text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    Criminal Law (§ 1186) — Appeal — Statement op Facts.
    Where it did not appear that defendant ever filed an affidavit stating that he was unable to pay the stenographer to make out a statement of facts, or that, after refusal of his verbal application to the court to require the furnishing of such a statement and his failure to agree with the district attorney as to a statement prepared, he presented it to the trial judge, informing him of such disagreement and requesting him to prepare and file a statement, he was not entitled to have the judgment reversed for failure to secure a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3239; Dec. Dig. § 1186.]
    Appeal from District Court, Wichita County; Jo A. P. Dickson, Judge.
    J. D. Smith was convicted of bigamy,. and he appeals.
    Affirmed.
    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

   HARPER, J.

Appellant was prosecuted and convicted of bigamy, from which judgment he prosecutes this appeal.

There is an affidavit of Mr. Wm. N. Bonner, who represented appellant on the trial of the case, without fee or hope of reward, as shown by his affidavit, and on which he asks us to reverse the case because appellant had been deprived of a statement of facts. He does not show that appellant ever filed an affidavit stating that he was too poor to pay the stenographer to make out a statement of facts. It is true that Mr. Bonner states he verbally applied to the court to require the stenographer to furnish a statement of facts, but the court declined to accede to this verbal request. Mr. Bonner then states he made out a statement of facts and submitted it to the district attorney, who declined to agree to it; but nowhere does the affidavit show that appellant’s attorney presented to the judge who tried the case a copy of this statement of facts, nor that he requested the judge to make out one. It is true that in his affidavit he states the district attorney told him the judge would not do so ; but the law required of Mr. Bonner, in the event of failure to agree with the district attorney, to in person present the trial judge with such statement, at the time informing him of such disagreement, requesting him to prepare and file a statement of the evidence, having failed to comply with these provisions of the law, he is not entitled to have the case reversed because of his failure to secure a statement of facts.

There are no bills of exception in the record, nor is it made to appear that any were ever prepared and submitted to the court. The indictment in this case has been frequently approved by this court, consequently the court did not err in overruling the motion to quash it. Bryan v. State, 63 Tex. Cr. R. 200, 139 S. W. 981, and cases there cited.

The judgment is affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    JUDSON & LITTLE v. TUCKER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 22, 1913.
    Rehearing Denied April 12, 1913.)
    1. Master and Servant (J 192) — Fellow Servants — Servants of One Master Under Control oe Another.
    Where one master lends or hires his servant to another for a particular employment, the servant in that employment must be dealt with as a servant of the master to whom, he is hired or lent, although he remains a general servant to the person who hired or lent him, and, if he receives an injury in the service of the person to whom he is hired or lent, he cannot recover therefor, the test being whether in the particular service he is engaged to perform he continues liable to the direction or control of his master, or becomes subject, to the direction of the one to whom he is hired or lent; and. hence plaintiff,, a servant of a transfer company, who was directed to take a team and do some moving for a well-driving company, was, while engaged in such work under the direction of the driving company’s foreman, a servant of that company and a fellow servant of its servants, for whose negligence, other than that of a vice principal or one performing a nondelegable duty of the master, he could not recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 379-381; Dee. Dig. § 192.]
    2. Master and Servant (§ 189) — Injury to Servant — “Fellow Servant” — “Vice Principal.”
    A servant without power to employ or discharge is not a “vice principal,” but as to servants of the same master is a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437 — 448; Dec. Dig. § 189.

    For other definitions, see Words and Phrases, vol. 3, pp. 2716-2730; vol. 8, pp. 7662, 7313-7316.]
    3. Master and Servant (§ 185) — Master’s Liability — Safe Place for Work — Delegation.
    ' A master is liable for the negligence of a servant who is discharging the primary or nonassignable duty of the master to provide a safe method for work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.]
    4.Master and Servant (§ 185) — Master’s Liability — Safe Place for Work.
    A master i¡§ bound to exercise due care to adopt a reasonably safe method of work and to provide suitable means to accomplish the general object of the work, but mere details in its performance may be committed to fellow servants.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. 185.]
    5.Master and Servant (§ 216) — Master’s Liability — Assumption of Risk.
    A servant assumes the dangers arising from the negligence of his fellow servants when committed in the performance of their own duties, as well as those which are obvious and incidental to their employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dec. Dig. § 216.]
    6. Master and Servant (§ 163) — Master’s Liability —Method of Work —Insufficient Number of Servants.
    A master’s liability to adopt a reasonably safe and practicable method of work includes the duty to provide a sufficient number of men therefor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 328-330; Dec. Dig. § 163.]
    7. Master and Servant (§ 217) — Master’s Liability — Assumption of Risk — Methods of Work — Insufficient Number of Servants.
    A servant knowing that the number of men present to perform a particular piece of work is insufficient assumes the risk involved in the undertaking with such number.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    8. Master and Servant (§ 276) — Action for Injuries — Sufficiency of Evidence-Proximate Cause.
    Evidence in an action for injuries by the general servant of another employed in a particular work as the servant of defendant held, to show that the negligence of his fellow servants was the proximate cause of his injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Action by C. C. Tucker against J. W. Judson and T. H. Little, doing business as Judson & Little, and the Binyon Transfer & Storage Company. Judgment for the Storage Company and for plaintiff against Judson & Little, and they appeal.
    Reversed, and judgment rendered for appealing defendants.
    Sidney L. Samuels and Lassiter, Harrison & Rowland, all of Ft. Worth, for appellants. McLean & Oarlock, of Ft. Worth, for appellee.

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

   CONNER, C. J.

C. C. Tucker brought this suit in the district court against J. W. Judson and T. H. Little and the Binyon Transfer & Storage Company, a corporation, to recover damages in the sum of $15,000 for certain personal injuries. Plaintiff alleged that Judson & Little were engaged in sinking deep wells near the city of Ft. Worth, and that on the date alleged they called upon Binyon Transfer & Storage Company, which was engaged in the moving, transfer, and storage business, “to send out to their said wells one of their large moving wagons with a driver and his assistant to do some work in connection with the moving of some of the materials or supplies from one portion of their works to another, and that in pursuance of this request said defendant company directed plaintiff to take the team which he was in charge of and one of the other employes of the company, a negro laborer, and to report to the said defendants at their said place of work for the purpose of assisting them in moving the property desired to be moved by. them. That in pursuance of this request or direction of his employer the plaintiff took his said team then under his charge, and went to the wells of the defendants Judson & Little, and was directed by their foreman, the superintendent in charge of said work, to assist in moving a quantity 'of materials, tools, and supplies from one of their said wells to another well distant several hundred yards. That this work was performed by the plaintiff, said superintendent furnishing the mén to load the said materials onto plaintiff’s wagon, and that thereupon the said superintendent, who was then and there the vice principal of the defendants Judson & Little, called upon the plaintiff to load upon the wagon for the purpose of removal a certain heavy, solidly built house used, among other things, for the purpose of a tool and storage house by the said defendants, and being in dimensions about 12 by 14 feet in breadth and about 12 feet in height, and weighing from one to two tons. That the said superintendent and vice princinal of the said defendants Judson & Little was in full control and management of the said work, and the plaintiff acted under nis direction and in compliance with his orders in assisting to move the said house, and in doing so received the serious, painful, and permanent injuries hereinafter set out.”

As alleged and as shown by the undisputed evidence, the accident occurred under substantially the following circumstances: Appellee was employed as the driver of one of the large moving wagons owned by the Binyon Transfer & Storage Company, and had been for some time; that as such he had experience in loading, moving, and unloading heavy articles, and that on the occasion in question as alleged in his petition the appellants over the phone requested Mr. Binyon of the corporation named to send out to them one of his large wagons with a driver and assistant for the purpose of assisting appellants in moving certain property desired to be moved by them; that in pursuance of this request, and by direction of Mr. Binyon, he took a team with an assistant and reported as directed to appellant’s foreman in charge of their work, and was by him directed, among other things, to assist in moving the house in question; that this foreman, Myers by name, “was in' full control and management of the said work,” and appellee “acted under his direction and •in compliance with his orders in assisting to move the said house”; that on the return of the plaintiff for the purpose of removing the toolhouse (after having removed certain tools) the wagon was backed up near it, and the hind wheels sunk in trenches so as to lower the end of the wagon near the toolhouse. By direction of the foreman his force, consisting of five men, in addition to the plaintiff and his helper, tilted the house over toward the wagon. The foreman concluded however, that the weight of the house might cause the hind wheel to crush through its walls, and directed the operatives to hold the house until a plank could be placed across the hind wheels upon which the house might rest. Thereupon some one (there is evidence tending to show that it was the foreman of Judson & Little) picked up a piece of scantling about two inches thick, six or eight inches wide, and about five feet long, and handed it to the plaintiff’s negro assistant, who passed it on to the plaintiff, and who therewith undertook to prop the leaning toolhouse. After the plaintiff had fixed the scantling so as to prop the house, some one not certainly identified in the evidence called out, “All right,” whereupon one or more of the men who had been holding the house in its inclined position let go their hold, and its weight came down upon the piece of scantling referred to. The scantling broke, and in the fall of the house plaintiff’s leg was caught and severely injured.

Of the acts of negligence alleged as grounds for recovery, and which there was evidence tending to support, the court submitted the following: First, whether the foreman was guilty of negligence in adopting the method of loading the house he did; second, whether the foreman was guilty of negligence in attempting to load the house with the number of men employed; third, whether the foreman, Myers, failed to properly direct and control the labors of the men while engaged in lifting the house so as to prevent its fall; and, fourth, whether the foreman was guilty of negligence in furnishing the plaintiff with a defective or insufficient brace or prop.

Upon the trial the court directed a verdict in favor of the Binyon Transfer & Storage Company, and we are not called upon by any assignment or cross-assignment to review this action of the court. But as against Judson & Little the jury returned a verdict in plaintiff’s favor for $2,812, from which judgment this appeal has been prosecuted.

Appellants’ first assignment of error is to the action of the court in refusing a peremptory instruction in their behalf, the contention being that the facts and circumstances in evidence show without dispute that the risk and dangers, if any, in doing the work the way in which it was done and with the number of men at hand, were patent and obvious, and known to the plaintiff, and that he, therefore, assumed the risk and danger from which his injuries resulted. In answer to these contentions in appellant’s behalf, appellee first insists that the relation’ of master and servant did not exist between him and appellants, and that, therefore, any negligence on the part of any of the servants of appellants that proximately caused his injuries rendered them liable; and, second, that even though it be held that the relation of master and servant did exist between appellee and appellants yet the negligence of the foreman alleged and submitted by the court as authorizing a recovery relate to the performance of personal and nonassignable duties of the master toward his servant, and that, therefore, appellants are liable. It will be thus seen that one of the vital questions raised for our determination is whether the plaintiff at the time and under the circumstances of his injuries was the servant of appellants or of his general employer, the Binyon Transfer & Storage Company. If the servant of the latter, then the principle of assumed risk has no application, and the appellants would be liable for any negligence of their foreman which proximately caused the injury, whether such foreman was a vice principal as to them or not. If, on the contrary, the plaintiff at the time and in relation to the work undertaken bore the relation of a servant to appellants, then he assumed as matter of law the risks arising out of the negligence of appellants’ other servants, and appellant would not be liable therefor unless such negligence was committed by a vice principal or in the performance of a nondelegable duty of the master.

The question presented is an interesting one, and not entirely free from difficulty. The case invoked by appellee as most in point in support of his contention that he was not under the circumstances one of appellants’ servants is the case of Murray v. Dwight, a New York decision which may be found reported in 161 N. Y. 301, 55 N. E. 901, 48 L. R. A. 673. To this is added Burton v. Railway, 61 Tex. 535; Brennan v. Berlin Iron Bridge Co., 74 Conn. 382, 50 Atl. 1033; Zeigler v. Railway Co., 52 Conn. 543, 2 Atl. 462; N. O. Ry. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191; Joslin v. Grand Rapids Ice Co., 50 Mich. 516, 15 N. W. 887, 45 Am. Rep. 54; Crockett v. Calvert, 8 Ind. 127; Railway Co. v. Conroy, 63 Miss. 562, 56 Am. Rep. 835; Railway Co. v. State, 58 Md. 372. The New York case of Murray v. Dwight so urgently relied upon by appellees was briefly one in which a servant of a truckman was sent with a horse by his master to a warehouse for the purpose of operating trucks for hoisting heavy material from one story to another, which was to be done under the direction of a foreman of the warehouseman. The rope to one end of which the horse was to be hitched and by which articles were to be hoisted extended under a pulley block fastened near the lower floor, and thence on over another pulley block fixed near the top of the building. After the servant of the truckman had repaired to the warehouse, he was told to go into the building, and as he started to do so the pulley block from above, which one or more of the servants of the warehouse were endeavoring to adjust, was negligently permitted to fall upon him, and he was injured. It was held that the servant of the truckman was not a fellow servant with those engaged by the warehousemen. We will not take the time to discuss all of the eases cited by appellee, some of which at least are easily distinguishable from the one before us, nor attempt to reconcile them with cases hereinafter cited which are in conflict or in apparent conflict therewith. We will observe, however, in passing that the opinion in the New York case upon which ap-pellee so strongly relies was by a divided court, and that the truckman whose status was therein fixed was not injured by an act done in the very work for which he was employed, but instead by the negligence of the warehouseman’s servants in adjusting the overhead pulley necessary as a fixture before the truckman’s work could begin or be carried on. The servants of the warehouseman so engaged with the pulley block above were in an important sense performing their master’s primary duty to suitably prepare the building and appliances for the truckman’s labor. It is otherwise here. Appellee was injured by acts or omissions of appellant’s servants while engaged with him in the very work he undertook to do or aid. The acts or omissions relied upon as negligent are not severable from the whole, but constituted an integral part of the particular work in hand. It seems to us that this case on the question we are now discussing is more nearly in accord with the following authorities, viz.: Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328; Coughlan v. City of Cambridge, 166 Mass. 268, 44 N. E. 218; Higgins v. W. U. Telegraph Co., 156 N. Y. 75, 50 N. E. 500, 66 Am. St. Rep. 537; Brady v. Chicago & G. W. R. Co., 114 Fed. 100, 52 C. C. A. 48, 57 L. R. A. 712; Hardy v. Shedden Co., 78 Fed. 610, 24 C. C. A. 261, 37 L. R. A. 33; 26 Cyc. 1285.

In the case of Green v. Sansom, 41 Fla. 94, 25 South. 332, it appeared that a servant of an independent contractor was sent to do a certain piece of work for the employer of such contractor, and that from the time such servant set to work the employer assumed and exercised control over him and the work performed by him, directing and controlling him as to the methods and details by which the desired result was to be accomplished, and it was held that the relation of master and servant was thereby constituted between the employer and the servant of the independent contractor. In 26 Cyc., supra, the author says: “Where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him; and, if the servant receives an injury in such employment from the negligence of a servant of the person to whom he is lent, he cannot recover therefor. The test is whether in the particular service he is engaged to perform he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is hired or lent.” This general statement of the law seems to he well supported by the authorities herein last cited, and to be well illustrated by them. It seems not to be inconsistent for an employs to occupy a dual relation. He may be the servant of and paid by a general master, but if employed elsewhere, temporarily subjecting himself to the complete direction and control of the temporary employer in the work to be performed, he becomes for the time being and as to that work the servant of the special master, and it is of no consequence whether he is loaned for the purpose or whether he is hired, not directly, but through his general master. In the case before us it cannot be questioned that appellee voluntarily yielded to the direction of his general master to aid and assist appellants in the performance of such work as they desired, it not being specified at the time what particular thing was to be done; that he voluntarily repaired to the proper .place and voluntarily yielded to the temporary control and direction of appellants’ foreman — not to undertake the removal of the toolhouse for his general master as an independent contractor, but to act only as an aid or assistant of the servants of appellants who were at the time charged with the responsibility, and duty of accomplishing the specific object to be attained, viz., the removal of the toolhouse. Under such circumstances, if we have interpreted the authorities aright, appellee for the time being and as to the particular work in which he was engaged at the time of his injury was a fellow servant with those of appellants, notwithstanding his general employment; by the Binyon Transfer & Storage Company.

Was the appellee entitled to recover notwithstanding his relation to appellants? While so alleged in his petition, it is not now seriously contended in his behalf that appellants’ foreman, Myers, was a vice principal. There is no evidence showing that Myers had the power to employ or discharge, and hence, under the ruling of our Supreme Court in the recent case of Lantry-Sharpe Contracting Co. v. McCracken, 150 S. W. 1156, it must now be conceded that he did not occupy such relation toward appellants. He therefore was but a fellow servant with appellee, ánd the further important question for our determination is: Was Myers in the performance of the acts submitted by the court as grounds of recovery discharging primary or nonassignable duties of his master? If' he was, as stated and as appellee insists, appellants are liable for his negligence. The general duty of appellants was to exercise due care to adopt a reasonably safe method, and to provide suitable conveyance and means for the accomplishment of the general object to be attained, which was the removal of the toolhouse. But mere details in the performance of the work could legally be committed to the servants; to adopt any other rule would require the master’s personal presence and supervision throughout all work undertaken, and the law imposes no such burden.

The law is that the servant assumes the dangers arising from the negligence of his fellow servant when committed in the performance of their own particular duties as well as those that are obvious and ordinarily incident to their employment. See Lantry-Sharpe Contracting Co. v. McCracken, 150 S. W. 1156; G., C. & S. F. Ry. Co. v. Larkin, 98 Tex. 225, 82 S. W. 1026, 1 L. R. A. (N. S.) 914; Whittaker v. Bent, 167 Mass. 565, 46 N. E. 121; Bedford Quarries Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418; Ling v. St. Paul, M. & M. R. Co., 50 Minn. 160, 52 N. W. 378, and note on this case reported in 54 L. R. A. 122; Richmond Locomotive & Mach. Co. v. Ford, 94 Va. 627, 27 S. E. 509; La Belle v. Montague, 174 Mass. 453, 54 N. E. 859; Kliegel v. Weisel & Vilter Mfg. Co., 84 Wis. 148, 53 N. W. 1119; Bedford Belt Ry. Co. v. Brown, 142 Ind. 659, 42 N. E. 359; Keystone Bridge Co. v. Newberry, 96 Pa. 246, 42 Am. Rep. 543.

An examination of the cases last cited will make clear the application of the principles suggested, thus;

In the case of Lantry-Sharpe Contracting Co. v. McCracken, by our Supreme Court, McCracken was engaged with other employes in the construction of a rock-crushing plant, and during the work it became necessary to adjust a heavy upright piece of timber, and the negligence charged and upheld by the verdict of the jury was that of a foreman in charge .of the work in giving an order to certain of the employes to pull a “tag line” which caused the upright to overcome the sustaining force of its brace, and to fall upon McCracken. The principal question discussed in that case was whether Bruce, the foreman, was a vice principal, but the judgment was reversed and rendered, in order to do which it must necessarily have been held that the negligent direction of the foreman was but an incident of the work. In other words, that the order of the foreman — the method adopted to overcome a temporary difficulty — was but a detail of the work for which the master was not liable.

Of like purport is the case of Richmond Locomotive &• Machine Works v. Ford, supra, where it was held that the master was not liable for an injury to an employs resulting because of the negligent manner in which the foreman, without power to employ or discharge, directed the removal of certain car wheels. So also In La Belle v. Montague, above, where a workman, together with three others, was engaged in lowering certain heavy flagstones, and was injured by the sudden fall of one of the stones. It was claimed that the foreman under whose direction the work was being done “should have given more specific orders” and “that some other means should have been adopted in letting it down.” But it was held that the master was not liable, the court stating that “it is difficult to see wliat orders should have been given which it was necessary to give to one so experienced as the plaintiff,” and, further, that “there is nothing to show that the stone could not properly be handled by men with their hands, or to warrant the finding that the use of a derrick or such other mechanism was necessary. It would seem from the evidence that the accident was probably caused by the other men letting go before the plaintiff did. If this was so and his fellow workmen were negligent in letting go too soon, this does not give him the cause of action against the defendant.”

In Ling v. St. Paul, M. & N. Ry. Co., supra, it was held that the master was not responsible to a servant for the act of a fellow servant in negligently selecting a defective instrument — an iron hook — to which to attach a pulley to raise a heavy weight in a boiler shop, that being a proper detail of the work in which the servants were engaged.

In the case of Keystone Bridge Co. v. New-berry, a workman was engaged with others, under the direction of one Wm. Weimand, in carrying iron rafters over an apparatus called a “trussed plank,” which gave way and by reason of which the plaintiff was injured. It was claimed that the injuries were occasioned by the breaking or giving way of a defective apparatus. The court said: “Now, the apparatus in question was not furnished by the company at all. It was made by Weimand and two others of the workman, and, if . it was defective, it was the result of the negligence of three fellow workmen of the plaintiff’s. No superior officer of the company gave orders that the particular material used should be selected, or that the particular contrivance itself should be constructed. The workmen made such an apparatus as they deemed sufficient. If it proved insufficient, it was an error of judgment on their part for which we can see no ground of .liability as against the defendant for the injuries of the plaintiff.”

We will notice a further case. In G., C. & S. P. Ry. Co. v. Larkin, Larkin, an employs of the railway company, was injured by a defective lantern used by him in the course of his employment. The negligence charged against the railway company was that it failed to have the lantern furnished to the plaintiff inspected before furnishing it, or after it had been furnished, and while he was using it. A recovery was denied; our Supreme Court, stating, among other things that: “A master is not required to inspect the common tools and appliances which are committed to the custody of a servant who had the capacity to understand their character and uses” — citing a number of cases, and further quoting with approval from Miller v. Ry. Co., 21 App. Div. 45, 47 N. Y. Supp. 285, as follows: “There is no duty resting on an employer to inspect during their use those common tools and appliances with which every one is conversant. If a spade, a hoe, or a push stick either wears out or becomes defective, the employer may ordinarily rely on the presumption that those using the article will first detect its defect.” In the case of Wachsmuth v. Electric Crane Co., 118 Mich. 275, 76 N. W. 497, the injured party was using a ladder which was defective, through which defects he was injured. The Supreme Court of Michigan said: “In heavy or complicated machinery, and where the person called upon to use the appliance' may not possess the skill to detect unfitness, or have the opportunities to do so, the law may require diligence upon the part of the master; but where the appliance is a common tool, of which the man who uses it is necessarily well qualified to judge, and who, when he uses it, has an opportunity to know its condition, a distinction may be made, and the master may rely upon the servant to inform him of the defect, or' not use the tool, if it is unsafe.”

Bearing in mind the cases cited, we think it must be held that appellee’s injuries resulted from risks assumed by him, including risks arising from the negligence of his fellow servants only, for which appellants are not liable. He was a man of mature years — 40 years old — and, as stated, with several years’ experience in lifting and moving heavy articles. Although he had never before aided in moving a house, no experience was necessary to bring home to his consciousness the fact that the house in question was heavy, and his own testimony shows that he realized this in the beginning. He testified that “he realized it was a big job,” and that, if he had been going to move the house, he would have taken it apart and moved the sections. Another witness testified that he would have used a block and tackle. But these suggestions seem to be but differences of judgment. The evidence wholly fails to support a conclusion that ordinary care would have dictated a different plan of removal than was adopted. Appellants provide a heavy wagon with an experienced driver and helper, and also a foreman and other assistants, and nothing goes to show that the hquse could not be so moved, or was variant from the plan or method theretofore adopted. So far as the “method” of removal was involved, no more was required of appellants than an exercise of ordinary care to adopt one reasonably safe and practicable. It may be said that the master was negligent in a failure to provide a sufficient number of men. This duty, indeed, the law would impose upon appellants, but notwithstanding their failure in this respect if appellee knew the number of men present, as he unquestionably did, and knew that the number was insufficient, although he finally testified otherwise, he assumed the risks involved in the undertaking with the number of men present. But, whatever else may be said with reference to this ground of negligence, after careful consideration we do not think a recovery can be predicated thereon. If it be assumed, as we doubtless should do in deference to the jury’s verdict, that appellants were guilty of negligence in a failure to furnish a greater number of men, yet it seems evident that this was not a proximate cause of appellee’s injuries. To illustrate, Herman Kroschinske testified: “When the prop was put there (under the inclined house), I heard some one say, ‘All right,’ but I do not know who it was; some one said, ‘All right,’ and the weight came down. When they said, ‘All right,’ I turned loose. I understood ‘All right’ to mean that is all right. I say I saw the prop under there, and I relaxed my hold and the thing just came over.” W. E. Roe testified, among other things: “When he [ap-pellee] put the brace under the building, he said, ‘All right,’ or ‘Turn loose,’ or something like that, and I turned loose and stepped back, and so did the other boys on my side of the building, and the house came down. I certainly tried to protect him if I could. I do not think any one said, ‘All right’ — I do not think anything about it — I know it, or I would not have turned loose.”

The appellee himself at one place in his testimony testified: “As to what caused the house to fall, I state to you that the men shoved it back on me, the men in front over by the wagon, the men that were putting the board across there; they shoved it, and that was not any of Binyon’s men.” The evidence is undisputed that the men actually engaged were of sufficient force to so lift as to incline the building toward the wagon, and the only reason appearing in the evidence why the house was not wholly lifted from the ground and put upon the wagon was that the foreman, as stated, concluded that the wheels of the wagon would penetrate the walls of the house, and he gave the order already mentioned. It certainly appears that men enough were present to sustain the weight of the house at the angle it was shown to be, and that the accident would not have happened save for the fact that appellant’s employés ceased their efforts to hold the house upon the exclamation shown in the testimony hereinabove quoted. What has been said also applies in part to the alleged insufficient prop. Nothing in the evidence indicates that the prop had been furnished by appellants, or that its use had been by them in contemplation. So far as the evidence tends to show, its use was suddenly called for by the foreman, and nothing appears tending to show that there was any defect in the prop itself, or. that, had the men engaged in lifting the house retained their hold and continued their efforts to sustain its weight, the prop was insufficient to have upheld all of the weight intended by the foreman at the time he gave the order for its use. As it seems to us, the proximate cause of appellee’s injuries is undeniably the negligence of his fellow servants in turning the inclined house loose, or that of the foreman, also a fellow servant, in giving the order that he did. Without further discussion, we think appellee’s injuries were either caused by dangers that were perfectly obvious to him, or by the negligence of one or more of his fellow servants.

It follows that the court should have peremptorily instructed the jury in appellants’ favor as they requested, and that the judgment must be reversed and here rendered for appellants.


text:
    FERRELL et al. v. MILLICAN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 1, 1913.
    On Motion for Rehearing, April 19, 1913.)
    1. Appeal and Error (§ 880) — Error as to Coparty — Recalling Jury — Receiving Amended Verdict.
    Where plaintiff made no case against a defendant against whom a codefendant did not present a cross-action, and the jury failed to observe the direction of the court to find for defendant, the action of the court in recalling the jury and in receiving an amended verdict in favor of defendant was not prejudicial to codefendant, in the absence of anything to show that the jury had been improperly approached or influenced.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3584-3590; Dee. Dig. § 880.]
    2. Fraud (§ 37) — Action—Venue.
    A defendant who failed to pay to a corporation a specified sum, as he had promised to induce plaintiff to return to the corporation money she had withdrawn, and who at the time of the making of the promise did not intend to fulfill it, was guilty of fraud within Rev. Civ. St. 1911, art.-1830, cl. 7, defining the venue in cases of fraud.
    [Ed. Note. — For other cases, see Fraud, Gent. Dig. § 33; Dec. Dig. § 37.]
    3. Trial (§ 140) — Evidence—Question for Jury.
    The jury are the judges of the credibility of the witnesses and of the facts proved.
    [Ed. Note. — For other cases, see Trial, Gent Dig. §§ 334, 335; Dec. Dig. § 140.] ■
    4. Fraud (§ 37) — Action—Venue.
    Where a conversation embodying representations and promises relied on to constitute fraud was had in an office in a designated county, an action for the fraud was properly brought in the county.
    [Ed. Note. — For other cases, see Fraud, Gent. Dig. § 33; Dec. Dig. § 37.]
    5. Corporations (§ 88) — Stock Subscribers —Withdrawal of Money Paid.
    A subscriber of stock, who paid for the stock, may, on the failure of the corporation to issue stock, recover back the money paid with interest, in the absence of any complaint by any creditor of the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 337-364, 425-428; Dec. Dig. § 88.]

      6. Fraud (§ 1) — Acts Constituting.
    One who, with a fraudulent purpose, induces another by representations and promises to surrender the favorable position in which he has placed himself is guilty of fraud in fact.
    [Ed. Note. — For other cases, see’Fraud, Cent. Dig. §§ 1-7; Dec. Dig. § 1.]
    7. Indemnity (§ 3) — Contracts—Consideration.
    A promise by one to indemnify another in the event of loss in case the latter would pay money to a corporation is supported by a sufficient consideration where, in reliance on the promise, the payment is made.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 2-6; Dee. Dig. | 3.]
    8. Frauds, Statute of (§ 20) — Indemnity —Validity.
    A parol promise of indemnity, supported by a sufficient consideration, is not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 32; Dec. Dig. § 20.]
    Appeal from Tarrant County Court; Chas. T. Prewett, Judge.
    Action by Miss Ñola Millican against W. B. Ferrell and another. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    Hunter P. Lane and Theodore Mack, both of Ft. Worth, for appellant. Bryan & Spoonts, of Ft Worth, for appellee.

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

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

   CONNER, C. J.

We are not disposed to disturb the judgment below on the ground urged in the first assignment that the court erred in recalling the jury and in receiving the amended verdict in favor of R. S. Ferrell. As in favor of the plaintiff in the suit, it cannot be said that either in the pleading or in the evidence was a case made against R. S. Ferrell, and the court very properly gave the jury in the first instance a peremptory instruction in his favor. The appellant, W. B. Ferrell, urged no cross-action against R. S. Ferrell, nor in the interim does it appear that the jury were improperly approached or influenced, and it is not apparent in any way that appellant was injured by the mere omission, on the part of the jury in the first instance, to observe the direction of the court to find in favor of R. S. Ferrell. Neither is it clear that the verdict, as originally entered, did not sufficiently authorize the judgment which at all events finally disposed of R. S. Ferrell. See Railway Co. v. James, 73 Tex. 18, 10 S. W. 744, 15 Am. St. Rep. 743, citing Pearce v. Bell, 21 Tex. 691, and Avery v. Avery, 12 Tex. 57, 62 Am. Dec. 513. However viewed, the action taken by the court constituted a mere irregularity or technical error which, as before remarked, in no wise seems to have prejudiced appellant, and the first assignment is accordingly overruled.

Nor do we assent to the proposition urged under the second and third assignments of error that “no evidence whatever” was adduced tending to show actionable fraud on the part of appellant committed in Tarrant county. As alleged, it was appellee’s money that she was induced to advance to Ferrell Bros. Commission Company upon an express promise on W. B. Ferrell’s part that he and others, who had withdrawn their funds from the company, would replace the same with assurances that, if appellee would do likewise she would be guaranteed against loss. Assuming, for the moment, that the money was in fact that of appellee and not of the commission company, there was evidence which undoubtedly tends to support appel-lee’s allegations. It appears from her own evidence that the moneys were advanced upon the faith of the promise averred, which was not fulfilled, and one witness testified to the effect that appellant had stated to him that he had no intention of fulfilling the promise. If true, and of this the jury were the judges, the representations clearly constituted such fraud as to bring the ease within the seventh clause of article 1830, Revised Statutes 1911. See Hunt Oil Co. v. Scott, 28 Tex. Civ. App. 213, 67 S. W. 451; Western Cottage Piano & Organ Company v. Griffin, 41 Tex. Civ. App. 76, 90 S. W. 884.

This fraud, as must be imputed from the verdict of the jury under the court’s charge, was committed in Tarrant county; appellee testifying, among other things, that the conversation to which she referred and which evidently embodied the rexiresentations and promises charged was “in the office,” which undoubtedly was situated in Tarrant county. And in this connection it may be well to observe that appellant requested, and the court gave, his special charge No. 1 on the subject which called upon the jury to find only upon the issue of fraud, in effect, assuming that, if the transactions relied upon constituted fraud, such fraud was committed in Tarrant county.

But it is urged that the money replaced was not the money of appellee, and that however fraudulent may have been the representations and promises of W. B. Ferrell, and whatever reliance thereon may have been placed by appellee, she was thereby induced to do only what she was under legal obligations to do, viz., return into the treasury of the company money that was owned by the company. Let it be assumed that the money withdrawn was that of the corporation. We yet are of opinion that the circumstances are sufficient to constitute a fraud. Giving to the evidence a construction most favorable to appellant, it seems undisputed that appellee had originally invested her money with the commission company as a subscriber for stock, but it is undisputed that no stock was ever issued to her. Under such cicumstances, appellee would have a legal right to recover the money so paid by her, with interest thereon. Says the author of 10 Cyc, p. 371: “A purchaser of stock in a corporation to be formed is not restricted, upon failure to issue shares after payment therefor, because the corporation is enjoined against it, to an action for damages for breach of contract; but he may after the expiration of a reasonable time demand and recover back the money paid with interest.” See, also, the same authority, p. 394, cl. “e,” pp. 437-447. Again it is said in clause “f,” p. 1328, of the same authority: “Where, on the dissolution of a private foreign corporation, all debts are satisfied, and no receiver has been appointed to wind up its affairs, the title to its property vests in the shareholders as tenants in common so that they may bring action of trespass to try title as to such property.” The rights of a stockholder under the same circumstances under our own statutes we think would not be less. See chapter 10, tit. 25, Revised Statutes 1911.

We think it is to be fairly inferred from appellee’s testimony that, at the time she withdrew her money from the funds of the commission company, it was at least in a precarious financial condition, and that, in the light of the fact that W. B. Ferrell had withdrawn his money and permitted others to withdraw their money, appellee in equity was authorized to treat the money that she placed with the company for stock as her own and to withdraw it; ■ it appearing that she did so without being guilty of a breach of the peace, and it not appearing from the record herein that the corporation or any creditor thereof is complaining,1 the only complaint being that of appellant, whom the proof shows had, as before stated, withdrawn the money by him subscribed and paid in. Under the circumstances stated and the authorities cited, which we think are supported in reason, that, as against the commission company or W. B. Ferrell himself, appellee undoubtedly could have successfully resisted a suit for the, recovery of the money.

This being true, appellant, by his representations and promises, induced appellee to forego and surrender the favorable position in which she had placed herself; and this having been done with the fraudulent purpose of noncomplianee constituted a fraud in fact.

These conclusions, under well-settled principles relating to the subject, also extend to the further objection that there was no consideration for appellant’s promise to indemnify appellee in event of the ultimate loss of her money.

It is still further insisted that appellant’s promise, being oral, was within our statute of frauds, and hence not enforceable. Appellant cites.in support of this contention,the case of Gansey v. Orr, 173 Mo. 532, 73 S. W. 477. The case referred to is well reasoned and written and seems to clearly uphold appellant’s contention. The decision, however, recognizes the fact that the authorities on the subject are conflicting, and our courts, we think, have adopted the contrary view, distinctly and frequently holding that a promise of indemnity upon sufficient consideration will be upheld. See Lemmon v. Box, 20 Tex. 329; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Spann v. Cochran, 63 Tex. 240; Morris v. Gaines, 82 Tex. 257, 17 S. W. 538; Thompson-Houston Electric Co. v. Berg, 10 Tex. Civ. App. 200, 30 S. W. 454; Campbell v. Pucket, 1 Posey, Unrep. Cas. 465; Heidenheimer Bros. & Jones v. Johnston, 1 White & W. Civ. Cas. Ct. App. §§ 645, 646. We need not here undertake to enlarge upon the reasoning of our own cases, but conclude that they fully support the view that appellant’s promise of indemnity, under the circumstances alleged and shown by ap-pellee, was an original promise not within our statute of frauds.

The foregoing conclusions, we think sufficiently dispose of all questions presented by appellant’s assignments of error. They are therefore all overruled, and the judgment affirmed.

On Motion for Rehearing.

Our attention has been called to a mistake of statement in our original opinion. The evidence does not show that W. B. Ferrell had withdrawn the, money put into the corporation by him, but instead that others had been permitted to withdraw their money and that he had failed to place in the treasury of the company the $500 as he so promised in order to induce appellee to return the money by her withdrawn. We do hot regard the mistake as having any material effect upon our original conclusion, but the correction has been made for the purpose of accuracy.

We on all points originally determined remain of the same conclusion, and the motion for rehearing is overruled.


author: PLEASANTS, C. J.

text:
    KIRBY et al. v. CONN et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 15, 1913.
    Rehearing Denied April 10, 1913.)
    1. Public Lands (§ 173) — Sale of Timber— Rights of Purchaser-Settling Land-Repeal of Statute.
    Under Acts 27th Leg. c. 125, a purchaser of timber with the right to purchase the land at any time before five years, but before the timber has been removed, a part of the consideration for which he paid the state, has a vested right when the state accepts his application to purchase the timber, and he complies with the terms of such purchase, which could not be impaired by a sale of any part of the land and the issuance of patents thereto from the state to another-, during the time in which the purchaser had the statutory right to buy the land; and the fact that the act of 1907 relieved those holding such purchase rights from complying with the requirement of actual settlement did not change the date of his purchase of the timber as the date upon which his right to purchase the land became vested.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. D'ig. § 173.]
    2. Public Lands (§ 173) — Texas—Limitation of Actions.
    Acts 29th Leg. c. 29, which provides that all persons claiming the right to purchase public lands sold or leased to any person under any law shall bring suit therefor within one year after the act goes into effect or after the date of the award of such sale or lease, and that,, if no suit is so brought, it shall be conclusive evidence, except as against the state, that all requirements of the law with reference to the sale or lease of such lands have been complied with, was intended to limit to one year the time in which an award or sale of land by the state might be attacked on the ground of irregularity by one claiming a right to purchase, and did not affect one whose right in the land sought to be recovered had ,vested prior to an award or sale by the state to the adverse claimant.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.].
    3. Public Lands (§ 173) — Patent — Validity.
    The state could not grant to a patentee land that it had previously contracted to sell to the purchaser of timber, and any patent impairing such purchaser’s right to acquire title by compliance with the terms of his contract was void, and passed no title.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    4. Teial (§ 143) — Question foe Juey — Conflicting Evidence.
    An issue of fact upon conflicting evidence is for the jury.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.]
    6. Teespass to TRY Title (§ 52) — Rights of Action — Defenses.
    In trespass to try title, in which defendants disclaimed as to all of a quarter section except the part thereof included in a patent'to their predecessor, and afterwards filed an agreement that they had cut and removed such of the timber as was cut from the property in controversy, such agreement was sufficient to authorize a verdict for plaintiff as to timber cut from the land in controversy.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent Dig. §§ 83, 84; Dec. Dig. § 52.]
    6. Trespass to Try Title (§ 52) — Rights of Action and Defense — Parties Liable.
    In trespass to try title against an individual claiming the land under deed from a patentee, and a lumber company which had cut and removed timber therefrom with his consent and permission, such consent and permission made the individual defendant a joint trespasser with the lumber company and liable to plaintiff in damages therefor.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 83, 84; Dec. Dig. § 52.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Trespass to try title by R. C. Conn against John H. Kirby, the Kirby Lumber Company, and J. R. Chapman, in which defendants Kirby and the Kirby Lumber Company im-pleaded A. V. Wright. Judgment for plaintiff against all defendants as to title and for damages, and judgment for defendants, Kirby, and Kirby Lumber Company against Wright, and. John H. Kirby, Kirby Lumber Company, and J. R. Chapman appeal. Affirmed as to title and as to defendant Wright.
    Judgment against Chapman for damages reversed and rendered, and judgment against Kirby and the Kirby Lumber Company as to damages affirmed in part, and in part reversed and remanded.
    H. C. Howell, of Jasper, Terry, Cavin & Mills, of Galveston, and Andrews, Ball & Streetman, of Houston, for appellants. Smith & Blaekshear, of Jasper, and John B. Warren, of Houston, for appellees.

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

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

   PLEASANTS, C. J.

This is, an action of trespass to try title to a tract of 160 acres of land in Jasper county, and.to recover as damages the value of the timber taken from the land by the defendants. The suit was brought by the appellee R. C. Conn originally against John H. Kirby and the Kirby Lumber Company, but by an amended petition filed on April 27, 1911, J. R. Chapman was also made a party defendant. The defendants Kirby and Kirby Lumber Company disclaimed as to all of the land except a portion thereof described in their answer by metes and bounds, as to which they pleaded not guilty. They also impleaded A. V. Wright on his warranty of title to the land described in their answer, and prayed judgment against him in event plaintiff recovered judgment against them. The defendant Chapman disclaimed except as to a portion of the land described in his answer, which was the same as that described in the answer of the original defendant, and as to which he pleaded not guilty. The defendant Wright answered by general demurrer and general denial of the allegations of plaintiff’s petition. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff against all of the defendants for all of the 160 acres of land, against John H. Kirby, the Kirby Lumber Company, and J. R. Chapman for the sum of $3,812.43, the value of the timber cut and taken from 98.97 acres of said land, and against the Kirby Lumber Company for the sum of, $600, the value of timber cut from 19.98 acres of said land. Judgment was also rendered ’in favor of defendants Kirby and Chapman against A. V. Wright for the sum of $643.31 on his warranty of title. This appeal is prosecuted by the defendants John H. Kirby, Kirby Lumber Company, and J. R. Chapman.

The record discloses the following facts:

On July 28, 1889, A. V. Wright made application to the Commissioner of the General Land Office to purchase the south three-fourths of section No. 2, block No. 5, certificate No. 30/633, Texas & New Orleans Railway Company survey, Jasper county, Tex., as an actual settler, and on the same date executed his obligation to the state of Texas for the sum of $468 for 480 acres of section No. 2 in Jasper county, surveyed for the school fund by virtue of certificate No. 30/633, issued to the Texas & New Orleans Railway Company.

On March 12, 1906, the said A. V. Wright filed in the General Land Office of Texas his proof of occupancy, as required by law, of the south three-fourths of section No. 2 in Jasper county, surveyed by virtue of certificate No. 30/633, issued to the Texas & New Orleans Railway Company, which proof of occupancy was made on March 9, 1906.

On May 17, 1906, the state of Texas patented to A. Y. Wright 480 acres of land in Jasper county, describing the same as follows:' “In Jasper county, known as S. 3/4 Sec. No. 2, Blk. 5, T. & N. O. Ry. Co. Cert. No. 30/633, on the waters of the Neches River, about 25 miles S., 7 W. of Jasper, said land having been purchased and fully paid for in accordance with an act of 1895, and the amendment thereto by the act of May 19, 1897. Beginning at N. E. Cor. of Sec. No. 1, T. & N. O. Ry. Co.; thence S. with E. B. line of Sec. No. 1, T. & N. O. Ry. Co. 2346 vrs. to the S. E. Cor. of same in N. line of league Sur. in name of Wm. Allen; thence E. on N. line of said Allen league 959 vrs. to S. W. Cor. of Wm. King Sur.; thence N. on W. line of said King Sur. 1352 vrs. to his N. W. Cor.; thence E. on King’s line 462% vrs. to sta. fr. wh. a pine brs. S. 80 W. 21 vrs., a pine brs. N. 41 E. 20 vrs.; thence N. 994 vrs. sta. in N. line of this sec. and S. line of O. Harrall Sur.; thence W. on S. line of O. Harrall and John Myers Sur. 1421% vrs. to the place of beginning.” Oh March 9, 1906, A. V. Wright, for a consideration of $3,120, conveyed to John H. Kirby 480 acres of said section No. 2, T. & N. O. Railway Company Survey, by the following description: “Beginning at the N. W. Cor. of Sec. 2 T. & N. O. Ry. Co.,' from which a pine brs. S. 66 E. vrs.; thence E. 1,757 vrs. second Cor., a pine 10 in. in dia. brs. N. 80 E. 1 Vio vrs. another 9 in. in dia. brs. N. 63 W. Vio vrs.; thence S. 846 vrs. Cor. in the N. line of the Wm. King survey, from which a pine 15 in. in dia. brs. S. 80 W. 21 % vrs. another 26 in. in dia. brs. N. 41, E. 21 vrs.; thence W. 823 vrs. to the N. W.’ Cor. of said King; thence S. with the W. line of the King survey 1308 vrs. to King’s S. W. Cor. a pine 2 ft. in dia. brs. N. 81, E. 4 2/10 vrs., another 8 in. in dia. brs. S. 65, W. 4 vrs.; thence W. with the N. line of the Wm. Allen league 937 vrs.; thence N. 2154 vrs. to the place of beginning, containing four hundred and eighty acres of land.”

On August 30, 1909, the said A. V. Wright, by a deed of correction, reciting a misdescription in his former deed, conveyed to John H. Kirby said 480 acres of Texas & New Orleans Railway Company survey No. 2, in which deed of correction the 480 acres are described by the same field notes as are contained in the patent to A. V. Wright. By deed dated June 20, 1909, John H. Kirby conveyed to J. R. Chapman 480 acres of the said section No. 2, referring for description to the deed to the former from A. V. Wright.

On January 18, 1904, R. C. Conn made application to the Commissioner of the General Land Office to purchase the northwest' one-fourth of section No. 2, Certificate No. 30/633, Texas & New Orleans Railway Company, 160 acres, at the price of $5 per acre. This application was indorsed and accepted by the Commissioner as an application to purchase the timber on the north one-fourth of said section, and on February 9, 1904, the Commissioner, for a cash consideration of $5 per acre paid by Conn, conveyed to him the timber on the north one-fourth of said section. This timber deed contains the following stipulations:

“First. The purchaser of said timber shall have five years from the date of the purchase hereof, which was the date the application was filed in the General Land Office of Texas, in which to remove the timber, and in case of failure to do so, such timber shall thereby be forfeited to the state without judicial ascertainment.

“Second. The purchaser of the timber, or his assignee, may at any time within five years from the date of the purchase of said timber, but before the timber has been removed, and not thereafter, apply to the Commissioner of the General Land Office for a classification of the land as agricultural or grazing, at the expense of the owner of such timber, and in that case the owner of the timber shall have the right to purchase the land at the price fixed thereon, upon the same terms and conditions as other lands of like classification are sold under chapter 125, Act of April 19, 1901.”

As purchaser and owner of the timber appellee Conn made application for the purchase of the land under the provisions of the timber deed above set out, and on December 12, 1908, the Commissioner awarded him the land at a price of $2 per acre, one-fortieth of the purchase price to be paid in cash and the remainder in yearly payments of one-fortieth each, with interest at 5 per cent, per annum. Conn made the cash payment and has made the yearly payments and interest as they accrued.

The lines of said section No. 2 run north and south and east and west. The survey is in such shape that the north one-fourth is a parallelogram lying between the north line of the survey and a line parallel thereto, and extending from the east to the west line of the survey at such a distance south of the north line of the survey as to include between said lines one-fourth of the survey. From the shape of the survey and the course of its boundary lines the location of its north one-fourth is necessarily as before described, and the description of the land in the timber deed, and in the award to appellee, as the ■ north one-fourth of said section is a definite and certain description, and its location readily fixed and identified The patent from the state to A. V. Wright, while it describes the land thereby granted as the south three-fourths of said section, includes within the field notes, giving the metes and bounds of the land granted, 98.97 acres of the north one-fourth of said survey, and the land included within the metes and bounds of said field notes is in fact the west three-fourths of said section.

It was agreed by an instrument in writing signed by the attorneys for plaintiff and the defendants on December 13, 1910, and introduced in evidence on the trial of the case, that the timber cut from the 98.97 acres of land in controversy was cut and removed from the land by the Kirby Lumber Company with the consent and permission of John H. Kirby and J. R. Chapman. At the time this agreement was made Chapman was not a party to the suit, and it does not appear from the record that he or anyone for him ratified said agreement, and there is no evidence that he was in any way connected with the cutting and removal of the timber by the Kirby Lumber Company, or that it was cut and removed with his knowledge and consent. The value of the timber cut and removed from the 98.97 acres was $3,812.43. Timber of the value of $600 had been cut and removed from 19.98 acres of that portion of the north one-fourth of the survey lying east of the east line of the tract described in the patent to A. V. Wright under which appellants claim, but the evidence is insufficient to show that this timber was cut by the defendant Kirby Lumber Company. This defendant had a tram road which ran from its lumber mill at Kirby-ville, and traversed that portion of the section included in the Wright patent and extended along the north line of the section to its northeast corner. There was no other tram lumber road near this section, and the evidence shows that the Kirby Lumber Company had cut timber on each side of this road, but no witness testified that any of the timber cut from the 19.98 acres was cut by said company, and the manager of the company testified that no timber was cut by his company from the east end of the north one-fourth of the 'survey.

Upon the issue of title the trial court gave the jury the following instruction: “You are told that the patent from the state of Texas gives to the said A. V. Wright and to his grantees, by the field notes therein contained, the said 98.97 acres of land, but that the application to purchase said land by said Wright being for the south three-fourths of said section and the purchase of the timber on the north three-fourths of said section by R. C. Conn in 1904, gave him the prior right to said 98.97 acres in conflict, and the apparent title to so much of said land described in said patent to A. Y. Wright as is on the north one-fourth of said section is invalid as against R. C. Conn and you will, therefore, find in favor of R. C. Conn for the land sued for, and for such damages as you may determine he is entitled to under the instructions hereinafter given.”

By the first assignment of error presented in their brief appellants complain of this charge on the ground that-the 98.97 acres in controversy having been granted to Wright by the patent issued on May 17, 1906, and the award to plaintiff of the north one-fourth of the section on December 12, 1908, being subsequent to the issuance of said patent, the title to so much of the land awarded plaintiff “as is embraced within the field notes of said patent was, by said patent, vested in the said A. Y. Wright and his assigns, and no prior or superior right to that conveyed by the patent having been shown to be in R. C. Conn, the plaintiff, it was error for the court to instruct the jury to find in plaintiff’s favor for that portion of the land claimed by the plaintiff embraced within the field notes of said patent.” This contention is based upon the theory that plaintiff acquired no right in the land in controversy by his purchase of the timber on. the north one-fourth of the section on February 9, 1904. The act of April 19, 1901 (Acts 27th Leg. c. 125), under which plaintiff purchased the timber, gave him the right, as such purchaser, to purchase the land at any time within five years, but before the timber has been1 removed therefrom, by complying with the terms of said act. This right to purchase the land was part of the consideration for which he paid the state the sum of $5 per acre, and became a vested right when the state accepted his application to purchase the timber, and he complied with the terms of said purchase by paying the state the cash consideration at which the timber was sold. The timber deed made by the Commissioner expressly granted to appellee this right to purchase the land; but, independent of the recital in the deed, the right would have vested in him under the statute. That the right thus acquired could not be impaired by sale of any portion of the land and the issuance of patent thereto by the state to another during the time which appellee was given by the statute in which to purchase the land is, we think, clear. The question was directly decided by this court in the case of Hooks v. Kirby, 124 S. W. 156, and a writ of error prosecuted from that decision was refused by the Supreme Court. Appellants further contend that appellee’s right to purchase the land under the act of 1901, under which his timber purchase was made, was conditioned on his being an actual settler thereon, and since this condition of actual settlement was not removed until the passage of the act of 1907, and appellee having purchased the land on December 12, 1908, without the condition of actual settlement,, it follows that the right of purchase claimed and exercised by appellee was not acquired by or vested in him until the passage of the act of 1907, and was therefore subsequent to the issuance of the patent under which appellants claim. There is no merit in this contention. The fact that the state in 1907 relieved appellee and others holding similar rights of purchase from complying with one of the conditions on which their right of purchase could be exercised did not change the date upon which his right to purchase the land became vested. Appellee’s purchase of land was by virtue of the right vested in him as a purchaser of the timber on February 9, 1904. He acquired no right to purchase under the act of 1907. All that that act did for him was to relieve him of the requirement of actual settlement as a condition of the exercise, of his previously acquired and vested right to purchase the land.

Act 29th Leg. p. 35, approved March 16, 1905, provides as follows:

“Section 1. That hereafter all persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the State University, or either of the state asylums which have been heretofore or which may be hereafter sold or leased to any person under any provision of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after this act goes into effect, or after the date of the award of such sale or lease, if such award is made after the taking effect of this act, and not thereafter.

“Sec. 2. If no suit has been instituted by any person claiming the right to purchase or lease any of said lands within the period of time limited in the first section of this act, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with; provided that nothing in this act shall be construed to affect the state of Texas in any action or proceeding that may be brought by it in respect to any of said lands.”

Appellants contend that appellee, having failed to bring his suit for the land in controversy within one year after the issuance of the patent to Wright, has, under the provisions of this statute, lost his right to the land, and the title of Wright and his assigns thereto has become unassailable except as against a suit by the state. We do not think this statute applies to a case of this kind. The evident purpose and intent of this statute is to limit to one year the time in which an award or sale of land by the state can be attacked on the ground of irregularity by one who claims only a right to purchase, and does not affect one whose right in the land sought to be recovered had vested, prior to the award or sale by the state, to the adverse claimant. If appellants’ construction of this statute is correct, any sale by the state of land which it had previously contracted to sell another would destroy the rights of the grantee in such contract, even, as to a purchaser with notice of the contract, unless he brought suit thereon within one year after such sale by the state. We do not think the statute should be given this construction. The appellee in this case is not attacking for irregularity an' award of sale of the land by the state to Wright. Ap-pellee’s vested right in the land in controversy has never been denied or questioned by the state, but, on the contrary was expressly recognized by, awarding him the land upon his application to purchase under the terms of his timber deed contract.

The fact is that Wright did not make application for the purchase of the land in controversy, and the award to him of the south three-fourths of the section did not include any of the land previously contracted to be sold to appellee. The land actually granted by the patent to Wright does include this land, but to that extent the patent is void, and passed no title to Wright: The state could not grant to Wright land that it had previously contracted to sell to appellee, and any attempt to thus impair appellee’s right to acquire title by compliance with the term of his contract was void. We do not think the opinions of the Supreme Court in the cases of Murphy v. Terrell, 100 Tex. 397, 100 S. W. 130, Wyerts v. Terrell, 100 Tex. 410, 100 S. W. 133, and Erp v. Tillman (Sup.) 131 S. W. 1057, cited and relied on by appellants, are in conflict with these conclusions. We think appellee showed the superior title to the land and the trial court properly instructed the jury to find in his favor upon this issue.

The second and third assignments of error present in a different form the same question presented by the first assignment, and for the reasons before stated cannot be sustained.

The fourth assignment complains of a paragraph of the court’s charge in which the jury are instructed that “the evidence in the ease, as well as admissions, of counsel for defendants, show that defendants cut and removed the timber that was cut off the north one-fourth of said section as described by R. O. Conn in his petition.” In so far as this charge applied to the defendant J. R. Chapman, or to the timber taken from that portion of the north one-fourth of the section not in conflict with the land described in the patent to Wright, it was not authorized by the evidence, nor by the agreement of counsel referred to in the charge. The agreement mentioned in the charge is as follows: “District Court of Jasper County, December Term, A. D. 1910. R. C. Conn v. J. H. Kirby et al. It is agreed by and between the parties hereto * * * that the Kirby Lumber Company with the consent and permission of John H. Kirby and J. R. Chapman cut and removed such of the timber as was cut and removed from the property in controversy. Witness our hands this 13th day of December, A. D. 1910.” At the time this agreement was filed J. R. Chapman had not been made a party to the suit, and was therefore not a party to this agreement, which was signed by the attorneys of the then defendants, John H. Kirby and the Kirby Lumber Company, and is only binding upon those defendants. Before this agreement was executed, the defendants John H. Kirby and the Kirby Lumber Company had filed their answer in which each disclaimed title to all of the north one-fourth of the section, except that portion thereof included in the Wright patent. Such being the status of the claims of the respective parties, the only land in controversy at the time the agreement was filed was the 98.97 acres of the north one-fourth of the section included in the Wright patent, and that was the only part of the land to which the agreement applied. As before stated,, in our findings of fact, there is no evidence that the defendant Chapman cut or removed any timber from any part of plaintiffs land, or that he consented to or permitted such removal by any one. We doubt if there is any evidence sufficient to establish the fact that the defendant Kirby Lumber Company cut or removed any timber from that portion of plaintiff’s land not included in the Wright patent, but, if the evidence was sufficient to raise such issue, it was not uncontradieted, and that issue should not have been taken from the jury. We think, however, that the agreement was sufficient to authorize the court to instruct the jury to return a verdict in favor of plaintiff against the defendant John H. Kirby as well as the Kirby Lumber Company for the value of the timber cut and removed from the land in controversy by the Kirby Lumber Company. At the time the timber was cut the defendant John H. Kirby was claiming the land under his -deed from Wright, and if, as stated in the agreement, the timber was cut and removed from the land by the Kirby Lumber Company with his consent and permission, we think he should be held liable to plaintiff for its value. If he had sold the timber to the Lumber Company, he would certainly be liable to plaintiff for its value, notwithstanding he in good faith believed he owned the land. The injury sustained by plaintiff by reason of the taking of the timber by the Kirby Lumber Company was just as certainly the ordinary and natural result of the permission given the company by Kirby to cut and remove the timber as it would have been of the sale of the timber by him. His consent and permission to cut and remove the timber made him a joint trespasser with the Lumber Company and liable to plaintiff for the damages caused by such trespass.

What we have said disposes of all the .material questions presented in appellant’s brief. We have considered all of the assignments of error and except as above indicated all are overruled. From the conclusions before expressed, it follows that the judgment in favor of plaintiff against all of the defendants for the land in controversy, and the judgment imhis favor against John H. Kirby and the Kirby Lumber Company for the value of the timber taken from the 98.97 acres of land in controversy, and also the judgment in favor of the defendants John H. Kirby and J. R. Chapman against the defendant Wright on his warranty of title, should be affirmed, the judgment in favor of plaintiff against the defendant J. R. Chapman for the value of the timber taken from the land should be reversed, and judgment here rendered in favor of said Chapman that plaintiff take nothing against him on his claim for damages, and the judgment in favor of plaintiff against the Kirby Lumber Company for the value of timber taken from that portion of plaintiff’s land not included in the patent to Wright should be reversed and as to that issue the cause remanded for a new trial. It is ordered that judgment of this court be entered in accordance with these conclusions.

Affirmed in part. Reversed and rendered in part. Reversed and remanded in part.


author: TALIAFERRO, J.

text:
    TOBIN et al. v. McCOMB et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 26, 1913.
    On Motion for Rehearing, April 23, 1913.)
    1. Rewards (§ IT) — Persons Receiving-Peace Officers.
    Where persons who were peace officers did not investigate a murder or make an arrest upon warrant, and did not see the murder committed, and the persons arrested and convicted made no effort to escape, such persons in causing the criminal’s arrest and conviction were not acting as peace officers, so as to be precluded from claiming a reward.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. §§ 14, 15; Dec. Dig. § 11.]
    2. Rewards (§ 15*) — Trial (§ 255) — Actions to Recover — Instructions—Applicability to Issues.
    An instruction in an action for a reward for procuring the conviction of criminals that plaintiffs were acting together in rendering the services, and that their recovery would be joint, was not erroneous as being inconsistent with the claim that they were working with a third person; it being for the other party to request a charge embodying that fact, if desired.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. §§ 21-24; Dee. Dig. § 15;* Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    3. Rewards (§ 8) — Performance of Services — Sufficiency.
    One can claim a reward for procuring the conviction of criminals, where he has been the moving cause in accomplishing that purpose, and has substantially complied with the terms of the reward.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. §§ 9-12; Dec. Dig. § 8.]
    4. Rewards (§ 8) — Performance of Services — Sufficiency.
    An offer of a reward as for the conviction of criminals is governed by the rules which apply to other contracts, and a claimant must bring himself within the terms of the offer.
    [Ed. Note. — For other eases, see Rewards, Cent. Dig. §§ 9-12; Dec. Dig. § 8.]'
    5. Rewards (§ 7) — Performance of Services — Knowledge of Offer.
    One cannot claim a reward offered for procuring the conviction of criminals, unless he knows that it has been offered.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. § 7; Dec. Dig. § 7.]
    6. Rewards (§ 8) — Performance of Services —Sufficiency.
    Communications of a suspicion by one not required by law to make an arrest would not entitle a claimant to participate in a reward offered for procuring the conviction of a criminal, even though the person suspected is arrested and convicted.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. §§ 9-12; Dec. Dig. § 8.]
    7. Rewards (§§ 8, 15) — Performance of Services — Sufficiency — Question for Jury.
    If one is induced to make an investigation of a crime because of a reward offered, and pursuant to the reward causes an arrest to be made which leads to a conviction, he is entitled to the reward; whether he has done such things being a question for the jury.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. §§ 9-12, 21-24; Dec. Dig. §§ 8, 15.]
    8. Rewards (§ 8) — Performance of Services — Partial Performance.
    One who performs services leading to the conviction of a criminal jointly with others is entitled to the reward offered for such conviction ; it not being necessary that he perform the whole services, even though the various persons who participated in the work had no knowledge that the others were investigating the crime.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. §§ 9-12; Dec. Dig. § 8.]
    9. Rewards (§ 15) — Actions—Instructions —Conformity to Evidence.
    Where more than one of the parties claimed to be the sole moving cause of an arrest and conviction, and there was some evidence in support of their claims, it was error in an action for a reward offered therefor to charge that none of the parties under the evidence was alone entitled to recover the whole reward.
    [Ed. Note. — For other cases, see Rewards, Cent. Dig. §§ 21-24; Dec. Dig. § 15.]
    10. Judgment (§ 199) — Judgment Non Ob-stante Veredicto.
    The district court does not have power to render judgment non obstante veredicto.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by T. M. Mills and another against Robert McComb and others, in which John W. Tobin and others were impleaded. From a judgment for a part of plaintiffs and defendants, Tobin and others appeal.
    Affirmed in part, and reversed and remanded in part.
    Hamilton & Mann, of Laredo, for appellants. C. L. Bass and Hicks, Hicks & Tea-garden, all of San Antonio, and A. Winslow, of Laredo, for appellees.

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

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

   TALIAFERRO, J.

This was a suit for a reward offered for the arrest and conviction of the person or persons who murdered G. J. Levytansky at Laredo, Tex., in December, 1911.

T. M. Mills and Edwin F. Vanderbilt filed the suit against Robert McComb, W. H. Gilmore, Robert Rumsey, James. McGloin, Mike Brennan, Gonzalo Eguillor, Fernando Vasquez, and Sam McKenzie, alleging that, knowing of such offer of reward and acting thereon, they had caused the arrest and conviction of Lonnie Franks and J. B. Compton for the said crime. They sought to recover the full sum of $2,500 from McComb, who offered the reward. The other defendants were made parties upon the allegation that they were claiming that they were entitled to receive the reward. Defendant McComb answered, admitting the offer of reward, and stated that he held the same subject to the order of court. He prayed for an allowance of $250 for his attorney’s fee in this case, and impleaded J. W. Galbraith, S. H. Crut-cher, and J. W. Tobin, upon the ground that they also claimed the reward, and asked the court to adjudicate the rights of all the parties. All the parties appeared and set up their claims to the reward, except J. W. Galbraith, who disclaimed any interest therein, and said he was acting only as agent of J. W. Tobin. It was alleged by plaintiffs that all the parties defendant except McComb were peace officers and employés of the government, and that it was therefore their legal duty to arrest Franks and Compton. To this it was answered by defendants that, if they were peace officers, they were upon this occasion not acting as such, and were not in duty bound or permitted to act as such. The case was tried before a jury and verdict and judgment were rendered as follows: For E. F. Vanderbilt and T. M. Mills $675, for Rumsey and McGloin $675, for Gonzalo Eguillor $675, for S. H. Crutcher $225, that the other defendants take nothing, and that defendant McComb be allowed $250 as attorney’s fees. The costs were adjudged against those recovering in proportion to the amounts recovered.

It appears that on the night of December 22, 1911, G. J. Levytansky, a resident of Laredo, Tex., was murdered in his store in that town. His body was discovered on the following morning. A reward of $2,500 was offered by Robert McComb, mayor of Laredo, “for the arrest and conviction of the person or persons” who committed the murder. On December 26, 1911, Lonnie Franks was arrested in San Antonio, and on December 28, 1911, J. B. Compton was arrested in Laredo. Both these parties were tried, convicted, and sentenced for the murder of Levytansky. It is not necessary to further state the facts in this ease, as it must be reversed upon questions of law. Suffice it to say that the evidence is conflicting, and shows that in one way or another each of the parties to the suit was connected with the investigation of the murder of Levytansky. Whether their services performed were such as to entitle them to participate in the reward offered for the arrest and conviction of the murderers must be determined by the trial court or by a jury under proper instructions from the court.

Appellants, by their assignments of error from 1 to 5 inclusive, complain of the fol-lowing charge given by the court to the jury: “You are instructed that, under the law of this state, peace officers of the state, county, or city who are charged with the duty and authorized to make arrests are not allowed to receive rewards for any official act performed by them within the scope of their employment. You will therefore return your verdict that the defendants Fernando Vasquez, Sam McKenzie, Mike Brennan, J. W. Tobin, and W. H. Gilmore take nothing,” because the said charge did not present the law applicable to the facts in this case. This assignment is sustained. The charge complained of was erroneous. It is the rule in this state that a peace officer who, acting within the line of his official duty, makes arrest of a criminal, cannot recover a reward which has been offered for the arrest of such person. This rule is sound, and is based upon the principles of public policy, but it does not apply when the act of the officer is performed as a private citizen, and clearly without the line of his official duty. The limits of such official duty have been clearly defined by the Supreme Court of this state. The arrest must have been made upon the verbal order of a magistrate, for an offense committed in the presence of the officer, upon a warrant from a proper tribunal, or upon the representation of a creditable person that a crime has been committed, and that the offender is about to escape so that there is no time to procure a warrant.

The evidence in this case shows that the parties to this suit who were peace officers were none of them acting within the scope of their duty in the services they performed. At no time did a warrant issue for any one’s arrest. No magistrate ordered an arrest made. No one saw the murder committed, and neither Franks nor ’Compton made the slightest effort to escape. Therefore the officers were acting, not within their official duty, but independently. They rendered themselves liable for false arrest if they chanced to arrest the wrong man, and subjected themselves to the danger of suits for damages. It is clear, therefore, that none of them come within the rule which denies peace officers to participate in rewards offered for the arrest of criminals. Morris v. Kasling et al., 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398; s. c., 71 Tex. 584, 9 S. W. 739, 10 Am. St. Rep. 797, and cases there cited; Smith v. Vernon County, 188 Mo. 501, 87 S. W. 949, 70 L. R. A. 59, 107 Am. St. Rep. 324; Bronnenberg v. Coburn, 110 Ind. 169, 11 N. E. 29; Pilie v. New Orleans, 19 La. Ann. 274; Gregg v. Pierce, 53 Barb. (N. Y.) 387.

It was not error, as contended by appellants in their sixth assignment of error, for the court to charge the jury that the two plaintiffs, Mills and Vanderbilt, were acting together, and that the act of one was the act of the other, and that if they recovered they would recover jointly. This charge was not inconsistent with the claim that they were working under or with Tobin, and, if appellants wanted that issue presented to the jury, a proper charge submitting the facts should have been asked.

It was not error, as contended by the appellants in their seventh assignment of error, for the court to charge the jury as follows: “The offer of reward for the arrest and conviction of the perpetrator of a crime is construed to mean that the reward will be paid to the person or persons who first give information which acted upon and which is the moving cause or effective means of bringing about the arrest and conviction.” This charge correctly states the law so far as it goes, and appellants cannot complain that it goes no further without showing that they asked a special charge on the subject. Such a reward can only be claimed by a person who has substantially complied with the terrhs and conditions of the reward as it is offered, and who has been the moving cause of the accomplishment of the purposes for which the reward was offered. The obligation to pay a reward rests upon contract; and, unless the facts show that the claimant has brought himself within the terms of the offer as it was made, he cannot recover. There can be no substantial difference between the rule in eases of reward and that which would control in other cases of contract. There must be such a condition as to show a meeting of the minds of the parties. In the first place, a claimant must know that the reward has been offered. Broadnax v. Ledbetter, 100 Tex. 375, 99 Pac. 1111, 9 L. R. A. (N. S.) 1057; Stamper v. Temple, 6 Humph. (Tenn.) 113, 44 Am. Dec. 296. And, having the reward in mind, he must perform the service required by the offer and in substantial accord with the terms of the offer. As to whether a person who simply gives information concerning a crime, which is of assistance in the apprehension of the criminal, is entitled to participate in the reward, the authorities are in conflict. But the weight of authority seems to be that he will not be unless the information is given in furtherance of an intent to effect the arrest, or other purpose of the reward, and is given to an officer or other person, with the expectation that such person will make the arrest or perform such other service as it may be necessary to perform in furtherance of the design. The communication of a mere suspicion to a person not required by law to make arrests cannot entitle a claimant to participate in a reward, even if it subsequently transpires that such suspicions were well founded and the very person suspected is arrested and convicted. McClaughry v. King (U. S. C. of A.) 147 Fed. 463, 79 C. C. A. 91, 7 L. R. A. (N. S.) 216, 8 Ann. Cas. 856; Haskell v. Davidson, 91 Me. 488, 40 Atl. 330, 42 L. R. A. 155, 64 Am. St. Rep. 254; Kinn v. First Nat. Bank, 118 Wis. 537, 95 N. W 969, 99 Am. St. Rep. 1012; Everman v. Hyman, 3 Ind. App. 459, 29 N. E. 1140; Williams v. West Chicago St. R. Co., 191 Ill. 610, 61 N. E. 456, 85 Am. St. Rep. 278; Lovejoy v. Railway, 53 Mo. App. 386. The language of the offer of reward, however, cannot be taken literally. It could not be contemplated that one making an arrest would also convict. A conviction requires the interposition of a court, and to say a person, to earn the reward, must literally convict the accused would be palpably absurd. If a person, because of the reward, is induced to make an investigation, and in doing so learns facts sufficient to justify arrest and cause conviction, and with the reward in mind does cause an arrest which leads to a conviction, he is entitled to the reward. Whether such a condition exists is a question of fact, and is for the jury. Haskell v. Davidson, supra.

Appellants’ tenth assignment of error complains that the court refused to grant a new trial upon the ground that the evidence shows that Mills, Vanderbilt, and Crutcher were working as the agents or employés of Tobin. The evidence upon this point is not without conflict. It is well settled that the claimant for a reward to recover need not have performed the whole service alone, but may have performed the service jointly with others or through his servants or agents. Shuey v. United States, 92 U. S. 73, 23 L. Ed. 697; Heather v. Thompson (Ky.) 78 S. W. 194; Montgomery County v. Robinson, 85 Ill. 174.

In their assignments from 12 to 15, inclusive, appellants contend that they and Rumsey, McGloin, and Brennan were the only persons who accepted and performed the conditions of the reward. It is settled, as stated above, that a number of persons, either working together or separately, may render services of such a nature, and so comply with the terms of the offer, as to entitle them each separately or all jointly to share in the reward. When the evidence shows that no one of the claimants fully met the requirements of the offer of reward, but that their efforts combined fully complied with its terms, though they were working separately, and even without knowledge of each other, they, may receive a division of the reward in proportion to their services. What services were rendered and what proportion of the reward each should receive are questions for the jury to determine from the evidence under appropriate charges from the court. Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S. W. 543; 34 Cyc. p. 1750; Kinn v. Bank, 118 Wis. 537, 95 N. W. 969, 99 Am. St. Rep. 1012; Fargo v. Arthur, 43 How. Prac. (N. Y.) 193.

It was error, as complained of in these appellants’ ninth assignment of error, for the court to charge the jury that none of the parties to the suit under the evidence was alone entitled to recover the whole reward. More than one of the parties claimed to be the sole promoting cause of the arrest and conviction, and there was some evidence to support these claims. The sufficiency of that evidence to establish the claim of any one of the parties was for the jury to determine and the court erred in assuming the contrary as a matter of law.

Appellees Mills and Vanderbilt complain in their first cross-assignment of error because the court refused to render judgment in their favor non obstante veredicto. This was not error. Under our practice the trial court has not the power to enter such a judgment. For a clear and exhaustive discussion of this doctrine, see Fant v. Sullivan, 152 S. W. 515.

These appellees’ second cross-assignment complains that the court refused to give a peremptory charge in their favor. This was not error. The evidence was conflicting upon several material matters.

The third cross-assignment assails the general charge of the court wherein he informed the jury that under the evidence plaintiffs alone were not entitled to recover the whole reward. This charge was upon the weight of the evidence, and should not have been given as stated in reference to appellants’ ninth assignment of error. Upon another trial, if the evidence is the same, the court will submit to the jury the issue of the respective rights of the claimants to recover.

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

On Motion for Rehearing.

The motion for rehearing by appellee Robt. McComb is granted. It is urged that this court erred in reversing this cause as to the $250 attorney’s fees allowed by the trial court to McComb, the offerer of the reward. The contention is correct. This fee was fixed by the verdict of the jury, and allowed by the court, and no one made complaint thereof. This was overlooked by this court. The original opinion is reformed to that extent' and the judgment for the $250 attorney’s fee is affirmed.

The motion for rehearing filed by appellees Mills and Vanderbilt is overruled.