text:
    COOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    1. Jury (§ 105) — Juror—Qualifications.
    Where jurors stated on their voir dire that they had not formed any conclusion as to defendant’s guilt Or innocence, but that they had a prejudice against the crime with which accused' was charged, they were not disqualified.
    TEd. Note. — For other eases, see Jury, Cent. Dig. §§ 480-484, 492, 493, 515; Dec. Dig. § 105.]
    2. Criminal Daw (§ 369) — Evidence—Other Offenses.
    In a prosecution of defendant for rape of his daughter, evidence of other sexual acts between the parties, that accused was the father of prosecutrix’s child, that he slept with her and had many times been seen in bed with her by others was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    3.Criminal Law'(§ 696)-Trial — Evidence — Necessity of Objections — Motion to Exclude.
    A motion to exclude evidence to which defendant did not object when offered was unsustainable.
    [Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 1639-1644; Dee.Dig. § 696.]
    4.Criminal Law (§ 678) — Different Acts Constituting Offense — Election.
    It was not error to overrule defendant’s oral motion to require the state to elect on which act of intercourse it would rely for a conviction of rape, where the court in its instructions expressly limited the jury to the act specified in the indictment as the one of which they must find accused guilty in order to convict.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1580-1583; 678.] see Criminal Dec. Dig. §
    5. Criminal. Law (§ 661) — Contradictory Statements by Prosecutrix — Proof by Other Witnesses.
    Where, in a prosecution for rape, prosecu-trix admitted having made contradictory statements as to the author of her condition, and swore repeatedly before the grand jury that it was another than defendant, he was not entitled to introduce additional evidence of such contradictory statements by other witnesses.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 758, 1606; Dec. Dig. § 661.]
    6. Rape (§ 42) — Evidence—Conduct of Accused.
    In a prosecution of a father for rape of his daughter, accused was not entitled to prove by his sister, who lived near him three or four years before the offense was committed and a part of that time in the house with him, that liis conduct and demeanor toward his children during that time was that of a kind, considerate, loving, and tender father.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 61; Dee. Dig. § 42.]
    7. Criminal Law (§ 597) — Postponement of Trial — Absent Witness — Testimony—Materiality.
    Where the testimony of an absent witness, if present, could have been used only to contradict C., and it appeared from the bill of exceptions, as modified by the court, that there was no conflict between G.’s testimony and what the absent witness, if present, would have testified, the court did not err in refusing a postponement of the trial in order to procure the witness’' presence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. ⅜ 597.]
    8. Criminal Law (§ 857) — Appeal—Accused’s Failure to Testify — Reference by Jury.
    Evidence in support of-a motion for a new trial that, during the consideration of the case, one of the jurors wondered why defendant did not testify, that some one else remarked “that wasn’t admissible,” and some one else said, “Yes; we can’t talk about that,” while other jurors heard no such remarks at any time, did not constitute ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. § S57.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Wylie D. Cooper was convicted of an offense, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of rape of his own daughter, who was at the time under 15 years of age, and his punishment fixed at 20 years’ confinement in the penitentiary. The offense is alleged to have been committed on or about September 1, 1912. The evidence is amply sufficient to sustain the verdict. It is unnecessary to recite it.

Appellant has two bills of exceptions to the ruling of the court in holding that two several jurors did not disqualify themselves under article 692, subd. 13, C. C. P., and that because thereof he had to challenge each of them peremptorily, and there was thereby forced on him the twelfth juror, who was likewise disqualified, because, when said twelfth juror was reached, he had exhausted his challenges and could not, therefore, peremptorily challenge said twelfth juror. These bills show, in effect, that neither of these jurors had in their mind formed any conclusion as to the guilt or innocence, of appellant, but both of them stated, in effect, that they had a prejudice against the crime with which appellant was charged. Taking their esaminations upon their voir dire as a whole, they were not disqualified under said article of the statute, which is the only one under which they were challenged, and it shows that each felt able to render an impartial verdict upon the law and the evidence, and was sufficient to justify the court to hold, as he did, that they were impartial and competent to serve. This question has so often been passed upon by this court that it is unnecessary to cite the cases. The fact that a juror may be prejudiced against a crime does not necessarily disqualify him to serve as a juror. No such cause is given by the statute as one of the causes to disqualify a juror. Neither of these jurors 'sat in this case. Both were peremptorily challenged by appellant. In each bill it is stated that they would show by bill No. 3 the disqualification of said twelfth juror, but there is no such bill in the record; hence, we cannot pass upon the question of whether or not that twelfth juror was disqualified, or appellant injured by having to peremptorily challenge the other two.

By other bills, appellant objected to testimony by the alleged raped girl of other ■ acts of sexual intercourse of her father with her than the one charged in the indictment, and to her testimony that the appellant was the father of the child to whom she gave birth on September 6, 1912, and to her testimony that her father slept with her, and the testimony of other witnesses that they had, at different times within the last year, on several occasions seen her father in bed with her. All this testimony was admissible, as 'has many times been held by this court. Battles v. state, 63 Tex. Cr. R. 147, 140 S. W. 783, and cases therein cited; Whitehead v. State, 61 Tex. Cr. R. 565, 137 S. W. 356; Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477. There is no need to cite the many other cases to the same effect.

Among the witnesses introduced by the state was Dr. Richards, who testified that he waited upon the said girl when she was ■delivered of a child, which occurred on September 6, 1912, only a few days after the alleged rape. Among other things, he testified that the child was dead when born, and was deformed, briefly telling its deformity. Under the qualification and statement by the court in approving appellant’s bill on this subject, it is shown that there was no objection to this testimony at the time it was introduced; but after it was, the appellant made a motion to strike out all evidence of the prosecuting witness and the doctor about the delivery of a child on September 6th, because it is impossible that time can bear any relation to any act of sexual intercourse on the night of September 2d or 3d.

This would have been no cause to exclude the evidence, for, as shown above, other acts of intercourse in a case of this character were admissible. If the testimony of the doctor as to the deformity of the child had been objected to at the time, a different question would have been raised, but, as the matter ■ is presented by the bill, it shows no reversible error.

The court not only submitted to the jury for a finding the question of appellant’s guilt, and limited it to the time of on or about September 1, 1912, but, in addition, expressly told the jury: “You are further charged that you cannot consider any other acts of sexual intercourse, if any, between the said Wylie D. Cooper and Leeuna Cooper than the one for which he is on trial,” thereby clearly electing the offense charged in the indictment as the only one on which appellant could be convicted. So that there was no error in overruling appellant’s oral motion to require the state to elect which act it would try him for.

The alleged raped girl fully and repeatedly testified that, when she first gave birth to this child, and it first became known that anyone had had sexual intercourse with her, she denied that it was her father, but laid it on another person, Henry Cross, and so swore repeatedly before the grand jury, and that she finally told that it was her father, after the grand jury had placed her in jail. The court did not, therefore, commit any reversible error when the defendant attempted to prove by the witness Wildman the same thing, by stating: “I think the girl told all this herself. I don’t see why it should be repeated. I have not seen a thing new yet and could not be for but one purpose, and that is contradiction, and there is no contradiction in it. I will cut it off right here.” The prosecuting witness having admitted fully and unequivocally that she made the contradictory statements inquired about, the defendant was not entitled to prove that she had done so by any other witness, and the court could, in effect, as he did in this case, so state, and appellant’s bill on this question shows no error. Branch’s Crim. Daw, § 871, subd. 3, wherein he cites Walker v. State, 17 Tex. App. 31; Rodriguez v. State, 23 Tex. App. 507, 5 S. W. 255; Dean v. State, 47 Tex. Cr. R. 245, 83 S. W. 816; Bice v. State, 51 Tex. Cr. R. 136, 100 S. W. 949; Barnard v. State, 45 Tex. Cr. R. 71, 73 S. W. 957.

Appellant’s sister, Mrs. Ada Keen, testified for him, and, among other things, that she lived near him in Fannin county three or four years before this offense was charged to have been committed, and a part of that time in the house with him. The defendant thereupon asked her what appellant’s conduct and demeanor towards his children were during that time, to which she would have answered that he was a kind, considerate, loving, and tender father. The court did not err in excluding such testimony by her.

By another bill it is shown that, while appellant was introducing his testimony, one of his witnesses who lived in the city of Greenville, the county seat of Hunt county, where the trial was going on, had failed to appear. Whereupon one of his attorneys stated to the court that they disliked to ask for an attachment for the witness who lived near the courthouse, as they were informed she had a very sick child, which was the cause of her failure to obey the subpoena which had been served on her, and asked' a postponement of the trial for a few minutes until an attachment could be executed and the witness brought into court. Counsel then stated what she would testify. The court thereupon stated that the testimony was not material and relevant. Appellant’s attorney, as the bill shows, said the witness would testify that Henry Cross, who had been arrested on this charge, came to her house a day or two after he was released from jail, and asked her to go to see the prosecuting witness, and see if she could not get some testimony in his favor and stop the prosecution against him, and sent word to the prosecuting witness that if the prosecution was stopped he would marry her. The court says in the same bill that one of appellant’s counsel and Mr. Keen, the brother-in-law of the defendant, stated to the court that the witness above mentioned would testify only on one point, to wit, that Henry Cross requested her to go up there and see the girl and see if she could get any testimony in the matter, and that she would not testify as to any statement as to marriage, on his part, and none of the other matters mentioned by appellant’s other attorney ; that no attachment had been applied for, and' the witness’ child was very ill was the reason given for her absence. This is the bill in substance. As it is, it shows no reversible error. If we could look to the record otherwise then the bill, it would show that both the prosecuting witness and the witness Gross testified that he had never had intercourse with the girl and never offered to marry her, and that he further testified denying that he made any such statements to said absent witness as one of appellant’s attorneys claimed she would testify to. In other words, that there was no conflict between the testimony of Cross and the absent witness. ■ The sole purpose for which the absent witness, it seems, could have been used was to dispute Cross, and, as there was no dispute between them, no error is shown in the action of the court.

The only other question in the case is appellant claims by another bill that the jury had discussed appellant’s failure to testify, when considering the case. There is no such ground of error set up in the motion for new trial, and it is not otherwise shown to have been raised in this record, except presented by a bill of exception only. It seems that the court heard the evidence' of some of the jurors on this matter. One-juror testified: “Some one asked or said they wondered why the defendant didn’t testify in this case, and just as well as I can remember some one made the remark that that wasn’t admissible, and maybe somebody else spoke up, ‘Yes; we can’t talk about that,’ or-something to that effect, and it passed away.” Three other jurors testified they heard no such remark at any time, and that they did not hear any one of the jurors dis-cuss or talk about, in any way, the defendant’s failure to testify. This court has many-times passed upon such questions as this, and has uniformly held that such a remark was no cause flor reversal. Jenkins v. State,. 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Parrish v. State, 48 Tex. Cr. R. 347, 88 S. W. 231; Long v. State, 48 Tex. Cr. R. 175, 88 S. W. 203; Leslie v. State, 49 S. W. 73; Mason v. State, 81 S. W. 718; Combs v. State, 55 Tex. Cr. R. 332,. 116 S. W. 595; Smith v. State, 52 Tex. Cr. R. 351, 106 S. W. 1161, 15 Ann. Cas. 357; Johnson v. State, 53 Tex. Cr. R. 339, 109 S. W. 936; Sample v. State, 52 Tex. Cr. R. 506, 108 S. W. 685, 124 Am. St. Rep. 1103.

* No reversible error being pointed out, the judgment will be affirmed.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    BANKS et al. v. McMAHAN.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 11, 1913.)
    Appeal and Error (§ 773) — Briefs—Failure to File — Dismissal.
    Under Rev. Civ. St. 1911, art. 1614, and Texas court rules, rule 29 (142 S. W. xii), requiring that, when any suit is taken to the Court of Civil Appeals, the parties shall file their briefs, etc., failure of appellant to file briefs in compliance with the rule is ground for dismissal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    Appeal from Ward County Court; Burch Carson, Judge.
    Action by Ida M. Banks and others against M. W. McMahan. Judgment for defendant,
    and plaintiffs appeal.
    Dismissed.
    A. J. Wilson, of Pecos, for appellants. Ross & Hubbard, of Pecos, for appellee.

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

   HARPER, C. J.

Appellant filed her petition August 16, 1912, to enjoin a judgment rendered in the county court of Ward county, Tex., May 3, 1910. Appellee filed his exception to the said petition because it showed upon its face that the judgment had been rendered more than one year prior to the filing of the suit. The court below, in term time, sustained the exception cm demurrer and dismissed the petition, and from this order of dismissal the plaintiff appealed. Ap-pellee filed his timely motion to dismiss the appeal because no briefs were filed.

Article 1614, Revised Civil Statutes of 1911, and rule 29 of rules for the courts of Texas (142 S. W. xii), require that, when any suit is taken up from any inferior court to the Court of Civil Appeals, the parties shall file their briefs. No answer is made to the motion, and no excuse offered for failure to comply with the rule. Longbotham v. Abercrombie, 52 Tex. Civ. App. 426, 114 S. W. 428; Nidy v. Cochran, 48 Tex. Civ. App. 259, 106 S. W. 462. The motion is therefore sustained, and the appeal dismissed.

McKENZIE, J., is disqualified in this case, and did not sit in it.


author: HIGGINS, J.

text:
    MITCHELL v. ROBINSON et al.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 11, 1913.)
    Malicious Prosecution (§§ 15, 26*) — Essentials.
    To maintain an action for malicious prosecution, the plaintiff must show both malice and want of probable cause.
    [Ed. Note. — Eor other cases, see Malicious Prosecution, Cent. Dig. §§ 18, 59; Dec. Dig. §§ 15, 26.*]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by T. B. Mitchell against J. E. Robinson and others. There was a judgment for defendants, and plaintiff brings error.
    Affirmed.
    Dowell & Dowell, of Houston, for plaintiff in error. Sam, Bradley & Eogle and Ered R. Switzer, all of Houston, for defendants in error.
   HIGGINS, J.

(Plaintiff in error was defendant in an action of trespass to try title pending in the district court of Harris county, in which an injunction had been issued restraining him from cutting trees and otherwise trespassing upon the premises in controversy. Pending the final determination of that suit, the defendants in error and their attorney instituted contempt proceedings against the plaintiff in error for alleged violation of the injunction. This suit is to recover damages alleged to have been sustained by reason of the alleged malicious institution and prosecution of such contempt proceedings. Upon trial before a jury, a peremptory instruction was given in favor of the defendants, in accordance with which verdict was returned, and judgment rendered, from which this appeal is prosecuted.

In an action for damages based upon malicious prosecution, it devolves upon the plaintiff to show both malice and want of probable cause. Neither of these essential elements were here shown, and, for this reason, the verdict in favor of defendants was properly instructed. McManus v. Wallis, 52 Tex. 539; Breneman v. West, 21 Tex. Civ. App. 19, 50 S. W. 471; Ramsey v. Arrott, 64 Tex. 323.

Affirmed.


author: ELY, C. J.

text:
    GILLETT v. HOLLIGAN.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1913.)
    1. Appeal and Error (§ 917) — Presumptions.
    Where the record does not show that any action was taken by the trial court on exceptions to the petition, it will be presumed that they were waived by appellant and not called to the trial court’s attention.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3706-3709; Dec. Dig. § 917.]
    2. Appeal and Error (§ 742) — Assignments op Error — Statement.
    References to the transcript of the' evidence cannot be made to take the place of a statement for the purpose of having an assignment of error considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Appeal and Error (§ 216) — Harmless Error — Failure to Charge
    In absence of a requested charge to supply an omission in the charge given, such omission will not be ground for reversal.
    [Ed. Note. — Eor other eases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 627.]
    4. Mechanics’ Liens (§ 33*) — Right to Lien.
    Upon finding that defendant was indebted to plaintiff for a well dug on defendant’s land, the law gave an implied lien on the land for security for the debt.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 32, 33, 38; Dec. Dig. § 33.]
    Appeal from District Court, Karnes County ; John M. Green, Judge.
    Action by O. B. Holligan against E. G. Gillett. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. J. Parker, of San Antonio, for appellant. Searcy & Browne, of San Antonio, for appellee.

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

   ELY, C. J.

Appellee instituted this suit against appellant to foreclose a lien on the latter’s land; said lien arising from appellee having, at the instance and request of appellant, dug a well on said land, for which appellant failed and refused to pay. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee.

Assignments of error from 1 to 6, inclusive, complain of the refusal of the court 'to sustain certain exceptions to the petition. The record fails to disclose that any action was taken by the court on the exceptions. In such case it will be presumed that the exceptions were waived by appellant and were not called to the attention of the court. Mims v. Mitchell, 1 Tex. 443; Jones v. Black, 1 Tex. 527; Elliot v. Mitchell, 28 Tex. 105.

The seventh assignment is not followed by a sufficient statement and will not be considered. References to the transcript of the evidence cannot supply the place of a statement. Gibson v. Oppenheimer, 154 S. W. 694.

The tenth assignment of error complains of an omission in the charge of the court. In the absence of a reguested charge to supply the omission, it will not cause a reversal. Railway v. O’Donnell, 58 Tex. 27; Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578; Railway v. Leah, 64 Tex. 654; Harrell v. Houston, 66 Tex. 278, 17 S. W. 731.

Appellant admitted that appellee dug a well for him on his land and that he was indebted in some sum for the well. He did not deny the existence of the facts which created the statutory lien but sought to offset a claim against the amount due for the well. The jury found the existence of the debt and necessarily thereby found the existence of the lien. The lien was proved, and, as held by this court in Richardson v. Herbert, 135 S. W. 628, “when the jury found that a debt existed, t¿hey necessarily found that the lien existed, and it was the duty of the court to foreclose the lien.”

The jury found that a debt was due for the well dug on appellant’s land; the law gave the lien; and it was the duty of the court to declare it.

The judgtaent is affirmed.


author: REESE, J.

text:
    MILLS v. BELDEN.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 8, 1913.
    Rehearing Denied Dec. 24, 1913.)
    Appeal and Error (§ 1011) — Review — Finding on Conflicting Evidence.
    On conflicting evidence, the question of the credibility of witnesses is for the court in a trial without a jury, and the appellate court is not at liberty to substitute its own judgment for that of the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by Mrs. M. Belden against D. C. Mills. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    L. C. Kemp, of Houston, for appellant. A. R. & W. P. Hamblen, of Houston, for appel-lee.

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

   REESE, J.

Appellee sued appellant for $350 commissions for the sale of land, and recovered judgment for that amount, in a trial without a jury.

It was alleged, in substance, that appellant had turned over to appellee, who was a real estate agent, certain maps and papers showing the land for sale; that she spoke to several persons about the land, looking to a sale thereof; that she sent the names of these parties to appellant, and that he had afterwards got the papers from her, and told her that he had sold the land to one of her customers; that appellant agreed to pay her $350 commissions, and just before leaving for his home in Nebraska gave her the following letter: “Houston, Tex., January 7th, ’12. Mrs. M. Belden — Dear Madam: I will will send you the amount of commission due you on my return to Angus Neb., where I have sent the note for collection. I think about ten days from date the money will reach you here. Yours truly [Signed] D. C. Mills.” Appellant denied the indebtedness, or that he had ever placed with appellee any land to sell, or that she ever sold any land for him; denied, in short, not only generally, but specially, every material allegation of the petition, except the signing of the letter referred to. As to this, ahe alleged that it was written by appellee, and was signed by him under the following circumstances: That appellee was very much in need of money to pay her room rent, and asked him to give her such a letter to show to her landlord as an evidence that she had money coming to her with which she could pay her room rent, and that the instrument was without consideration, and was obtained solely for the purpose of defrauding and blackmailing him, and that he never at any time owed appellee anything. This paragraph of the answer was sworn to.

Appellee testified substantially to all of the allegations of her petition, and appellant denied in most positive terms every material allegation upon which it was sought to make him liable, supporting directly the allegations of his answer by his testimony. Ap-pellee, throughout her testimony, and especially on cross-examination, told a most remarkable story. It stops short, however, of being so unreasonable as to be impossible of belief. It still remains a question of the credibility of the witnesses. If appellee was telling the truth, appellant placed land in her hands for sale, she sent him the names of prospective purchasers to whom she had spoken about it; appellant afterwards told her that he had sold the land to one of the purchasers whose name she had sent him, and agreed to pay her $350 commissions. We are not at liberty to substitute our judgment for that of the trial court, as to the credibility of the witness. It becomes a question of that purely.

We have examined the several assignments of error and the propositions thereunder, and conclude that none of them presents any grounds for reversal, and they are severally overruled.

. The judgment is affirmed.

Affirmed.


author: MOURSUND, J.

text:
    MALONE v. NATIONAL BANK OF COMMERCE OF KANSAS CITY, MO.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1913.
    On Motion for Rehearing. Jan. 21, 1914.)
    1. Evidence (§ 590) — Interested Witness-Weight of Evidence.
    Testimony of an interested witness cannot be discarded for that reason when there is nothing in his testimony nor in the testimony of any other witness, nor any act of the witness, nor physical fact, which casts doubt or suspicion on the truthfulness thereof.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2439; Dec. Dig. § 590.]
    2. Bills and Notes (§ 497) — Teansfeb Be-FOKE MATUEITY — EQUITIES.
    Where, in an action by an indorsee of certain notes given for the price of machinery, plaintiff showed that it paid value for the notes before maturity, and there were no facts in evidence tending to show bad faith on its part, the burden was on defendant to show that plaintiff had notice of the equities sought to be established in defense.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687 ; Dec. Dig. § 497.]
    3. Bills and Notes (§ 359) — Teansfee— Consideeation — Pee-Existing 'Indebtedness.
    Where plaintiff accepted an assignment of certain notes from the payee in payment of a pre-existing debt, and credited the full value of the notes against such debt,' there was a sufficient consideration for the transfer to make plaintiff a bona fide purchaser for value.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 924-936; Dec. Dig. § 359.]
    Appeal from District Court, Bexar County; J. L. Camp, Judge.
    Action by the National Bank of Commerce of Kansas City, Missouri, against W. D. Malone. Judgment for plaintiff, and de-
    fendant appeals.
    Affirmed. Motion for rehearing denied.
    W. H. Lipscomb, of San Antonio, for appellant. Swearingen & Ward, of San Antonio, for appellee.

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

   MOURSUND, J.

Appellee sued appellant upon two promissory notes for $684 each, both dated April 12, 1911, executed by appellant, payable to the Foote-Roloff Machinery Company, or bearer, alleging that said notes had been transferred before their maturity for a valuable consideration to the Sheffield Gas Power Company of Kansas City, Mo., and that afterwards, before the maturity of either of said notes, the said Sheffield Gas Power Company sold and transferred the same to appellee. Appellee also sought to obtain the foreclosure of a -lien upon a certain gasoline engine. Appellant’s answer consisted of a general demurrer, a general denial, and a plea that he was induced to sign and deliver said notes by means of certain false and fraudulent representations made by the Foote-Roloff Machinery Company. The court instructed a verdict for ap-pellee — for the debt and for foreclosure of the lien — and upon such verdict entered judgment.

Appellant contends that the evidence was sufficient to sustain a finding of fraud in the procurement of the notes, and that the evidence introduced by appellee upon its claim that it acquired the notes before maturity, for value, and without notice of any defense thereto, was not of such character as to justify the instruction of a verdict in favor of appellee. The objections made to the testimony are: (1) That the only testimony was that of Robinson, an attorney for ap-pellee, and, being an interested witness, the jury could disregard his testimony; (2) that the evidence failed to show that appellee parted with value for the notes; (3) that the testimony did not show the amount paid for the notes, and therefore appellee had not satisfied the burden resting upon it to sustain its plea. An additional objection, not made in the motion for new trial, or stated with the others in the assignment of error, is sought to be made by the third proposition under the assignment, namely, that want of notice could not be shown by merely proving that appellee’s attorney had no notice; there being various officials who had charge of appellee’s affairs as well as 15 or 20 directors.

The Foote-Roloff Machinery Company of San Antonio, Tex., owed the Sheffield Gas Power Company, of Kansas City, Mo., about $7,000 on open account, while the latter company owed appellee a large sum of money. To partially secure the debt due appellee, the account due by the Foote-Roloff Machinery Company had been transferred to appellee by the Sheffield Gas Power Company. At the request of appellee, its attorney Robinson, in June, 1911, went to San Antonio to get a settlement of the indebtedness owing by the Foote-Roloff Machinery Company to the Sheffield Gas Power Company, and, being unable to collect the claim, compromised with the Foote-Roloff Machinery Company by accepting in settlement of the claim the few engines it had on hand, and some notes and accounts due by people who had bought engines, among the notes being the two sued upon. He delivered the notes to appellee, and reported to appellee and the Sheffield Gas Power Company what he had done. His actions were approved by both parties, and appellee gave the Sheffield Gas Power Company credit upon the debt due by it to appellee for the notes and became the owner thereof. All of this occurred before the maturity of the notes. Robinson, the attorney, testified positively that he never heard of or knew of any defense, counterclaim, or set-off to the notes; that he was assured by the president of the Foote-Roloff Company that the maker of the notes was solvent and would pay them at maturity. W. G. Roloff, president of the Foote-Roloff Company, testified he told Robinson the notes were all right; that he did not tell him there was any defense to the notes or complaint by the maker, and in fact no complaint had, at that time, been made by appellant. The general manager of the Sheffield Gas Power Company, who had direct charge of all the business and correspondence of said company, testified that he did not know of any defense to the notes, and in fact knew nothing of appellant or the transaction in which the notes were given, until Robinson returned to Kansas City with the notes, and that he did not know that appellant would refuse to pay them until after their maturity. Appellant testified to facts tending to show that he had been induced to give the notes by means of fraudulent representations made by Foote, a member of the firm of Foote-Roloff Machinery Company, and contradicted Roloff’s statement that no complaint had been made to him up to the time he delivered the notes to Robinson.

While the testimony was furnished by interested witnesses, there is not the slightest circumstance to raise a doubt as to the truthfulness .of ‘the statements made by them, and no verdict for appellant could have been sustained. We cannot agree that, because testimony is furnished by an interested witness, the same can be discarded when there is nothing in such witness’ testimony, nor the testimony of any other witness, nor any act on the part of said witness, nor any physieial fact which casts a doubt or suspicion upon the truthfulness of the interested witness’ testimony. In this case the existence of the indebtedness due appellee by the Sheffield Gas Power Company, and that of the Foote-Roloff Company to said Sheffield Gas Power Company, is established by witnesses other than Robinson. The fact that the notes became the property of appellee before maturity is established by the general manager of the Sheffield Gas Power Company as well as by Robinson, and by said general manager it is established that the appellee gave the Sheffield Gas Power Company credit upon its debt for the notes, and by Roloff and said general manager, as well as by Robinson, it is further proven that the Sheffield Gas Power Company acquired the notes from the Foote-Roloff Company in a compromise by which they passed absolutely in part payment of an indebtedness due by said Foote-Roloff Company to the Sheffield Gas Power Company. All of said parties testify that these transactions occurred long prior to the maturity of the notes. Robinson’s testimony then is only unsupported on the question of notice, and as he never came in contact with appellant, and it certainly was not to the interest of Roloff to tell him that there was a defense to the notes,'and Roloff swears he did not tell him anything of the kind, there is not a circumstance or a syllable of testimony to cast any doubt upon his testimony on that point.

However, after appellee had shown that it paid value for the notes before maturity,' and there were no facts in evidence tending to show bad faith on its part in regard to. the transaction, the burden rested upon appellant to show notice, and it failed to even attempt to meet such burden. Prouty v. Mus-quiz, 94 Tex. 91, 58 S. W. 721, 996.

Appellee gave credit upon the debt due it by the Sheffield Gas Power Company for the notes, and thus became the owner of same. By this we understand that the amount of the notes was credited upon the debt; in other words, appellee gave full value for the notes by accepting them for their face value in part payment of a preexisting indebtedness due it by the Sheffield Gas Power Company. This met the requirements of the law. Kauffman & Runge v. Robey, 60 Tex. 308, 48 Am. Rep. 264; Herman v. Gunter, 83 Tex. 66, 18 S. W. 428, 29 Am. St. Rep. 632; Brown v. Thompson, 79 Tex. 58, 15 S. W. 168; Gaston & Ayres v. J. I. Campbell Co., 104 Tex. 576, 140 S. W. 773, 141 S. W. 515;. Rowe v. Gohlman, 44 Tex. Civ. App. 315, 98 S. W. 1079; Staff v. Bank, 97 S. W. 1089.

The judgment is affirmed.

CARD, J., did not sit in this case.

On Motion for Rehearing.

The witness Field, manager of the Sheffield Gas Power Company, testified that the notes sued upon were accepted by his company in part settlement of an open account due said company which had been assigned as collateral to appellee, and that his company received credit from appellee for these notes at the time Mr. Robinson turned them over to appellee. The notes were accepted by appellee in part payment of the indebtedness due it by the Sheffield Gas Power Company. The statement that said company received credit for the notes upon the debt due by it means that the credit was to the extent of the amount due on the notes. If appellant had any doubt concerning the meaning of the witness, further questions should have been propounded. We concluded, and are still of the opinion, that such testimony made a prima facie case of payment of full value.

The motion is overruled.


author: CARL, J.

text:
    SKAGGS v. MUDD et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1913.
    Rehearing Denied Jan. 21, 1914.)
    Judgment (§ 747*) — Estoppel—Partition.
    Where plaintiff was a plaintiff in a former action of partition, in which a part of the land in controversy was partitioned between her and others, to whom, and plaintiff, the land was devised, plaintiff cannot claim in the present action that the land was not subject to partition because the devise was in trust, being bound by her election to have partition.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1053, 1284-1296; Dec. Dig. § 747.*]
    Appeal from District Court, Karnes County; John M. Green, Judge.
    Action by Minnie Skaggs against John Patton Mudd and others. From a judgment sustaining a demurrer to the petition, plaintiff appeals.
    Affirmed.
    M. B. Little, of Karnes City, for appellant. Williamson & Klingemann, of Karnes City, for appellees.
   CARL, J.

The appellant alleges: That R. R. Skaggs and his wife, Amanda J. Skaggs, owned about 180 acres of land in Karnes county, being lots 25 and 26 of the Louis Manchaca original grant, which was con'-munity property. That Skaggs died and left a will, dated December 6, 1894, in which he made disposition of the entire personal and real estate and therein set apart to his wife the east or northeast half of the land, and then the will proceeds: “I give, devise and bequeath to such of my children as may be living at my death one-half of all my land, —the N. W. end of the land; that is, the said half of my land is to be kept leased or rented to the best advantage, and the money collected thereon to be paid in equal parts to my children, yearly, and at the death of my children the said land shall be the property of all my grandchildren equally.” And that appellant, Minnie Skaggs, and Mrs. Susan Mudd were the only children of said R. R. Skaggs at the date of his death. Tom Campbell of Atascosa county was named as trustee, but did not act. The petition of appellant further shows that the land was partitioned in the district court of Karnes county, by an order entered on October 8, 1902, in accordance with the will of R. R. Skaggs, and that in such partition the east end was set apart to Amanda J. Skaggs and the west end was set apart to his heirs, consisting of appellant and Mrs. Susan Mudd, her sister. This was in cause No. 1,317, styled Minnie Skaggs v. Hal. Deskin et al. It is further charged in the petition that appellees are in possession of said land by virtue of a conveyance made to them by Donald McKay and wife, and that McKay and wife held under a deed made by the sheriff of Karnes county, by virtue of an order of sale issued out of the district court of Karnes county, wherein A. J. Pritchard and Dr. S. A. King were plaintiffs and Minnie Skaggs was defendant; the sale being made June 2, 1903. She further claims now that said land was not subject to partition because of the trust ingraft-ed on same, and that the sale made by the sheriff of Karnes county passed no title, because the court was without authority to make a partition of the property, and is therefore void. The court sustained a general demurrer to the petition, and appellant, declining to amend, permitted judgment to go against her and has appealed.

Appellees plead a number of defenses and set out exhibits showing a mortgage given by appellant to Pritchard and Little which was foreclosed and the land sold to Donald McKay, who conveyed to appellees.

In passing on the case as it comes to this court, it matters not what the appellees’ pleadings show. The question is: Did the petition show a cause of action? We think it did not, and that the trial court was correct in sustaining the general demurrer. If the estate was only a trust for her benefit, she has shown that the trustee did not qualify and that she has seen fit to ignore that phase of the matter. The land, upon her own petition, has been set apart to her. She now questions tire power of the court to do the very thing she came into that court and asked that it do. She now seeks to have the will of R. R. Skaggs construed by the district court of Karnes county, in a way which would be at total variance with her former action for partition. She has elected her remedy and is bound by the result.

We are of the opinion the trial court did not err in sustaining the general demurrer, and the judgment is; accordingly, affirmed.


author: RICE, J.

text:
    MASSEY v. INTERNATIONAL & G. N. RY. CO. et al.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 10, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Railroads (§ 369) — Injuries to Person on Track — Trespasser.
    Though a railroad track has been so notoriously used in the daytime by pedestrians as to charge the company with notice thereof, yet, in the absence of evidence of the use of the track for the same purpose at night, the company need not keep a lookout for persons who may walk thereon at night, because they are trespassers, and the company has the right to the unobstructed use of its tracks.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1259-1262; Dec. Dig. § 369.]
    2. Railroads (§ 390) — Injuries to Person on Track — Trespasser.
    A railroad company is not liable, on the theory of discovered peril, for the death of a trespasser on its track, struck by a train, unless it has actual notice of his peril, and fails to use every means within its power to prevent injuring him.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.]

      Appeal from District Court, Palls County; Richard I. Munroe, Judge.
    Action by Virginia Massey against the International & Great Northern Railway Company and another, receiver. Prom a judgment for defendants, plaintiff appeals.
    Affirmed.
    Nat Uewellyn, of Marlin, for appellant. Neff & Taylor, of Waco, for appellees.

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

   RICE, J.

On the early morning of June 12, 1910, the dead body of Ed Massey was found lying on or near the track of the I. & G. N. Railway, just a short distance south of Jones’ Switch, a flag station on said railway, with his head split open; and this action was brought by appellant, his surviving widow, to recover damages therefor.

The petition is in two counts; the first seeking to recover on the ground that the track at the point where Massey was killed was commonly and notoriously used by pedestrians as a walkway, and that the employes of the company could have seen the deceased and avoided injuring him by the use of ordinary care, which- they failed to exercise, and were thereby guilty of negligence. Second, that said employés discovered the deceased long before they reached -him, but made no effort to keep from running over and killing him, but grossly, willfully, and deliberately ran upon and over him at a high rate of speed, etc.

There was a general denial and a special plea interposed by appellees, to the effect that deceased was a trespasser, drunk, and asleep on the track, and they owed him no duty to look out for him; and, further, that they were not required to exercise the same degree of care at night to discover him as would be required of them in the daytime.

The court instructed a verdict in behalf of appellees, and judgment was rendered accordingly, from which this appeal is prosecuted.

The evidence shows that the deceased lived at Eloise, a station on said railway some 15 miles smith of Marlin, and on the evening before his death had gone to Marlin, and was returning on the night train, but for some purpose got off at Jones’ Switch, an intermediate station, where he was last seen alive.

It seems to be the theory of the appellant-that the deceased was run over and killed by the morning freight train, which passed Jones’ Switch going north about 4:45 a. m., and some evidence is offered by her showing that a passing train blew several times at or near the point where deceased was found that morning; but there is absolutely no evidence showing or tending to show what train, if any, struck and killed the deceased. And the engineer on the freight train testified that he blew for the public road crossing at Conley, a station one mile south of Jones’ Switch, but did not blow for the latter station, and that he did not see the deceased on the railway track, and did not know that he was killed until he reached Mart that morning.

The evidence is very meager as to the use of the railway track by pedestrians even in the daytime, and no proof whatever is offered that it was used as a walkway at night. The deceased was first discovered by the engineer on the passenger train going north some 40 minutes after the freight had passed, who reported the same to parties at the Switch; and, according to his testimony, his train did not strike him, but the body was found some distance away from the track in the weeds. In support of appellees’ contention, it appeared that two bottles of whis-ky were found near the body of the deceased; one bottle being partially empty.

Even if the track had been notoriously used in the daytime to such an extent as to charge the company with notice thereof, still, in the absence of evidence going to show its use for the same purpose at night, appellees were not required to keep a watch out for persons who might walk thereon at such time, because they were trespassers, and the company had the right to the unobstructed use of its track. See M., K. & T. Ry. Co. of Texas v. Malone, 102 Tex. 269, 115 S. W. 1158. So that in the instant case no recovery could be had under the theory of the first count.

Nor were appellees responsible for the death of the deceased under the second count of plaintiff’s petition, unless it had been shown that they had actual notice of the peril of the deceased, and failed to use every means within their power to prevent injuring him. In the instant case it does not appear that the deceased was even seen by any of the servants of the company prior to his death, and, in such state of the record, no recovery could be had. See Texas & Pacific Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410, where it is held that the contributory negligence of a pedestrian in placing himself in a dangerous position by walking upon a railway track would prevent a recovery for his death caused by being struck by a train, provided those in charge of the train did not actually see his danger, though they could have done so by the exercise of reasonable diligence in time to have avoided injuring him. As stated, in the instant case, there is nothing to show that any of the employés of the company saw or had notice of the presence of the deceased on the track, if he was thereon; hence the doctrine of discovered peril does not apply, and it became the duty of the trial judge, under the facts of this case, to instruct a verdict for the defendant, for which reason, it becomes our duty to affirm the'judgment, and it is so ordered.

Affirmed.


author: FLY, C. J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. BARNES.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 7, 1914.)
    1. Eminent Domain (⅞ 271) — Entry without Condemnation — Damages.
    Under Rev. Civ. St. 1911, art. 6505, providing that no railroad company shall enter upon any private real estate for the purpose of condemning it, or any material thereon for any purpose whatever, until it shall agree with and pay the owner thereof all damages that may be caused to the lands and property of the owner by the condemnation thereof, and by the construction of the road, a railroad company unlawfully appropriating property without a resort to condemnation is a trespasser, and the owner may recover, not only compensation for the land, but damages for any special injuries or expenses to which he is subjected, including damages to adjoining land by the operation of trains over the portion appropriated, article 6518, under which in case of condemnation the damages are the value of the property and the damages sustained by the owner, less any benefits accruing to the remainder of the property, not applying in such a case.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 725-736, 741; Dec. Dig. § 271.]
    2. Eminent Domain (§ 243) — Operation and Eeeect.
    Where land is condemned in the statutory manner for a railroad, the company cannot be held liable for any inconveniences or discomforts arising from the proper operation of such trains; as the presumption prevails that full compensation has been given the owner of the land.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 551, 627-629, 700; Dec. Dig. § 243.]
    3. Eminent Domain (§ 271*) — Entry without Condemnation — Damages.
    Where land is appropriated for a railroad without condemnation, it is not essential to a recovery of damages to adjoining land from the operation of trains that the tracks were negligently constructed or the trains negligently operated.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 725-736, 741; Dec. Dig. § 271.]
    4. Eminent Domain (§ 285) — Entry without Condemnation — Liability.
    Where two railroad companies both trespassed on land and operated trains thereon, they were liable as joint tort-feasors for the value of the land and damages to adjoining land from the operation of trains.
    [Ed. Note.- — For other cases, see Eminent Domain, Cent. Dig. § 791; Dec. Dig. § 285.]
    5. Appeal and Error (§ 1048) — Harmless Error — Rulings on Evidence.
    The overruling of an objection to a Question was not prejudicial where it did not elicit the answer anticipated, but a nonresponsive answer to which the objection made to the question could not apply, and to which no objection was urged.
    [Ed. Note. — For other cases, see Appeal and Error, -Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dee. Dig. § 1048.]
    6. Eminent Domain (§ 296) — Assessment of Damages — Evidence.
    In an action by an owner of land appropriated for a railroad without condemnation, to recover the full value of the land taken and
    damages to adjoining land from the operation of the railroad, where the owner stated that the property was worth $1,500 less after the construction of the track than before, it was not error to allow him to state that the land taken was worth $500, and that the other land was damaged $1,000.
    [Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. §§ 804-806; Dec. Dig. § 296.]
    Appeal from District Court, Jlidalgo County; W. B. Hopkins, Judge.
    Action by C. L. Barnes against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Claude Pollard, of Kingsville, and Morrison & Robards, of San Benito, for appellants. Brown & Strickland, of Mission, for appellee.

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

   FLY, C. J.

This suit was tried on an amended petition filed by appellee, charging two railroad companies with having entered upon and appropriated a part of lot" 3 in block 147 in the town of Mission, Hidalgo county, and praying for $500 damages for the land appropriated, and damages, in the sum of $1,000, to the other property “by reason of the noise, smoke, dust, vibrations, and noxious gases caused by the operation of defendant’s trains aforesaid.” The cause was tried by jury, and resulted in a verdict and judgment for $750.00.

The evidence reasonably shows that lot 3 in block 147, in the town of Mission, was the property of appellee, and that appellants unlawfully entered upon and appropriated a portion of it. It was also shown that the operation of appellants’ trains over the track laid on appellee’s land without his consent, and without compensation to him, had damaged the remaining land owned by him, which he was using as a homestead.

The measure of damages laid down by article 6518, Revised Statutes, 1911, when land is taken by a railroad company by due process of law is the value of the property and the damages that will be sustained by the owner, less any benefits that may accrue to the remainder of the property, but in case of the forcible entry upon and appropriation of land without a resort to statutory methods, a different measure of damages prevails. In the latter ease the railroad company is a trespasser, acting in defiance of law, which provides that “no railroad company shall enter upon, except for a lineal survey, any real estate whatever, the same being private property, for the purpose of taking and condemning the same, or any material thereon, for any purpose whatever until said company shall agree with and pay the owner thereof all damages that may be caused to the lands and property of said owner by the condemnation of said real estate and property, and by the construction of such road.”

When such unlawful appropriation of property is made the owner of the land can recover, not only compensation for his land, but damages for any special injuries or expenses to which he is subjected. Railway v. Matthews, 60 Tex. 216.

In a case in which the land has been condemned in the statutory manner, the presumption prevails that full compensation has been given the owner of the land, and he cannot recover any damages arising from the proper careful operation of the railroad. The railroad company in the condemnation proceedings has paid for and secured the right to operate its trains over the land, and cannot be held liable for any inconveniences or discomforts arising from the proper operation of such trains. This is what was held in Railway v. Shaw, 99 Tex. 669, 92 S. W. 30, 6 L. R. A. (N. S.) 1245, 122 Am. St. Rep. 663, and the other cases cited by appellants.

If the land adjoining that appropriated by the railroad companies was damaged by the operation of the trains over the portion appropriated, appellee should recover that damage. Grossman v. Railway Co., 99 Tex. 641, 92 S. W. 836; Hutcheson v. Railway, 102 Tex. 471, 119 S. W. 85; Novich v. Railway, 45 Tex. Civ. App. 664, 101 S. W. 476.

The court submitted nothing to the jury except as to whether appellants had appropriated land belonging to appellee, and whether such appropriation and the operation of trains on the land had damaged ap-pellee. The charge is not open to the objections urged against it by appellants. They are seeking to have the same rules applied to a ease of trespass as to a case of legal condemnation. Appellee was not called upon to allege that the tracks on the land taken from him were negligently constructed, or that the trains were negligently handled thereon. The facts in the case of Railway v. Mapes, 156 S. W. 528, are easily differentiated from the facts in this case. Mrs. Mapes lived on a street along which the railroad company had obtained the right of way. She sued to recover damages arising from discomfort entailed by the operation of the railway. She introduced no evidence to show that the market value of her property depreciated by the construction and operation of the track. The railroad company showed that her property had been enhanced in value. In this case appellants forcibly took the land of appellee and constructed a track and operated trains thereon, which were shown to have depreciated the value of appellee’s property. The facts in no case cited by appellants are similar to the facts in this case.

The special charges, the rejection of which is complained of in the second and third assignments, had no application to the pleadings and proof. Appellee did not seek to recover damages arising from the operation of trains in the street, but for damages arising from the trespass upon his property and the operation of trains thereon.

Appellants were shown to be joint tort-feasors, and the verdict and judgment were properly rendered against both. Both of them trespassed on the land; both of them operated trains thereon. The fourth assignment of error is therefore overruled.

The court eopfined' the damages to the trespass upon the property and damages resulting from such trespass, and the allegations, if improper, which were assailed in the third-special exception could not possibly have injured appellants. The fifth assignment is overruled.

The following testimony of appellee as to his damages was objected to by appellants, no reason being given for the objection: “It has evidently caused me considerable damages, running on my property and taking a strip thereof about 40 feet by 126 feet. I have been damaged more by damage to my property. I have been damaged there by the railroad running into a strip of my property 40 feet wide and about 126 feet long, and it cuts off so close to my dwelling house that it makes it very inconvenient and undesirable as a residence, because of the noises and inconvenience of trains backing into the spur at all times of the day and night with dust and smoke.” The answer was not responsive to the question asked, which was objected to on grounds which could not apply to the answer, against which no objection was urged. Asking the question could not have injured appellants because it did not elicit the answer anticipated by appellants.

Appellants seek to group assignments assailing certain evidence distinct and separate, and have a proposition thereunder which is complex and multifarious. We have considered the assignment as to the testimony hereinbefore quoted, and overrule the other as being without merit. Appellee stated that his property was worth $1,500 less after the side track was erected than before, and it was not érror to allow him to state that the land taken by the railroad companies was worth $500, and that the other damages to his lands amounted to $1,000.

The judgment is affirmed.


author: McMEANS, J.

text:
    KIRKLAND et al. v. MATTHEWS.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1913.
    Rehearing Denied Dec. 24, 1913.)
    1. Judgment (§ 256) — 'Verdict—Conformity to Verdict — New Trial.
    Under Rev. Civ. St. 1911, art. 1994, providing that the judgment shall conform to the pleadings, proof, and verdict, the court, in entering judgment, must follow the verdict rendered, and may not render judgment contrary thereto, though it believes that the verdict is not supported by evidence, but, after rendering judgment conforming to the verdict, it may exercise its discretion and grant a new trial.
    [Ed. Note. — For other eáses, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    2. Parent and Child (§ 2) — Custody of Children.
    In a suit between an aunt and a father of infant children for their custody, evidence that a member of the father’s family was afflicted with tuberculosis and thereby would endanger the health of the children, if awarded to the father, was admissible in determining whether the best interests of the children would be subserved by placing their custody with the father.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.]
    3. Parent and Child (§ 2) — Custody of Children.
    Where a father, who had agreed, on the death of his wife, that the minor children of the marriage should be placed in the custody of an aunt, seeks to regain the custody of the children, the permanent interest and welfare of the children is the paramount question; buts since the father is by law made their custodian, it must be presumed that their best interest will be subserved by placing them in his custody, and, ,in the absence of any evidence of his unfitness, his paramount right to the custody cannot be disregarded.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.]
    Appeal from District Court, Tyler County ; A. E. Davis, Judge.
    Consolidated action by Mrs. Alta Kirkland and her husband against George C. Matthews, and by George G. Matthews against Alta Kirkland and her husband, involving the custody of minor children. From a judgment awarding the custody of the children to Matthews, the Kirklands appeal.
    Reversed and remanded.
    Joe W. Thomas, of Woodville, for appellants. Jno. T. Beaty, of Jasper, and Harper & Shivers, of Woodville, for appellee.

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

   McMEANS, J.

This suit was brought by the appellant Alta Kirkland joined by her husband, against appellee George C. Matthews and wife for the custody of four minor children of appellee, viz., George Cade Matthews, Margaret E. Matthews, Claude P. Matthews, and Mary Julia Matthews. Appellant alleged that she was the aunt of the minors, and that the mother of the minors is dead, and that just prior to her death in 1907 she requested appellant to take upon herself the care and custody of the minors, and that upon this request and by the acquiescence of George C. Matthews, their father, the appellee, she took the custody and care of the minors, and had retained the same since May 27, 1907; that she is the proper person to have such’care and custody, and it would be to the best interest of the minors, and that their welfare would be best subserved, for them to remain with her, and that the defendants are unfit for their care, especially Mrs. Matthews, their stepmother. She further alleged that Mrs. Robinson, the mother of Mrs. Matthews, who was a member of defendant’s family, was afflicted with tuberculosis, which rendered it dangerous for the minors to live in defendant’s home.

After this suit was filed, the appellee, alleging thát three of his minor children were illegally restrained of their liberty by the appellant Mrs. Kirkland sued out a writ of habeas corpus for their release, his purpose being to obtain their custody in this manner. Afterwards the appellants’ suit and the ap-pellee’s application for the writ of habeas corpus were consolidated, and this was not objected to by either party. The case was then tried before a jury, and after the evidence was all in the court submitted to them the following charge:

“You are instructed by the court in this case that the burden of proof rests upon Ed. Kirkland and Alta Kirkland, plaintiffs in this case, to prove by a preponderance of the evidence that the best interest of the children demand that George C. Matthews, their father, should be deprived of their custody before you can find in favor of Ed. Kirkland and Alta Kirkland.
“Now, if you believe from a preponderance of the evidence that the best interest of the children, George Cade Matthews, Margaret E. Matthews, Claude P. Matthews, and Mary Julia Matthews, will be subserved by giving the custody and care of said children to Alta Kirkland and Ed. Kirkland, you will find for the plaintiffs.
“If you believe that the welfare of the children will be equally subserved in the custody of either plaintiffs or defendants, then you will find for the defendants.
“If you believe that the welfare of the children would be best subserved by giving the custody of the children to George C. Matthews, then you will find- for defendants.
“You are the sole and exclusive judges of the facts proved, of the credibility of the witnesses, and the weight and value to be given to their testimony, but the law you receive from the court in this written charge, and you are bound to be governed thereby.
“If you find in favor of the plaintiffs, Ed. Kirkland and Alta Kirkland, the form of your verdict will be: ‘We, the jury, find for the plaintiffs.’
“If you find for the defendants, the form of your verdict will be: ‘We, the jury, find for the defendants.’ ”

Acting under this charge, the jury returned the following verdict: “We, the jury, find in favor of plaintiffs.” Upon return of this verdict, the court, notwithstanding the verdict was in favor of plaintiffs, rendered judgment in favor of defendant, awarding to him the custody of the minors; and this action of the court is made the basis of the appellants’ first, second, third, fourth, and fifth assignments of error, and these assignments must be sustained.

Article 1994, Revised Statutes 1911, provides: “The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled, either in law or equity.” The evidence in the record warranted, although it did not compel, a finding in favor of appellant. We think that, upon the coming in of the verdict, the court was bound to follow it in entering judgment thereon and was not authorized to enter judgment contrary thereto, even though the trial judge should be of the opinion that the verdict was without evidence to support it, or that it was so against the great weight and preponderance of the testimony as to be clearly wrong. This question has several times been before the Supreme Court of this state, and it has uniformly held that the verdict must constitute the basis of the judgment. In one of the earlier cases, Claiborne v. Tanner, IS Tex. 79, it is held: “There can be no clearer principle than that, where a jury has intervened and all the issues have been submitted to their decision, their verdict must constitute the basis of the judgment. The court cannot look to the evidence on which the verdict was found, in order to determine what judgment to render; but must look alone to the verdict; for it is upon that which the jury have found — not what they might or ought to have found — that the court proceeds to render judgment. The judgment is the conclusion of law upon the facts of the case, as found by the verdict of the jury. If the court might look to the evidence, outside of the findings of the jury, for the facts on which to give judgment, the verdict might be wholly disregarded and the right of trial By jury defeated.” In Hume v. Schintz, 90 Tex. 75, 36 S. W. 430, the court quotes with approval the part of the opinion above quoted from Claiborne v. Tanner, and further says: “The jury are the judges — the triers —of questions of fact. . Their award, until set aside, is conclusive, and it has been held by this court that it is the imperative duty of the court in the first instance to give judgment in accordance with the verdict. Lloyd v. Brinck, 35 Tex. 1.” In Railway Co. v. Strycharski, 92 Tex. 11, 37 S. W. 417, it is said: “It is made the duty of the court to enter its judgment in conformity with the verdict, whether it be correct or not, and whether the error in the verdict, if there be any, arose from erroneous instructions or rulings by the court or from a misinterpretation of the evidence by the jury. ⅞ * ⅜

The act of the judge in entering judgment upon the verdict is merely ministerial, and he cannot disregard the verdict if it is responsive to the issues submitted and in proper form.” The trial judge is invested by law with a liberal discretion in the matter of granting new trial, and should exercise such discretion whenever the interest of justice demands it. But the authorities quoted leave in no doubt his plain duty to render a judgment in accordance with the verdict, but after this ministerial duty has been discharged he is then at liberty, if, in his judgment, the justice of the ease demands it, to grant a new trial.

Plaintiff offered to prove that a member of the defendant’s family was afflicted with tuberculosis, a contagious and dangerous disease, but, upon the objection of defendant, this proof was rejected. The purpose in offering proof of this fact was to show that the minors, should they be awarded to their father, would come in close association with one suffering from a dangerous and contagious malady, and that this was a circumstance to be considered in determining whether the best interest of the minors would be subserved by placing their custody with appellee. We think the testimony was admissible upon the issue suggested, and that the court erred in rejecting it. Patton v. Shapiro, 154 S. W. 688. What is for the best interest of the children is the question of prime importance in cases of this kind, and any evidence showing or tending to show that their welfare would not be best subserved by placing them in the custody of a contending party should be admitted and considered.

In concluding this opinion, we think it is well to call attention to the case of State v. Deaton, 93 Tex. 243, 54 S. W. 903, which appears to be the latest expression of the Supreme Court upon issues such as are presented in this appeal. The court says: “When the parent has parted with the possession and control of his or her child and seeks to regain that possession through the courts, it becomes the duty of the court, in a proper case, to protect the child against the evil results that may flow to it from an improper direction through incompetent or disqualified parents.” The court then quotes with approval from Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672, as follows: “The discretion to be exercised is not an arbitrary one, but, in the absence of any positive disqualification of the father for the proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his infant child, which no court is at liberty to disregard. And, while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided, until it is made plainly to appear that the father is no longer worthy of the trust. The breaking of the ties which bind the father and the child can never he justified without the most solid and substantial reasons. Upon the father, the child must mainly depend for support, education, and advancement in life, and as security for this he has the obligation of law, as well as the promptings of that parental affection, which rarely fail to bring into service of the child the best energies and the most thoughtful care of the father. In any form of proceeding, the sundering of these ties will always be approached by the courts with great caution, and with a deep sense of responsibility.” We also direct attention to what this court says in Hall v. Whipple, 145 S. W. 310: “While the paramount question * * * in cases like this is the welfare and best interest of the child, the father is by law made its custodian, and it is a presumption of the law that the best interest of the child would he subserved by placing it in the custody of the father; and, in the absence of any evidence to show his unfitness or disqualification for the discharge of his duty as parent, his paramount right to the custody of his child cannot be disregarded. Watts v. Lively, 60 S. W. 676; State v. Deaton, 93 Tex. 243, 54 S. W. 901; Parker v. Wiggins, 86 S. W. 788; Sancho v. Martin, 64 S. W. 1015.”

Eor the errors indicated, the judgment of th'e court below is reversed, and the cause remanded.

Reversed and remanded.


text:
    TEXAS CO. v. VELOZ.
    (Court of Civil Appeals of Texas. El Paso.
    May 29, 1913.
    On Rehearing, Dec. 18, 1913.)
    On Rehearing.
    1. Appeal and Error (§ 743) — Assignments of Error — Requisites.
    It is the duty of the Court of Civil Appeals to pass upon assignments of error, though they do not refer to that portion of the motion for a new trial where the error was complained of.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. ' 743.]
    2. Highways (§ 169) — Negligent Use of Highways — Dangerous Instrumentalities.
    Assuming that an automobile which is out of repair is not, per se, a dangerous instrumentality; rendering its owner liable for damages for injuries to third persons, sustained while it is being driven by a person who is not his servant, an automobile, which was in such a bad state of repair that it was impossible to lessen or regulate its speed making it necessary to run it at full speed all the time, was a dangerous instrumentality when driven on a public highway.
    fEd. Note. — Eor other cases, see Highways, Cent. Dig. § 458; Dec, Dig. § 169.]
    3. Master and Servant (§ 300) — Use of Automobile by Servant — Liability.
    Where an automobile, which was in such a bad. state of repair that it could run only at full speed, was intrusted by the owner’s agent to a third person, the owner was liable for injuries caused by it while being driven by such third person, if the agent was negligent in permitting it to be driven on the highway in such condition, since it is the duty of the owner of an inherently dangerous instrumentality to exercise ordinary care to prevent it from inflicting injury, and, where it is committed to a servant, to exercise reasonable care, through the servant, to prevent it from inflicting injuries.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1209; Dec. Dig. § 300.]
    4. Appeal and Error (§ 742) — Assignments of Error — Propositions.
    An assignment that the court erred in its general charge for the reason that undue prominence was given to appellee’s theory of the case, and a proposition thereunder that a charge, imparting undue prominence to any one theory of the case, was • improper, were too general for consideration, since they should have specifically pointed out the particular in which undue prominence was given and the portion of the charge subject to such objection.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from El Paso County Court; A. S. Eylar, Judge.
    Action by Guadalupe Veloz against the Texas Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Peyton E. Edwards and O. L. Bowen, both of El Paso, for appellant. John T. Hill, of El Paso, for appellee.

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

   HIGGINS, J.

Appellee, while driving upon the public road, had a collision with an automobile owned by appellant and driven by one Francisco Marcias. The automobile was in a bad state of repair, and Wells Lit-tlefield, agent of appellant, had delivered the automobile to Marcias, who was driving the same to the city of El Paso, where it was to be repaired.

The issue is raised as to whether or not Marcias was the employé of appellant in so driving the car, or the employé and agent of one Stafford, with whom 'Littlefield, acting for appellant, had contracted for the repair of the machine. In the first count in the petition it is alleged that in driving the car Marcias was acting as the employé of appellant; and in the second count it is averred that, if he was not the employé of appellant, then that appellant, acting through its agent, Littlefield, had delivered the automobile to Marcias or Stafford with full knowledge of the fact that the same was in had repair, in that the tires had been punctured, and because the same was unmanageable due to a defect in the carbureter and steering gear. That appellant knew of the danger to the traveling public incident to the operation of said machine in its defective condition upon the public road, and that it was negligence upon the part of appellant to permit Marcias to drive said machine upon the road.

The first assignment of error complains of the action of the trial court in overruling a general demurrer to the second count, and in support of the assignment two propositions are urged: First,* that an automobile out of repair is not, per se, a dangerous instrumentality, and second, the owner is not liable in damages for injuries to third persons, when the agency causing the damage is not, per se, dangerous, and is being operated by one not the servant of the owner. As abstract propositions of law we may assume both these contentions to be correct. The mere fact that an automobile is in a bad state of repair certainly does not render it a dangerous instrumentality, but this was not the case made by the petition. The petition, in addition to stating that the ear was in a bad state of repair, averred that this condition rendered it unmanageable and uncontrollable, and caused the same to rud at a rapid and excessive rate of speed, and it occurs to us that a car in such a condition that its speed cannot be regulated and its course controlled is one of the most dangerous instru-mentalities that could be placed upon the public highway. This being the case made by the second count in the petition, we overrule the first assignment.

. The remaining assignments cannot be considered. They do not comply with that provision of rule 25 which requires that they refer to that portion of the motion for new trial in which the error is complained of. Railway Co. v. Ledbetter, 153 S. W. 646; Nunn v. Veale, 149 S. W. 758; Murphy v. Earl, 150 S. W. 486; Tiefel v. Maxwell, 154 S. W. 319; Railway Co. v. Gray, 154 S. W. 229; Imperial Irrigation Co. v. McKenzie, 157 S. W. 751; and Konz v. Henson, 156 S. W. 593; the last two cited cases recently decided by this court and not yet reported.

Affirmed.

McKENZIE, J„ did not sit in this case.

On Rehearing.

The Supreme Court granted a writ of error in the case of El Paso Electric Railway Co. v. Lee, 157 S. W. 748, thus indicating its disapproval of the holding of this court that amended rule 25 (142 S. W. xii) requires that assignments of error shall refer to that portion of the motion for a new trial, where the error was complained of. It therefore becomes our duty to pass upon the assignments which were not considered and passed upon in the original opinion.

On the date of the accident, Wells Little-field, agent of the appellant, had driven in an automobile belonging to appellant, and upon its business, to Ysleta, about 12 miles distant from El Paso, Tex., and upon the return trip, when a short distance from Ysleta, he had a blow-out in the tire on one of the rear wheels of the car. Littlefield, being unable to repair same, phoned J. R. Stafford, a repairman, to come and repair the blow-out. Stafford came, bringing with him his employs, Francisco Marcias. Stafford and Marcias repaired the blow-out, and Littlefield again started for El Paso in the car. After going a short distance, another , blow-out occurred which Stafford was unable to repair, and it became necessary to take the automobile to Stafford’s shop in El Paso. Littlefield thereupon got into Stafford’s machine and came with Stafford to El Paso, and Marcias drove the car to El Paso, and, while operating and so driving the same on the public road, collided with appellee between Ysleta and El Paso, inflicting the injuries complained of in the petition. Marcias was an employs of Stafford, but, in assuming charge of the injured automobile and driving same to El Paso, he did so with the knowledge and consent of Littlefield. The automobile, in addition to the defective tire, was otherwise in bad condition, the carbureter being out of order, and the rod regulating the flow of gasoline broken. As a result of this broken rod, there was a full flow and feed of gasoline, and as a result thereof, it was impossible to regulate the speed of the machine, the same running at full speed all the time. The road was narrow at the point where the collision occurred. The car was running very rapidly, and Marcias stated that everything happened so suddenly that he did not have time to direct the machine to the right or left, so as to avoid the collision.

Error is assigned to a paragraph of the court’s charge as follows: “But, on the other hand, if an automobile, breaks down on the road under the conditions as above stated, and an agent of the firm or company turns it over to the care and custody of some third party to be repaired and brought in, and, while it is being brought in for this purpose, an accident occurs, no liability would attach to the owner of the automobile for such accident, unless the defects in the machine were of such a character as to make it ungovernable and dangerous to be run on the public road, and the party turning it over for repairs and to be brought in knew that these defects made the machine dangerous to be run, or should have known of them by the use of ordinary care. In determining whether this would be negligence, the test would be: Would a person of ordinary prudence, under similar circumstances, have turned such a machine over to be brought in on its own power? If so, it would not be negligence, but if a person of ordinary prudence under similar circhmstances, would not have done this, it would be negligence.” -

In support of this assignment it is urged that an automobile out of repair is not, per se, a dangerous instrumentality, and the master is not liable for damages for injuries to third parties, when the agency causing the accident is not dangerous' per se, and is being operated by one not the servant of the master. As was stated in the original opinion, we may assume the correctness of this position as an abstract proposition of law, for it is, of course, evident that the fact that an automobile is in a bad state of repair does not necessarily render it a dangerous instrumentality, but, under the evidence detailed above, the ear here in question was in such state of bad repair as to render it an inherently dangerous agency. It was in such condition that it ran at full speed, which it was impossible to lessen or regulate, and for a car in this condition to be driven upon a public highway is one of the most dangerous instrumentalities to parties using the highway that can well be imagined.. The propositions urged therefore present no error and the assignment is overruled.

The third and fourth assignments complain of the refusal of special charges requested, directing the jury to find for the defendant, if Marcias was operating the car not under the orders of appellant’s agent, Lit-tlefield, but as the employé of Stafford; and the fifth assignment is that the verdict of the jury is unsupported by the evidence, for the reason that Marcias, in operating the car, was acting as an employé of Stafford. It is the duty of the owner of an inherently dangerous agency or instrumentality to exercise ordinary care to prevent the same from inflicting injury and damage to others, and where a dangerous agency is committed to a servant, it is the owner’s duty, in such cases also, to exercise reasonable care, through its servant, to guard such dangerous instrumentality committed to their care from inflicting injuries upon others. 1 Thompson on Negligence (2d Ed.) § 533.

The automobile in question in the condition stated, was an inherently dangerous agency to drive upon a public road. It was in the care and custody of Littlefield, the agent of appellant, who was using the same on business of appellant. Such being the case, appellant will be liable if Littlefield was guilty of negligence in permitting the car, in its dangerous condition, to be driven to El Paso, and it is immaterial, under such circumstances, whether Marcias was an employé of Stafford or not. Since the special charges mentioned ignored this phase of the ease, they were properly refused, and the judgment is supported by the evidence.

The sixth assignment is without merit. From an examination of the evidence, it is clearly apparent that the car was driven to El Paso by its own power.

The seventh assignment reads: “The court erred in its general charge, for the reason that undue prominence is given to appellee’s theory of the case.” The supporting proposition reads: “A charge of the court which imparts undue prominence to any one theory of the case is improper.” This assignment and its supporting proposition are too general to be considered. The particular in which undue prominence is given and the portion of the charge subject to such objection must be specifically pointed out. See cases cited in 2 Michie Enc. Dig. 236.

The motion for rehearing is overruled.