permissible for the state to show from the words and conduct of appellant that she was prevented through fear, etc.

The next bill complains of some remarks made by the judge in ruling on the admissibility óf a bill of sale offered in evidence. The remarks made were highly improper if heard by the jury, but the court in approving the bill states: “The above bill is approved with the explanation that this bill does not claim that the court’s remarks were heard by the jury, but merely says that they was made in the presence of the jury. The remarks of the court were made to the attorneys and were not intended to be heard by the jury, and I do not believe they were.” The court is correct that the bill only states that the statement was made “in the presence of the jury.” We cannot and do not know the arrangement of the district courtroom of the courthouse in Johnson county, how loudly the words were spoken by the court, and whether or not the jury heard them. The bill to have properly presented the question should have stated, if true, that the remarks were made in the presence and hearing of the jury. As presented by the bill and approved by the court, we cannot say there was any error prejudicial to defendant, for, if the jury did not hear the remarks, certainly appellant was in no way injured.

It was immaterial as to whether or not appellant intended to pay Mrs. Kilman for the rings, and the court did not err in refusing to permit him to so testify. He did not claim, and there is no testimony that, he purchased the rings on credit. He admitted they were her rings, but he said he pawned them with her consent. The question was whether or not this was true; and, if not true, it would be immaterial what he intended to do after he had pawned them. If he did not have her consent, either express or implied, the offense was complete when he pawned them. And it was not a material inquiry as to whether or not he had not had the money to redeem them since he had pawned them. The fact that he would have answered that he had not had the money to do so would be immaterial. If his theory of the case was true, he committed no offense, if he never redeemed the rings; that is, he had her consent to pledge them. If the state’s theory, as testified to by Mrs. Kilman, is true, he became guilty when he pledged them to Mr. Young and secured the money on them, and testimony of matters subsequent to that event would only be admissible when they threw or tended to throw light on the transaction as it occurred at the time of its occurrence.

It was permissible for the state to show that he offered to pawn the rings to J. B. Long, and claimed them as his own at the time he did so, and the circumstances attending such offer. Appellant admitted the rings belonged to Mrs. Kilman, and testified that he had never claimed them as his own. Under such circumstances, the testimony of Mr. Long became material to the issues in the case.

There were two counts in the indictment, one charging theft by fraudulent taking, and the other theft by bailee. Both counts were submitted to the jury, and he was convicted under the second count as bailee. So the matter complained of as to the first count need not be considered, and on the second count the court charged the jury; “If you have acquitted the defendant' under the above instructions, then you will next inquire whether or not the defendant is guilty of theft as a bailee, and as to that offense you are instructed: That a bailment means a delivery of personal property to another person for a special purpose, upon a contract or agreement, either express or implied, that such agreement would be carried out by the party who receives the property, and where such person shall, without the consent of the owner, fraudulently convert, sell, or pawn such personal property to his own use with the intent to deprive the owner of the value of the same, he would be guilty of theft as a bailee, and shall be punished as in theft of like property. Now if you believe from the evidence beyond a reasonable doubt that the defendant, F. E. Creale, in Johnson county, Tex., on or about the date alleged in the indictment, did obtain the possession of the three diamond rings from Mrs. Nora Kilman, and that she was the owner and had possession of said rings at the time, and that the defendant obtained possession of said rings by borrowing them and by agreeing with Mrs. Nora Kilman to have the diamonds in said rings tightened or fastened in the clamps or to the rings, and that defendant fraudulently converted said rings to Ms own use without her consent, and with the intent to deprive the said owner of the value of the same, then if you so believe you will convict the defendant of theft as a bailee, and assess his punishment at confinement in the state penitentiary for not less than two and not more than ten years. If you believe from the evidence that Mrs. Nora Kilman delivered said rings to the defendant for the purpose of allowing the defendant to get money on them for his own use, or if you have a reasonable doubt thereof, then you will find the defendant not guilty. The burden of proof in this case is upon the state throughout, and the defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and, if you have a reasonable doubt of the guilt of the defendant, you will acquit him.”

The first complaint of this charge is that there is no evidence to base the second paragraph herein above copied upon. Under Mrs. Kilman’s testimony that, after she had refused to let appellant have the rings to have them repaired, he then took them from her fingers, and said he would have them repaired and return them, and the further fact that they that night went to the picture show together, would show an implied consent to that arrangement, and the issue is raised by the testimony.

The next complaint is that the paragraph is not the law, in that if appellant borrowed or took the rings to have them repaired for Mrs. Kilman it was a benefit to her, and not to him, and this in law would constitute embezzlement, and not theft by bailee. The true dividing line between embezzlement and theft by bailee in this character of ease is hardly distinguishable under our statutes on this subject. Under the authority of Butler v. State, 49 Tex. Cr. R. 160, 93 S. W. 743, the facts would clearly make it a case of theft by bailee,- but it is true that in that case the question of whether it would be embezzlement and not theft from the person seems not to have been discussed. To put the matter as contended by appellant, the most that can be said is that he was engaged to be married to Mrs. Kilman; he was not her agent, employé, nor her servant, nor did any relation exist that would render him legally liable to perform any duty for her. If he got the rings, it was with her consent to pawn or pledge them for money for himself, or her implied consent to have them repaired. She requested him to perform no duty, constituted him her agent in no sense, but at most impliedly acquiesced in his performing a service he voluntarily proposed to perform. Under such circumstances we think a conviction for theft by bailee can be sustained.

Appellant next raises the question that the facts present the issue of theft from the person, that the rings were áo suddenly taken as to prevent resistance, and asked a special charge in regard thereto. The facts would not sustain a conviction for that offense, and the court did not err in refusing this special charge. As stated before, the dividing line of a number of these kindred offenses is not made very clear by the statutes and the decisions thereunder, but we do not' feel called upon to discuss them, as under no construction of the statute under the evidence in this case could a conviction for taking so suddenly as not to allow time to make resistance be sustained.

There was no necessity to charge on circumstantial evidence. There was no doubt that appellant procured the rings from Mrs. Kilman, there is no doubt that he pledged them to Mr. Young, and, while there is a sharp conflict as to whether or not his act in pledging the rings was or was not with her consent, yet this conflict in the testimony did not call for such a charge.

We have herein discussed all matters presented by the record and complained of by appellant in a way we could consider them, and, as stated before, there is a sharp conflict in the testimony as to the real issue in the case, and a fair and impartial jury would have been justified in believing his theory, yet they did not do so, but accepted the evidence offered in behalf of the state as presenting the real facts, and they found this to be true beyond a reasonable doubt, and if true it fully sustains the verdict, and the judgment will be affirmed.


author: ■PRENDERGAST, J.

text:
    NORWOOD v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    1. Physicians and Surgeons (§ 6)—Un-lawful Practice of Medicine—Criminal Prosecutions—Issues, Proof, and Variance.
    The variance “ between the complaint and information alleging that accused practiced medicine by treating a person named for consumption, diagnosing her case and prescribing a treatment, and the proof that the person named applied to accused for treatment and told him that she had asthma and a choking-up sensation at night, and that accused did not diagnose the case as consumption, is fatal.
    [Ed. Note.—Eor other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11: Dec. Dig. § 6.]
    2. Physicians and Surgeons (§ 6)—Prac-ticing Without License—Parties to Offenses—Agents.
    An officer, agent, or employé of a corporation who practices medicine without a license commits an offense, though he purports to act for the corporation.
    [Ed. Note.—For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]

      Appeal from Bexar County Court; J. R. Davis, Judge.
    W. N. Norwood was convicted of unlawfully practicing medicine, and lie appeals.
    Reversed and remanded.
    J. R. Norton, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   ■PRENDERGAST, J.

The appellant was convicted for unlawfully practicing medicine. The complaint and information, among other things, alleges that the appellant did practice medicine upon a human being in Bexar county without authority of law, in "that he did then and there unlawfully treat a disease or disorder, to wit, did treat one Yinnie Spang-ler, a human being, for consumption, diagnosing her case and prescribing some gas treatment therefor, with the other proper allegations.

The proof showed that, when said Yinnie Spangler applied to appellant for treatment, she told him, upon his inquiry, “that I had asthma and choking-up sensation at night.” On cross-examination she testified: “The defendant never diagnosed my ease as consumption. * * * X told the defendant I had asthma, or a choking-up sensation at night, and he said he could cure it.” Appellant himself testified on this ubjeet: “I never diagnosed her case as consumption.” And again: “I did not diagnose Maud Richardson’s case.” This latter name was the name Miss Spangler assumed when she introduced herself to appellant. This is all the testimony on the subject. The court, at the instance of the county attorney, in submitting it to the jury for a finding, charged them: “If you find that the defendant on or about October 2, 1912, treated Yinnie Spangler for a disease or disorder with the other requisites,” to find him guilty.

The point was made in the lower court and in this that there was a fatal variance between the allegations and the proof in that the allegations charged on this point, as above stated, and that the proof did not establish or tend to establish that Yinnie Spangler had consumption or was treated for consumption. In our opinion appellant’s contention is correct, and must result in the reversal of the case.

The appellant’s main contention in the court below was in effect that while numerous patients were treated in the hospital of which he had charge that it belonged to a corporation, and he was the mere manager, employé, and agent of the corporation in whatever was done in the way of treating patients, receiving pay therefor, etc. The court at his instance gave this special charge to the jury: “You are instructed that if you believe from the evidence that the treatment given to Yinnie Spangler was given by the Norwood Institute, a corporation, and not by the defendant, then, in that event, your verdict should be for the defendant, and you should say by your verdict not guilty.” This-special charge is not the law, and should not have been given. Even if he was an officer, agent, servant, or employé of said corporation and committed the offense charged, even though purporting to act or acting for the corporation, he would be guilty. Oliver v. State, 144 S. W. 615, 616; Gould v. State, 146 S. W. 178. Mr. Bishop in his 1 Criminal Law, in section 892, says: “An agent or servant who, knowing the facts, does a criminal thing for his principal or master, is answerable to the criminal law precisely as though he had proceeded self-moved, and for his own personal benefit. And it is the same when with the like knowledge he merely assists therein.” Again, in section 685, he says: “The authorities agree that there are in misdemeanor no accessories either in name or in the order of the prosecution.” To the same effect is Bush v. State, 6 Tex. App. 421; Taylor v. State, 5 Tex. App. 529. Mr. Branch in his Texas Criminal Law, § 681, lays down this rule, and cites these cases in support of it: “There is no distinction between .principals and accomplices in misdemeanors; a party who would be an accomplice if the offense was a felony is a principal if the offense is a misdemeanor. If defendant comes either within the definition of an accomplice or a principal, he is a principal in a misdemeanor. Houston v. State, 13 Tex. App. 595; Caudle v. State, 74 S. W. 545; Monda v. State, 70 S. W. 548; Kaufman v. State, 38 S. W. 771; Buchanan v. State, 33 S. W. 339; Beuchert v. State, 37 Tex. Cr. R. 505, 40 S. W. 278; Bogle v. State, 42 Tex. Cr. R. 392, 55 S. W. 830; Schwuist v. State, 52 Tex. Cr. R, 427, 108 S. W. 698; Gerstenkorn v. State, 44 S. W. 502; McGovern v. State, 49 Tex. Cr. R. 36, 90 S. W. 502; Winnard v. State, 30 S. W. 555; Rape v. State, 34 Tex. Cr. R. 615, 31 S. W. 652; Segars v. State, 40 Tex. Cr. R. 577, 51 S. W. 211; Reed v. State, 53 Tex. Cr. R. 4, 108 S. W. 368, 126 Am. St. Rep. 765; Hawkins v. State, 51 Tex. Cr. R. 37, 100 S. W. 956; Lott v. State, 58 Tex. Cr. R. 604, 127 S. W. 192.” See especially Oliver v. State, supra. It is unnecessary for us to cite the numerous cases decided by this court construing and applying the statute prescribing this offense. But see Collins v. State, 152 S. W. 1048, where some of the cases are collated.

We have considered all other of appellant’s claimed errors, as assigned, and are of the opinion that none of them as assigned presents any error.

Reversed and remanded.