author: DAVIDSON, J.

text:
    WARNER v. STATE.
    (No. 3130.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    On Motion for Rehearing, June 3, 1914.)
    1. Bail (§ 65) — Recognizance on Appeal— Requisites and Sufficiency.
    An appeal from a conviction for simple assault will be dismissed, where the recognizance fails to recite the punishment assessed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.]
    On Motion for Rehearing.
    2. Cbiminal Law (§ 770) — Instbuctions— Issues and Theobies of Case.
    On a trial for assault, where the evidence tended to show that accused and another took a boy against his will, opened his pants, and placed lard on his privates-, and that he was much mortified, while it was accused’s theory that the assaulted party and other boys were playing and scuffling, that the others had the assaulted party down, his breeches unbuttoned, and his private parts exposed, and that what he did was done in fun at the suggestion of one of the boys, without intent to injure the boy, and that it was not offensive to the boy, and the court submitted the state’s theory, it was error to refuse instructions submitting accused’s theory.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    3. Indictment and Infobmation (§ 87)— Sufficiency of Accusation — Time of Offense.
    A complaint and information sworn to on July 1, 1913, charging the commission of an offense on July 29, 1913, was fatally defective.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 24<b-255; Dec. Dig. § 87.]
    Appeal from Angelina County Court; E. B. Robb, Judge.
    Doc Warner was convicted of simple assault, and he appeals.
    Reversed, and prosecution dismissed on rehearing.
    W. J. Townsend, Jr., and Mantooth & Collins, all of Lufkin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

This conviction was for simple assault. The recognizance fails to recite the punishment assessed against appellant. Upon this ground the Assistant Attorney General moves to dismiss the appeal. Under the legislative prescribed form it is necessary to state the amount of the punishment in order to make a recognizance sufficient. The authorities are quite numerous, but unnecessary here to mention, which sustain the motion to dismiss.

Because the recognizance is insufficient in the respect mentioned, the appeal will be dismissed.

On Motion for Rehearing.

On a previous day of the term the appeal herein was dismissed for want of a sufficient recognizance. This defect has been supplied as authorized by the statute and therefore the case is reinstated and will be tried on the issues presented by the record.

The evidence for the state discloses there were several boys standing at the door of the Pine Lumber Company place of business when appellant and another party took the alleged assaulted party, a boy, back in the house and, against his will, opened his pants and placed lard on his privates. The boy says it was done without his consent, and that he was very much mortified. The defendant’s theory of it was that these boys at the front of the building were playing and scuffling, and one of them was the alleged assaulted party; that the other boys had him down, his breeches unbuttoned, and private parts exposed, and some of them jocularly remarked or requested him to grease it; that there was a barrel of lard close by; that he dipped his finger in it and put a little lard on it; that it was done in fun; that they were all playing; and that it was done in play, and was not offensive to the alleged assaulted party in any way, and that he had no purpose or intent to injure the boy. These are the two theories. The court submitted the state’s theory, but declined to submit the defendant’s theory, although presented in several ways by requested charges. These matters are mentioned in a general way so that, should they occur upon another trial, the defendant’s theory of the case may be presented by the charges. It is not necessary here to discuss them. These charges are contained in the record, and the trial court will have them before him in the original papers on file in the county court. The charge requested was applicable to defendant's theory of the case, and presents it legally and correctly, and should have been given.

The case, however, must be reversed and dismissed upon the insufficiency of the complaint and information. The complaint and information charge that on or about the 29th of July, 1913, this offense was committed. It was sworn to before the county attorney on the 1st day of July, 1913. The affidavit was taken on the 1st of the month, and the complaint alleges that the offense was not committed until 29 days after the complaint was taken. The information charges that the offense was committed on or about the 29th day of July, 1913.. Our statute requires that the offense must be committed anterior to the presentment of the information, complaint, indictment, or whatever the pleading may be that charges the offense. Here the affidavit was ‘taken 29 days before the offense was committed, and the information charges, also, that it was committed on the 29th day of July. This would be an impossible date.

The information will be held invalid, and the judgment reversed, and the prosecution ordered dismissed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    JONES v. STATE.
    (No. 3144.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.)
    1. Homicide (§ 90) — Assault with Intent to Kill — “Deadly Weapon.”
    A carving knife, the handle of which was 5% inches long, the blade 9% inches long, X'í/^ inches wide at the butt, and tapering to a point, and weighing 7 ounces, was a deadly weapon per se.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 119; Dec. Dig. § 90.

    Eor other definitions, see Words and Phrases, vol. 2, pp. 1853-1856; vol. 8, p. 7627.]
    2. Homicide (§ 173) — Assault with Intent to Kili>-Evidence — Deadly Weapon.
    Where a knife with which an assault has been committed had been identified, evidence of the county attorney as to its length, breadth, and weight, and that it was a deadly weapon, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374;. Dec. Dig. § 173.]
    3. Criminal Daw (§ 377) — Reputation for Truth — Evidence.
    In a prosecution for assault with intent to kill, where defendant had lived, in the county for seven years, and where the state did not attack his general reputation for truth and veracity, evidence as to such reputation was properly excluded.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 836, 837, 840; Dec. Dig. § 377.]
    4. Criminal Law (§§ 419, 420) — Evidence— Heaesay.
    In a prosecution for assault with intent to kill, letters and certificates from parties at another place bearing upon defendant’s peaceable and law-abiding reputation, etc., were hearsay and inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    5. Criminal Law (§ 1028) — Appeal—Reservation of Grounds of Review — Statute.
    Under Acts 33d Leg. c. 138, providing that the charge in felony cases shall be read to the jury before the argument, and after a reasonable time for defendant to examine it and present objections and requests for instructions in writing, defendant’s requested charges, not shown to have .been presented to the court or acted upon by it before the charge and argument, could not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. § 1028.]
    6. Criminal Law (§ 1038) —Appeal — Necessity of Objection.
    Where no objection was made to the charge either on the ground of omission or commission, error in the refusal of special charges requested by defendant would not be considered.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. §' 1038.]
    7. Homicide (§ 307) — Instructions—Simple or Accidental Assault.
    Evidence that defendant, a waiter, on complaint of one in charge and after words between them, picked up a large carving knife, and, without being seen or provoked, struck the other a severe blow .on the back of the head with the handle, threatened to cut his throat, struck at and cut him, and attempted to further use the knife before it was taken away from him, did not raise the issue of simple or accidental assault and battery, and hence there was no error in refusing defendant’s special charges thereon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Walter Jones was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Preston Martin, of Weatherford, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for an assault with intent to murder Clyde Creighton, and his punishment assessed at the lowest prescribed by law.

Appellant was a negro waiter at a hotel in Mineral Wells. Creighton was a young white man who had supervision of the waiters and the dining room, and checked and made change for guests who ate thereat. There was an early train leaving Mineral Wells, and guests of the hotel desiring to leave on that train were furnished breakfast. It was both Creighton’s and appellant’s duty to be in the dining room by about 6 o’clock each morning. It was Creighton’s duty to prepare the coffee for these early guests. Creighton overslept himself on the morning of January 31, 1914, claiming that the call boy had failed to awaken him. When he was called, seeing that it was late, he sent word by the call boy to appellant to make the coffee. Appellant refused to do so. When Creighton reached the dining room, he found no coffee had been made, and complained to appellant because he had not done so. More or less was said by eaeb party about this. Tbe state’s case shows that Creighton started about his duties; that appellant picked up a very large carving knife, and, without Creighton’s seeing him or doing anything to provoke it, appellant struck him in the back of the head a severe blow with the handle of the knife, holding the blade in his hand for that purpose. The knife was identified, produced, and introduced in evidence before the jury. In addition to its being produced, identified, and introduced in evidence, the state showed by Mr. Smith, county attorney, that the knife was 15 inches long, the handle 5% inches long, the blade 9% inches long, and at the butt was IVt inches wide, tapering to a point. The whole knife weighed 7 ounces; that as soon as appellant struck Creighton in thei back of the head with the knife, Creighton turned towards him, when appellant said, •“I will cut your dam throat,” and struck at Creighton, cut his lip with the knife, and was« attempting to further use the knife on him when Creighton grabbed him and began struggling with him to keep him from cutting him with the knife, and to take it away from him. In this scuffle and fight appellant jerked the knife through Creighton’s left hand, cutting three of his fingers therewith quite seriously. The cook during the fight succeeded in forcing the knife away from appellant, and they were then separated, appellant starting off exclaiming that he would go and get his gun and kill the dam son-of-a-bitch, Creighton. Appellant claimed that Creighton attempted to get this knife when he beat him to it, and that he then struck him in the head to make him "desist, and then the struggle for the possession of the knife began. All the other eyewitnesses,^ three of them, said Creighton made no attempt at any time to get the knife at first, but only to protect himself from being killed therewith by appellant after appellant began the assault upon him with the knife.

The court told the jury what was a deadly weapon in a charge that has uniformly been approved by this court. Without any doubt, the knife, testified to by several witnesses as being the one with. which the assault was committed, was a deadly weapon per se. Ashton v. State, 31 Tex. Cr. R. 481, 21 S. W. 47; Walters v. State, 37 Tex. Cr. R. 388, 35 S. W. 652; Luttrell v. State, 157 S. W. 162, and cases there cited.

The court did not err in permitting the county attorney, after the said knife had been identified, to testify to its length, breadth, weight, and that it was a deadly weapon, over any objection made thereto. The court, in approving the bill on this subject, stated:

“But the court only certifies that the objections were urged, not to their truth. The knife was in evidence, and was a very sharp carving knife, and the witness was permitted to testify that in the hands of an ordinary man (which the proof showed the defendant to be), used to cut or slash with, it was a deadly weapon. In the opinion of the trial court the specific place on .the person that the blow took effect, or whether it actually inflicted a battery at all or not, is immaterial, provided defendant was near enough to do so, and made the assault with the specific intent to kill.”

Neither did the court commit any error in refusing to permit appellant to prove by several witnesses that his reputation for truth and veracity was good, the court, in allowing the bill on the subject, stating:

“That the court permitted defendant to prove that his general reputation as a peaceable and quiet and law-abiding man was good, and that his reputation was not that of a violent and dangerous man, and was not that of a quarrelsome and troublesome man. But the state did not attack the defendant’s general reputation for truth and veracity, and did not put that reputation in issue. The defendant was not a stranger in the county, but had lived in it for seven years, and therefore was no exception to the general rule, which does not permit one to [offer-] suffer his general reputation for truth until it is attacked or put in issue by the opposite party. The court does not certify to the truth of the things stated in the bill under the head of defendant’s object and purpose for offering the testimony.”

Nor did .the court commit any error in refusing to permit him to introduce some letters and certificates from parties at Honey Grove, Tex., to the effect of his peaceable and law-abiding reputation, honesty, etc. All this was clearly hearsay.

This case was tried in March, 1914. The record shows that no objection was made to the court’s charge because of either omission or commission therein.

There appears in the record some special charges requested by appellant and refused. The state objects to the consideration of each of them because it is not shown that they were presented t.o the judge, or acted on by him, before he read his charge to the jury and the argument of the ease. Also because they are not presented in such a way as to authorize or require this court to consider them. We are inclined to believe that both the state’s objections are well taken. See Act of April 5, 1913, p. 278, amending articles 735, 737, 743, C. C. P., and adding article 737a; also Byrd v. State, 151 S. W. 1068; Berg v. State, 64 Tex. Cr. R. 612, 142 S. W. 884; Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878; Berry v. State, 163 S. W. 966, and many other cases unnecessary to cite.

However, we have read and considered them, and in our opinion none of them should have been given. The evidence did not raise simple assault nor accidental assault and battery, and the cotlrt did not err in refusing appellant’s special charges on that subject. The evidence raised aggravated assault. The court fully charged thereon, to which there is no complaint. It also raised self-defense, which was fully charged on, to which there is no objection. The court, in the charge given, properly submitted all the Issues raised by the evidence, all of which were found by the jury against appellant. ' ■

The judgment is affirmed.


text:
    YOUNG v. STATE.
    (No. 3156.)
    (Court of Criminal Appeals of Texas.
    June 31 1914.)
    Physicians and Surgeons (§ 6) — Practicing without Authority — Information— Sufficiency.
    Under Pen. Code 1911, art. 750, providing that it shall be unlawful for any one to practice medicine who has not registered, in the district clerk’s office of the county in which he resides, his authority for so practicing, together with his age, post office address, place of birth, and school of practice to which he professes to belong, subscribed and verified by oath, an information for practicing without” complying therewith is fatally defective, where it fails to allege defendant’s residence and that he had not registered his authority or license in the district clerk’s office of the county of his residence, though it alleges that he was not licensed and authorized under the laws of the state to practice medicine, was not practicing medicine under the provisions of the laws of the state, and was not a physician under a diploma of a reputable and legal college of medicine. ”
    • [Ed. Note. — For other eases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.)
    Appeal from Navarro County Court; R. R. Owen, Judge.
    Henry Young was convicted of unlawfully practicing medicine, and be appeals.
    Reversed, and cause dismissed.
    Jack & Jack, of Corsicana, for appellant. 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 prosecuted and convicted for unlawfully practicing medicine under articles 750 et seq,, P. C.

The complaint and information is in two counts. The first avers that be on or about October 1,1912, in Navarro county, “did then and there unlawfully practice medicine, and did then and there publicly profess to be a physician, and did then and there treat a physical disorder and disease, to wit, did then and there treat a cancer then and there afflicting the body of Mrs. J. T. Bolt; the said ■ Henry Young not then and there being licens- < ed and authorized under the laws of Texas : to practice medicine, and not then and there ' practicing medicine under the provisions of 1 the laws of Texas, and not then and there be- ' ing a physician under a diploma of a repu- i table and legal college of medicine.” The second count is that on the same day, in said ' county, he “did then and there treat and of- < fer to treat a disease and disorder, to wit, 1 a Cancer on the body of Mrs. J. T. Bolt, and < did then and there offer to effect a cure there- i of, and did then and there charge therefor ¡ money and other compensation; the said < Henry Young not then and there being a phy- ] sician licensed to practice medicine under the i ' laws of Texas, and not then and there being ■ a legal practitioner of medicine in Texas under the provisions of the laws of this state, and not then and there being a practitioner of medicine under a'diploma of a reputable and legal college of medicine.”

It is seen that in neither of said counts is appellant’s residence alleged, nor that he 1 “has not registered, in the district clerk’s office of the county in which he resides, his authority for so practicing, together with Ms age, post office address,” etc.

The statute under which he was prosecuted is articles 750 and 755, P. C. They are:

“It shall be unlawful for any one to practice medicine, in any of its branches, upon human beings within the limits of this state who has not registered in the district clerk’s office of the county in which he resides, his authority for ” so practicing, as herein prescribed, together with his age, post office address, place of birth, school of practice to which he professes to belong, subscribed and verified by oath; which, if willfully false, shall subject the applicant to conviction and punishment for false swearing as provided by law. The fact of such oath and record shall be indorsed by the district clerk upon the certificate. The holder of the certificate must have the same recorded upon each change of residence to another county, and the absence of such record shall be prima facie evidence of the want of possession of such certificate.” Article 750.
“Any person shall be regarded as practicing medicine within the meaning of this act: (1) Who shall publicly profess to be a physician or surgeon and shall treat, or offer to treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof. (2) Or who shall treat, or offer to treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method or-to effect cures thereof, and charge therefor, directly or indirectly, money or other compensation.” Article 755.

■ < : ' 1 ' i Very soon after the' act of the Legislature of 1907, p. 225, prescribing this offense, the sufficiency of the state’s pleadings on these two points was expressly decided by this-court in Marshall v. State, 56 Tex. Cr. R. 205, 119 S. W. 310, and Lockhart v. State (two-cases) 58 Tex. Cr. R. 73 and 80, 124 S. W. 923, and it was expressly held therein that it was essential to allege the residence of the accused, and that he had not registered his authority or license in the district clerk’s office of the coufity of his residence. Several Legislatures of the state have had sessions since then, and, in addition, the Revised Penal Code was adopted, and at no time and in noway has the Legislature changed the said, act as originally enacted.

' < 1 < i ¡ < ] i We have again carefully considered this whole act and are of the opinion that, because of the language thereof, both of said allegations are necessary, and' an indictment or complaint and information which omits them is fatally defective. It probably would be sufficient if the pleading should allege that the accused’s residence is unknown, or that he is a nonresident of the state, as the case may be, and that he has not registered his certificate or authority to practice in the county where it is alleged he has unlawfully practiced; but it is unnecessary for us to decide that question in this ease.

We erroneously held the information in Stiles v. State, 148 S. W. 326, sufficient, where it omitted said allegations, and that case on that point is hereby expressly overruled.

Because the information in this case is fatally defective in the two particulars above mentioned, the judgment is reversed, and the cause dismissed.


author: HARPER, J.

text:
    O’HARA v. STATE.
    (No. 3166.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.)
    Weapons (§ 17) — Offenses—Evidence—Sufficiency.
    In a prosecution for unlawfully carrying a pistol, evidence held sufficient to support a conviction.
    [Ed: Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.J
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Charley O’Hara was convicted of unlawfully carrying a pistol, and appeals.
    Affirmed.
    C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of unlawfully carrying a pistol.

George Gresham testified:

“I am a police officer in and for the city of Ft. Worth, and have been for the past several years. I know the defendant, Charley O’Hara; he- is the proprietor of a saloon and restaurant situated on the corner of Thirteenth and Commerce streets, in the city of Ft. Worth. On the 31st day of January last, I arrested three men in the defendant’s restaurant, which is situated just back of his saloon. I carried these parties, after arresting them, just across the street from the defendant’s, where there was a police alarm, and was waiting there for the arrival of the police patrol to carry the parties, whom I had under arrest, to the police station. While we were waiting there, I saw the defendant coming across the street from towards the saloon and approaching us with his hands in his overcoat pockets; after he had gotten up to where I was standing, some one told me that he had a pistol in his overcoat pocket. I turned and asked him for the pistol, and he took it out of the right-hand overcoat pocket and handed it to me.”

Defendant testified and admitted he had the pistol on the occasion testified tó by the officer, but says he did not know the pistol was in his overcoat pocket.

Dave Meredith testified he worked in appellant’s restaurant, and had placed the pistol in the overcoat pocket of appellant while it was hanging on the wall, and had told him nothing about it.

The case was tried by the court without a jury, and he did not believe the explanation offered by appellant’s testimony, and it did not raise a reasonable doubt of appellant’s guilt in his mind. The fact that the officer testified that, as appellant came across the street, he had his hand in the pocket where the pistol was situate would authorize the court to arrive at such conclusion. He saw the witnesses, heard them testify; and, as the state’s evidence will sustain the conclusion arrived at by the court, the judgment is affirmed.


text:
    Ex parte WEBB.
    (No. 3165.)
    (Court of Criminal Appeals of Texas.
    May 27, 1914.)
    Appeal from District Court, Nacogdoches County; D. D. Guinn, Judge.
    Habeas corpus on petition of E. F. Webb to obtain bail on a charge for murder. From an order dismissing the writ, relator appeals.
    Reversed, and bail granted in the sum of
    C. E. Dane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Applicant resorted to a writ of habeas corpus in order to obtain bail under a charge of murder; he having been remanded to custody by the justice of the peace at an examining trial. Upon hearing of the writ, the district judge entered the same order; that is, refused bail. Upon ■ a review of the facts we are of the opinion the court was in error; applicant was entitled to bail. It is not necessary to state. the facts, and, in fact, following our practice in cases of this sort, a discussion of the facts will not be indulged.

Bail will be granted in the sum of $5,000. Upon the giving of bail in this amount the sheriff of Nacogdoches county will approve proper bond and release applicant from custody. The judgment is reversed, and bail is granted in the sum of


text:
    FLANNIGAN v. STATE.
    (No. 3143.)
    (Court of Criminal Appeals of Texas.
    May 27, 1914.)
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    Arthur Flannigan was convicted of felony theft, and he appeals.
    Affirmed.
    C. E. Dane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of a felony theft, his punishment being assessed at two years’ confinement in the penitentiary.

The appeal is before us without a statement of facts or bills of exception. In the absence of a statement of facts and bills of exception, the matters set out in the motion for new trial are not reviewable.

As the record is presented the judgment will' be affirmed.


text:
    HUTTO v. STATE.
    (No. 3158.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Joe Hutto was convicted of murder, and he appeals.
    Affirmed.
    C. E. Dane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction of murder with a penalty of ten years in penitentiary assessed, appellant has appealed.

There is no statement of facts nor bills of exceptions. No question is raised which can be considered in the absence of these.

The judgment is therefore affirmed.


author: CARD, J. B. F. Bowdoin

text:
    WESTERN UNION TELEGRAPH CO. v. BOWDOIN.
    (No. 5304.).
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.
    Rehearing Denied July 1, 1914.)
    1. Master and Servant (§ 330) — Torts of Servant — Actions—Sufficiency of Evidence.
    Evidence, in an action against a telegraph company for an assault committed by an operator making a threatening demonstration and insulting a lady in a dispute about the transmission of some money by the company, held sufficient to support a verdict for the plaintiff in the sum of $300.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dee. Dig. § 330.]
    2. Assault and Battery (§ 2) — Civil Liability-Acts Constituting — ‘ ‘Assault. ’ ’
    Drawing back or lifting the arm to strike one .who could have been hit had she not stepped out of the way constituted an assault, within Pen. Code 1911, art. 100S, declaring that any attempt to commit a battery or threatening gesture, made with the immediate intention and ability to commit a battery, is an “assault.”
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 1; Dec. Dig. § 2.

    For other definitions, see Words and Phrases, vol. 1, pp. 532-538; vol. 8, p. 7582.]
    8. Assault and Battery (§ 38) — Damages— Assault by Servant.
    Damages could be recovered for pain and mental suffering caused by' an assault without a battery, with the remark that the person assaulted was “poor white trash,” and the injury was not lessened because it was not intended to -be heard by the person assaulted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 53; Dec. Dig. § 38.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Action by B. F. Bowdoin against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. B. Dibrell and Emil Mosheim, both of Seguin, for appellant. Jas. A. Harley, H. H. Weinert, and H. E. Short, all of Seguin, for.. appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’T Indexes

   CARD, J. B. F. Bowdoin

brought this suit against the Western Union Telegraph Company to recover damages for injuries alleged to have been inflicted on his wife by reason of the fact that appellant’s agent at Seguin, a woman, and downtown local telegraph operator, on or about January 15, 1912, said to appellee’s wife and her companion, in appellant’s office:

“I did not know such a thing as you lived in the world. You are both fools and have no sense. You.are poor white trash, and the telegraph company is too big for you to sue.”

It is claimed that the lady agent then drew back or lifted her arm to strike Mrs. Bow-doin, who could have been hit had she not stepped out of the way. The petition charges that, by reason of the treatment so received and the fright and shock, Mrs. Bowdoin .became ill and had suffered serious mental and physical pain and damage in the sum of $600.

The appellant denied the allegations, and, upon a trial before a jury, a verdict was returned, upon which judgment was entered for the sum of $300. From this judgment the telegraph company has appealed.

The first, second, and fourth assignments deal with the refusal of the court to sustain a general demurrer, refused to instruct for the defendant, and that the verdict is not supported by the evidence. They will therefore be treated together. /

Mrs. Gill, who lived in San Antonio, had been staying in Seguin, and her husband had on Thursday sent her some money by the telegraph company for the purpose of paying her fare home. This was January 11, 1912, and it was four days later when Mrs. Gill, together with Mrs. Bowdoin, went to the office to get it, when the difficulty occurred. Mrs. Bowdoin claimed that the notice of the arrival of the money was not mailed until 4:30 Saturday, and that they did not get it until Monday. Mrs. Bowdoin said to the agent, Mrs. Allen:

“I think you treated this little lady wrong. She is here on expenses, and her expenses are going on all the time, and her husband forwarded her just enough money to pay them up until Thursday night.”

To this, it is claimed, Mrs. Allen replied:

“What do I care if she had been there a year; it was nothing to me. What do I care if her expenses are going on?”

And she then said:

“Get out of here,” and “raised up her fist as if she was going to strike me over the head.” “She said: ‘Get out of here, you poor white trash; you ain’t nothing hut ignorant fools; 1 can’t learn you nothing and can't tell you nothing. X don’t want no more to do with you.’ ”

At this point, it is claimed the assault was made on Mrs. Bowdoin by Mrs. Allen; it being at the counter or desk in the telegraph office.

Mrs. Allen admits that she made substantially the statements charged, but claims that the two ladies had left the office after getting the money and had gotten Dr. Myers to cpme up to see her about getting the notice about the money which Mrs. Allen had kept, and were at that time not in the office. She says she made the statements to Dr. Myers, no't knowing that the other ladies were standing just outside the door listening, and did not intend that they should hear it. But, as soon as the statements were made, Mrs. Bowdoin stepped into the room and said:

“Never mind, madam, I will make you suffer for this.”

Mrs. Gill said nothing. Mrs. Allen says that she'stated to Dr. Myers:

“I should judge from what they say that they are some poor white trash, trying to get a case against the company.”

She denies that she made any demonstration whatever.

Dr. Wm. Myers is the postmaster at Seguin, and the post office is under the telegraph office. Mrs. Gill and Mrs. Bowdoin got him to go up to see Mrs. Allen to get the envelope in which the notice of the arrival of the money was sent and which Mrs. Allen had retained. He went and stated his business to the agent. He says Mrs. Allen told him:

“No, you don’t understand that; this is my property; that belongs to me; this is my business. And I explained it to these ladies, and these ladies don’t seem to understand it; they are poor ignorant people, common white trash.”

And he says she said it in a “slighting manner, as if she was slighting them.” He did not know they were at the door. There was evidence that Mrs. Bowdoin was ill for about two months, as a result of the trouble, and since has been subject to nervous attacks and breakdowns. Mrs. Allen says she did not intend that the ladies should hear what she stated to Dr. Myers and did not know they were at the door.

“Any attempt to commit a battery, or any threatening gesture showing, in itself or by words accompanying it, an immediate intention, coupled with an ability to commit a battery, is an assault.” Penal Code, art. 1008 (587).

It has been held that damages may be recovered for pain and mental distress, where an assault was committed, although there was not battery. Leach v. Leach, 11 Tex. Civ. App. 699, 33 S. W. 703, which case was affirmed by the Supreme Court without an opinion, 93 Tex. 666; Lonergan v. Wm. Small & Co., 81 Kan. 48, 105 Pac. 27, 25 L. R. A. (N. S.) 976. Lonergan v. Wm. Small & Co. Case, supra, is a well-considered case.

In Davidson v. Lee, 139 S. W. 907, Judge Pleasants says;

“The rule that damages cannot be recovered for mental suffering, unaccompanied by physical injury, is not applicable, when the wrong complained of is a willful one, intended by the wrongdoer to wound the feelings and produce mental anguish and suffering, or from which such result should be reasonably anticipated, as a natural consequence.”

See, also, Perkins Bros. Co. v. Anderson, 155 S. W. 556.

The wife of appellee had a right to go to appellant’s place of business, and the company’s agents and servants owed her civil treatment. The language used to her, or concerning her, if we adopt Mrs. Allen’s theory, was the most insulting that could he used. Granted that it was not intended that Mrs. Bowdoin should hear it, that does not alter the fact that Mrs. Allen offered to her the must cutting insult that could have been made to a lady not in good circumstances in life. To be poor is felt keenly enough by any one; and then to be called “poor white trash” is more than human nature, with any .degree of self-respect, should be expected to stand. A blow upon the person would be nothing as compared to the humiliation occasioned by an insult such as is shown to have been offered in this case. And we are unable to see how the injury is lessened by the fact that Mrs. Allen did not think Mrs. Bowdoin heard the insulting remarks. The whole matter has been passed upon by a jury, and we think the petition showed a cause of action and the proof sustained the allegations. These three assignments, are overruled.

The second assignment is without merit, and is likewise overruled.

The judgment is affirmed.


author: PLEASANTS, C. J.

text:
    STATE ex rel. CAROUTHERS v. DOWDELL et ux.
    (No. 6572.)
    (Court of Civil Appeals of Texas. Galveston.
    May 14, 1914.
    Rehearing Denied June 11, 1914.)
    1. Habeas Corpus (§ 99) — Custody of Child — Right of Pahent.
    While the best interest of a child will be determinative of the question of its custody, the presumption is in favor of the surviving parent, and, in the absence of evidence showing his disqualification, he has a paramount right to the custody of his child which the courts are not at liberty to disregard.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    2. Habeas Corpus (§ 85) — Custody of Child — Qualification of Surviving Parent.
    On an application of a father for custody of his infant child on the death of his wife, as against the child’s maternal grandparents, there being evidence that the father had since boyhood been a good citizen, industrious and law-abiding, that he lived with his mother, who had a small farm and was able to support the child, proof by the child’s maternal aunt that the father on two occasions had been intoxicated and on one occasion had punished the child with a switch as large as a woman’s finger was insufficient to justify the court in denying him the child’s custody.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dee. Dig. § 85.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Habeas corpus by the State, on the relation of Nathan Carouthers, against James Dowdell and wife. Judgment for defendants, and relator appeals.
    Reversed and rendered.
    Singleton & Nall, of Kountz, for appellant. Stevens & Stevens, of Liberty, for appellees.

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

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

   PLEASANTS, C. J.

This is a habeas corpus proceeding instituted by appellant, Nathan Carouthers, against the appellees to recover possession of his minor child, Elvy Carouthers. The respondents, Dowdell and wife, are the father and mother of Pearl Carouthers, the deceased mother of the minor, Elvy, and wife of appellant. Mrs. Ca-routhers died at the home of her parents in Liberty county. She and her husband went from their home in Hardin county to visit her parents on August 10, 1912, and she was taken sick the day after they reached appel-lees’ home and continued sick with typhoid fever until her death therefrom on November 11, 1912. During her sickness she became estranged from her husband, and on November 1st instituted a suit against him in the district court of Liberty county for divorce. Some time before the death of Mrs. Carouth-ers appellees made appellant leave their home, and he was not permitted to see his wife or child again. Two days before her death Mrs. Carouthers executed the following instrument:

“I am_ having my sister Slyvina Young to write this to let everybody know I want to give my baby Elvy to my mother this the 9th day of Nov. 1912 for I don’t want Nathan to have her as he has treated her so cruel and has been the cause of my death for my throat are what is killing me.
her
“[Signed] Pearl X Carouthers.
mark.
“Witnesses: David Dowdell. Sylvina Young.”

A few days after his wife’s death appellant sent his father to appellees to get the child for him, and they refused to let appellant have her, and this proceeding was thereafter instituted by him for the purpose of obtaining possession of his child.

Appellant is 24 years old. He lives with his mother, who owns a place of 70 acres in Hardin county, and who, the testimony shows, is willing and able to help appellant take care of his child. He has a sister and three brothers younger than himself and all Of whom live with their mother. The sister is 14 years old and will also help appellant in caring for his child. In regard to how he would take care of the child, appellant testified:

“I say that my mother can support the child. Now as to you thinking to — well, my mother can take care of it, but I am going to support it. I am just going to leave it there with my mother, and I will be staying there working there. Now as to what I meant saying that my mother can support the child and • as to whether my mother is able to support the child —well, she is able to support it, but she is going to take care of it. I want to take the child with me and support-it and have the right to love and educate it; that is what I want to do. I do not expect my mother to keep me and the baby there, but I am living there and working there. I want to turn the child over to my mother to take care of it for me where I can be with it.”

A number of witnesses, among them being several, officers and ex-officers of Hardin county who had known appellant since his boyhood, testified that he was a good citizen, industrious, temperate, and law-abiding, and that such was his reputation. He owns no property except two horses and some hogs. His occupation is that of a farmer and laborer. During his married life he lived for about six months with the appellees, and thereafter he and his wife lived on a small place belonging to his mother and near her residence. The child Elvy at the time' of the trial in the court below, April 30, 1913, was 19 months old. A sister of appellant’s deceased wife, who lives with the appellees, testified that she had seen appellant drinking on two occasions; her statement being as follows:

“The first time I saw Nathan Carouthers drinking was at Papa’s just about a week before Christmas .year, before last. Nathan at that time was living at Papa’s, staying there. That was the first time I ever seen him drinking. I saw him drink whisky then. He drank it on the gallery at the house. He was pretty well drunk when he got there. I don’t really know what time of day it was he got to the house. The others that was there at that time was me and my mother, and father was there, and his wife. The other time I saw him drunk was when his wife was sick. That was not a year later; it was about seven or eight months I suppose; I don’t really know how long it was between the times. I seen him about three or four times in that interval of eight months. I stated on my direct examination that I had been acquainted with him four or five years; these are the only times I ever saw him drinking and saw what he drank. So far as I know, those are the only two times he was ever drunk. He was not drunk enough to be down there. He was still able to navigate.”

Another witness testified that on one occasion during Mrs. Carouthers’ last sickness he was called upon to arrest appellant on a charge of unlawfully carrying a pistol and that at that time he smelled whisky on, appellant’s breath.

The sister-in-law also testified that during Mrs. Carouthers’ sickness she saw appellant whip the child Elvy with a switch the size of her finger to make her stop crying. She did not testify that the child was whipped severely; her only statement being that he whipped her across the head and shoulders.

There is no evidence tending to show that appellant- was ever cruel to his wife or mistreated her in any way, except tlie allegations contained in the petition for divorce filed by Mrs. Carouthers during her last sickness, and statements made by her to her sister. Appellant objected to this evidence as hearsay, and, it being clearly inadmissible, it cannot be considered for any purpose. Appellant denied that he ever whipped his child and denied all of the allegations of the divorce petition and the statements of his wife as to his mistreatment of her.

The physician who treated Mrs. Carou-thers during her last sickness testified that appellant seemed to think as much, of his wife as any man could. He further testified that Mrs. Carouthers died from typhoid fever, and that:

“It is frequently the case with people in that condition that they have hallucinations and imagine things that never did happen.”

There was also testimony to the effect that Mrs. Carouthers, appellant’s mother, was addicted to the use of morphine. To what extent she uses it i% not shown, and there is no evidence that her use of the drug has incapacitated her for the performance of her household duties or will prevent her from assisting appellant in caring for his child.

The appellees are good people and own a 50-acre farm on which they live. They are very fond of the child and are able and anxious to care for and support it.

These facts did not authorize the trial court to deny appellant the right to the custody of his child. While it has been uniformly held that in cases of this kind the best interest of the child should determine the question of its custody, it is equally well settled that the presumption is in favor of the parent, and, in the absence of evidence showing the disqualification of the parent for the proper discharge of his parental duties, he has a paramount right to the custody of his child which the courts are not at liberty to disregard. State v. Deaton, 93 Tex. 243, 54 S. W. 901; Watts v. Lively, 60 S. W. 676; Parker v. Wiggins, 86 S. W. 788; Sancho v. Martin, 64 S. W. 1015; Hall v. Whipple, 145 S. W. 308.

A strict observance of this rulé is essential to the welfare of society. To disregard it, or to lightly set it aside, is to invade the sacredness of that love and sense of responsibility which God has implanted in the heart of the parent for his offspring, and will necessarily tend to either destroy or weaken the love of the parent for the child or arouse in him a feeling of injustice and resentment which is' likely to stifle all of his highest aspirations and to result in evil to society.

Giving the evidence offered by appellees upon the question of appellant’s qualification to discharge the duties of a parent its strongest probative force, it cannot be held to authorize the conclusion that he is unfit or unworthy to be trusted with the custody of his child. Whipping the child on one occasion with a switch as large as a woman’s finger does not authorize the conclusion that he would be cruel or harsh in his treatment of her; there being nothing in the statement of the witness as to this whipping that indicates that the child was severely or unjustly punished. The fact that on two occasions, one of them being just before Christmas, 1911, and the other seven or eight months thereafter, he was under the influence of liquor, or, as the witness stated, “pretty well drunk,” cannot in view of the testimony of witnesses who had known him intimately most of his life, to the effect that he rarely ever took a drink and was never seen by them under the influence of liquor, be held to disqualify him to have the custody of his child. The evidence upon the question of his temperance is overwhelming in his favor, and there is no evidence that he was a habitual drinker or that he was ever under the influence of liquor, except on the two occasions testified to by his wife’s sister, and if her statement is true it would be wholly unreasonable to conclude that because of his having been intoxicated on these two occasions he is unfit to be trusted with the custody of his child.

To what extent his mother, to whose home he intends to take his child, is addicted to the morphine habit is not shown. Certainly there is nothing in the evidence to justify the conclusion, that it has disqualified her from assisting appellant in the care of his child.

The evidence, we think, compels the conclusion that appellant is able to take care of his child and that he can be trusted with her custody. This being true, he is entitled to her custody, notwithstanding the fact that the child’s grandparents are just as worthy of her custody and more able to provide for her than he. Watts v. Lively, supra.

It is unfortunate that this child cannot have the care and protection, as it has the love, of both appellees and appellant; but when the rights of the parties are put in issue, upon the evidence in this record, that of the father must prevail.

It follows from these conclusions that the judgment of the court below should be reversed, and judgment here rendered in favor of appellant, and it has been so ordered.

Reversed and rendered.


author: McMEANS, J.

text:
    H. W. JOHNS-MANVILLE CO. OF TEXAS v. H. D. APPELGATE & SON.
    (No. 6590.)
    (Court of Civil Appeals of Texas. Galveston.
    May 14, 1914.
    Rehearing Denied June 4, 1914.)
    Sales (§ 442) — Action fob Peice — Verdict— Speculative Award.
    Where, in an action to recover the purchase price of certain roofing used by defendants on certain school buildings, defendant pleaded breach of warranty and damages resulting from leakage of the roofs, and from the eyidenee the jury could have found that the entire damage sustained by defendants was caused by leakage or that the entire damage was due to other causes, but there was no evidence to authorize the jury in the event they found that the damage was ail caused by leakage to find a less sum than the entire damage sued for, a verdict for defendant for a part only of the damages demanded was unsustainable as speculative.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by H. W. Johns-Manville Company of Texas against H. D. Appelgate & Son. Judgment for defendant, and plaintiff appeals.'
    Keversed and remanded.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellant. Jas. A. Harrison and E. E. Easterling, both of Beaumont, for appellee.

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

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

   McMEANS, J.

The following statement of the nature of the case made by appellant in its brief is adopted: The H. W. Johns-Manville Company of Texas brought suit against H. D. Appelgate & Son seeking to recover the sum of $889.62 with lawful interest thereon, which was the contract price of 360 squares of 4-ply heavy Brooks asbestos roofing, which had been furnished by the plaintiff to the defendant for the.purpose of covering certain school buildings in the city of Beaumont. Upon the trial the defendants admitted that the plaintiff had a good cause of action and that they were liable to pay the amount sued for unless such liability was defeated on their answer and cross-action. By way of offset and reconvention the defendants alleged in their third amended original answer that the plaintiff had sold the roofing in question to the defendants knowing the purpose for which it was to be used and had represented and warranted that said roofing would make a water-tight roof and would remain water-tight and would not need any repairs for a period of ten years; that relying thereon defendants had ordered the roofing in question and had put the same on the school building according to the instructions and directions of the plaintiff; but that the same did not prove to be watertight; and that the said roofs leaked badly and that the roofing was ineffective to turn water. And defendants alleged that the said roofing was of no value to them and did not comply with any of the representations and warranties of the plaintiff, and that the consideration moving the defendants had entirely failed. The defendants further alleged that the roofs of all three of the school buildings, as constructed of the roofing material in question, before said buildings were finished and delivered, leaked badly in numerous places, and that defendants were required to turn over the school buildings in good condition to the school board, and, believing they could fix said roofs so that they would not leak, attempted to patch the same so as to make them water-, tight, and in doing so they expended for labor and material on the roof of the Millard School building $126, on the South End School building $130, and on the Averill School building $81.50, amounting to a total of $337.50 expended for labor and material in repairing and patching the roofs in question. The defendants failed to make proof of the amount of labor which was expended in these respects, and that issue was not submitted in the case. The defendants also alleged that, after the roof on the Millard School building was completed, the roof leaked badly in many places in every part of said building, and that the water came through the said roof and so damaged the kalsomine in the building that the defendants were compelled to rekalsomine the entire Millard School building, which they did at the cost of $480, and they alleged that after they had patched said roof on the Millard' School building the said roofing would not turn the water and continued to leak over the entire building to such an extent that the kalsomin-ing put on the second time by the defendants was so damaged that they had to rekalso-mine the same, which they did at the cost of $161.55; and they alleged that because of said roof on the Millard School building continuing to leak and not turning the water they were forced to rekalsomine the ceiling of said building the third time at a cost of $161.55. The defendants made substantially the same allegations with respect to the South End School building, and they alleged that it cost $330 to rekalsomine it one time, and that they rekalsomined it two other times at a cost of $99.30 each time; and defendants alleged that the cost of rekalsomin-ing the Averill School building the first time was $296.55, and defendants sought to recover the aggregate sum of $1,628.25 for re-kalsomining the three buildings the three different times. The defendants alleged that all of the repairing of the roofs, so done by them, was in the belief that they could make the roofs water-tight and was in the contemplation of the parties at the time the roofing was ordered, and that all of their expenditures resulted from the roofing material not being water-tight, as represented and warranted, and that none ■ of such repairs were caused by the fault or want of care on the part of the defendants. The defendants also sought to recover in their cross-action the sum of $500, which sum they alleged that the school board of Beaumont had held out of the contract price when the school buildings were turned over, for the purpose of repairing the roofs of the school buildings. And they alleged that the school board had expended that amount in an effort to make the roofs of the school buildings water-tight after the buildings were turned over to the school board, but that the school board was unable to make the roofs water-tight on account of the fact that the roofing material would not turn water. And it was alleged that the school board had a right to retain such amount out of the contract price because said sum was reasonably necessary to make further repairs on the roofs in question, and that therefore the defendants by their cross-action were entitled to recover that amount against the plaintiff. The case was tried before a jury, and a verdict was returned in favor of defendants on their cross-action for $1,349.44 less the amount due plaintiff in the sum of $889.62, giving the defendants a judgment against plaintiff for the sum of $459.82. From this judgment the plaintiff has appealed.

Tliere was testimony offered on the trial from which the jury might have concluded that the roofing material was unfit for the uses to which it was applied, and that in consequence the roof leaked and that the defendants were damaged in the manner and to the extent alleged by them in their cross-bill. On the other hand, there was testimony introduced from which the jury might have found that the material was as represented by plaintiff in regard to its quality and capacity to turn water, but that the leaking and consequent damage to defendants was due in part to the manner in which the defendants put the roofing on the houses, and partly to the manner in which the fire walls and flashing had been constructed and the insufficient size of the down spouts to let the water escape from the gutters.

Appellant by its fifth assignment of error complains that the verdict of the jury is without evidence to support it, in that there were no facts proven by which it could be determined the extent of the damages caused by water entering the buildings in question through the roofs, and because it appears that the damages assessed were fixed by guess and speculation, since the jury found for defendants a sum less than the defendants claimed as damages, and that it follows that the jury must necessarily have found that some of the damage was occasioned by water entering the buildings through causes for which appellant was not responsible.

As before shown, the jury could have found from the testimony that the entire damage sustained by the defendants was caused by the leaking, due to the inferior quality of the roofing material to turn water, or the jury might have found that the entire damage was due to other causes. There was no testimony to authorize the jury, in the event they found that the damages were all caused by the leaking of the roof, to find a less sum than the entire damage sued for; in other words, there was an entire absence of evidence to authorize the jury to apportion the damages arising from both causes, with any degree of accuracy, and therefore the verdict rendered must have been the result of guess or speculation, and for this reason should have been set aside.

We have examined all of appellant’s assignments of error and, except as above stated, no reversible error is found in any of them. For the error indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


text:
    MOORE v. CHAPMAN et al.
    (No. 6639.)
    (Court of Civil Appeals of Texas. Galveston.
    June 2, 1914.
    Rehearing Denied June 18, 1914.)
    New Trial (§ 163) — Order Granting — Correction of Entry — Evidence.
    Where, in a suit to correct an order entered on the minutes, which, as entered, showed that a motion for hew trial was overruled, while in fact it was granted, the presiding judge testified that he granted the motion, but did not dictate the order appearing in the minutes, and that the signing of the minutes showing the overruling of the motion was a mistake, and the motion docket showing the granting of the motion- for new trial was received in evidence, the court properly granted relief by the entry of a nunc pro tunc order correcting the entry so as to show the granting of the motion.
    [Ed. Note. — For other cases, see New Trial, Cent Dig. §§ 330-332; Dec. Dig. § 163.]
    Appeal from District Court, Tyler County; A. E. Davis, Judge.
    Action by J. R. Chapman and others against Sim Moore. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Joe W. Thomas and Joe A. Harper, both of Woodville, for appellant. Andrews, Ball & Streetman, of Houston,' and Terry, Cavin $£ Mills, of Galveston, for appellees.

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

   McMEANS, J.

Appellee Chapman brought this suit to correct an order entered on the minutes, which, as entered, shows that the defendants’ motion for a new trial in cause No. 3130, styled Sim Moore v. J. R. Chapman et al., was overruled, but which motion they alleged was in fact granted. He alleged: That, during the term at which the judgment against him for the land in controversy was rendered, he filed a motion for a new trial, which during that term was acted on by the court and the motion granted; the judge making a notation on his motion docket as follows: “Motion for new trial granted.” That the court adjourned on the same day, and that the order granting said motion for a new trial was not properly or correctly carried into the minutes, but by inadvertence and mistake the following order was carried into the minutes in said case, viz.:

“This day came on to be heard defendant’s motion for a new trial, all parties announced ready thereon, and, after hearing said motion read and argument of counsel, the court is of the opinion that the law is against the motion. It is therefore ordered, adjudged, and decreed by the court that the defendant Sim Moore’s motion for a new trial be and the same is hereby denied, and the same is overruled.”

That there had been at that time pending in the court a certain case, entitled J. R. Chapman et al. v. Sam Chambliss et al., and that by inadvertence and mistake the two causes were confused in carrying the order granting to the defendant a new trial in the Moore Case into the minutes, and the minutes did not in fact speak the truth as to the order entered on the motion for a new trial in the Moore Case. He further alleged that neither he nor his attorneys knew of the erroneous entry of the order, and hence did not appeal therefrom, but filed this suit as an independent action. He prayed that the said order as entered into the minutes be set aside, and that the minutes be made to correctly speak the order which was actually made by the judge granting the defendant’s motion for a new trial. The appellant Moore answered by general denial and specially alleged that the entry of the order in the minutes overruling appellee’s motion for a new trial was not the result of mistake or inadvertence, but in accordance with the order deliberately made by the judge presiding. A trial before the court without a jury resulted in a judgment vacating and setting aside the order as entered on the minutes and declaring the same to be void and of no effect, and decreeing that in lieu thereof the following order be entered in said case nunc pro tunc:

“On this the 17th day of August, 1912, at this the regular July, 1912, term of this court, there came on to be heard in regular order the motion of defendant J. R. Chapman herein for a new trial of this cause, and the court, having fully considered said motion and having heard argument of counsel thereon, is of the opinion that' said motion is well taken and should be granted. It is accordingly ordered, adjudged, and decreed that the judgment heretofore at this term rendered in this cause, and the verdict of the jury upon which said judgment was rendered, be, and the same are hereby, set aside, vacated, and annulled, and that the motion of the said defendant J. R. Chapman for a new trial of this cause be, and the same is hereby, in all things granted.”

From this judgment the appellant Moore has prosecuted this appeal.

Appellant by- his first assignment of error complains that the action of the court in setting aside the order as entered in the minutes, denying appellee’s motion for a new trial, was erroneous for the reason that the order had been duly entered and approved by the court, and that defendant’s only remedy was to appeal therefrom, and that the order, as entered in the minutes, could not be impeached by oral testimony, and that there was no legal testimony to impeach said order. He contends by his proposition under this assignment that:

“A court is without power or authority to gainsay its orders and decrees rendered at a former term by setting them aside and rendering another and different order, especially so when its action is based upon parol testimony.”

The following testimony offered at the trial was uncontradicted: Judge W. B. Powell was the judge who tried the case of Sim Moore v. J. R. Chapman et al. (No. 3130), and who heard the motion for a new trial presented by appellee in that case. He was afterwards succeeded by Judge A. E. Davis, who presided at the hearing from which this appeal resulted. Judge Powell testified that he passed upon the questions raised by Chapman’s motion for a new trial in the ease of Moore v. Chapman (No. 3130), and that he granted the motion, and that there was an order on the judge’s motion docket made by him granting the motion; that he did not dictate the order as the same appears in the minutes, but that it was written up by the clerk; that there was considerable hurry that afternoon in getting the minutes written up, as court was about to adjourn, and that it was a mistake on his part if the minutes showed any order overruling the motion; that when he signed the minutes he thought they contained an order granting the motion; that the reason he remembered granting the motion was that it raised a new question upon which he was of the impression that he had committed error on the trial.

Appellee introduced in evidence the order upon the motion docket granting defendant’s motion for new triali in cause No. 3130, Moore v. Chapman et al. It was shown that none of the attorneys for Chapman were present when the motion was acted on, but that they were informed by the court official that it had been granted.

The action of the court did not in any way gainsay any order rendered by it at the former term by rendering another and different order. The court found that the order entered in the minutes at the former term overruling the defendant’s motion for a new trial did not speak the truth, and the only effect of the judgment appealed from is to correct the minutes so as to cause them to correctly reflect the order which was actually made. This the court had power to do and it was its duty to do under the facts proven. The fact that the corrected judgment is based partly upon parol testimony, or even had it been based wholly upon parol testimony, does not in any way affect the sufficiency of the evidence to sustain such judgment. Article 2015, Revised Statutes 1911; Blum v. Neilson, 59 Tex. 378; Hickey v. Behrens, 75 Tex. 488, 12 S. W. 679; Railway v. Roberts, 98 Tex. 42, 81 S. W. 25; Partridge v. Wooten, 137 S. W. 412; Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040. And such correction could be made upon the judge’s personal recollection of the fact that the order had been made. State v. Larkin, 41 Tex. Civ. App. 253, 90 S. W. 916; Slayden v. Palmo, 90 S. W. 908. The assignment is overruled.

We have examined all'of appellant’s assignments of error and are of the opinion that none of them points out reversible error. The judgment of the court below is affirmed.

Affirmed.


text:
    SCHATTENBERG v. HOUSTON E. & W. T. RY. CO.
    (No. 6648.)
    (Court of Civil Appeals of Texas. Galveston.
    May 19, 1914.
    Rehearing Denied June 18, 1914.)
    1. Judgment (§ 106) — Default Judgment-Default in Pleading — Excuses.
    While under Rev. St. 1911, art. 1934, providing that the second day of each term of the district or county court is appearance day, and article 1936, providing that, upon the call of-the appearance docket or at any time after appearance day, plaintiff may take judgment by default against a defendant duly served with process, who has not previously filed an answer, plaintiff would ordinarily have been entitled to judgment by default on the appearance day of the April term where, though service was perfected in time to require defendant to answer at that term, no answer was filed, the court did not abuse its discretion in refusing to grant judgment by default and in treating the case as an appearance case for the July term and denying a judgment by default on the first day of that term, where, at the January term, it had ordered that only probate matters would be heard at the April term, that no civil matters would be called for trial and no judgment by default or otherwise rendered, and that no cases would be tried except by agreement, since the judge is invested with a large discretion in the matter of the control of his docket, and would doubtless have set aside a default judgment on the simple showing that defendant relied upon the order of the court continuing the docket.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dee. Dig. § 106.]
    2. Railroads (§ 484) — Actions for Injuries bt Fire — Questions for Jury.
    In an action against a railroad company for the value of pecan trees destroyed by fire, evidence held to make a question for the jury as to whether the fire was set out by defendant’s locomotive, and a verdict for defendant was therefore improperly directed.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.]
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
    ' Action by A. C. Schattenberg against the Houston East & West Texas Railway Company. From a judgment on a directed verdict for defendant, plaintiff appeals.
    Reversed and remanded.
    Arthur A. Seale, W. A. Wade, and June O. Harris, all of Nacogdoches, for appellant. Baker, Botts, Parker & Garwood, and Jno. T. Garrison, all of Houston, for appellee.

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

   McMEANS, J.

Appellant, Schattenberg, brought this suit against the appellee to recover damages in the sum of $600, the alleged value of certain pecan trees claimed to have been destroyed by fire alleged to have been started by the negligent escape of fire from appellee’s locomotive, while being operated over its railway track. After hearing the evidence the court instructed the jury selected to try the case to return a verdict for appel-lee, and this being done, judgment was accordingly entered for appellee, and Schatten-berg has appealed.

The original petition was filed April 5, 1913, and service of citation was perfected in time to require the defendant to answer at the April term of the court, which convened 15 days later. On appearance day, no answer having been filed by the defendant, the plaintiff in open court asked for judgment by default with a writ of inquiry. This was denied by the court, and no further action was sought or taken in the case at that term. On the first day of the next succeeding term, held in July, 1913, the defendant still not having answered, the plaintiff again appeared in open court and asked for a judgment by default with a writ of inquiry. This was bi-so denied, and plaintiff took a bill of exceptions. In explanation of his action the trial judge added the following qualification to the bill of exceptions:

“The April term comes in the spring of the year, and it has been customary not to have at said term the trial of cases, and at the January term, 1913, it was ordered by the court that only probate matters would be heard at the April term, 1913, and that no civil matters would be in any manner called for trial, and no judgment by default or otherwise rendered, and no cases tried unless by agreement of all parties, except two or three specific cases in which it was agreed that, if the parties wanted juries, the sheriff might summons them; and no jury was drawn for the April term, 1913, for the above reasons, and no trials were had except in some of the above-excepted cases, and under the orders of the court this case was considered by it as an appearance case at the July term, 1913, and this rule was enforced in the cases.”

Appellant, by his first assignment of error, complains of the action of the court in denying him judgment by default on the first day of the July term, 1913.

The statutes make the second day of a term of the county court appearance day, at which time the plaintiff may take judgment by default if the defendant has not answered. Revised Statutes 1911, arts. 1934, 1936. This being true, the plaintiff in this case, under ordinary circumstances, was entitled to a judgment by default on appearance day of the April term; the defendant not then having answered. But the court having at the preceding term made an order to the effect that no civil cases would be tried at the April term and. no judgment by default allowed,, and the defendant presumably being apprised of the order, was justified in assuming that no judgment would be taken against it by default, and therefore was excusable for not filing an answer at the April term. The judge is invested with a large discretion in the matter of the control of his docket and in setting default judgments aside upon proper showing, and we cannot imagine that had he allowed the judgment by default when requested at the April term, or on the first day of the July term, he would have had the least hesitancy in setting it aside upon the simple showing of the defendant that he had relied upon the order of the court continuing tLe docket, and in view of the general custom of that court in reference to its business at the April term and of the order made at the preceding term. We cannot say that the judge, in these circumstances, abused his discretion by treating the case as an appearance ease for the July term, and in not allowing a judgment by default on the first day thereof. The assignment is overruled.

The second assignment complains of the action of the court in instructing a verdict for the defendant.

Plaintiff was the owner of a large number of young pecan trees growing a short distance from defendant’s railroad. Defendant had permitted its right of way to grow up in grass and weeds, which, on the advent of winter, had become dead and dry and very inflammable. Plaintiff lived about 1% miles east of Garrison and a short distance east of the pecan orchard. Plaintiff’s wife testified that she left her home to go to Garrison between 1:30 and 2 o’clock in the afternoon, and that in going to Garrison she had to travel close to the railroad; that when she left home there was an engine and cars on a spur track opposite her house, east of the pecan grove, loading ties, and that the engine was headed east; that there was no fire burning on the right of way as she went to town; that before she reached Garrison she met or was passed by a train, she could not remember which; that when she returned home that afternoon the orchard had been burned over.

H. Williamson, who lives 300 or 400 yards from plaintiff, testified: That he passed plaintiff’s house on his way to Garrison early in the afternoon of the day of the fire. He was in a buggy with E. M. Rhodes. That after he passed plaintiff’s home, and at a point opposite the orchard, he noticed a little fire on defendant’s right of way opposite the pecan orchard, and two of Mr. Campbell’s little boys were trying to put it out. That the fire had then burned over a space about 20 feet square. The grass on the right of way was grown up and dry. Did not remember seeing any train after he left his house and as he was on his way to Garrison. Had seen engines on defendant’s railroad set out fires along the right of way. The engines burn oil.

E. M. Rhodes testified in substance that he lives at Timpson, and on the day of the fire had started to Garrison in a buggy, and as he went by Williamson’s house he picked him up and they rode together to Garrison; that he passed the pecan orchard about 1 o’clock and saw the little fire testified about by Williamson, and testified about the two boys trying to put it out; that he met a train on defendant’s railroad before he got to Schattenberg’s. Witness says he passed the place where the fire was about 1 o’clock.

Glenn Campbell, 12 years old, testified in substance that he saw the fire that burned through the pecan orchard, and it was then about 3:30 o’clock in the afternoon; that it was burning on the right of way when he saw it and had already spread over and burned the trees; that when he and his brother-got to the fire it was burning toward* and along the right of way, having already burned the orchard, and that they stopped and tried to put it out; that he did not see or hear any train pass while walking up the railroad track.

This is the substance of all the testimony offered to prove that the fire was set out by defendant’s locomotive. The defendant offered no proof. We think that this testimony was sufficient to raise the issue presented by the pleadings, and that the court incorrectly took the issue from the jury by instructing a verdict for defendant. The circumstances were sufficient to indicate that the fire was set out by defendant’s locomotive. A train had only recently passed before the fire was seen by Williamson and Rhodes, and the only place where the grass was then burning was upon the right of way where the grass and weeds were tall and dry. This was sufficient, we think, to raise the issue of the fire being set out by the locomotive, and sufficient to shift to the defendant, which offered no evidence, the burden of proving that its locomotives were equipped with proper spark arresters or other devices to prevent the setting out of fires, and of due care and diligence upon the part of its operatives in handling the train. Railway v. Timmerman, 61 Tex. 663; Railway v. Ratliffe, 2 Willson, Civ. Cas. Ct. App. § 681.

The judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: FLY, C. J.

text:
    GILLESPIE COUNTY v. FREDERICKSBURG LAND CO.
    (No. 5314.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.
    On Motion for Rehearing, June 22, 1914.)
    1. Highways (§ 154) — Obstbuctions — Bbidges — “Nuisance.”
    The principal street in an unincorporated town ran to a creek, but that end of the street was not used because a hi„h bluff on the opposite bank prevented a crossing there. About 200 feet from the creek a road turned off the street, crossed the creek several hundred yards from the street, and then turned so as to cross a prolongation of the street. A land company constructed a substantial wooden bridge with an easy approach on the unused end of the street connecting with such road, shortening the distance across the creek to the road. Held, that such bridge and approach did not constitute a nuisance and would not be ordered removed at the instance of the commissioners’ court of the county, as its removal would be an injury and not a benefit, and, to create a “nuisance” from the use of property, a material, substantial, and appreciable injury must be occasioned to the person or property of another.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 418; Dec. Dig. § 154.]

      2. Injunction (S IS)—Grounds of Relief— Substantial Character of Right.
    A court of equity will not grant an injunction for the purpose of protecting a technical or unsubstantial right.
    [Ed. Note.—For other cases, see Injunction, Cent. Dig. § 13; Dec. Dig. § 13.]
    On Motion for Rehearing.
    3. Highways (§ 159) — Obstructions — Actions—Sufficiency of Evidence.
    In a suit by a county to compel the removal of a bridge and approach constructed by a private party, evidence held to show that they did not obstruct the road and street connected thereby.
    [Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 430, 431, 435; Dec. Dig. § 159.]
    4. Injunction (§ 12)—Grounds for Denial of Relief—Lack of Injury.
    An injunction will not be granted where no probable injury can arise from the act sought to be restrained.
    [Ed. Note.—For other eases, see Injunction, Gent Dig. § 12; Dec. Dig. § 12.]
    Appeal from District Court, Gillespie County; Clarence Martin, Judge.
    Suit by Gillespie County against the Fred-ericksburg Land Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    H. C. Geddie, of Kerrville, for appellant. N. T. Stubbs and Alfred P. C. Petsch, both of Fredericksburg, for appellee.

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

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

   FLY, C. J.

Appellant sought to compel ap-pellee to remove a dump and bridge out of San Saba»street in the unincorporated town of Fredericksburg, and out of the San Antonio-Austin-Fredericksburg Road, and restrain it from again building such dump and bridge. The court refused to issue the writ of injunction.

San Saba street is the principal one in Fredericksburg, and one end runs into a cul-de-sac on Barron’s creek; that end for some distance not being used, as a high bluff on the opposite side of the creek from the town prevents a crossing there. At some 200 or more feet from the bed of the creek, the San Antonio road turns off the street in order to get to a crossing, and after crossing the creek turns so as to cross a prolongation of San Saba street. Appellee built a bridge ■across the creek and an approach to it on the unused end of San Saba street. The bridge was shown to be a substantial wooden structure with an easy approach which does not in any manner interfere with or obstruct any traveled portion of the road or street, and ■the bridge and approach have shortened the distance across the creek to the San Antonio road which is intersected by-a prolongation of the street. The street and road are rendered much more convenient by the erection •of the bridge and approach, aud, instead of being a nuisance, is of incalculable benefit to the people of Fredericksburg and Gillespie county. It renders the creek passable in times of high water and shortens the distance for all who travel the road.

To destroy the bridge across the creek would not only be of no benefit to appellánt, but would be of great public injury to the citizens of the county, and a court of equity will not grant an injunction for the purpose of protecting a technical or unsubstantial right. Beach on Inj. § 1067; Joyce on Inj. § 21. In order to create a nuisance from the use of property, a material, substantial, and appreciable injury must be occasioned to the person or property of another. In this case there was no injury, but a positive benefit. An unused and unusable portion of a street was improved, a good bridge put'across the stream, which should have been there long ago, and the distance shortened for those who desire to travel in that direction. “Without money and without price” a substantial improvement has been made for the county, which its commissioners’ court desires torn down and destroyed without giving any reason for such desire except that “the construction of a wooden bridge across Baron’s creek is impracticable, and this court having no desire to assume any responsibility on the part of the county.” The able judge who heard the facts very properly refused the aid of a court of equity to destroy the bridge tendered to the county.

There were no obstructions placed in the street, but merely modern improvements made that will be of lasting benefit to the county and town, and the evidence justified the court in finding that the bridge was not a nuisance but a blessing.

The judgment is affirmed.

On Motion for Rehearing.

The part of San Saba street used for the dump or approach to the bridge was never used and could not be used for a street, because it ran off into the creek and against an impassable bluff. Then why contend that its “free use” is being obstructed? That the road that turned off from the street above the end of the bridge approach was not obstructed is fully shown by the evidence. Not by all the evidence, because appellant’s witnesses swore that it was obstructed, but the trial judge chose to take the evidence of other witnesses in preference, and this court follows his finding as to the credibility of the witnesses and the weight to be given to their testimony. The surveyor stated that the railings of the bridge did not reach the road. The road turns from the street east and runs down to the creek about 300 or 400 yards from the bridge, then crosses at a place where there is a high bahk. The people have been pulling up that bluff for 50 years, and, when the burden is shaken off without cost, this suit was brought to renew the burden.

F. B. Richards, who constructed the bridge, was an expert bridge builder, and tes-tilled to tlie substantial way in which it was built; that it did not obstruct the road; and that it would last for many years.

Adolph Gold stated that there was a space of 66 feet left between the northeast corner of the dump to a fence on the opposite side of the road, which could not, as a first-class road, have but 60 feet. Sixty feet had never been used as a road at that point He also stated that the road had. not been obstructed ; that the highway across the bridge was considerably shorter and in much better condition.

John Heep testified that he lived in the country and had never used the old road since the bridge was built; that it was in the same condition where it left the street as before the bridge was built; that the bridge and dump did not interfere with it; and that the bridge had lessened the distance and given a better road.

W. P. Pfeister, one of the county commissioners, swore that “the road is in as good condition now as before the dump was built.”

It is in effect admitted that the bridge is a convenience to the citizens of Gillespie county, but, becáuse the commissioners’ court, for some reason, or probably no reason, did not want the bridge built, it must be torn down as a nuisance. Blackstone defines a nuisance as “anything that worketh hurt, inconvenience, or damage,” and a thing that works convenience to all the citizens of the county cannot be so classed. An injunction will not be granted where no probable injury, can arise from the act sought to be restrained.

“And, where an injunction would seriously affect the interests of the defendants and would be of no advantage to the plaintiffs, the court, in the exercise of the judicial discretion which it is bound to exercise, may properly refuse to grant the injunction.” Joyce, Inj. § 20.

In the case of Township of Raritan v. Railway, 49 N. J. Eq. 11, 23 Atl. 127, similar in some respects to this, it was held that the erection of bridge abutments which encroached on a road, but not to such an extent as to interfere with travel over it, would not be abated by a court of equity. Injunctions are granted to prevent or abate wrongs and not to indulge the whims and caprices of those seeking them.

If there had been any attempt to use San Saba street for any purpose other than that to which it had been set apart, the ease of City of Llano v. County of Llano, 5 Tex. Civ. App. 132, 23 S. W. 1008, cited by appellant, might have some application; but in this case the building of the bridge did not interfere with the use of the street. It made it possible to use a part of the street that had never been opened up or used, and which could not be used without the bridge. The building of the bridge accomplished for the people a convenience that should have been, but was not, supplied by the commissioners’ court, and no court will lend aid to destroy it Where the bridge is built, the street had never been used as a public highway, had never been improved by the county, and was of no benefit to any one. That part of it was a myth, so far as its benefit to the public was concerned.

There is perhaps no parallel in the jurisprudence of this country to a case in which a bridge, substantial in construction, is built, and a street that could not be used is made a fine highway, and a continuation of 80 feet wide, well graded and macadamized, is donated to a county, and its officers not only refuse to accept it but seek the aid of a court of equity to destroy the bridge and highway. A case too in which the bridge and street is a comfort and a blessing to every citizen who desires to visit or leave the town in that direction. The suggestion of the destruction of the bridge, under the facts of this case, is a paradox.and flies in the face of all precedents and all rules of equity.

The motion for rehearing is overruled.