author: PRENDERGAST, P. J.

text:
    WILLIAMS v. STATE.
    (No. 4134.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Indictment and Information <&wkey;125(45) —Counts Charging Same Transaction.
    In a prosecution for theft as bailee and embezzlement, the court properly overruled defendant’s motion to quash the indictment for ambiguity, in that the first two counts charged theft as bailee and embezzlement of the property of one person, and the second two counts theft as bailee and embezzlement of the property of another person, since an indictment may contain as many counts charging the same transaction as is thought necessary to meet the proof as it transpires, and to prevent a variance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 393; Dec. Dig. <&wkey;125(45).]
    2. Ckiminal Law <&wkey;1167(2) — Harmless Error — Election — Refusal to Require — Cure by Instructions.
    In a prosecution for theft as bailee and embezzlement, the trial court committed no reversible error in refusing to require the state_ to elect between counts alleging theft as bailee and embezzlement of the property of one person and other counts charging theft as bailee and embezzlement of the property of another, where only the former counts were submitted.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. § 3101; Dec. Dig. &wkey;1167(2).]
    3. Indictment and Information <&wkey;132(5)— Requiring Election by Charge.
    In a prosecution for theft as bailee and embezzlement, where the court in his charge submitted to the jury only the counts of the indictment charging- the crimes as against the property of W., not submitting those charging the crimes as against the property of P., there was an election sufficient to meet the defendant’s motion to require the state to elect between the counts alleging the crimes as against the property of W. and P.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. § 444; Dee. Dig. &wkey;132(5).]
    4. Embezzlement <&wkey;35 — Evidence — Production of Check — Necessity.
    Where the theft and embezzlement alleged was of money, and not of any check, though the proof showed defendant procured the money on a cheek and converted it, it was unnecessary to produce the check.
    [Ed. Note. — For other eases, see Embezzlement, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;»35.]
    5. Criminal Law <&wkey;814(3) — Trial —Instruction — Abstractness.
    In a prosecution for theft as bailee and embezzlement, where the proof did not show nor tend to show that defendant had any interest as bailee in the money he stole, the court properly refused to charge that, if he had any interest in the money, he would be guilty of no offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1985; Dec. Dig. <&wkey; 814(3).]
    6. Criminal Law <&wkey;1184 — Appeal—Ordering Reformation of Sentence.
    In a prosecution for crime, where the sentence of the trial court does not comply with the indeterminate sentence law, the Court of Criminal Appeals will order it reformed to comply therewith.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. &wkey;> 1184.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Scott Williams was convicted of crime, and he appeals.
    Sentence reformed, and judgment affirmed.
    D. R. Pickens, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of theft as bailee, and his punishment assessed at three years’ confinement in the penitentiary. The indictment was in four counts: The first, alleged theft as bailee of the property of A. N. Prince; the second, embezzlement of the property of the same person; the third, theft as bailee of the property of W. S. Willis; and the fourth, embezzlement of the property of said Willis.

The court committed no error in overruling appellant’s motion to quash the indictment on the ground that it was ambiguous, in that the first two counts charged the theft and embezzlement of the property of Prince, and the second two that of Willis. The rule is that an indictment may contain as many counts charging the same transaction as is thought necessary to meet the emergencies under the testimony; that is, to meet the proof as it transpires and to prevent a variance. 1 Branch’s Ann. P. C. § 507, and cases cited.

The court committed no reversible error in refusing to require the state to elect between the counts alleging the theft and embezzlement of the property of Prince and the theft and embezzlement of the property of Willis. It is not shown when this motion was made and acted upon by the court. However, the court in his charge submitted only those counts applying to Willis and submitted neither as applicable to Prince. This was an election sufficient to meet appellant’s motion, even if well made.

The theft and embezzlement alleged was of money, and not of any check. It is true the proof showed that appellant procured the money on a check, and converted the money after he had procured it. It was therefore unnecessary to produce the check. However, if it had been, the record shows that the check was in the possession of an absconded “pal” of appellant, and that it was therefore impossible to produce the check even if it had been necessary to do so.

The proof did not show, nor tend to show, that appellant had any interest in the money he stole as bailee. Hence the court did not err in refusing his charge that, if he had any interest in the money, he would be guilty of no offense. Besides, the request for such an instruction is not raised in such a way that we could review it under the recent statute and decisions.

The evidence was clearly sufficient to support the conviction. It is unnecessary to detail it. Malz v. State, 36 Tex. Cr. R. 451, 34 S. W. 267, 37 S. W. 748. See, also, Leonard v. State, 56 Tex. Cr. R. 307, 120 S. W. 183; Harding v. State, 49 Tex. Cr. R. 601, 95 S. W. 528; Goodwyn v. State, 64 S. W. 251.

The sentence does not comply with our indeterminate sentence law. It will therefore be necessary for it to be reformed, so as to comply therewith, which is hereby ordered.

The sentence will be reformed, and the judgment affirmed.
      <@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=s>For other cases see same topic and KEY-dtfUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    ORNDORFF et al. v. McKEE et al.
    (No. 634.)
    (Court of Civil Appeals of Texas. El Paso.
    June 16, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Counties <&wkey; 196(6) — • Taxpayers’ Suit-— Necessaey Parties to Injunction Suit.
    A paving company, whose bid for the paving of a public road was accepted by county officials, was a necessary party, without whom the cause could not go on, to a taxpayers’ suit to enjoin such officials from entering into a contract with the paving company, since where others, not parties to the proceedings, have _ a direct interest in the subject-matter of a suit, and a final decree cannot be made without affecting their interest in such" manner as is wholly inconsistent with equity and good conscience, the parties so affected are necessary parties; and, where such facts and such parties are revealed by the petition, the cause cannot progress without them.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. &wkey;196(6).]
    2. Judges <&wkey;44 — Disqualification for Interest.
    In a taxpayers’ suit to enjoin county officers from contracting for the paving of a public road, where there was nothing in the allegations of fact in the petition whereby, as an immediate consequence of the action of the trial judge, his property tax would be increased or diminished such judge was not disqualified for interest.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 203-207; Dec. Dig. &wkey;44J
    3. Counties <&wkey;196(4) —Taxpayers’ Suit-Rights op Parties.
    The interest of taxpayers of a county in having competitive bids invited for an unpat-ented class of pavement and in having the county commissioners required to lot the paving contract to the lowest bidder, authorized such taxpayers to maintain a suit against the county officials to enjoin them from making a contract with a paving company for the paving of a public road with a patented pavement at a claimed excessive cost.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. &wkey;198(4)J
    4. Counties <&wkey;196(4) — Taxpayers’ Suit-Right op Actio.n.
    , Under the statute governing the commissioners’ court of El Paso county in relation to the laying out or repairing of public roads, whore there was better paving which could be laid for less money, taxpayers of the county had the right to enjoin county officials, after deciding to let the job of paving a public road by contract, .from making a contract with a company in Texas, subsidiary to a foreign corporation having- exclusive control of a patented paving process, to do the paving work by such process, the company being the only bidder on account of having a monopoly of the paving, and being favored by the county commissioners in exchange for political support.
    [E'd. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. &wkey;196(4).]
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Suit by R. E. McKee and others against Seth B. Orndorff and others. From an interlocutory order granting a temporary injunction for plaintiffs, defendants appeal.
    Reversed and remanded, and injunction dissolved.
    C. W. Croom, J. F. Woodson, and Lea, Me-Grady & Thomason, all of El Paso, for appellants. Elfers & Pelphrey, Nealon & Dorman, and Burges & Burges, all of El Paso, for ap-pellees.
   HARPER, C. J.

This is an appeal from an interlocutory order, granting a temporary injunction in favor of appellees, enjoining the appellants from entering into a contract with the El Paso Bitulithic Company'for the paving of about 1,200 feet of a first-class public road of El Paso county.

The allegations in the pleadings of the parties essential to an understanding of the questions which we have concluded should be discussed in disposing of this appeal are as follows:

“Plaintiffs, R. E. McKee, Otto Kroeger, J. N. Mayfield, W. C. Shaw, and W. J. Jennings, * * * complaining of Adrian Pool, James Clifford, Seth B. Orndorff, George Pendell, J. M. Walling, E. B. McClintock, J. D. Ponder, and Roy Barnum, represent:
“I. That plaintiffs reside in El Paso county, •Tex., and are property owners and taxpayers in said county, and bring this action as such in their own behalf and in behalf of all other property owning and taxpaying citizens of said county.
“II. [This paragraph designates the official position of each defendant, county judge, county commissioners, county treasurer, etc.]
“III. That it is necessary to improve * * * approximately 1,200 feet of a first-class public road of the county.
“IV. That at a meeting of the commissioners’ court, it was determined that said portion of road should be paved, and that bids should be invited by advertisement in a newspaper of El Paso.
“V. That under the provisions of the laws of Texas, it is mandatory upon the commissioners of counties in Texas, when they decide to perform work of the character described by contract, to advertise for bids and to let such contract to the lowest and best bidder, reserving, however, the right to reject any and all bids, which right must be exercised with discretion, and not arbitrarily nor capriciously.
“VI. That at said meeting of said commissioners’ court it was proposed that said improvement be a pavement which is known as the heavy standard bitulithic pavement, and bids should be invited on no other pavement; that defendants Orndorff and Pendell favored and voted for this action, defendant Clifford voted against this action, and defendant Pool protested against it, for the reason that by limiting the bids to heavy standard bitulithic, competition would be eliminated, and the board would be depriving itself of the power to determine what was the best paving possible, or the lowest bid upon such paving1; that defendant Wailing was not present at said meeting; that in pursuance of said action an advertisement was inserted in the El.Paso Herald, a newspaper published in the city of El Paso, El Paso county, Tex., inviting bids for the paving and improvement of said public road, and prescribing that the bids upon the paving should be what is commonly known as heavy standard bitulithic paving; that said public road is within the precinct represented by defendant Clifford.
“VII. That the El Paso Bitulithic Company submitted the only bid on heavy standard bit-ulithic paving, but bids were submitted upon two types of concrete paving, McKee’s bid on concrete being $1,600 less than the bitulithic.
“VIII. That the bid of the El Paso Bitulithic Company was accepted.
“IX. That it is the intention of the commissioners’ court to, and it will, enter into a contract with said Bitulithic Company, unless restrained ; that such act would be against the best interests of the county, an extravagant, palpable waste of money, illegal and void, and should not be permitted for the following reasons: The bitulithic pavement is a patented process. Therefore it is not possible to have competitive bids; that said patented article is owned by Warren Bros. Company, a foreign corporation, without permit to do business in Texas; that said company had filed with the county judge and county commissioners an agreement to furnish any contractor, desiring to bid, all the necessary material for laying the bitulithic pavement for $1.25 per square yard, but such price is unreasonable, exorbitant, etc.; that this was done to eliminate competition.
“Plaintiffs alleged that said price of $1.25 per square yard was an unreasonable price, and the actual cost of doing the work and supplying the material would be about 40 cents or 50 cents per square yard, and the allowing of the Warren Bros. Company, or their agents or subsidiary corporation a profit of from TO to 80 cents per square yard was unreasonable, tended to, and did, promote monopoly, tended to and did and was intended to exclude competition and competitive bidding, and was in fraud of the petitioners’ rights as taxpayers, tended to and did increase the price at which said paving was or could be laid.
"That the specifications further provided that Warren Bros. Company should file with the proper official or board which is about to receive bids for the work a properly executed binding agreement to furnish any contractor desiring to bid on the work all the necessary bitu-lithic surface material, mixed, ready for use, and bitulithic cement, and the sand, gravel, or stone screenings for the surface finish course, in accordance with sections Wearing Surface’ and ‘Surface Finish’ of the specifications, at a definite reasonable price per square yard, which price should include a license to use the patents required in the construction of the pavement. And plaintiffs allege that this provision of the specifications renders the proceedings void, and the. attempted action of the commissioners’ court illegal in this: That the court did not exercise its own judgment to determine what was a reasonable price at which said rights and materials should be furnished, but attempted to delegate this judicial discretion to the Warren Bros. Company, a private corporation and party at interest; and plaintiffs further charged that Warren Bros. Company was incorporated outside the state of Texas, and had no permit to do business in the state of Texas.
“Plaintiffs alleged that the specifications further provided that the acceptance of the bids by the county and the letting of the contract for the same should be deemed by Warren Bros. Company to be an acceptance of its proposal by the county of El Paso and by the contractor to whom the contract should be awarded, and should be all that was necessary to bind Warren Bros. Company to the agreement, and that the filing of the bid under the -specifications should be construed as an acceptance of the terms of the license filed by Warren Bros. Company at the price fixed in the agreement; and plaintiffs alleged that this rendered the attempted action of the commissioners’ court illegal and void, for the reason that its effect was to compel any person desiring said work to bid upon the same only on condition that he enter into a contract to purchase, not only the license to use the patent rights of said Warren Bros. Company and to purchase from said Warren Bros. Company, not only their bitulithic surface material, mixed, ready for use, but also the sand, gravel, or stone screenings for the surface finish course, which said sand, gravel, and stone screenings were not patented articles, and not susceptible of being patented, and the effect of this specification was to prohibit the bidders from going into the open market to purchase such unpatented articles, and compel said bidders to purchase the said unpatented articles from the only licensee of Warren Bros. Company doing business in El Faso county, Tex. (the El Paso Bitulithic Company), and this specification compelled any bidder who bid upon the work to contract with the El Paso Bitulithic Company for the greater part of the labor and material required in said contract, and compelled said bidder to so contract at an unreasonable, exorbitant, and excessive price, which would leave no profit to the bidder unless such bidder happened to be the El Paso Bitulithic Company; and plaintiffs alleged that this specification was violative of the policy of the laws of the state of Texas and the statutes of the state, in that it was in restraint of trade and fostered monopoly, and that the adopting of said specifications was done in fraud and violation of the rights of the taxpayers of the county, and the result of a conspiracy between said Orndorff and said Pendell on the one side, and the El Paso Bitulithic Company, its officers and agents, on the other, by the terms of which, either expressed or implied, the said El Paso Bitulithic Company was to be and is a favored bidder for paving and road building work in El Paso county, Tex., and its influence, and that of its agents and officers, is and is to be used and exerted in behalf of the political aspirations of the said Orndorff as a candidate for sheriff, and the said Pendell as a candidate for re-election to the office of county commissioner.
“Plaintiffs allege that said specifications were further fraudulent and in fraud of plaintiffs’ right to enter into competition with the El Paso Bitulithic Company, for the reason that they • favored the El Paso Bitulithic Company, and allowed it through its handling of the patents and processes and material of the said Warren Bros. Company to secure by far the greater portion of the profit which would result from a- reasonable price being given the county upon said pavement, and as a result of there being no such competition, the price of $1.77 per square yard at which the commissioners and commissioners’ court seek to award the contract to the El Paso Bitulithic Company is excessive, and unless the commissioners are restrained and the other officers restrained, as prayed, the plaintiffs^ as taxpayers, will suffer an irreparable injury, and they have no adequate remedy at law.
“That the said action of the commissioners’ court, or a majority thereof present at said special meeting, was not had in the use of an honest discretion, but was intended to and did favor the El Paso Bitulithic Company; that it was unnecessary to stipulate that heavy standard bitulithic paving should be laid on said road, for the reason that a concrete pavement could be laid for a smaller price, which would be equally good, and each of plaintiffs was prepared to lay a concrete pavement equal to the heavjr standard bitulithic prescribed for a smaller price than was bid by'the El Paso Bitulithic Company, and a concrete pavement with a better wearing surface, and which would be more-durable and last longer than heavy standard-bitulithic pavement, could and would be laid at a price not greater than that at which the said commissioners’ court seek to award said contract to the El Paso Bitulithic Company, if the statutes were complied with and the bidding left open to full and free competition-
“That a reasonable royalty for the use of the patent processes of Warren Bros. Company would run from 15 to 25 cents per square yard, but Warren Bros. Company had made no agreement to permit the use of its processes for such reasonable royalty in El Paso county, although plaintiffs are informed that in other cities throughout the country, to wit, in Indianapolis, Ind., and other places, it has permitted the use of its process for a price of 25 cents per square yard, and in New Orleans, La., has permitted the use of its processes and patents, together with the service of an expert superintendent, for a price of 42 cents per square yard, and in Portland, Or., has entered into the same contract for material and services that it tenders to the county commissioners of El Paso county, but charging therefor 90 cents per square yard, as against $1.25 per square yard in El Paso county.
“That as plaintiffs are informed and believe, Warren Bros. Company have no plant in El Paso county, Tex., from which to supply the material that they undertake to supply by their agreement, but depend upon the El Paso Bitu-lithic Company to furnish said material, and said price includes, not only the profit to Warren Bros. Company for the use of its patented processes, but a profit to the El Paso Bitulithic Company for labor and material to be furnished; and plaintiffs charge upon belief that there is a secret agreement between Warren Bros. Company and the El Paso Bitulithic Company by which the latter company is favored above other persons who would contract to use said processes and material of Warren Bros. Company ; and said offer made to the county commissioners by Warren Bros. Company is not as good and favorable as the terms they allow the El Paso Bitulithic Company.
“Plaintiffs charge upon information and belief that the El Paso Bitulithic Company is a subsidiary corporation of Warren Bros. Company, or that there- is such an arrangement between the two that the affairs of both corporations are brought under the same management or controlled for the purpose of producing restrictions in trade and commerce and in the' marketing and transportation of the articles necessary to be used in complying with said specifications, and that the affairs of said corporations are so controlled as to maintain the price of $1.25 per square yard for other bidders than the El Paso Bitulithic Company, and the markets as to said products are in this way controlled by said corporations, and that the said commissioners Pendell and Orndorff are aiding in carrying out the efforts of said corporations in this respect, and the effect and intention of' adopting the specifications is to effect the object of said combination between said corporations.
“Plaintiffs charge upon belief that the effect and intention of adopting the specification was merely to eliminate competition in the interest of the said El Paso Bitulithic Company, and that by the provisions of the specifications competition had been eliminated, and if the commissioners and officers are permitted to proceed, as they will unless restrained by the court, the effect would be to greatly increase the cost of the pavement over a reasonable cost, and over the amount of cost that would be had were competition had.
“That unless defendants are restrained as prayed, the commissioners’ court would award the contract at said excessive price to the said El Paso Bitulithic Company, and would sign said contract, and E. B. MeClintoek, county clerk, and Adrian Pool, county judge, would issue, sign, and countersign “warrants to evidence indebtedness for the work and on account of the contract, and the said Roy D. Barnum, as county auditor, would approve the account of the said El Paso Bitulithic Company for work to be done under the provisions of said contract, and the said J. D. Ponder, as county treasurer, will pay out funds of El Paso county when such warrants are presented, and that plaintiffs have no adequate remedy at law.
“Plaintiffs pray for temporary injunction, enjoining the commissioners’ court from entering into and signing the contract, the county judge and county clerk from issuing, signing, or countersigning warrants, the county auditor from approving any account on account of work done under the provisions of the contract sought to be entered into, and the county treasurer from paying out funds of the county, and pray that on final hearing such injunction be made permanent.”

The defendants filed general demurrer and general denial.

Appellants suggest that it is apparent upon the face of the petition that the El Paso Bitulithic Company is a necessary or indispensable party to this suit, and that therefore the petition is subject to general demurrer. We think the rule applicable here is that where others not parties to the proceedings have a direct interest in the subject-matter of the suit, and a final dec-ree cannot be made without affecting their interest in such manner as wholly inconsistent with equity and good conscience, the persons so affected are necessary parties to the proceedings, and where such facts and such parties are revealed by the petition, the cause cannot progress without them. Matagorda Canal Co. v. Markham Irr. Co., 154 S. W. 1180. It is apparent that the real party in interest to construct the pavement is not before the court, and, further, that the decree in this suit will settle whether or not the El Paso Bitulithic Company has the right to a contract with the county to construct the paving sought to be enjoined, and for this reason .the cause must be reversed and remanded for necessary parties.

In view of another trial, and apprehending that the same questions will likely be before the court upon such hearing, we have concluded that it is advisable to express our opinion upon the following questions suggested by the briefs:

Was the trial judge disqualified on account of interest to sit in the case? Where a judicial officer has such an interest in the matter at issue in a given suit that any order, decree, or judgment entered therein will affect him directly in a pecuniary manner, he comes within the provisions of the Constitution, and is disqualified. On the other hand, if the result of his judgment, decree, or order is but to remotely affect him pecuniarily, or is dependent upon other contingencies, he is not disqualified. City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960. City of Dallas v. Peacock, 89 Tex. 58, 33 S. W. 220. Whilst the petition contains such allegations as that the action is brought on behalf of the named plaintiffs, as well as in behalf of all other property owning, taxpaying citizens of the county; “that the action [of the commissioners] constituted a fraud upon the taxpayers of the county,” etc.; “that unless they were restrained from entering into the contract, your petitioners will suffer irreparable pecuniary loss, in that their taxes will be increased for them and their fellow taxpayers in said county by an unwarranted and extravagant expenditure of county funds,” etc. — the allegations of fact are not sufficient to be construed to be a foundation for all of such dire results as a consequence of the acts of the commissioners’ court. So far as the pleadings of the parties reveal the facts to be, the county now has the money ready to pay for the work proposed to be done. There is no request that the collection of any tax be enjoined, nor that the issuance of any bonds be restrained, but, on the other hand, the petition, fairly construed, simply prays that the commissioners’ court be enjoined from letting the contract to any other than the lowest bidder under a fair and equitable advertisement for bids, where all who cared to bid for the work to be done would and could have an equal chance. And it clearly appears from the allegations that, whether it costs the taxpayer more or less to restrain the commissioners from letting this contract depends upon the future acts of this or another commissioners’ court, for the court might do the work without contract, or by contract, costing either more or less than the one sought to be enjoined, or might not be done at all. At most, there is nothing in the allegations of fact in the petition which could, as a consequence of or as an immediate result of the action of the trial judge, increase or decrease his property tax, nor would his act charge him with or relieve him from the payment of any money as a direct and consequent result of his injunctive order, for there is nothing in the pleadings of either party to indicate that there is to be a tax levy or a bond issue to meet the expense of this contract, or if the work is not to be done by contract, to meet the expense of the work. The basic principle upon which this suit is predicated is that any property taxpayer, or any person interested in bidding for the proposed work to be done, is entitled to invoke the powers of the courts, to the end that the commissioners’ court be required to comply with the statutes, and in so doing prevent the particular paving being done under rhe proposed contract, because it is in violation of the statute regulating said commissioners’ court in this particular instance. So if we be correct in this construction as to the legal effect of the pleadings, there is no such interest, manifest upon the face thereof, in any taxpaying judge in the county as would disqualify.

In this connection, appellant suggests that if the trial judge has no such interest in the subject-matter of the suit as to disqualify him, then there could be no such interest in the plaintiffs as would authorize them to maintain the suit. It will be noted that the interest which disqualifies the judge must be a direct pecuniary interest; a remote pecuniary interest or an interest dependent upon future contingencies does not disqualify. According to the allegations of the petition, the plaintiffs named have at least the latter class of interest; i. e., if the court, upon final trial, sustains their contentions that bids must be called for, for a class of paving which permits competitive bids, and that the commissioners be required to let the contract to the lowest bidder, and that, upon such action being taken, it would result in a saving to the taxpayer, there is such an interest stated in the pleadings as authorizes the now plaintiffs to maintain this suit.

This brings us to the real question: Does plaintiffs’ petition show a good cause of action? It will be noted that the petition contains the charges: (a) That the commissioners’ court had decided to let the laying of this paving by contract, but that they called for bids upon what is known as “Warren Bros. Bitulithie,” a patented process in the exclusive control of Warren Bros, of Massachusetts, a foreign corporation; that the specifications adopted prescribed such conditions that there could be no competition; (b) that the El Paso Bitulithie Company, the successful bidder, is a subsidiary corporation to the said Warren Bros., and the only bidder, and was favored by the commissioners in exchange for the support of it and its agents and employes in furtherance of their candidacy for office; (c) that there is other better paving which could and would have been laid for less money, if it had been loft to competitive bids, as contemplated by the statute. Neither one nor both of the latter charges are sufficient of themselves to support the decree, but, as supporting allegations to the first, and taken together, constitute sufficient grounds for the writ. The statute governing the commissioners’ court in working, laying out, or repairing the public road reads:

“The commissioners’ court of El Paso county, Texas, shall have full power and authority and it shall be its duty to adopt such system for working, laying out and repairing the public roads and also such plans and specifications for building and repairing all buildings (bridges) in said county as it may deem best; and from time to time said court may change its system, plans and specifications for working roads and building- bridges. Said commissioners’ court shall have power to purchase such teams, tools, and machinery as may be necessary for the working of its roads. The commissioners’ court of said county shall have power to construct, grade or otherwise improve any road or bridge either by day labor or by contract. In case said work is done by contract, said court, if it so decides, may direct the county judge to advertise in such manner and for such length of time as said court may determine, for bids to do such work, and the contract shall be let to the lowest responsible bidder, who shall enter into a bond payable to the county judge of said county for the use and benefit of the road and bridge fund of said county, with two or more good and sufficient sureties to be approved by the county judge and the commissioners in whose precinct the work is to be done, in a sum double the amount of the work contracted for, conditioned for the faithful compliance with the terms of the contract, but the court shall have the right to reject any and all bids.”

This statute grants the court power to do the work themselves or by contract. If by contract, after the court has decided that it shall be done by contract, the contract must be lot to the lowest bidder. The effect of this language is to charge the court with the duty to select a class of paving upon which all contractors may bid who desire to do road work, and not to select a class of paving arbitrarily, or for political purposes, which could not be bid upon, and performed by different persons, and not to select a class of paving which cannot be done as cheaply as another paving of equal value. To put any other construction upon this statute would be to take away its clear intent and purpose.

The charge in the petition is that to permit the court to let this contract under the circumstances would result in a fraud upon the taxpayers and a future loss in money to them, in that, if spent now without receiving its value in paving, it would not be available for future necessary road work, and, if not now spent, would be. These are sufficient allegations of interest in the plaintiffs as taxpayers to authorize them to maintain the suit. This must necessarily be so for the reason that, if taxpayers have not the right to invoke the powers of the court to prevent the commissioners’ court from giving away the funds of the county for unlawful purposes, then there is no person who íqí or could be authorized to do so, and the funds of the county could be dissipated by it upon any sort of pretext. For instance, section 52, art. 3, of the Constitution of Texas provides that counties, cities, and towns shall, not lend its credit or grant public money to corporations. Suppose that notwithstanding this constitutional provision, the commissioners’ court attempted to make such a contribution to assist a railroad company to build into the county; would it be contended that the taxpayer could not invoke the powers of the courts to enjoin such grant? Clearly, the power or authority in such matters lies in the taxpayer, because there is no other who can have any pecuniary interest in the proper expenditure of the funds of the county.

Reversed and remanded, and injunction dissolved.
      <©s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    CRAWFORD v. DAVIS et al.
    (No. 1013.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Bills and Noras <&wkey;537(3) — Action — Question eok Juey — Considekation.
    In an action on a note payable to the order of an investment company engaged in pro moting a trust company and indorsed to the plaintiff, held, on the evidence, that whether it was given upon a subscription contract, and in consideration for the delivery of the shares of capital stock of the trust company, was for the jury.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1866-1870; Dec. Dig. &wkey;> 537(3).]
    2. Banks and Banking <&wkey;314 — Investment Companies — Agency pob Agent — Ee-pect.
    The agent of an investment company; which was itself an agent engaged in promoting the sale of shares of capital stock of a trust company, was an agent of the trust company as well as of the investment company.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 1218; Dec. Dig. <&wkey;314.]
    3. Bills and Notes <5&wkey;375 — Bona Fide Holdeb — Considekation por Note —Issuance op Stock.
    A note given in consideration of the issuance and delivery of the capital stock of a trust company through the medium of an investment company was void in the hands of a purchaser, even assuming that he paid value and had no notice of the status of the negotiation.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. &wkey;> 375.]
    4. Bills and Notes c&wkey;352 —Bona Fide Purchaser — Amount Paid.
    Where a note payable to an investment company for stock of a trust company was valid, the amount paid therefor by an indorsee was immaterial, where the defense of fraud was not sustained.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 814, 898-908; Dec. Dig. &wkey;352.]
    Appeal from District Court, Potter County; Hugh B. Umpires, Judge.
    Action by A. J. Davis against Miner Crawford and the Amarillo Securities Investment Company. Judgment for plaintiff, and defendant Crawford appeals.
    Reversed and remanded for new trial.
    Martin, Kinder, Russell & Zimmermann, of Plainview, for appellant. Veale & Lump-kin, of Amarillo, and Chandler & Pannill, of Stepkenville, for appellees.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

A. J. Davis, the appel-lee herein, sued the appellant, Miner Crawford, and the Amarillo Securities Investment Company, a corporation, alleging the execution and delivery of a certain $1,000 note, payable to the order of the Investment Company, and indorsed by it to him, for a valuable consideration. The defendant Crawford answered that the Securities Investment Company, to whom the note sued upon was made payable, was a corporation organized solely for the purpose of promoting the Bankers’ Trust Company of Amarillo, Tex., and that said' Investment Company, through its agent, sold stock and took subscriptions to the capital stock of said Bankers’ Trust .Company; that one J. D. Wrather, an agent of the Securities Investment Company, solicited from him a purchase of shares of stock in the Bankers’ Trust Company; and that the consideration for the note was a certificate representing 50 shares of the capital stock on the said Bankers’ Trust Company, alleged to have been a corporation under the laws of Arizona, with a permit to do business in the state of Texas. It was further alleged in the answer that plaintiff, Davis, at the time he acquired the note sued upon, purchased the same at such an unusual discount, of approximately 40 per cent., with the knowledge of defendant’s solvency, that he was upon notice of the illegality of said note and was not an innocent purchaser for value.

The note, as stated, was payable to the order of the Amarillo Securities Investment Company, and contains the following stipulation:

“As collateral security for the foregoing note, and other notes, if any, this day given for stock, hereinafter named, and [have] delivered to the Amarillo Securities Investment Company, the following securities: Fifty shares of the- capital stock of the Bankers’ Trust Company of .Amarillo, Texas.”

Miner Crawford, the appellant, testified that at the time he executed the note he delivered the same to Mr. Wrather. He said:

“Mr. Wrather came to my house about October 10th T1913] and claimed to be selling stock in the Bankers’ Trust Company of Amarillo.”

He said that Wrather claimed that the organization of the company was to protect and take care of its stockholders and home people in the matter of loans. He further testified:

“I subscribed for the stock because I thought it would put me in position to get money at a cheap rate of interest and a sufficient amount to handle a string of cattle, which otherwise I could not get at a local bank. * * * At the time I siCbseribecl for the stoeh I was informed that I could get a loan, etc. I suppose that I signed a written subscription to buy stock. I signed some kind of a contract. The note was given to secure my subscription to the stock.”

It is often that one company is an organization, or promoting, company for another. The appellant, after testifying as to representations of Wrather that certain persons were stockholders in the Bankers’ Trust Company, as an inducement to him to take the stock, further testified:

“The other inducement which caused me to subscribe for stock was that he agreed to furnish any amount of money the. stockholders would require, or that they would need.”

The testimony, though indefinite, is compatiblé with a theory that the note was solicited by Wrather as a subscription for stock to be issued by the Bankers’ Trust Company at some period in the future to the defendant Crawford, in consideration of the note for the stock. Wrather, in making an agreement to furnish an amount of money needed by Crawford in his business, supports a conclusion that he was representing the Trust Company as agent, and that the Securities Investment Company was an intermediary in the trade. The testimony of Crawford that he signed the written subscription — “some kind of a contract”- — for the stock in the Bankers’ Trust Company, added to the declarations, and promises of Wrather as to tlie lending of money by the Trust Company, are inferably consistent with the idea that Crawford purchased in fact the stock from the Trust Company as the owner with the particular note, though in form given to the Investment Company. The statement of facts, carefully studied, shows more that Wrather was assuming to act as the agent of the Bankers’ Trust Company than the Securities Company. It is true the defendant pleaded that Wrather was the agent of the Securities Company; it is also pleaded, however, that the Securities Company was the agent, promoting the Bankers’ Trust Company, and it would follow from the pleading that Wrather was the agent of the latter company, as well as the former. Hence the testimony of Crawford, as to his subscription for stock in the Bankers’ Trust Company, in connection with the declarations of Wrather, accompanying the subscription to the stock in the Bankers’ Trust Company, would not make the conclusion of fact that he was the agent of the Bankers’ Trust Company inconsistent with the pleading that Wrather was the agent of the Securities Company, for the pleading inferentially asserts that as the agent of the Securities Company Wrather was also the agent of the Trust Company. We think the testimony was sufficient, indefinite as it may have been, to submit to the jury the question whether, or not a subscription contract, for the issuance and delivery of 50 shares of capital stock, by the Bankers’ Trust Company, in consideration of the $1,000 note, was the character of the transaction, and that the note executed to the Amarillo Securities Company was in consideration of such issuance and delivery by the Bankers’ Trust Company.

We admit, of course, that the record is also susceptible of the opposite conclusion, if a jury saw fit to derive the same; that is, that the Amarillo Securities Investment Company, on account of the notes having been given direct to it, sold the stock to Crawford in consideration, of the note and such a transaction, of course, would not be void. If the note was actually given in consideration of the issuance and delivery of this stock, emanating from the Bankers’ Trust Company, though through the medium of the Amarillo Securities & Investment Company, the same is void in the hands of a purchaser, even assuming that he paid value and had no notice of the status of the negotiation. This court first held the doctrine in the case of Prudential Life Insurance Co. v. Smyer, 183 S. W. 825, in an opinion rendered by Justice Hall. The Dallas Court of Civil Appeals, in the case of Republic Trust Co. v. Taylor, 184 S. W. 772, repeats the doctrine in an extended opinion by Justice Rasbury, which in some respects is similar to this case.

The appellant also advances the proposition that because Davis, the appellee, gave only two-thirds of the face value of the note in purchasing the same, with knowledge of the solvency of the maker, a short time before the maturity of the note, puts him upon inquiry of its invalidity. The primary questions are whether the stock was delivered by the Bankers’ Trust Company, through the medium of the Securities Company, in consideration of the note, or whether negotiated by the Securities Company, in consideration of the same note? If the former condition exists, the note would be void, irrespective of notice. If the latter condition exists, the note is valid, and the amount paid is immaterial, as the defense of- fraud was not sustained. '

The judgments against the Amarillo Securities Investment Company and Mark Logan, as indorsers, are not complained of, and are affirmed. The judgment against Miner Crawford is reversed and remanded for a new trial.
      (g^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SWEENEY v. DAVIS et al.
    (No. 1012.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Bills and Notes <&wkey;518(l) — Action — Evidence — Sufficiency.
    In an action by the indorsee against the maker and indorser of a note showing on its face that as collateral security therefor the maker had delivered to the payee shares of capital stock of a trust company, evidence held to show that the note was given in payment for capital stock purchased of an agent of the trust company, though payable to an investment company which was promoting the sale of the trust company’s stock.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816, 1817, 1819, 1820; Dec. Dig. <&^518(1).]'
    2. Banks and Banking <&wkey;314 — Investment Companies — Agency oe Agent — Effect.
    The agent of an investment company, which was itself an agent engaged in promoting the sale of the capital stock of a trust company, was the agent of the trust company as well as of the investment company.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 1218; Dec. Dig. <&wkey;> 314.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by A. J. Davis against- N. H. Sweeney and Mark Logan. Judgment for plaintiff against both defendants, and defendant •Sweeney appeals.
    Judgment against defendant Sweeney reversed and remanded, and judgment against defendant Logan affirmed.
    Martin, Kinder, Russell & Zimmermann, of Plainview, for appellant. Veale & Lump-kin and A. M. Mood, all of Amarillo, and Chandler & Pannill, of Stephenville, for ap-pellees.

      writ of error pending in Supreme Court.

   HENDRICKS, J.

A. J. Davis, the appel-lee herein, sued the appellant, N. H. Sweeney, and Mark Logan, alleging the execution and delivery of a certain $1,000 note, by Sweeney June 10, 1913, payable to H. H. Cooper, indorsed by Cooper without recourse to the defendant Logan, and by the defendant Logan to him (Davis) before maturity. The particular note sued upon was in reality a renewal note, in substitution of a previous note executed by Sweeney, October 10, 1912, for the same amount to the Amarillo Securities Investment Company, payable eight months after date. This original note contained the following clause:

“As collateral security for the foregoing note and other notes, if any, this day given for stock hereinafter named, have delivered to the Amarillo Securities Investment Company the following securities: Fifty shares of the capital stock of the Bankers’ Trust Company of Amarillo, Texas.”

Sweeney answered that the Amarillo Securities Investment Company was a corporation organized for the purpose solely of promoting the Bankers’ Trust Company of Amarillo, Tex., and that said corporation, through its agents, sold or took stock subscriptions to the capital stock of said Bankers’ Trust Company of Amarillo, and that when the stock had been sold the Bankers’ Trust Company was incorporated and organized and took over the assets and contracts of the Amarillo Securities Investment Company; that one Wrather, an agent of the Amarillo Securities Investment Company, solicited him to purchase the particular shares of stock in the Bankers’ Trust Company, making certain alleged fraudulent representations, not necessary to state herein; that the only consideration for the note was a certificate representing the 50 shares of the capital stock of said Bankers’ Trust Company, organized under the laws of Arizona and granted a permit to do business in the state of Texas; and that said stock.was issued and delivered to the defendant for the note.

It is to be noted that the original note was executed October 10, 1912, and the renewal note executed June 10, 1913. It is shown that a certificate' of stock, calling for 50 shares of the capital stock of the Bankers’ Trust Company, signed by Mark Logan, as president, and Carl C. Hardin, as secretary, with their signatures and the corporate seal affixed the 28th day of June, 1913, was delivered about July 15, 1913, to the defendant Sweeney. The Bankers’ Trust Company on the latter date wrote Sweeney at Silverton, Tex., inclosing the particular certificate of stock, which was received by him. Sweeney testified that he gave the original note for the stock in the Bankers’ Trust Company, and said that he took the stock “on the consideration that I was to borrow money on cattle loans” ; that Wrath-er made other representations to him as to certain persons to be stockholders in the company, not necessary to detail; that the following March he talked to Mark Logan, the president of the Bankers’ Trust Company, in regard to the loan (meaning the one promised by Wrather), at a cattle convention in Amarillo, and again, at about the time of the maturity of the note, he discussed the matter with Logan; and that at both times Logan stated that they were not ready to make the loan, but would be ready in a short time.

It is inferable from the record, that Wrath-er, in soliciting the purchase of the stock by Sweeney, and in making his agreement for the loan of money, was representing the Bankers’ Trust Company; and, excluding the fact of the note having been made to the Amarillo Securities Investment Company,, the trade for the issuance and delivery of the stock for the note, was between the Trust Company and Sweeney. If you exclude from consideration the fact that the Securities Investment Company was the payee in the note, the trade between Wrather, representing the Bankers’ Trust Company, for the issuance and delivery of the stock of that company to Sweeney for the note, would of itself be void. The note, on account of the collateral securities clause, implies a delivery of stock during the life of the note. The stock was actually issued and delivered direct by the Bankers’ Trust Company to Sweeney, and could not have been for anything else than in consideration of the execution and delivery of the note to the Investment Company. The Investment Company is not shown to have paid for, nor owned, any stock in the Bankers’ Trust Company, unless you deduce that conclusion from the fact that their name is the payee in the note. In so far as the record shows, except the bare fact of the note having been made payable to the Investment Company, there was no trade made between that company and Sweeney, but the same was made between Wrather (inferably as the representative of the Bankers’ Trust Company) and Sweeney, for the sale, issuance, and delivery of the stock to him. As we said in the ease of Crawford v. Davis, 188 S. W. 436, this day decided:

“It is true the defendant pleaded that Wrath-er was the agent of the Securities Company; it is also pleaded, however, that the Securities Company was the agent, promoting the Bankers’ Trust Company; and it would follow from the pleading, that Wrather was the agent of the latter company, as well as the former.”

When you consider the inference of agency by Wrather of the Trust Company, and the trade seemingly made for and by that company for the sale of the stock to Sweeney, and the direct delivery by that company of the stock to him, for the note, without any other participation in the trade by the Investment Company than the fact of being the payee in the note, coupled with the renewed promises of Logan, the president of the Trust Company, in regard to the loan of money, rather suggests, than negatives, the idea that the Investment Company wasl merely an instrument in the trade holding the legal title to the note.

For the additional reasons given in the case of Miner Crawford v. A. J. Davis (No. 1013) 188 S. W. 436, this day decided, to which we refer, we think the case as to Sweeney should be reversed and remanded. The judgment against Mark Logan, in favor of A. J. Davis, will be affirmed, but otherwise reversed for a new trial. Affirmed in part, and reversed and remanded in part.
      <§=>For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    CONSOLIDATED KANSAS CITY SMELTING & REFINING CO. v. DILL.

    (No. 592.)
    (Court of Civil Appeals of Texas. El Paso.
    June 16, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Master and Servant <&wkey;286(3) — Injuries to Servant — Questions eor Jury.
    Evidence held to warrant submission to jury of question whether employer’s foreman ordered servant to work in furnace while it was hot, and dangerous owing to extreme heat.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1010; Dec. Dig. <&wkey;>286 (3).]
    2. Master and Servant <@^286(3, 24) — Injuries to Servant — Questions for Jury.
    It is for the jury whether a furnace was in safe condition in which to work, plaintiff having been injured while working therein, and also whether it was the foreman’s duty to inspect the furnace and determine whether it was safe.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1010, 1029; Dec. Dig. &wkey;2S6(3,24).]
    3. Master and Servant &wkey;>235(4) — Injuries to Servant — Safe Place to Work.
    The servant has a right to presume that a furnace in which he was put to work is a reasonably safe place to work.
    [Ed. Note. — For other cases, see Master' and Servant, Cent. Dig. § 713; Dec. Dig. &wkey;>235(4).]
    4. Master and Servant &wkey;j265(5) — Res Iesa Loquitur — Safe Place to Work.
    While the mere fact of injury at work is not of itself proof of negligence, yet, where the particular thing causing the injury has been shown to be under the management of the defendant, or its servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 898, 955; Dec. Dig. <&wkey;> 265(5).]

      5. Master and Sekvant <&wkey;285(5) — Injuries to Servant — Questions for Jury.
    Evidence held to warrant submission to jury of question whether impaired condition of .servant’s health resulted from extreme heat of furnace in which he worked.
    [E'd. Note. — For other cases, see Master and Servant, Cent. Dig. § 1016; Dee. Dig. &wkey;»285
    6. Master and Servant <&wkey;-276(3) — Injuries to Servant — Burden of Proof.
    The rule does not require an injured servant to prove with reasonable certainty that his condition resulted from the heat of a furnace in which he alleged he worked with resultant injury.
    [Ed. Note. — For other pases,, see Master and Servant, Cent. Dig. §§ 95Í, 959; Dee. Dig. 270(3).]
    7. Master and Servant <&wkey;289(15) — Injuries to Servant — Questions for .Tury.
    Evidence held to warrant submission to jury of question of servant’s contributory negligence in working in heated furnace.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § HOG; Doc. Dig. <S&wkey;289 (15).]
    8. Negligence <@^97 — Injuries to Servant —Comparative Negligence.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246k, as to comparative negligence and its effect on the servant’s recovery, a servant may recover for injuries, though he is himself negligent.
    [Ed Note. — For other cases, see Negligence, Cent. Dig. §§ 93, 162; Dec. Dig. <&wkey;>97.]
    9. Master and Servant <&wkey;264(4) — Injuries to Servant — Variance.
    If servant alleges injuries due to defective furnace, in that it was extremely hot, and contained fumes and gases, proof of heat, or of fumes, or of gases, is sufficient, and the verdict for the servant need not be set aside for failure to prove all.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 865; Dec. Dig. <&wkey;>264 (4).]
    10. Master and Servant <&wkey;278(3) — Injuries to Servant — Evidence.
    Evidence held not to warrant saying that verdict finding that a furnace in which a servant worked was dangerous was without proof.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 958; Dec. Dig. &wkey;?278 (3).]
    11. Damages <&wkey;185(l) — Injuries to Servant — Evidence—Weight.
    That a servant who claimed injuries went back to work the next day would merely be an evidentiary fact going to extent of injuries.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503, 504, 508; Dec. Dig. <&wkey; 185(1).]
    12. Damages @=^185(1) — Injuries to Servant-Evidence.
    Evidence held not to warrant saying that verdict as to extent of servant’s injuries was unsupported by proof.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503, 504, 508; Dec. Dig. &wkey;s 185(1).]
    13. Damages &wkey;>132(l) — Injuries to Servant-Excessive Damages-
    Verdict of $8,000 to servant, who had been a strong man in good health, earning $4.25 per day, at 52 years of age, who by his injuries lost his health, suffered pain after 15 months, and ' became incapable of earning money, was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. <&wkey;132(l).]
    Appeal from District Court, El Paso County; Ballard. Coldwell, Judge.
    Action by T. E. Dill against the Consolidated Kansas City Smelting & Refining Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Davis & Goggin, of El Paso, for appellant. Nealon & Dorman, of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

This is a suit for damages for personal injuries. On or about the 9th day of May, 1914, appellee, T. E. Dill, was in the employ of appellant, Consolidated Kansas City Smelting & Refining Company, in the capacity of general carpenter. Appellant was a corporation and employs, and for several years past has employed, more than five employés. Appellee alleged that appellant caused him to enter and work in a reverberatory furnace, setting up forms therein before said furnace had been cooled after said furnace had been used, and while same was in a dangerous condition from extreme heat and the presence of dangerous fumes and gases. The negligence charged is: First, that appellee did not know of the dangerous condition of the furnace as a result of its extreme heat and the presence of dangerous fumes and gases, and that appellant failed to warn him of the danger of working therein; second, failure to furnish appellee a safe place in which to work. Appellee alleged that while working in the furnace he sustained the injuries of which he complains and some of which he alleged to be permanent, and that he suffered mental anguish.

Appellant answered by general demurrer and general denial; specially denied the alleged acts of negligence; pleaded contributory negligence, that any person of ordinary observation could see and perceive the condition of the furnace as to heat, fumes, and gases, and that, if appellee subjected himself thereto in the performance of said work and wa)s injured, such injuries resulted through appellee’s negligence.

The case was submitted to the jury on special issues, and on the jury’s findings the court entered judgment for appellee for $8,« 000.

The issues made-by the pleadings and on which evidence was offered are reflected by the questions submitted to the jury and their answers, which we here give:

“No. 1: Please answer whether or not the defendant, its agents, servants, or employés, caused the plaintiff to enter and work in a re-verberatory furnace on or about May 9, 1914, setting up forms therein before said furnace had been cooled, and after said furnace had been used, and while said furnace was in a dan* gerous condition as a result of its extreme heat, and the presence of dangerous fumes and gases. Answer this question ‘Yes’ or ‘No.’ Answer: Yes.
“No. 2: If you answer the previous question in the affirmative, then answer the following question ‘Yes’ or ‘No’: Did the defendant fail to use ordinary care to. make and to have said furnace an ordinarily safe place in which to work? Answer: Yes.
“No. S: If you have answered the foregoing question in the affirmative, then state whether or not such failure to use such ordinary care was a proximate cause of the injury, if any, complained of in his petition. Answer this question ‘Yes’ or ‘No.’ Answer: Yes.
“No. 4: If you have answered the foregoing question in the affirmative, please state what sum of money, if paid in cash now, would be a reasonable compensation to plaintiff for the injuries he alleges, which he has sustained, that were proximately caused by the negligence, if any, of defendant, alleged by him. Answer: Yes, $8,000. In estimating the plaintiff’s damage, if you find any, you may take into consideration the mental and physical pain, if any, heretofore suffered by plaintiff in consequence of his injury, if any, and his diminished capacity to labor and earn money in the future, if any. If you believe from the evidence that he will suffer mental and physical pain in the future, in consequence of his injuries, if any, you will take that into consideration in estimating his damages. However, if you find that plaintiff himself was guilty of contributory negligence proximately causing the injuries, if any, to himself, the damages to be found by you under the foregoing part of this paragraph should be diminished in the proportion to the amount of negligence attributable to plaintiff. In this connection you will answer the following question:
“No. 5: Was the plaintiff himself guilty of contributory negligence proximately causing or contributing to cause his injuries, if any? Answer this question ‘Yes’ or ‘No.’ Answer: No.”

In addition to the above, without stating the questions and answers formally, the jury found in answer to questions submitted by the defendant: That the plaintiff was injured on the 9th day of May, 1914, on account of going into a reverberatory furnace; that the furnace was in a dangerous condition as a result of its extreme heat; that it was in a dangerous condition as the result of the presence therein of dangerous fumes and gases; that he was injured on account of such fumes and gases; that he was caused to go into the furnace by his foreman, or some one in, control; that it was defendant's duty to have warned plaintiff of the danger of working in such furnace; that plaintiff was without negligence, in that he did not know and could not have known by ordinary care of the dangerous condition of the furnace; that there were hidden or latent dangers in the furnace of which plaintiff did not know, and could not be appreciated by a person of ordinary intelligence; that the condition of the furnace as to heat and fumes was not as was ordinary in the case of such furnaces when in course of repairs; that the witness Davie did not enter the furnace before plaintiff was told to work upon it; that witness Whitmore did not enter the furnace at a time plaintiff was present in company with witness Boyd; that plaintiff did not thereafter return to the smelter and work one day; that plaintiff did not after laying off four days return and work as carpenter four days before he was discharged; in arriving at its verdict, the jury did not award damages on account of insanity nor on account of scalelike substance forming over his body, resulting from defendant’s negligence; the jury awarded damages resulting from injuries to plaintiff’s sight, to his back, spine, and legs; that plaintiff is incapacitated from ever resuming his vocation as a carpenter and performing manual labor; that his earning capacity is wholly destroyed.

Appellant, claiming that the evidence does not support the finding by the jury that “the furnace was in a dangerous condition as the result of its extreme heat,” requested a peremptory charge in its favor and the refusal to give it is its first assigned error.

The second assignment complains of the refusal to give a peremptory charge in appellant’s favor, on the ground that the proof failed to show negligence.

T. E. Dill testified:

“I am 54 years old. * * * In May I went and did some work in one of the reverberatory furnaces putting up forms. They used the re-verberatory furnace for burning ore, 1 suppose. I was building forms in that furnace; I do not know exactly how many hours I worked; it was in the afternoon. I went into the furnace in the afternoon and finished it. A negro by the name of Boyd went into the furnace with me. * * * We, went in there and put up the forms, iand then wo went out; it got too hot one time, and we came out and cooled off. I threw up. I threw up once in there, and came out and sat down and cooled off. We went back and finished up the work. I had never worked in that reverberatory furnace before that time, or in any of them. There was a difference in the heat that time and other times; there was to me. It was hotter to me, and it wasn’t cleaned out as it should have been; there was ashes in it about that deep (indicating). I did not know how hot it was in there before I went in. The reason I happened to go in there to do that work was because Mr. Davie came over to the hospital and got me and Boyd and told us that he wanted us to go over to the furnace and put in these forms. Mr. Davie was the foreman. He did not tell me anything about how hot it was. The effect the heat had on me, it just made me sick and vomit. As to the state of my health before I went in there that time, I was all right, I thought. I was strong and could do any kind of work and as much of it as anybody. During the year before that I worked all the time that I wanted to. I worked at different places in El Paso besides the smelter. After we came out of the furnace, we sat down and rested a while, and then went to the shop. I do not know what happened during the next two or three or four months after that. After I got sick out at the smelter, I do not know where I was at; I was in the hospital, I think. It was the county hospital I was in. My eyesight now is very bad. I cannot read at all. My eyesight before this trouble occurred was so I could read. I have attempted to work since then, but I have not been able to work; I am just weak. I suffer every day with pains through the back and shoulders and legs. I suffer that way daily, and I have been suffering that way ever since I got sick down there that day. I lived in Highland Park, and before that I lived in Old Et. Bliss. Old Ft. Bliss is a mile, I suppose, from the smelter. In going to and from my work when I lived at Old Ft. Bliss, I would ride on the street car, and I would walk occasionally. I could walk it all right, but it was very seldom that I walked. When I worked at the smelter they paid me $4.25 a day; I worked seven days of the week. * * * There was ashes about that deep. * * * I could smell the ashes. * * * I didn’t say a while ago that I went back iand worked the next day; I don’t remember. * * * There was never any insanity in my family; none of my brothers and sisters were insane. 1 never had any symptoms of that kind before X did this work. I know that I have not. It is not a fact that Mr. Whitemore would give a certain dimension to saw by, and I would cut off three feet instead of two, or something else. He did not complain to me that I would not saw according to his dimensions and that he would have to let me out. I do remember that they had not cleaned the ashes out of this furnace. * * * I did not know at that time of its being dangerous in there to my health. I did not know whether or not it was dangerous to go inside of the furnace to do that work. I did not know how long the fires had been out in that furnace. X did not know whose business it was to see about that and see whether the furnace was cooled. The furnace had had fire in it. It is a right smart trouble to me to remember things that happened since the day I got sick out there, when I got overheated. I have to study pretty hard to think.”

Mrs. Minnie Dill, wife of plaintiff, testified in part:

“We have been married 28 years. I remember along about April or May when Mr. Dill was working at the smelter and was sick. The best I remember it was somewhere between the 1st and 10th of May, 1914. Up to that time Mr. Dill’s health had been good. He - was a stout man. He had never been sick to amount to anything. During the 28 years we were married he never had been confined to his bed except one time, when he had the measles. He was confined to his bed six dayá at that time. * * * Was not sick when he went to work for the smelter. He came home from the smelter about 6 o’clock, and his clothes were dirty and smutty, ashes all over them. The soles of his shoes were scorched. I never saw them that way before. When he came home he was unconscious. He did not know anything. * * * I observed the condition of the skin; it was red and hot all over his hands and feet. He stayed in bed all night. He didn’t rest to amount to anything during the night. He was not rational in his talking. He went back to the smelter the next day, but I cannot say what he did out there. * * * He came home the next night, but he still didn’t know anything. * * * He was crazy. He acted like a crazy person. Pie would swear and fight and was in an awful state.”

The witness here detailed Dill’s acts tending to show insanity. Dill was then put in jail several days, and was then sent to the county hospital, where he remained some two weeks, when he was returned to the jail. Dater he was returned to the hospital, when, after some weeks, he began to improve. Mrs. Dill testified as to his health and strength at the time of the trial as compared to what it was previous to his sickness:

Said he was not able to work. “Is too weak to work. Walking affects his legs. His eyesight is not good. Had never noticed any symptoms of a weak mind or insanity before his sickness. Had done all kinds of' work. Never saw his shoes scorched before the day he came from the smelter. He can’t stand up very well without support. He has been that way since the time he got in that shape at the smelter until since he came from the hospital. He would fall backwards. He would do that way at any time when he was standing on the floor. He would be stiff. We would rub him with water. He didn’t have any mind.”

Other witnesses testified as to his mental and physical condition after his day’s work at the smelter, fixing the time early in May, 1914. The county health officer, Dr. G. N. Thomas, testified at some length as to Dill’s physical and mental condition from the .time he was taken to the hospital until the time of the trial. He said that:

“It is probable that his condition could have been produced by the excessive heat. * * * I have held that opinion in my treatment of him for the last couple of months. In my opinion, his condition could result from that cause. * * *• The condition of his kidneys could be attributed to this heat by the effect it would have on the'nerves and glands of the skin more than any other thing. The excessive heat and the shock would, in my opinion, be sufficient to make a man sick at the stomach. The fumes and smoke might result in a condition of impaired kidneys and a marked intoxication of the blood. * * * As a rule, I notice that patients who have kidney trouble have their urine examined, and that there is some local swelling. When they do have pain it is felt most commonly in the lower part of the back; the seat of it is the spinal cord.”

Dr. Tuten testified:

“I went to the smelter and found these fumes and tried them to pass away the time. * * • I did not go down into the reverberatory furnaces. * * * I was trying to smell the fumes. * * * There are many poisonous fumes. If there was arsenic in the fumes, if you got enough of the arsenic, it'would be poisonous. A human being could not' stay in the fumes too long. It would overcome him.”

Dr. Ricketts testified:

“They have a heat in there [furnaces] up to about 3,000 degrees Fahrenheit. ♦ * * Matte is made in the reverberatory.”

Dr. Urmston testified in. answer to hypothetical questions that said excessive heat could have produced the condition physically and mentally.

A. W. Riegel, a carpenter employed by defendant, testified, and, among other things, said:

“I do not know how long the furnaces have to cool before they work in there. I do not know how long I have observed them being cooled. The carpenters do not look after the cooling of the furnaces; we depend on the foreman. * * * There are occasions when we would throw in the odds and ends of old planks. I think I have seen them catch on fire on one or two instances. That would be a normal condition of the floor of the furnace owing to the thickness of the floor. It would retain the heat to that extent, that strong. They do not use thermometers out there to ascertain the heat of the furnaces, to my knowledge, but they must have some way of knowing the temperature in opei'ation. A person could not know the exact temperature unless he took the thermometer.”

W. L. Davie, one of the defendant’s employes and witnesses, testified in part:

“We have a general foreman out there whose duty it is to cool the furnaces down so that the man can work in them. His name is Mr. Eipps. I cannot say what he did that day.”

Witness Roberts, an employs and witness for defendant, said that it was the duty of the shift boss to look after the cooling oft of the furnace.

C. E. Bogel, an employs of defendant, as machine shop foreman, and a witness in its behalf, testified:

“When they want a man from my department they requisition me. * * • If he has just been there once or twice, I go with him, if he is a new man. With a new man I go at least a dozen times. I do that to be sure that they undei-stand what I want done and that the conditions are safe. * * * The only conditions that affect is heat. * * * I simply go in myself, and if I can stand it any length of time, I think it safe for other men to go in, and if 1 cannot stand it, I figure it is not. =:: * * I would stay in myself to be certaiii that my workmen did not encounter any danger. * * * If the heat of the furnace is sufficient to char the soles of a man’s shoes, I would say that it would not be safe enough place for him to work, if it came up suddenly. If it came up gradually, I would say it was.”

A number of witnesses testified along similar lines. We think the evidence is sufficient to justify the court in submitting to the jury the question as to whether the defendant’s foreman caused Dill to work in the furnace on the 9th day of May, 1914, before the furnace had been cooled off, and while the furnace was in a dangerous condition as a result of its extreme heat. The evidence discloses that it was the duty of defendant’s foreman through the shift boss to see that the furnace is sufficiently cooled, and is a safe place to work before sending men in to work. Neither the foreman nor the shift boss testified on the trial. True, Mr. Davie testified that he went into the furnace and examined it and found everything in shape to work. Ashes had been cleaned out. But these were questions to be determined by the jury, and they found the facts against appellant. The jury found that Davie did not go into the furnace before Dill was sent in to do the work. Dill had the right to presume that the furnace was reasonably safe. Witnesses say that a test by thermometer is the only, way to determine the degree of heat in the furnace, and that thermometers were not used, by defendant. The jury were left to determine from the circumstances following as a result of his effort to work in the furnace whether it was a reasonably safe place for him to do the work he was called to do. While it is a general rule that the mere fact- that an injury occurs is not of itself proof of negligence (Trinity County Lumber Co. v. Denham, 85 Tex. 56, 19 S. W. 1012), yet it is also true that the character of the accident and the circumstances in proof attending it may be such as to lead reasonably to the belief that without negligence it would not have occurred (Washington v. Missouri, K. & T. Ry. Co. of Texas, 90 Tex. 314, 38 S. W. 764). In Railway Co. v. Suggs, 62 Tex. 323, the Supreme Court said that:

“Where the particular thing causing the injury has been shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.”

It seems to us that the principle announced can be applied here. The duty of cooling the furnace was with the foreman through the shift boss. If care was taken to see that the furnace was sufficiently cooled before sending Dill in to work, such result as followed Dill’s effort to work in the furnace would likely not have followed in the ordinary course of things. It was not error to refuse to give the requested peremptory charges.

The evidence is amply sufficient to justify the submission to the jury of the question as to whether the impaired condition of appellee’s health resulted from the extreme heat in the furnace, and the court was not in error in submitting that issue to the jury as complained of in the third assignment. It might be said also, that the requested charge, “plaintiff has failed to prove with reasonable certainty that his impaired condition resulted from being subjected to heat,” etc., is more onerous than the rule requires.

Appellant’s assignments 5 and 6 have reference to appellant’s exception to the court’s charge, under the Employers’ Liability Act, which abolishes the defense of assumed risk and introduces the doctrine of comparative negligence and raises the question of the constitutionality of the act. Since the brief was filed, the act has been held to be constitutional by the Supreme Court in Middleton v. Texas Light & Power Co., 185 S. W. 556, not yet officially reported. The assignments are overruled.

The evidence was sufficient to justify the court in submitting to the jury the question of contributory negligence. Under article 5246h, Vernon’s Sayles’ Annotated Civil Statutes, appellee would still be entitled to recover, although guilty of negligence. It was not error to refuse to give appellant’s special charge No. 4, and its sixth assignment is overruled.

In their answer to the first question submitted to the jury, they found that the furnace was in a dangerous condition as a result of its extreme heat, and the presence of fumes and gases; and the answer to the second question states that ordinary care was not used by appellant to make the furnace an ordinarily safe place in which to work. Appellee moved the court to set aside the verdict on the ground that the evidence fails to show that the furnace was rendered unsafe or dangerous by the presence of fumes and gases, or that any of appellee’s injuries was the result of the presence of fumes and gases in the furnace. We are of the opinion that, where the pleadings allege that the furnace was rendered unsafe as a place in which to work on account of its extreme heat, and the presence of fumes and gases, if the proof showed that it was rendered unsafe by the presence of extreme heat, it would not be error to refuse to set aside the verdict on the ground that the proof did not show the presence also of fumes and gases, or that the injuries were caused also by the presence of fumes and gases. It seems to us that the real issue of fact sought to be established was the condition of the furnace as a place to work. Was it safe or unsafe? If unsafe, was it rendered so by any one of the causes alleged? The causes were alleged to enable the appellant to meet the proof as to any one of the three, heat, fumes, and gases. If any one of the three, of itself, and not in connection with either of the others, rendered the furnace unsafe as a place in which to work, and of itself caused the injuries to plaintiff, we think it immaterial that the other alleged causes were presented to the jury and that they made findings thereon. It is true the jury found that the heat, fumes, and gases rendered the place unsafe and caused the injuries, and they also found that the fumes and gases had the same effect.

We cannot say from the evidence that the several findings are not without some proof. If the appellee received his injury from any one or more of the causes alleged, we do not believe that he should be denied a recovery because of the fact that it might be impossible to say just what injury or prorated part of an injury received is attributable to any one or more of the causes. It would seem to be a safer and better rule to consider them in determining the question, Did any one or all render the place unsafe? rather than to determine, Which one or more of the injuries received did the different causes aid in producing? The seventh assignment is overruled.

We think the evidence is sufficient to sustain the jury’s finding that appellee sustained the injury to his eyesight. We need not quote the evidence. The eighth assignment, questioning this finding, is overruled.

The ninth assignment raises a similar question as to injury to appellee’s spine. Appellee testified that he suffered daily with pains through his back, shoulders, and legs. Dr. Thomas, who seemed to have been treating appellee for about a year, in speaking of the pains of which appellee complained, said:

“When they do have pain, it is felt most commonly in the lower part of the back. The scat of it is in the spinal cord. The spinal cord is inside of the spine. There is nothing the matter with the plaintiff’s spinal cord, more than an intoxicant. * * * A general toxima is poison of the entire system.”

The ninth assignment is overruled.

The evidence is confusing and contradictory as to the work that plaintiff did within the first fews days after the alleged accident. We need not quote the evidence. The issue that plaintiff worked the next day after the accident would simply be an evi-dentiary fact going to fhe question of the extent of his injuries. The jury found that he did not return to work the next day, and did not return and work four days still later. The finding is supported by some evidence. But whether he returned the next day or not is practically unimportant if his injuries finally resulted in impairing his health and his ability to earn money, as the jury found that it did. Appellant’s tenth, eleventh, twelfth, and thirteenth assignments claim error in the court’s refusal to set aside the verdict on the ground that the verdict is without evidence on the finding that appel-lee’s earning capacity is totally destroyed. It is true the evidence shows that appellee’s condition at the time of the trial, some 15 months after the accident, was improved. Dr. Thomas said:

“His urine was bad and Ms heart was bad, and he developed a dropsy, what we call an anasarea of the limbs, and which under treatment greatly improved, and at the present time is a great deal better than when he was at the county hospital. His mental condition has also markedly improved.”

But his improved condition, after about 15 months, possibly, might be a long way from a complete recovery. We cannot say from the evidence that the jury’s finding is not supported by the proof as to the extent of the injuries.

The fourteenth assignmeht insists that the verdict is excessive. Appellee was about 52 years of age, was earning $4.25 a day, was in good health and a strong man. If Ms health was destroyed, if he still suffers pain, and he is rendered incapable of earning money, the verdict is not, in our opinion, excessive.

Finding no reversible error, the case is affirmed.
      <g^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <i=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes