author: HARPER, J. HARPER, j. DAVIDSON, J.

text:
    BURGE v. STATE.
    (No. 3062.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 13, 1914.)
    1. Witnesses (§ 330) — Cross-Examination— Extent.
    Accused, on the cross-examination of a ■witness giving material testimony against him, may show any fact affecting credibility of the witness.
    [Ed. Note. — For other eases, see Witnesses, Gent. Dig. §§ 1106-1108; Dee. Dig. § 330 1
    2. Witnesses (§ 270) — Cross-examination-Extent.
    Where a witness for the state, on a trial for rape, testified that accused had paid a specified sum to the husband of prosecutrix to keep her from attending court, and that the husband gave the witness a. fourth thereof, and that prosecutrix had filed suit against accused for damages, and the witness stated that there was no agreement that he should receive any part of the damages recovered, a question on cross-examination as to whether he did not think he was entitled to a part thereof was properly excluded.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 926, 955-957; Dec. Dig. § 270.]
    3. Rape (§ 38) — Evidence—Admissibility:.
    Where, -on a trial for rape, prosecutrix testified to a case of rape., and accused denied that he had had at any time intercourse with prosecutrix, and there were no facts showing that he had raped her, except the testimony of prosecutrix, and a physician testified that one in the position of prosecutrix, as testified to by her, could not be raped without evidence of physical violence, of which there was none, testimony that in his opinion one could not rape a woman in that position without her consent was properly excluded.
    [Ed. Note. — For other eases, see Rape, Cent. Dig! §§ 4S-501; Dec. Dig. § 38.]
    4. Criminal Law (§ 925%) — Misconduct oe Jury — Evidence.
    Where the evidence of all the jurors showed that there was no discussion of accused’s former conviction, though one juror incidentally mentioned the fact, there was no misconduct of the jurors warranting the setting aside of a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. § 925%.]
    5. Ceiminae Law (§ 925%) — Misconduct oe Jury — Evidence.
    Where, after the jurors had agreed on a verdict, one of the jurors remarked that accused had once separated a man and his wife, and the punishment fixed by the jury was less than that fixed by the jury on a former trial, there was no misconduct justifying the setting aside of the conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. § 925%.]
    6. Rape (§ 51) — Evidence — Conduct oe Prosecutrix.
    The failure of prosecutrix to make outcry or call for aid, when it may be readily obtained, or within reasonable time to disclose the offense after an opportunity to do so, tends to discredit her testimony.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. § 51.]
    7. Rape (§ 43) — Evidence — Conduct oe Prosecutrix.
    The appearance of prosecutrix about four hours after the alleged rape of her, and that she then made complaint, may be proved.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    8. Rape (§ 43) — Evidence — Conduct oe Prosecutrix.
    Where prosecutrix made complaint about four hours after the occurrence, it was proper to permit the persons, to whom she made complaint, to testify as to her condition, and that she was in a wrecked, nervous condition on the Sunday afternoon following the offense on the preceding Friday morning.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    9. Criminal Law (§ 338) — Evidence—Admissibility.
    Where accused, charged with rape, informed a third person that accused’s son was acting for him, using money given him by accused, and that the third person would obtain instructions from the son, the acts of the son, done under the directions of accused, were admissible against him, though the acts were not in the presence of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 33S.]
    10. Rape (§ 59) — Evidence—Instructions.
    Where there was no evidence that the intercourse was by the consent of prosecutrix, and the court charged that, if the jury had a reasonable doubt as to whether prosecutrix consented, accused should be acquitted, refusal to charge that consent would be presumed until the state proved the contract was proper.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    11. Criminal Law (§ 1169) — Evidence — Harmless Error.
    The testimony of prosecutrix, raped at the home of accused, that she responded to the advertisement of accused for a housekeeper, and presented recommendations, and asked accused for recommendations, stating that she was a lady and wanted to go to a nice place and that he furnished good recommendations, was not prejudicial to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    12. Criminal Law (§ 1166%) — Harmless-Error — ^Trial—Misconduct oe Parties.
    The act of the court in permitting prose-cutrix, on a trial for rape, to remain in the presence of the jury during the argument of the prosecuting attorney was not prejudicial, though prosecutrix cried during the argument, but not loud enough to interrupt the orderly proceedings of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    On Motion for Rehearing.
    13. Witnesses (§ 372) — Cross-Examination —Interest—Bias—Motive.
    The motive of a witness and his interest or bias may be shown on his cross-examination.
    [Ed. Note. — For other cases, see Witnesses,, Cent. Dig. §§ 1192-1199; Dee. Dig. § 372.]
    14. Criminal Law (§ 1038) — Instructions— Objections — Review.
    Under Acts 33d Leg. c. 138, providing that objections to instructions shall be presented to the trial court, an objection to instructions cannot be raised for the first time on motion for rehearing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    15. Criminal Law (§ 507) — Accomplices.
    A witness is not an accomplice merely because he received from accused a specified sum to procure prosecutrix to write a letter asking for the dismissal of the prosecution for rape, or merely because he obtained a part of the amount so paid.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.*]
    Davidson, J., dissenting.
    Appeal from District Court, Collin County ; F. E. Wilcox, Special Judge.
    Ed Burge was convicted of rape, and he appeals.
    Affirmed.
    G. R. Smith and W. R. Abernathy, both of BlcKinney, for appellant. L. J. Truett, Co. Atty., and Sam Nethery, Asst. Co. Atty., both of McKinney, and 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

      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 rape by force, and his punishment assessed at seven years’ confinement in the state penitentiary.

The record is rather voluminous, and, in passing on the questions presented, we will take them up in the order discussed in appellant’s brief and in their able oral argument before this court. He first discusses at length the improbability of the testimony for the state being true, and, while admitting that Mrs. Vaden testifies to facts which show that she was raped by appellant, yet it is insisted that the offense could not have been committed in the way testified to by her. Enough of the testimony will hereinafter be stated to show, we think, this contention ought not be sustained by us.

The next contention is; “When the state has introduced a witness, who is a material witness for the state, and who testifies to material and prejudicial facts against the defendant, such defendant, on cross-examination, has the right to show any fact or circumstance which will affect the credit of the witness before the jury.” This is a sound proposition of law, and, if the court had -excluded any such testimony, it would be error. J. M. Matthews was a most material witness for the state, and testified, among other things, to appellant paying or causing to be paid to the husband of Mrs. Vaden $750 to keep her from attending court and testifying against him; the court permitted it to be shown that the husband of Mrs. Vaden gave him (Matthews) one-fourth of this amount. Appellant then developed that, in addition to having this prosecution brought, Mrs. Vaden had filed a suit against appellant for $50,000 damages. In cross-examination of Matthews, appellant asked him if he (Matthews) was going to get one-fourth or a child’s part of the amount sued for and recovered as damages, to which question Matthews answered “No.” Appellant then asked him if he did not think he was entitled to it. Whatever may have been the witness’ opinion as'to what he thought he ought to be entitled to would be inadmissible, when he answered he was not going to get any part of it. Matthews was in no way related to Mrs. Vaden, and as a matter of law was not entitled and could recover no part of any sum that Mrs. Vaden might get, if anything; and, as he had testified that there was no agreement or understanding that he was to be given any part of it, his opinion about what Mrs. Vaden ought to do in case she recovered would not be legitimate testimony.

Dr. T. W. Wiley, after qualifying as an expert, in answer to a hypothetical question had testified that a woman in the position stated, and under the circumstances enumerated, could not be raped without, leaving evidence of physical violence on her person, and he was then asked if a man could have carnal intercourse with a woman in that position with her consent, and it is shown by the bill that he would have answered that he could not. In this case there was no question of intercourse by consent. Mrs. Vaden testified to a case of rape; appellant testified that he at this time nor at any other time had never had intercourse with Mrs. Vaden, and there were no facts and circumstances showing that he had intercourse with her, unless the version of Mrs. Vaden be accepted as true; and, the doctor having testified that in his opinion the act could not have taken place without leaving marks of physical violence (there being no marks of violence on Mrs. Vaden), the court did not err in his ruling. The record discloses that the doctor testified: “In my opinion, a woman raped under those circumstances, without marks of physical violence upon her person', would have to consent. In my judgment she could not be raped without marks of physical violence upon her.”

In the fourth and fifth assignments in the brief are presented the questions that the jury received other and additional testimony after they retired, and discussed the former conviction of appellant. When the motion for a new trial was heard, each juryman was called and testified, and each and all virtually agree that nothing of this character took place until after the vote had been taken in which they all agreed upon appellant’s guilt. Some of the jurymen testify that, before, they had agreed on the term of punishment to be assessed, one of the jurymen, a Mr. Crockett, remarked that he was surprised that appellant took him on the jury; that appellant was aware that he (the juryman) knew that he (appellant) had separated a man and his wife prior to this time. Some of the jurymen say that this was before the verdict was finally arrived at; some say that it was after the verdict was reached,, but before it was returned into court; and some say that it was after the verdict was rendered and the jury discharged, and that the' remark was made by Mr. Crockett while they were on the way downstairs; but each and all of them testify it had no influence on any of them. Appellant does not contest the fact that he knew Mr. Crockett was aware of the circumstance mentioned, prior to the time he accepted him on the jury. Each juryman was called on to testify as to what was said about the prior verdict. One of the jurymen testified that some one remarked about appellant having been formerly convicted and had been sentenced to ten years in the peni-, tentiary (that is, asked if this was not the case in which he had been formerly convicted), when the foreman promptly instructed them that this could not be considered, and they must not discuss it. A majority of the jury testify they heard no such remark, and all of them say that it was not discussed, and no attention was paid to the matter. While several testify that before going on the jury they knew appellant was convicted on the former trial, they state that on their examination, when asked, they so informed appellant’s counsel. The record discloses that on the former trial appellant received a sentence of ten years, while on this trial he. gets only seven. It may be said that the evidence of all the jurymen discloses there was no discussion of the former conviction, although it may have been incidentally mentioned by one juryman, who was at once informed that this matter must not be discussed nor considered, and they all say it was not discussed nor considered. If it had been discussed, of course we would not be inclined to inquire into whether it had weight or not; but inasmuch as all say it was not discussed by any of them, but at most only incidently mentioned in the nature of a query, this presents no error.

As to the remark of Mr. Crockett, it is practically certain that it was made after the jury had all agreed on the guilt of defendant, if in fact it was not made after the jury was discharged, as contended by Mr. Crockett and some others. When they began a discussion of the penalty, four were for 5 years’, while the remaining eight were for various numbers of years up to 20 years’, confinement in the penitentiary; and, instead of it appearing that the four were caused (if the remark was made prior to the time the punishment was agreed on) to increase the number of years from what they first thought proper very much, those for a greater number of years afterwards came down considerably more than they were led to increase the punishment. In the case of Arnwine v. State, 54 Tex. Cr. R. 219, 114 S. W. 796, the matters were carried much further than in this case, and it was held not to present reversible error. The mention of these matters in this case did not induce them to find appellant guilty, for they had already done so before these facts were mentioned, as shown by the testimony. The mention of the number of years given appellant did not influence them apparently, for they proceeded to give him less than on the former trial, and they nearly all swear they did not hear the query when made about the former conviction, and those who say they did hear it say it did not influence them and was not considered by any one in arriving at the number of years of punishment; and a majority of the jury say the remark of Mr. Crockett was made after the verdict was reached, and all say it was not discussed, and all say it did not influence them in the least, and the punishment bears evidence of this fact.

The propositions presented by the sixth, seventh, eighth, ninth, and tenth assignments of error present to us a serious question, and one to which we have given much thought and study. In the case of Pefferling v. State, 40 Tex. 487, it was held: “In prosecutions of this character, the proof of the offense depends very frequently upon the testimony of the party charged to have been outraged, and in most cases, to a very great extent, upon the truth and credibility of her evidence, and unquestionably every reasonable test should be applied to her integrity, for the safety' of the accused. Hence the failure to make outcry, or call for aid when it might have been readily obtained, or within reasonable time to discoyer the offense after an opportunity to do so are circumstances tending to discredit her testimony. But, if the absence of these circumstances tend to raise the presumption that her testimony is false or feigned, proof of them repels the suspicion which their absence raises. It has therefore been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence.” The rule thus announced by Judge Moore has been adhered to in an unbroken line of decisions, so far as we have been able to ascertain, and therein it is announced that the particulars she detailed cannot be given, unless they come within the rules governing res gestae testimony, and in this case the witness was not permitted to do so, but a person will be permitted to testify as to her state and appearance.,

In this case it is shown that, if the rape occurred, it was between 7 and 8 o’clock in the morning, and the appellant developed that Mrs. Vaden remained at appellant’s farm, where she was housekeeper, until after she had gotten dinner, and did not report the matter to any one until after 12 o’clock. To meet this the state proved that Mrs. Vaden had sent word to Mrs. Matthews asking her to come to see her. Mrs. Vaden testified she was afraid to leave the place until appellant bad gone away; that she knew he was going to leave as he had told her to get early dinner because he was in a hurry to get off; that, as soon-as he left,' she went to the house of Mrs. Matthews and there made the first complaint, and then went to the telephone and reported the matter. Mrs. Matthews was permitted to testify that when Mrs. Vaden arrived at her house she made complaint to her; that she was crying, jerking, and very nervous; that Mrs. Vaden remained at her house until Sunday, and she remained in that condition while she was there. J. P. Carter was permitted to testify that about noon on the day of the alleged assault she came to the store to telephone and was sniffing and crying. J. M. Matthews was permitted to testify that when he returned home that evening Mrs. Vaden was at his house, and remained there until Sunday evening, when she went to Bob Smith’s; that when he got home he saw Mrs. Vaden; that her face was red and swollen; that she was crying and trembling and very nervous,-and she remained in that condition until she left his home on Sunday evening. Bob Smith was permitted to testify that when Mrs. Vaden arrived at his house Sunday evening she appeared to be in “wrecked, nervous condition.” All this testimony was objected to by appellant, and we may say that the testimony of the witnesses cover a period of two days after the alleged assault; that of Mrs. Matthews and Mr. Carter relating to a time about three or four hours after the alleged offense, and that of the other witnesses tending to show this condition of nervousness, etc., continued for that length of time. We do not think it can be seriously contended that evidence of the appearance of Mrs. Vaden’s state and appearance when she complained to Airs. Matthews, and Mr. Carter saw her, is not admissible. Certainly this much is admissible under all the authorities from this state cited in appellant’s brief.

The only serious question presented is: Was it permissible for Airs. Alatthews to testify that that condition continued to exist from Friday afternoon until she left Sunday afternoon, and was it permissible for Mr. Alatthews to testify that this was her condition when he saw her late Friday evening, and that it continued until Sunday afternoon (that is, all the time she remained at his house), and was it permissible for Mr. Smith to testify that she was in a “wrecked, nervous condition” when she arrived at his home Sunday afternoon? If there had been marks of physical violence on her, and each of these witnesses saw this evidence of physical violence on her at these various periods of time, there can be no question that the testimony would be admissible; if there had been rents in her clothing, and these witnesses saw the tear at the various times mentioned, it would be admissible; and if there was force used on her person, although it did not tear her clothing or make marks on her person visible to the eye, yet the violence used to her person was of that nature to outrage the feelings of a chaste female, produce, as human experience teaches us would be the case in a case of rape by force on a refined and pure woman, a state of nervousness visible to the eye, and the shame and humiliation of it should cause her to shed tears and tremble, why is not such testimony admissible? And if the shock is of that severe character that she remained in this distraught, nervous condition for two days, is not that fact also admissible in evidence? This lady may be a consummate actress, as contended by appellant’s able counsel before this court, and these evidences of a nervous, distraught condition but assumed by her, yet, without positive evidence of such fact, shall we say that such is the fact and the testimony inadmissible? The fact that she remained at the house for three or four hours, and did not report the matter until she arrived at Mrs. Matthews’ home, might present a state of facts upon which appellant’s counsel could base a cogent argument to the jury that her condition and state were assumed, and the tears shed were not occasioned by outraged feeling, but was but the play of a designing woman, but this would go to its weight and not to its admissibility. We know of no act that would more completely shock a modest female than to forcibly violate her person, and the pain and humiliation caused by such act is calculated to produce a nervous condition that may last this length of time. Of course, we are not passing on the genuineness of this state of mind in Mrs. Vaden; that was for the jury under the evidence. She was rigidly cross-examined; her life inquired into for a number of years; her misfortunes in the marital state exposed; and the question of whether or not she was of that character and nature of a woman that such an act, if committed, would naturally produce the condition testified to by the witnesses we are satisfied was all ably argued to the jury, based upon this character of testimony.

The time Mrs. Matthews and Mr. Carter first saw her was not too remote from the transaction to render the testimony inadmissible, and, they having so testified, we think it permissible for the state to show that this state continued for a reasonable length of time.

J. M. Matthews testified he was a tenant on appellant’s place, and after testifying to the condition of Mrs. Vaden (then Mrs. Proctor), on the day of the alleged offense, and in regard to the several conversations he had with appellant, among other things, testified: “I think the next conversation we had on it was in October, and at that time he asked me if we didn’t correspond with this lady (that is, if my wife and I didn’t correspond with Mrs. Proctor), and I told him that we did. And he asked when we had heard from her, and I told him my wife had a letter from her a few days previous to that, and he wanted to know if I didn’t think I could square the thing np for him, and I told him I didn’t think X could; that was the way the conversation started. He said he thought I could, and insisted on it, and I told him I would do what I could, and he wanted me to go to Hillsboro, and I went. I went to see if I could effect a compromise in any way and get it out of court. In that connection he said he didn’t want to be mixed up in it much; that Clyde was his overseer out there; that he had turned the business over to Clyde, and Clyde was boss. He said whatever Clyde said was all right; that he would make Clyde his agent, and I was to get my instruction from Clyde, and he would give them to Clyde. Clyde and Mr. Burge both furnished me the means to go to Hillsboro. The first trip to Hillsboro, that I made, Clyde furnished me $10 and Mr. Burge furnished me the rest, which was $2. I told the defendant, Mr. Burge, that I would have to have some clothes to wear down there, and he told me to come and go with him and get them, and he took me to a store over here on the northeast corner of the square, what used to be called the Mississippi Store, where that building fell down, and introduced me to one of the clerks, whom he called Ben Estes, and told him to let me have what I wanted. I got a suit of clothes, pair of shoes, shirt, collar, and tie, I believe, and those goods cost $17.80. I went by myself to Hillsboro, and when I got down there I went to see Mrs. Yaden. I saw Mr. Vaden first and told him I was down there looking for a job, and he told me that I could probably get a job there with the Katy, and the case was brought up, and I told him that I thought Mr. Burge was anxious to get the case out of court. That was all that I told him at that time. I did not make any arrangements with him with regard to the matter at that time. After I talked with him I went out to his house and saw Mrs. Vaden, and, after she made some statement to me, then I made her a statement with regard to the case. We got to talking about the case, and said that Mr. Vaden objected to her coming to court, and set his foot down on it that she couldn’t come, and she asked me what she should do about it. I told her I was incapable of advising her, but it seemed that she had a good home and a good man, and, to keep down family trouble, if they could keep things squared up some way it might be best for her, and she said that she didn’t know what about it. And that if Mr. Burge would not appear against her son Barney (wherein Barney was charged with assaulting appellant because of this matter) that she would not appear against him, and she said that, if she could get the county attorney to dismiss the case that under the circumstances, she might agree to it She did not say anything else in that connection; yes, she did say if she could get the case dismissed and save her character that is all that she would care about. That is all that happened the first trip. The second trip Clyde spoke to me about that, and Mr. Burge did not speak to me about the second trip; Clyde said- that I must go back and see further, and I came back and reported the condition of affairs, and it wasn’t very satisfactory. I made the report to both of them when I came back the first trip, and I don’t think the defendant said anything in that connection. With reference to the second trip, Clyde said I must go back and get something more definite; that they didn’t know what to do about that, and for me to go back and find out what they would do, if she would sign some papers or would leave the state, or, if she would leave the state, how much money she wanted to leave the state, and I was authorized to tell her that they would not appear against the boy (that is, against Barney Young, her son). That conversation was with Clyde, and Clyde furnished the money to go down there that trip; I don’t remember how much money he furnished, but I think, though, it was $12. I went by myself. When I got down there I went to see Mr. and Mrs. Vaden, and I told them that they were anxious to get it settled, and I thought Mr. Burge would agree to terms not to appear against the boy, and that was about all there was to tell them; they just sent me down there to find out what the other side would do and get the other side to make a proposition. Mrs. Vaden said she would not leave the state under any circumstances, and the only way they could get the case dismissed would be for them not to appear against Barney, for Mr. Burge not to appear against Barney, and for the county attorney to dismiss the case and save her character. When I came back X reported to Clyde; I don’t think I reported to Mr. Burge that time. The next time Clyde went with me, and Clyde paid my expenses on that third trip. I. do not know how much the expenses were. The expenses, I think, of the third trip was $12. I do not remember what was said between me and Clyde, before we started on that third trip, more than he just wanted me to go along with him and give him an introduction to them and kind of go along as giving him an excuse for going. At that time I think we left McKinney over here at the Interurban from the station; I think so; I am not sure; there were several times we did not leave from the station, and I don’t know that might have been one of the times. When we got down there Clyde and I went to the store, and I introduced him to Mr. Vaden, and they talked the case over (I didn’t hear all that was said), and then we went out to the house. I did not hear all that was said between Clyde and Mr. Vaden. We went to the house, and Mrs. Vaden came in, and Clyde wanted her to sign papers stating that what she had his father charged with wasn’t so, and wanted her to leave the state. She said she wouldn’t leave the state and would not sign the papers stating that it wasn’t, and said that it was so. I don’t remember anything else that occurred, I don’t believe. He had a paper there with him for her to sign; I do not know who wrote it, but it was typewritten. I only have his word for who wrote it; he said their lawyers wrote it. When we came back he made a report, but I was not with him. I do not remember under what circumstances the fourth trip was made, but Clyde and I made it; on the fourth trip I met Clyde in Ft. Worth. I went from here to Ft. Worth; that was my instructions that I was to meet him in Ft. Worth. He had given me my instructions before I started. He gave me the instructions personally; he told me. I don’t think he went ahead of me, but think he followed. He gave me the instructions out there on the place. I took the car here in McKinney. I beat him to Ft. Worth; I don’t know whether he left here first or 1 left first, but Ubeat him to Ft. Worth. After he and I met in Ft. Worth we went to Hillsboro. He paid my expenses on that trip, but I do not know how much it was; he gave me $8 to start with here, and after I met him in Ft. Worth he paid all expenses from there on, tickets, etc. When we went to Hillsboro that time we went out to Mr. and Mrs. Yaden’s house again, and he had another paper for her to sign, and she refused to sign it. I do not know what the papei contained. Practically the same things were said that were said on the other trips; he still wanted her to leave the state, and she refused to go. We did not accomplish anything by that fourth trip. He and I came back together, and I presume when we came back Clyde reported. I do not remember how many trips we made in all. On the fifth trip, I think it was the fifth trip, I am not positive, but I believe • it was the fifth trip that we went over there to see about getting it dismissed that Mr. Yaden came back with us. I am almost sure it was the fifth trip that we went over there that Mr. Vaden came back with us. Clyde and I went on that fifth trip and went from here. X do not know whether we took the car here or at Melissa or on the hill. By on the hill I mean up there by the nursery on the hill; we took .the car down there one time. When we took the car up there on the hill by nursery we went around kind of back way to get to that place from the square (I don’t know what the street was), and we walked. That is, Clyde and I did that, and took the car down there. We went around the back way to take the car. Clyde paid my way down there that time. We accomplished practically nothing on that trip, only got Mr. Vaden to come back with us. Vaden failed to get the case dismissed; the county attorney would not dismiss it; and Vaden made the remark that he guessed the thing was all off, that he would hire some lawyers and fight it, and Clyde told him that would never do, and I left them at that time and don’t know what else transpired. A while after that they called me to witness trade that they had made, and Clyde was to give Mr. Vaden $750 for him not to employ an additional attorney and $1,500 if he could get the case dismissed. He was to pay him $750 down that night, take it to Hillsboro, and I was to be given $750 to hold until the ease was dismissed, and, if it was dismissed, it went to Mr. Vaden, and, if not dismissed, it went back to Clyde. That was the agreement made between them, in my presence, and they called me to witness it. There was nothing said about where the money was to come from, only Clyde was to deliver it at Hillsboro that night. Clyde went to a bank over on the west side of the square to get the money. Clyde wanted me to go with him; and I told him it wasn’t necessary for me to go; and he said, ‘Yes, the old man wants you to go;’ and I presume he had reference „to his father; and I told him all right, I would go; and I says, ‘Lets go;’ and he says, ‘Well, I have got to see the old man before I can go.’ I saw him go to the bank; that is, Clyde, and his father was with him. The defendant went with Clyde to the bank. When Clyde came out of the bank he came over on the corner where I was, and slapped his pocket, and says, ‘I have got her; let’s go.’ We went back upon the hill that time to leave and left at the nursery south of town. Mr. Vaden was not with us; he had already left. I do not know where he took the car. He and I did not go back together. Clyde and I left here between 4 and 5 o’clock, the best of my recollection, and got to Hillsboro that night about 11 o’clock, and went to Mr. Vaden’s house. They were up when we got there; they were fussing, and Mrs. Vaden was crying; and Clyde asked her what the trouble was; and she told him that Mr. Vaden had written a letter, and she was to copy it, and he had put a phrase in there that she didn’t want, that wasn’t so, and she didn’t want to copy it; and they talked over that a while, and finally got it squared up; and Clyde and Mr. Vaden went out on the front and talked a while, and Mr. Vaden come back to the house, and Clyde called me out, and says, ‘What do you think about the way this woman is doing?’ and I says, ‘I don’t know;’ and he says, ‘Do you think she will go to court?’ and I says, ‘I think she will;’ and he says, ‘What do you think about Vaden; do you think he will do what he says he will?’ and I says, ‘Yes, I think he-will; I believe he is a truthful man.’ And he says, ‘I am going to take a shot at the dark; I am going to let him have the money;’ and he handed the package to me, and says, ‘Give this to him.’ And I motioned to Vaden, and he followed me into the dining room, and I laid the package on the table.” It contained $750.

He also testified that he went to Oklahoma, at Clyde’s instance, during one term of court to get out of the way so the case could not be tried that term, and appellant paid his expenses; that at another term of court Clyde gave his wife $25, and she got out of the way. All this testimony was objected to by appellant; but as this witness testified that appellant, in his talk with him, told him to do whatever his son Clyde said, that C-iydr was the boss, and it further appearing by the record that appellant delivered the $750 to Clyde, and had paid the witness’ expenses at times in person, furnished clothing, etc., the testimony was admissible. At appellant’s request the court instructed the jury: “You are instructed that before you would be entitled to consider or weigh in any way the evidence of any act, statement, or declaration made or done by the witness Matthews at the instance or under the instructions of Clyde Burge, and not in the presence of the defendant, you must find and believe from the evidence beyond a reasonable doubt that the defendant, Ed Burge, told the said witness Matthews in substance for him to follow the instructions of Clyde Burge; that he (defendant) was backing Clyde Burge; and, if you have a reasonable doubt as to whether such statements was made by the defendant, then you are instructed that you will not consider as evidence in this case any statement, act, or declaration made or done by the witness Matthews at the instance or request of Clyde Burge not in the presence of the defendant, Ed Burge.” And at his request he further instructed the jury: “You are instructed that before you would be entitled to weigh or consider any of the acts, statements, or declarations of Clyde Burge offered in evidence in this case, not made in the presence of the defendant, Ed Burge, you must find and believe from the evidence, beyond a reasonable doubt, that the defendant, Ed Burge, stated to the witness Matthews in substance for him to follow the instructions of Clyde Burge, and that he (defendant) had given Clyde Burge instructions, and that he would stand behind whatever Clyde Burge did; and you are instructed that, if you have a reasonable doubt as to whether such statement was so made, then you are instructed that you cannot and will not consider any statement, act, or declaration of the said Clyde Burge, made out of the presence of the defendant, for any purpose whatever in this case.”

These two charges it was proper to give, and, the court having given them, there was no error in admitting the testimony of Mr. Matthews that was objected to. Neither did the court err in refusing to give the two charges instructing the jury not to consider this testimony for any purpose. If his son Clyde was acting for appellant, using money given him by appellant, and appellant had prior thereto told the witness, that Clyde had charge of the matter, that he (appellant) had made him his a'gent, and the witness was to get his instructions from Clyde, then the acts done under the direction of Clyde would be admissible against appellant.

Neither was it proper for the court to instruct the jury that, if they found that ai> pelJant had carnal knowledge of Mrs. Yaden, then her consent would be presumed until the state proved, beyond any reasonable doubt, that she used all means in her power to prevent it. As hereinbefore stated, there was no evidence to show an act of carnal intercourse by consent; yet, out of abundance of precaution in addition to instructing the jury as to presumption of innocence and reasonable doubt in appellant’s favor, he also instructed the jury: “If you find and believe from the evidence beyond a reasonable doubt that the defendant, Ed Burge, had carnal knowledge of the said Ophelia Proctor on the 19th day of May, 1911, but you have a reasonable doubt from the evidence whether or not such carnal knowledge was without her consent and against her will, or if you have a reasonable doubt from the evidence whether or not said Ophelia Proctor used every means within her power to prevent defendant from having intercourse with her, if he did, taking into consideration the relative strength of the parties and all of the other facts and circumstances in the case, then in either event you will acquit the defendant and say by your verdict not guilty.” The only other special charge requested was fully covered by the court in his main charge.

It appears from the record that Mrs. Vaden (then Mrs. Proctor) advertised for a position as housekeeper; that, in answer to that advertisement, appellant called to see her and a trade was made. In detailing' the conversation she said, as shown by a bill: “At the time that I made the arrangement with Mr. Burge to go to his place as his housekeeper, I showed him my recommendation and asked him for recommendations, and the man that was a writer, I suppose for the paper, recommended him very highly; that is the ouly one that I remember that recommended him. I told Mr. Burge the reason I wanted recommendations was that I was a lady and wanted to go to a nice place.” This testimony was offered to show why the prosecuting witness was on appellant’s place; that she testified that appellant was highly recommended to her certainly was not hurtful but beneficial to appellant; and the statement that she in that conversation told him she “was a lady and wanted to go to a nice place” would have no tendency to prove that appellant subsequent to that time raped her. It was but a recitation of a conversation that took place between them at the time of her employment, and the same facts were in substance testified to by appellant, and this bill presents no reversible error.

The only other question presented in the able and lengthy brief is that, while the private prosecutor was addressing the jury, Mrs. Yaden was sitting in plain view and hearing of the jury, and cried. It is further shown that at the former trial she had cried, an<j appellant’s counsel called the court’s attention to this matter and asked that she be not permitted to remain in the presence and sight of the jury. ■ The court, in approving the bill, states that Mrs. Vaden did cry sufficiently loud for the jury to have heard her, but not loud enough nor in a manner to interrupt the orderly proceedings of the court. It is well known by all members of the bar, and all the courts, that witnesses both for the state and defendant gather about' during the argument of counsel; that they sometimes cry, and even counsel, in presenting the cases to the jury, are sometimes moved to tears. And at times eloquent counsel have even elicited tears from the jury trying the case; but, if these demonstrations are not of that character as to disturb the proceedings of the court, it is seldom the court seeks to control such matters. As qualified and approved by the court, it is a matter that we would not feel called upon to hold that the trial judge had abused the discretion confided by law to him.

There are other matters presented by the record, but these are all the questions deemed o'f sufficient importance to be included in appellant’s brief; and, while we have not discussed the others, they are questions of similar import to those herein acted on, and after reading each of them we are of the opinion no reversible error is presented by this record.

Mrs. Vaden testified appellant came up behind her, grabbed her hands, pinioned them behind her, threw her on the bed, and outraged her; and the judgment is affirmed.

DAVIDSON, J., dissents.

On motion for Rehearing.

HARPER, j.

Appellant has filed a lengthy motion for rehearing and an able argument thereon. In the first ground it is insisted that we erred in holding that the court committed no error in sustaining the objection to the following question to the witness Matthews, “Well, don’t you think that, if you were entitled to a child’s part of that $750, you would be entitled to a child’s part of the $50,000, too?” claiming that it is always permissible to introduce testimony to impeach .the credit of a-witness. This is no doubt true, but in this case this witness had already testified about being given one-fourth of. the $750 paid by Burge to Mr. Vaden to keep his wife away from court; and in answer to the question, “Well, do you know whether you are going to get a child’s part of that $50,000 that she sued for?” he had answered, “No, I do not know. I do not know that they are going to get it, and do not know anything about it.” Appellant does not state that he expected to prove that any agreement had been entered into whereby Matthews was to be given any part of the money, if any was recovered, but only that' Matthews would testify that, if he was entitled to a child’s part of the $750, he also thought he ought to be entitled to a child’s part of any amount that might be recovered in the suit. It having been shown that there was no agreement to pay him anything, and no legal obligation sought to be shown, but only that as Vaden had voluntarily given him part of the money paid to him to keep Mrs. Vaden from court, and get her to request the county attorney to dismiss the case against appellant, he thought if he was entitled to that amount he thought he ought to be entitled to more, if money was recovered in the suit, would have no bearing on this case, nor on the weight of his testimony. Had appellant stated in the bill he expected to prove, directly or indirectly, circumstantially or otherwise, that there was an agreement or understanding of any character that Matthews was to receive any portion of the money, if any was recovered, there would be merit in his bill; but the question propounded, and to which objection was sustained, nor the answer stated he expected to be made to the question, would have no such bearing. The wide range the court had already allowed in the cross-examination of this witness was amply sufficient to show any interest or bias he might feel or have in the case.

The authorities cited by appellant on this question do not sustain his contention, but all of them only go to show that the motive of a witness, his interest or bias, may always be shown, and this is unquestionably the law; but the question here propounded would throw no light on his motive, nor his interest, nor that he was biased in favor of the prosecuting witness.

Appellant for the first time in his motion for rehearing in this court claims that the court erred in not instructing the jury that Mrs. Vaden and J. M. Matthews were accomplices, asserting that as it is shown that Burge paid $750 to Vaden to get Mrs. Vaden to write a letter asking that the case be dismissed, and Vaden had given Matthews one-fourth of that amount, this made them accomplices, and the court should have so instructed the jury. No such contention was made in the court below at the time of the trial, nor in the motion for a new trial; and, if the court should so have instructed the jury, it would be too late to raise such question while the case is pending in this court on motion for rehearing. Chapter 138, Acts 33d Legislature, p. 278. However, this testimony would not raise such an issue.

Mr. Branch, in his work on Criminal Law, correctly states the law to be: “Witness is not an accessory or accomplice, and no charge on that subject is required from the fact there is evidence that the witness offered or accepted money to leave the state, or desist from prosecution; the fact that one compounds a felony does not of itself make such party an accessory to the felony compounded” — citing Chenault v. State, 46 Tex. Cr. R. 355, 81 S. W. 971; Robertson v. State, 46 Tes. Cr. R. 442, 80 S. W. 1000; Chitister v. State, 33 Tex. Cr. R. 638, 28 S. W. 683; Smith v. State, 51 Tex. Cr. R. 141, 100 S. W. 924; Davis v. State, 52 Tex. Cr. R. 335, 107 S. W. 855. The only case sustaining appellant’s contention is that of Gatlin v. State, 40 Tex. Cr. R. 116, 49 S. W. 87, but that case was shortly thereafter overruled in the Chenault Case, supra, and the Chenault Case has been followed since that time.

The second ground of the motion is that we erred in holding that the witness could testify whether or not Mrs. Vaden was in a nervous, distressed condition when they saw her. We discussed this so fully in the original opinion we do not deem it necessary to do so again, and would not do so except that appellant notes one question and answer not taken cognizance of by us. After Mrs. Vaden had testified to her condition, after she claimed she had been assaulted, she was asked how long this condition lasted, and she said for about a week. This and other questions in the case are discussed in the case of Jacobs v. State (Tex. Cr. App.) 146 S. W. 558, and it was there held that it was permissible to testify that, from the injuries received, the lady who had been raped was confined to her bed for two or three weeks.

All the other questions in the motion for rehearing are fully discussed in the original opinion; and the motion for rehearing is overruled.

DAVIDSON, J.

Without discussing the legal questions urged for reversal, I am persuaded there is wanting that degree of force necessary to constitute rape by force. It may be difficult sometimes to draw the line between force and consent, but it is too thin here for conviction.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    TEXAS & N. O. R. CO. v. COOK.
    (No. 5373.)
    (Court of Civil Appeals of Texas. Austin.
    May 6, 1914.)
    1. Justices oe the Peace (§ 174) — Appeals to County Coukt — Amended Pleadings.
    Where the amended account, filed in the county court on appeal from a justice’s judgment, only amplified and enlarged the grounds of negligence originally alleged as a ground for recovery, and the county court determined that all the matters presented by the amended account had been orally pleaded in justice’s court, refusal to strike out the amended account was proper.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    2. Evidence (§ 481) — Nonexpert Witnesses —Statement oe Facts.
    A nonexpert may testify that the engines of a railroad company throw out more or less sparks.
    [Ed. Note.' — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. § 481.]
    3. Railroads (§ 485) — Fires—Liability.
    Though a railroad company need only exercise ordinary care to equip its engines with suitable spark arresters, yet where, in an action for loss of property by fires set by sparks, there was no evidence by the company on that issue, it was not reversible error to charge that it was its duty to use suitable spark arresters.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.]
    4. Railroads (§ 480) — Fires — Burden oe ' Proof.
    Proof that sparks escaped from a railroad engine and destroyed property by fire, either' directly or indirectly, established a prima facie case of actionable negligence of the railroad company, and to escape liability it must show that the engine was equipped with proper spark arresters, and that the same were in good repair, and that the company exercised reasonable care to keep the same in good repair.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1709-1716, 1733; Dec. Dig. § 480.]
    Appeal from Anderson Cbunty Court; E. Y. Swift, Judge.
    Action by J. M. Cook against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and P. W. Brown, of Palestine, for appellant. Miller & Miller, of Athens, for ap-pellee.

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

   RICE, J.

This suit was brought in the justice’s court by appellee against appellant, to recover the sum of $157 on account of the negligent burning of a house, containing 50 bushels of corn, belonging to him, situated near Frankston on the line of appellant’s railway, which it was claimed was burned through the negligence of appellant. A trial resulted in-a verdict and judgment in behalf of appellee. The” case was appealed to the county court, and judgment again went in behalf of appellee for the sum of $182.50, from which this appeal is prosecuted.

The first assignment of error complains of the action of the court in failing to strike out the amended account filed by appellee, the grounds of said motion being that said amended account set up a new cause of action, in that it contained other allegations of negligence than those set forth in the original account, and increased the amount sued for. Appellee, however, claimed that all of these matters had been orally pleaded in the justice’s court, whereupon the court heard evidence as to what was in fact pleaded by him in the justice’s, court, after which he struck out several of the allegations contained in the amended account. Appellant claimed that it was surprised and not prepared to go to trial on said amended account, but made no motion to continue. In the first place, the amended account did not set up any new cause of action, but only amplified and enlarged the grounds of negligence originally alleged. Besides this, the court must have determined that all of these matters had been orally pleaded in the justice’s court, for which reasons we overrule this and the following six assignments, complaining of the action of the court in this respect.

Nor did the court err in permitting the witness Torrance to testify over appellant’s objection that the spark arresters on appellant’s engines running by Frankston in September, 191Ó, were in bad condition, and threw out sparks; the grounds of objection being that the witness was not an expert. This witness was not only shown to be an expert, but, in addition thereto, testified that the majority of the spark arresters on appellant’s engines going by Frankston in September, 1910, were defective and threw out more or less sparks, which last fact it was competent to prove, even by a nonexpert witness. Hence we overrule the eighth assignment.

While it is true that railway companies are only required to exercise ordinary care to equip their engines with suitable spark arresters, still, where there is no evidence offered by the company on this issue, it is not reversible error to charge that it was its duty to use suitable arresters thereon. Therefore we overrule the ninth and tenth assignments complaining of the. charge in this respect

By its eleventh assignment appellant urges that the court erred in the following paragraph of its charge:

“Now, if you believe from a preponderance of the evidence that at the time alleged sparks and fire did escape from one of defendant’s locomotives and burned said house and corn, either directly setting fire to said house and corn, or by being communicated by combustible material on the track of defendant, then you are instructed that such facts constitute a prima facie case of negligence on the part of the defendant company ; it then devolves upon the defendant to overcome said prima facie case of negligence by proof that defendant’s said locomotive which set out the fire, if it did, was equipped' with proper spark arresters, and that the same were in good repair and working order, and that the defendant had exercised reasonable care to keep same in good repair.”

A similar charge to this was given by the trial court in the case of Railway Co. v. Horne, 69 Tex. 643, 9 S. W. 440, and Mr. Chief Justice Willie in discussing'same says:

“There was no error in the charge complained of. It is in accordance with the decisions of this court. * * * We are aware that numerous authorities can be found in which it is made the duty of the party complaining of injuries done to his property by reason of fire kindled from such sparks to show negligence on the part of the company, but we think that those decisions which throw the burden upon the company of showing that the sparks did not escape because of any negligence on its part are best supported by reason. They place the burden of proof upon the party having the means of producing the necessary evidence upon the subject. The employés know the condition of the engine and of the appliances used to prevent the escape of fire, and they should be informed as to whether these were sufiicient for that purpose. The injured party would not, as a general thing, be possessed of any such information, and he could not ordinarily obtain it. To require him to make the proof would, in most instances, be a denial of justice, and would allow the party doing the wrong to escape by concealing the facts which brought it about. Hence our courts have adopted the salutory rule of presuming the existence of negligence against the party who has the means of disproving it, and fails to make use of them (Ryan v. Ry. Co., 65 Tex. 20 [57 Am. Rep. 589]), and have followed that line of decisions which cast the burden of proof in such cases upon the company; and, as we believe our former decisions upon the subject are founded upon good reason, we are not inclined to change the rule assumed by them” — citing cases.

See, also, Roman v. St. L. S. W. Ry. Co., 160 S. W. 431.

See, also, Gulf, Colorado & Santa Fe Ry. Co. v. Johnson, 92 Tex. 591, 50 S. W. 563, where a similar charge to the one under consideration was approved by Chief Justice Brown, who said, among other things that:

“It is well settled in this state that in cases of this character, proof by the plaintiff that the injury complained of was caused from fire set out by sparks from a railroad locomotive while it was being operated upon the road constitutes a prima facie case, and, if not rebutted, entitles the plaintiff to recover. * * * The charge * * * did not shift the burden of proof from the plaintiff to the defendant, as is claimed, but, as in every other case where a prima facie right is established, it called upon the defendant to meet the case made in order to defeat the plaintiff’s right of recovery. As a general rule of practice, it is not permissible for the court to instruct the jury that the proof of certain facts will establish the fact of negligence upon which the action may be maintained, but in this class of actions a different rule has been established by the decisions of the Supreme Court of this state, and the charge before copied is not subject to the objection that it is upon the weight of the evidence” — citing cases.

But Chief Justice Willie remarked in the case first quoted from:

“Even had the charge been erroneous in this respect, it did no harm, for the prima facie case of negligence made out by the plaintiff was not rebutted by the defendant with a particle of evidence of any character whatever.”

In the present ease, we think the evidence justified the jury in finding that the fire originated from sparks escaping from appellant’s passing engine, setting fire to a stump on the right of way, which was subsequently communicated to the house in question. Appellant offered no evidence whatever going to show that its engines were properly equipped with spark arresters, so that the charge could not, under the circumstances, have been improper, even if the law was as appellant contends, which is not the case. Hence this assignment is overruled.

Finding no error in the proceedings of the trial court, its judgment is in all respects affirmed.

Affirmed.


author: TALBOT, J.

text:
    CORRIGAN, LEE & HALPIN v. HEUBLER et al.
    (No. 7043.)
    (Court of Civil Appeals of Texas. Dallas.
    April 25, 1914.
    Rehearing Denied May 23, 1914.)
    1. Master and Servant (§ 284) — Injury to Servant — Independent Contractors — Evidence.
    Evidence, in an action for injury to an employe held to make a question for the jury whether the person who employed plaintiff was an independent contractor, or merely a servant or agent of the general contractor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. | 284.]
    2. Master and Servant (§ 88) — Independent Contractors — Test of Relation.
    The test of whether one is an independent contractor, or merely a servant or agent of the general contractor, is not whether they actually exercised control over the manner in which, or the means by which, the work was to be done, but whether they had the right to do so.
    [Ed. Note. — For ■ other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.]
    3. Trial (§ 252) — Misleading Instructions —“Willfully.”
    The word “willfully” sometimes means not merely voluntarily, but with a bad purpose; and from its use in connection with “knowingly,” in an instruction that, if defendants willfully and knowingly furnished material, which caused the place where plaintiff was working to be inherently dangerous, they were negligent, the jury might conclude the court was of the opinion there was some evidence that defendants did this with a bad or evil intent, making it prejudicial; there being no such evidence.
    [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 505, 596-612; Dec. Dig. § 252.

    For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481, 7835, 7836.]
    4. Appeal and Error (§ 1050) — Harmless Error — Admission oe Evidence.
    Even if a statement of witness that boards bore concrete stains was a conclusion, its admission was harmless; the same testimony substantially having' been given by other witnesses-without objection.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]

      6. Evidence (§ 513) — Opinions—Experts.
    Witness being a carpenter familiar with the strength of the character of the lumber in question, and having qualified as an expert to testify to the relative strength of a good piece of ship-lap lumber and the piece alleged to have given way, causing plaintiff’s fall from a column, and whether or not such piece was strong enough to support plaintiff’s weight, his testimony that, had a good piece of ship-lap been used in construction of the column, it would not have broken with a man of plaintiff’s weight was admissible.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2317, 2318; Dec. Dig. § 513.]
    6. Masteb and Servant (§ 268) — Independent Contractors — Evidence.
    A contract by a firm with a county to do work, providing against the firm subletting without the written consent of the county, in connection with evidence that there was no such consent, is admissible on the issue of one doing part of the work for the firm, being an independent contractor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 910; Dee. Dig. § 268.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by J. H. Heubler against Corrigan, Lee & Halpin and others. Prom a judgment for plaintiff against the named defendants, they appeal.
    Reversed and remanded.
    Burgess, Burgess & Chrestman, of Dallas, for appellants. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appel-lees.

      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 NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

This suit was brought by the appellee Heubler against Bernard Corrigan, S. N. Lee, and J. P. Halpin, and the firm of Corrigan, Lee & Halpin, composed of said three persons, and against W. D. Gilkison, to recover damages for personal injuries alleged to have been received by plaintiff on the 2d day of October, 1911, while in the employ of all of said defendants, by falling from a temporary upright structure used in connection with certain work being done in the course of the construction of what is known as the Dallas and Oak Cliff Viaduct; the said Corrigan, Lee & Halpin being the general contractors for the building of said viaduct. The defendant Gilkison answered by general demurrer, general denial, and pleas of contributory negligence and assumed risk. The defendants Corrigan, Lee & Halpin answered by general demurrer, special exceptions, general denial, pleas of contributory negligence, and assumed risk. These defendants also pleaded that Gilkison was an independent contractor on that portion of the work on which plaintiff was engaged at the time he was hurt; that plaintiff was in the employ and under the direction of said independent contractor, and was not in the employ of Corrigan, Lee & Halpin, nor in any way subject to their supervision, direction, or control. Plaintiff by supplemental petition denied that Gilki-son was an independent contractor, but was subject to the orders and control of defendants Corrigan, Lee & Halpin. The trial of the case resulted in a verdict and judgment in favor of the defendant Gilkison, and in favor of the plaintiff against Corrigan, Lee & Halpin, as a firm, and against S. N. Lee and J. F. Halpin individually, for the sum of $2,000; Bernard Corrigan, not being personally served with citation, did not answer. From the judgment rendered against them the appellants appealed.

The first assignment of error complains of the court’s refusal to give a special charge, requested by appellants at the conclusion of all the evidence, directing the jury to return a verdict in their favor. The proposition advanced under this assignment is that the evidence adduced conclusively showed that the defendant Gilkison was an independent contractor, in charge of the work upon which plaintiff was injured; that plaintiff was employed by Gilkison and under his exclusive control at the time he was injured, and therefore the peremptory instruction should have been given. We have reached the conclusion that this assignment and proposition should not be sustained. It is well settled in this state that, when the evidence is sufficient to make an issue, the question must be submitted to the jury. This is true, it is held by the Supreme Court, even’ though it might be that the trial judge or Court of Civil Appeals would set aside a verdict found upon the evidence. Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399. In Cyc. p. 1547, the subject of independent contractors is discussed, and it is there said that the test of the relationship “is whether the employs represents his employer as to the result of the work only or as to the means as well as the result. If the employs is merely subject to the control or direction of the owner or his agent as to the result to be obtained, he is an independent contractor. If the employs is subject to the control of the employer as to the means, he is not an independent contractor.” This is substantially the test laid down in Wallace v. Southern Cotton Oil Co., supra. In that case the question was whether the man Davis was a servant of the Cotton Oil Company, or an independent contractor “engaged in a pursuit free from the control of said company.” Here the question is: Was- Gilkison a servant of Corrigan, Lee & Halpin, or such a contractor? While the evidence may not, perhaps, be quite so strong to establish that the relationship existing between Gilkison and Corrigan, Lee & Halpin was that of master and servant as was the evidence in Wallace’s Case to establish such relationship, yet, without expressing or intimating any opinion as to what weight should be given to it by a jury, we think it was sufficient to take the question to the jury.

There is no question but that Corrigan, Lee & Halpin were the general contractors engaged in the construction of the viaduct, and that whatever relation Gilkison bore to that firm existed by virtue of a parol or verbal contract, and not by one in writing. Gilkison was irresponsible financially, and Corrigan, Lee & Halpin furnished all the material used by him and paid the employés working under him, as they paid other employés working on the viaduct. The contract entered into between Dallas county and the firm of Corri-gan, Lee & Halpin for the construction of the viaduct provides that the latter “will not assign, transfer or sublet the aforesaid work, or any part thereof, without the written consent of the commissioners’ court,” and there was no proof of such consent. Some time during the progress of the work, the time not being definitely, and by direct testimony, shown, the firm of Corrigan, Lee & Halpin put employés not claimed to have been employed by Gilkison upon the work he was doing, and informed him that he was indebted to them in the sum of $600 or $800. At this time Gilkison gave up the contract he claims to have made with Corrigan, Lee & Halpin, and he says: “I did not stay on the work after that.” At the time of the trial Gilki-son had not paid the $600 or $800' owed by him, nor had he given to Corrigan, Lee & Halpin his note or other written evidence of said indebtedness. In this connection he testified:

“What I mean to say was that they simply wiped out the contract, and I had a moral obligation of about $800 with Corrigan, Lee & Hal-pin, and Mr. Halpin told me if I ever got in a financial condition to pay that $800 he would expect me to pay it.”

It further appears that appellants’ physician and surgeon who treated all their men when treatment was necessary, treated the appellee when he was hurt, at the instance of appellants, and that they paid him for his services. This physician testified:

“When they called me down there to treat Mr. Heubler, I went down there and treated him just like I did on other calls.”

There was also some testimony tending to show that appellants, on more than one occasion, exercised authority and control over Gilkison in directing where he and the men under him should work, how the work should be done, and how the materials should be used in doing it, inconsistent with the idea that the work was under the exclusive control of Gilkison. These, we think, were facts and circumstances tó be considered by the jury in connection with, perhaps, other circumstances shown, in determining the relation Gilkison bore to Corrigan, Lee & Hal-pin and justified the submission of that issue for their determination.

The court instructed the jury that:

“If they believed from the evidence that the defendant Gilkison, in employing the plaintiff, Heubler, acted for and on behalf of the defendants Corrigan, Lee & Halpin, or if-they found that defendants Corrigan, Lee & Halpin exercised, or had the right to exercise, control over the manner, in which the work was to be done upon which plaintiff was engaged at the time he was alleged to have been injured, or over the means by which it was to he done, then, in either such event, Gilkison was not an independent contractor, but an employé and servant of Corrigan, Lee & Halpin.”

This charge is attacked by appellants’ fourth ássignment of error, and its correctness challenged on the ground, among others, because it authorized the jury to find in favor of the plaintiff, Heubler, against the defendants Corrigan, Lee & Halpin, if they should find that said defendants exercised control over the manner or over the means in and by which the work was to be done upon which plaintiff was engaged, even though said defendants had no right to so control the manner or means of doing said work, and even though the jury did not find that they had such right. We think this charge went too far, and is materially erroneous in telling the jury, in effect, that, regardless of whether or not Corrigan, Lee & Halpin had the right to exercise control over the manner in which the work was to be done, or over the means by which it was to be done, yet, in either event, if Corrigan, Lee & Halpin exercised such right, Gilkison was not an independent contractor. The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. 26 Cyc. p. 1647. This error was emphasized by the court’s refusal to give a special charge requested by appellants’ counsel embodying the above test, and requires a reversal of the case. The answers made by counsel for ap-pellee to this error in the charge have been carefully examined and considered, but we do not think either of them sufficent to justify the overruling of the assignment complaining of it. We call attention to the fact that this error was also repeated in the third" paragraph of the court’s charge, wherein the facts which would authorize a verdict in favor of the defendants Corrigan, Lee & Halpin were attempted to be enumerated.

The twelfth assignment of error complains of the following portion of the court’s charge, namely:

“If you find and believe from the evidence that defendant W. D. Gilkison was an independent subcontractor under the law as it is hereinbe-fore given you, and that the plaintiff was not the employé of defendants Corrigan, Lee & Hal-pin, but if you further find that said defendant firm controlled the method and furnished the material by which the work was being done by plaintiff at the time mentioned, and that such method or material, either alone or together, proximately caused such place where plaintiff was then working to be inherently dangerous, if it was inherently dangerous, and that said defendants Corrigan, Lee & Halpin willfully and knowingly furnished such agency, if they did, to be used as it was being used on said occasion in such employment, then said defendants would be guilty of negligence.”

If this was a proper issue to be submitted at all in this case, which may be seriously questioned, then we think there was no evidence authorizing a finding that Corrigan, Lee & Halpin “willfully” furnished any material whatever that caused the place where appellee was working when injured to be inherently dangerous. The word “willful” or “willfully” is variously construed. ‘Among other definitions, it is said that it means, not merely voluntarily, but with a bad purpose. Used in connection with the word “knowingly,” as it is in the charge in question, it would seem that the jury might conclude that the trial court was of opinion that there was some evidence which might authorize a finding that the defendants Cor-rigan, Lee & Halpin, with a bad purpose or evil intent, furnished Gilkison material which, either alone, or together with the method adopted in doing the work in which appellee was engaged, caused the place where he was at work when injured to be inherently dangerous. There was no such evidence, so far as is disclosed by the record, and the use of the word “willfully,” if the charge in any event embraced an issue which should have been submitted to the jury and was otherwise proper, was calculated to unduly affect and influence them to the prejudice of appellants in arriving at a verdict. This much has been said with respect to the charge, more especially in view of another trial of the case.

There was no material error in admitting the testimony of the plaintiff, Heubler, to the effect that the boards in the column on which the alleged accident occurred bore concrete stains. The testimony seems to have been offered in support of appellee’s theory that said boards were secondhand lumber and defective, and it appears that the witness was familiar with the use to which the lumber is question had been put, and testified, in substance, that the use of the lumber about which he was speaking, in connection with the column, was not such as to expose it to concrete stains, and that the stains upon it must have been received at some other place. If, however, it be conceded that the statement of the witness was a mere conclusion, still its admission does not constitute reversible error, for the reason, if no other, that the same testimony substantially was given by other witnesses without objection.

Nor do we think the court erred in admitting the testimony of the plaintiff, Heu-bler, to the effect that, had a good piece of ship-lap been used in the construction of the column from -which appellee fell, it would not have brokefi with a man of appellee’s weight. Appellee was a carpenter, familiar with the strength of the character of lumber in question, and sufficiently qualified himself as an expert to testify as to the relative strength of a good piece of ship-lap lumber, and the piece which is alleged to have given way and caused appellee to fall from the column, and whether or not the piece that gave way was strong enough to support the weight of ap-pellee.

We are further of the opinion that the court did not err, as complained of in appellants’ eighth assignment of error, in admitting in evidence the contract between appellants and Dallas county. As said by counsel for appellee:

“Inasmuch as the contract with Dallas county by the defendant firm contained an agreement on the part of such firm that they would not sublet any part of the work incident to the contract, without the written consent of the county, and, inasmuch as it was shown that there was no such written consent, such provision of the contract was a declaration of intention not to so sublet, and was therefore an admission to be considered by the jury for what it was worth, that the contract with Gil-kison was not one of subletting.”

The court instructed the jury not to consider the contract, except as it might tend ■ to show whether or not there was an independent contract made between the defendants Corrigan, Lee & Halpin, and W. D. Gil-kison, and for no other purpose. We think the contract was clearly admissible for the purpose stated in the court’s charge, and, in view of the limitation placed upon its consideration by the jury, appellants have no just cause of complaint

There are assignments of error that have not been discussed. They either present questions that have been disposed of adversely to appellants in the disposition made of assignments that have been discussed, or that are not at all likely to arise, upon another trial, or which afford no good reason for reversal.

For the reasons indicated, however, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: RASBURY, J.

text:
    GULF REFINING CO. et al. v. BROWN-LLOYD CO.
    (No. 7144.)
    (Court of Civil Appeals of Texas. Dallas.
    May 2, 1914.
    Rehearing Denied May 23, 1914.)
    1. Sales (§ 71)--Construction — Quantity.
    A contract for the sale of gasoline to plaintiff, who used it in mixing its paints, provided for the sale of a stipulated quantity during the period of 12 months, or such quantity as plaintiff might require for its own consumption. Held, that the stipulated quantity was merely an estimate of what might be needed, and plaintiff could not, shortly before the expiration of the contract, compel delivery of the full stipulated quantity, although it was not necessary for its own consumption.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 189-196; Dec. Dig. § 71.]
    2. CONTRACTS (§ 152) — CONSTRUCTION.
    In construing a written contract, words used should- be accepted in their ordinary and popular sense, unless there is something to show that they were used in a different sense.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. § 152.]

      Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by the Brown-Lloyd Company against the Gulf Refining Company and others, begun in justice’s court and appealed by defendant to the county court, where, judgment being again rendered for plaintiff, defendants again appeal.
    Reversed and rendered.
    D. Edward Greer, of Beaumont, and Eth-eridge, McCormick & Bromberg, of Dallas, for appellants. John L. Young, of Dallas, for appellee.

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

   RASBURY, J.

Appellee sued appellant in the justice court for $200, alleging such sum to be the difference between the price appel-lee paid in the market for certain gasoline and the price at which appellant had contracted to sell it to appellee, but which appellant had declined to do. Upon trial in justice court without jury, judgment was for appellee. There was an appeal to the county court at law, and trial de novo before the county judge, who also rendered judgment for appellee, from which this appeal is taken. No issue arises upon the pleading, and it is unnecessary to relate them further than we have. In fact, the issues presented by the briefs arise wholly upon certain undisputed facts and the construction to be placed upon the contract between the parties. The appellee, at the time the contract was entered into, was a private corporation engaged in outdoors advertising, and painted signs for its customers who advertised iu that manner. It used considerable gasoline in mixing its paints. To secure gasoline for such purpose, appellee contracted with appellant, from whom it had previously been purchasing gasoline. Omitting formalities and references to delivery, payment, and other matters and conditions not at issue, the contract provided as follows:

“That first party sells and agrees to deliver to second party, and second party agrees to purchase and receive from first party, during the period of twelve months, commencing March 1st, 1912, 5,000 gallons of gasoline at 10% cents per gallon, or such quantity of the above products as second party may require -for its own consumption.”

In pursuance with the terms of the foregoing contract, the parties operated without differences until February 18, 1913, 10 days before the expiration of the contract, at which time appellee^ demanded 1,600 gallons of gasoline, which would not have exceeded the 5,000 gallons specified in the contract. Appellant declined to deliver the amount demanded, but did offer to deliver to appellee daily on each of the remaining 10 days an amount of gasoline equal to the largest amount appellee had ever demanded during any one day. This appellee declined, insisting on his demand for 1,600 gallons. Appel-lee used gasoline for no purpose other than in mixing paints, and it could not have consumed the amount demanded in its own business within the remaining 10 days of the contract. There is other testimony in reference to the motives of both parties in relation to their respective attitudes toward the contract and the construction each placed upon the contract, but we do not think such facts material, and for that reason omit detailing same.

Appellee’s construction of the contract is in effect that appellant was bound to furnish appellee on demand, at any time before the expiration of the contract, the 5,000 gallons of gasoline specified therein, since there was an absolute sale of that amount, and in addition as much more as was required by ap-pellee for consumption in its business. Appellant’s construction of the contract, on the other hand, is in effect that the intention of the parties, as evidenced by that portion of the contract that recites, “Or such quantity of the above product as second party may require for its own consumption,” was that appellee should have whatever amount his business required, and that the specification of 5,000 gallons was in legal contemplation but an estimate of the amount appellee would probably consume.

The precise question, involving facts practically identical with those in the instant case, was decided adversely to appellee in Gulf Refining Co. v. Pegues Mercantile Co., 164 S. W. 1113.

In construing such contracts precisely, what the parties intended must be determined according to the plain import and the ordinary or popular significance of the language used therein. By the provisions of the contract under discussion, the appellant agreed to furnish appellee 5,000 gallons of gasoline or as much as was required by ap-pellee for its own consumption. The latter portion of the clause undeniably modifies what precedes it, and in our opinion it cannot intelligently be maintained that the purpose of the contract, as evidenced by its terms and the testimony of appellee’s witnesses, was other than to' furnish appellee whatever amount of gasoline it might require for its own consumption, whether the amount so required was more or less than 5,000 gallons. Such conclusion is sufficiently supported by the modifying portion of the contract, but is also sustained by appellee’s witness, who concedes the consumption or use of gasoline by appellee was only for mixing paints, and that they contracted for no other purpose. The 5,000 gallons specified could not have been intended as an absolute sale at all events of that much gasoline, for, if it had been, both parties would have concluded the agreement with such clear, unequivocal specification. Counsel for appellee recognize the force of such conclusion as we have said, and seek to avoid same by the claim that the parties intended to sell the 5,000 gallons outright, and in addition thereto as much more as appellee required for its own consumption, and argue that the word “and” should be «substituted for “or,” which is a rule of law in some eases, and that the word “require” should be giren its literal meaning, rather than the meaning intended by the parties as gathered from the contract and the testimony. We think the contention unsound. However, the meaning to be given the word ‘‘require” is immaterial, since to construe it to mean all the gasoline “called for,” as urged by appellee, would only mean all “called for” “for its own consumption,” and it is undisputed that such amount was furnished. To substitute “and” for “or” would make it necessary to destroy almost entirely the modifying clause placed in the contract by the parties, since, in order to make complete ap-pellee’s construction, it would also be necessary to strike out the word “consumption” so as to make the concluding paragraph read as appellee argues the parties intended it should; i. e., “and in addition such quantity of the above ■ product as second party may call for during the period of the contract.” As we have said, the rule is that to words contained in a contract there shall be applied the ordinary and popular sense, unless there is something to show they were used in a different sense. Here the contract was to furnish 5,000 gallons of gasoline modified by the parties as meaning more or less if appel-lee required it in its business, and, since such is the last word, the conclusion is inescapable that the specification of the number of gallons was but an estimate of the probable requirements of appellee, and, since it is conceded that appellee demanded more than was necessary for such purpose; and refused to accept an amount that would have met its actual needs, it was not entitled to recover any sum.

So viewing the controversy, it becomes necessary to reverse the judgment of the county court at law and here render judgment in behalf of the appellant.

Reversed and rendered.


author: HALL, J.

text:
    HARKRIDER v. GAUT et al.
    (No. 603.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1914.
    Rehearing Denied May 23, 1914.)
    1. Boundaries (§ 37) — Sufficiency of Evidence.
    Evidence, in trespass to try title to certain land alleged to be a part of survey No. 188, and to be a strip lying between the plotted part of such survey and the east boundary line thereof, held not to show the location of the east boundary line.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184r-194; Dec. Dig. § 37.]
    2. Boundaries (§ 33) — Burden of Proof.
    In trespass to try title to a strip of land lying between the plotted part of a survey and the east boundary line thereof, the plaintiff had the burden of showing the true location of such line, and of furnishing testimony by which the court could ascertain and by its judgment fix such line.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. § 33.]
    3. Evidence (§ 471) — Fact or Conclusion —Survey.
    In such action, the statement by a witness that the section was never actually surveyed upon the ground was clearly speculative, where he further testified that he got that idea because the field notes do not call for any corners on the ground.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    4. Evidence (§ 83) — Presumption—Survey.
    In the absence of proof to the contrary, it must be presumed that surveyors, in making a survey, did their duty and marked the corner thereof with some object of reasonable permanence, and the presumption is that the original survey was actually made on the ground.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. § 83.]
    Appeal from District Court, Potter County ; James N. Browning, Judge.
    Trespass to try title by Coke W. Harkrider against J. R. Gaut and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Y. W. Holmes, of Plainview, for appellant. Cooper, Merrill & Lumpkin, of Amarillo, for appellees.

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

   HALL, J.

Appellant instituted this suit in trespass to try title and for damages. Thereafter he acquired title from a number of other persons and filed an amended petition, in which he claims certain lands alleged to be a part of survey No. 188, in block 2, A. B. & M., surveys in Potter county; such land being a strip lying between the plotted portion of said survey and the east boundary line thereof. Appellees answered by a plea of not guilty, pleas of three and five years’ limitations, estoppel, and further alleged that plaintiff’s grantors had plotted all of said survey into lots and blocks, and called the same the town of Amarillo, and by said plot it was made to appear that each of the lots owned by appellees extended to the east boundary line of the survey, and that plaintiff was estopped from claiming otherwise. After the evidence was all in, the court peremptorily instructed the jury to find for the defendants.

Plaintiff, by mesne conveyances, has shown himself entitled to recover any portion of section No. 188 which the evidence shows not to have been platted in the town, and which might not be construed to be included within the terms of the deeds of the several defendants. The original plat fit the town of Amarillo, filed on May 29, 1888, was introduced in evidence, though it does not appear in the statement of facts. It does appear, however, from the statement that this plat shows the several lots and blocks thereon extend to the line of the survey. The witness Wetsell testified that he was living at Amarillo, and was interested in the title to the property at the time the plat was made, and that the section was actually surveyed, and the entire section platted, and it was agreed that it was the intention of the owners of the section at the time to do so. Plaintiff offered in evidence the deposition of Twiehell, a surveyor, to prove the location of the boundary line on the east of said survey. His testimony upon this point is in substance that he surveyed the line between sections 188 and 169 and marked them and gave a corner for each section by driving down an iron pipe; that this was about 24 years ago; that he found the original corners on the ground at the northeast corner of section 168, block 2, and the northwest corner of section 16, block 1, and at the northeast corner of section 41, block 1. He then proceeded as follows:

“I then ran south following a line which had been marked by a previous survey, but not the original survey, and I ascertained that this line would cause block 2 to conflict with block 9 on the west, so I determined where the true south would place this line, and I found it would fall considerably east of where I had placed it, and that there was more than room to relieve the conflict. I then retraced the line, placing it far enough east to relieve the conflict, and measuring exactly 1,900 varas to the mile to the south from the northeast corner of 168, so tracing the east line of sections 163, 164, 165, 166, 167, 168, and 169. I then placed the corners for the east line of section 188 at right angles west from the east corners of 169, 1,900 varas.”

Howard Trigg testified that there was a difference between the land platted into lots ánd blocks and the line as established by W. D. Twiehell; that he knew the location of the iron pipes that marked the corners between 169 and 188 were set by Twiehell. Also testified that he found cedar stobs marking on the ground the lots and blocks of the town of Amarillo., and that they cheeked up with the railroad; that the line he took for the east boundary line of section 188 was the line marked by Twiehell. It appears that the original monuments mentioned by Twi-chell in his testimony are called for in the field notes of section 163, and also of sections 12, 15, and 41. Trigg testified that he resurveyed 18S and connected back to the original corners of the block at different times; that he had laid out section 188 and knows something about the original survey; that he had the field notes of the original survey before him and traced them; that he found no original corner of 188, because there is none to .be found on the ground; that it was never surveyed on the ground at the time of the original survey; that he began surveying in this country in 1898 for the Santa Fé; that he gets the idea that the original section was not located on the ground because the field notes do not call for any comers on the ground. There are no original corners to look for. The field notes do not call for anything.

On cross-examination, however, he testified that they called for a stake and mound. He further testified that Twiehell may have marked the line of 188, but he had checked it back to the original corners, but did not know whether'he cheeked back on Twiehell’s survey or not.

Giving this evidence all the force to which it is entitled, we think it fails to establish the location of the east line of section 188. The burden is upon the plaintiff to show the true location of this line. As said by Key, Justice, in Rosson v. Miller, 15 Tex. Civ. App. 603, 40 S. W. 861:

“In order to enable the court to render a judgment fixing the line in dispute, and settling the question of boundary, it devolved upon the plaintiff, not merely to show in general terms that the defendant had inclosed more land than he was entitled to, but to furnish testimony by which the court could ascertain and define exactly where the line should be run that would restore to the plaintiff the excess so held by the defendant; and such testimony was not furnished.”

The fact that the line was at some point east of where it was attempted to be located by Twichell’s survey, under this authority, is not sufficient upon which to base a judgment.

The statement by Trigg that section 188 • was never actually surveyed upon the ground is clearly speculative upon his part. Aransas Pass Colonization Co. v. Flippen, 29 S. W. 813.

It is said by the Supreme Court, in Thatcher v. Mathews, 101 Tex. 122, 105 S. W. 317, that, in the absence of proof to the contrary, it must be presumed that surveyors, in making a survey, did their duty and marked the corner thereof with some object of reasonable permanence; and in Wilkins v. Clawson, 50 Tex. Civ. App. 82, 110 S. W. 103, the doctrine is announced that the presumption is the original survey of the league was actually made on the ground. Kuechler v. Wilson, 82 Tex. 645, 18 S. W. 317; Maddox v. Fenner, 79 Tex. 279, 15 S. W. 237. Twiehell does not state that the pipes used by him in establishing comers are along the line originally surveyed, but expressly states that his survey was based on a line subsequent to the original survey. We have not undertaken to discuss appellant’s assignments and authorities in detail. It appears that the court peremptorily instructed the jury because of the failure of the evidence to show the location on the ground of the east line of said section 188. In this we think the court was correct.

The judgment is affirmed.