author: PRENDERGAST, J. LATTIMORE, J.

text:
    DAGGETT v. STATE.
    (No. 4954.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.
    On Motion for Rehearing, Jan. 22, 1919.)
    1. Homicide <§=S9(1) — Assault to Murder.
    Defendant, who, with another, had gone to steal a farmer’s seed cotton in a wagon standing in a field guarded by the farmer, and who, after their arrest by the farmer, and while he was forcing them at pistol point to go to his house, shot at him with intent to kill, held guilty of assault to murder. •
    On Motion for Rehearing.
    2. Homicide <§=>310(3) — Instructions—Sup-poet by Evidence.
    In prosecution for assault to murder, committed while defendant was under arrest by farmer for having attempted to steal seed cotton, court properly refused charges on justification from apprehension of bodily injury, passion, etc., uncalled for by evidence.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    George Daggett was convicted of assault to murder, and he appeals.
    Affirmed.
    Baskin, Dodge, Eastus & Ammerman, of Ft. Worth, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an assault to murder, and his punishment assessed at 10 year^ in the penitentiary.

There was no objection at all to the court’s charge, and there is not a bill of exceptions in the record. There are some special charges by appellant copied in the record, but there is nothing to show when they were presented to or acted upon by the trial judge. No objection is made to their refusal, and no bill was taken thereabout.

The sole question in the case, therefore, is appellant’s claim that the evidence, was not sufficient to sustain the conviction.

The alleged assaulted party was Mr. Hester. The testimony clearly shows that Mr. Hester, who was a farmer living on his farm, had had corn stolen from him, and that he apprehended that some of his seed cotton, which had been picked and placed in a wagon in his field, would also be stolen at night. He, therefore, got in his wagon, laid down on the cotton, on the night of October 4, 1917, and was there watching his cotton to keep it from being stolen.

Appellant, George Daggett, and Courage Oliver, negroes, lived near one another, and were intimate friends. About 8 o’clock that night appellant went over to Oliver’s and had some talk with him. One had a horse and the other a one-horse wagon. Soon after-wards they hitched up this horse to the wagon and left together therein. Mr. Hester’s place was some distance from where they lived. They drove to Mr. Hester’s cotton field, got out of the wagon, and over the fence, taking two tow sacks with them, went across the field in rather a stooping position until they got right at air. Hester’s wagon. There is no doubt from the testimony that they went there for the purpose of stealing some of Mr. Hester’s cotton. In fact, appellant himself swore that he supposed that they were going there with those sacks to steal something, steal some cotton, he claiming that Oliver was going to do the stealing, but he said, as he had gone that far with him, he decided he would go along and help him steal cotton. Just as they got to the wagon Mr. Hester raised up, presented his pistol and told them to throw up their hands, which they did. He got out of the wagon, directed them to go in front of him, and started to his house with them. They went in this order until they got to the fence of the cotton field. Mr. Hester directed them to get over the fence, which they did. He then attempted to follow them, and just as .he was stepping over the fence they both turned and both said, “let’s get him,” and they both then commenced shooting at him, each with a pistol. In getting over the fence he either purposely or accidentally fell on the ground, and returned the fire. He hilled Oliver, but the appellant ran and escaped. Mr. Hester swore that if they had started to run from him he would not have killed them; that he had no intention of killing them if they ran from him, and that he killed Oliver and shot at the appellant because they were trying to kill him; they were shooting at him.

Appellant denied that he had a pistol on the occasion. Not only Mr. Hester swore that he had, and that he shot at him with it, but the testimony of others also shows that he had a pistol, and shot it at Mr. Hester. Hester said that he intended to take them to his house that night and call an officer, and turn them over to an officer. He also swore that, in arresting them and taking them from his cotton wagon out of his field, he wanted to get them off of his property; ■that he did not want them staying there'that night; that he neither touched, nor took hold of, either of them, and neither of them asked him to let them go.

In Miller v. State, 31 Tex. Or. R. 609, p. 639, 21 S. W. 925, 928 (37 Am. St. Rep. 834), Miller, in attempting to secure his liberty from an illegal arrest, killed an officer. He was convicted of murder in the first degree with the death penalty inflicted. This court affirmed that judgment. In that case this court said:

“The question at last is, What cause, reason, or motive actuated the defendant in committing the homicide? It is the settled law of this state that in, arriving at a correct conclusion in homicide cases, the killing should be viewed from the defendant’s standpoint; that is, ‘ to ascertain as nearly as possible, from the evidence, the reasons and motives which moved or induced the accused to do the killing. It has been held that an unlawful arrest is esteemed, in law, a great provocation. If it be conceded that such provocation constitutes ‘adequate cause,’ under our statute, then, in order to reduce the killing to manslaughter, ‘sudden passion,’ must have existed in the mind of the slayer at the time of the homicide; otherwise the killing would be murder. Massie v. State, 30 Tex. App. 64 [16 S. W. 770]; Ex parte Jones, 31 Tex. Or. R. 422 [20 S. W. 983]; Ex parte Sherwood, 29 Tex. App. 334 [15 S. W. 812]; Miller v. State, 32 Tex. Or. R. 319 [20 S. W. 1103]. Such provocation, in the absence of ‘sudden passion,’ may become evidence of a most cogent character and force, showing malice. Same authorities. Again, if there exists a provocation unknown to the accused at the time of the homicide, this would not suffice to reduce the killing below murder. There must be a concurrence of ‘adequate cause’ and ‘sudden passion,’ as defined by our statute, to reduce a felonious homicide to the degree of manslaughter.
“As was said by Judge Hurt in Dyson’s Case, 14 Tex. App. 454: ‘When the prisoners have been some time in custody, and the informality of the warrant under which they were held was unknown to them, and they deliberately planned and carried out an attack which resulted in the death of one of the officers, this was held murder, and not manslaughter.’ And again, in Sherwood’s Case: ‘Because without such knowledge the provocation could have no effect upon him whatever, and hence without such knowledge it is absolutely certain that his passions, if any, were not caused by this provocation.’ 29 Tex. App. 334 [15 S. W. 812]. This court has further held that where a party, ‘expecting an attempt will be made to arrest him- illegally, deliberately prepares arms for immediate use, and calmly and deliberately determines to kill the person attempting the illegal arrest, and upon his appearance for that purpose does kill him, such killing would be upon express malice; and to hold the slayer guilty upon express malice would not only be law, but common sense and justice.’ Miller v. State, 32 Tex. Or. R. 319 [29 S. W. 1103].”

See, also, E-x parte Sherwood, 29 Tex. App. 334, 15 S. W. 812; English v. State, 34 Tex. Or. R. 190, 30 S. W. 233; Purdy v. State, 60 Tex. Or. R. 130, 131 S. W. 558.

This authority is in point. If appellant and Oliver, or either, had killed Mr. Hester, they would have been guilty of murder. As they did not succeed in killing him, their attempt and intention to do so made appellant guilty of an assault with intention to murder him.

The evidence does not show that appellant or deceased knew or even suspected that he had not been legally arrested and held, and then, of course, that he was not attempting to free himself of such an arrest. Nor does the evidence show that any passion of either of them was aroused by their arrest and detention, which caused them to attempt to kill Mr. Hester, to free themselves therefrom.

But if any such question was raised, the court, in general language, told the jury what adequate cause was, and instructed them that, if at the time appellant shot at Mr. Hester, if he did, he .was laboring under sudden passion arising from an adequate cause, to acquit him of an assault to murder and convict him only of aggravated assault.

But the evidence was sufficient to show, and in effect did show, that appellant and Oliver armed themselves and equipped themselves to go to Mr. Hester’s wagon and steal his cotton therefrom between 11 and 12 o’clock at night; that the purpose of arming themselves was not only to steal the cotton and get away with it, but to kill any person, whether an officer or the owner, if they were interfered with, or arrested therefor, and that they each after being arrested determined, not for the purpose of escaping from an illegal arrest, to kill Mr. Hester because he interfered with them in preventing them from stealing his cotton, and they actually attempted to kill him because thereof. The evidence was sufficient to sustain the conviction.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

The case is before this court on appellant’s motion for rehearing.

The motion points out no error in the opinion of this court affirming the case, but complains that the verdict is unsupported by the evidence, and that the trial' court erred in refusing to give three special charges which are set out. We do not agree with either of appellant’s contentions.

The three charges refused are each based on phases of the false arrest of an accused, but not this case. Said charges are substantially: First. If, under the circumstances, appellant believed his life was in danger, or that he was in danger of serious bodily injury, and that he shot Hester, etc., he would be justifiable. The second charge is that, if the false arrest produced in appellant’s mind a degree of passion which rendered the same incapable of cool reflection, it would be manslaughter. The third charge is substantially that if the jury believed the resistance used by the defendant was no more than reasonably necessary to free himself from such arrest, etc., he would be justifiable.

We have carefully reviewed all the evidence, and find nothing therein calling for such charges. Appellant was his own only witness as to the facts attending the shooting, and he emphatically denied throughout having shot at all, or even that he had a weapon. No one else testified to facts which remotely raise the issue of passion on his part, or that he shot to free himself from illegal arrest in any way.

The motion for rehearing is overruled.
      ©=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    McDOUGAL v. STATE.
    (No. 4961.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.
    On Motion for Rehearing, Jan. 22, 1919.)
    1. Criminal Law <®=»1172(2) — Harmless Error — Instructions—Shiftinu Burden of Proof.
    In a prosecution for murder, an instruction objected to as shifting to defendant the burden of proving that his intent in provoking the difficulty was to inflict on deceased some lower degree of injury than death or serious bodily harm, held not to require reversal in view of other instructions and of the evidence.
    2. Homicide <S==>297 — Instructions—Justification and Excuse — Definitions.
    In a prosecution for murder, an instruction as to malice aforethought was not erroneous in failing to define the terms “will in law justify, excuse or extenuate the homicide” and “without just cause or excuse.”
    3. Criminal Law <®=»762(1) — Instructions Indicating Court’s Opinion.
    In a murder case, where defendant relied on self-defense and claimed that decedent was advancing toward him with a drawn knife, an instruction that deceased would be presumed to intend to inflict death or injury “(provided he used any such weapon or means),” objected to as indicating the court’s opinion that deceased was not using a weapon, held not erroneous.
    4. Homicide <§=>300(2) — Instructions—Assault with Deadly Weapon.
    In a murder ease, wherp defendant claimed that deceased attacked him with an open knife, an instruction was not erroneous as failing to use the term “deadly weapon,” where the length and size of the knife was described.
    5. Criminal Law <§=>S25(4) — Specific Instructions — Request.
    In a murder case, where self-defense was set up, it was not error to fail to give a specific instruction, calling attention to evidence relating to the character of deceased as a violent and dangerous man, where other instructions were broad enough to include evidence of character, and if specific reference was desired, it was incumbent on defendant to seek it by special charge.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Ira W. McDougal was convicted of murder, and he appeals.
    Affirmed, and rehearing denied.
    See, also, 194 S. W. 944, L. R. A. 1917E, 930.
    Simpson, Lasseter & Gentry, of Tyler, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant is under sentence of 12 years’ confinement in the penitentiary for the offense of murder.

He shot James E. Vickery with a shotgun and killed him, and claims to have acted in his own self-defense. The evidence relied upon to support this defense comes mainly from the appellant and his wife. Deceased was a merchant at Lindale, and brought an attachment suit against appellant on a small account, and on the day of the homicide an officer went to the home of appellant, some distance in the country, and levied the writ of attachment upon a horse which appellant claimed belonged to his son. There is evidence that appellant was angered and uttered a threat to kill deceased. He replevied the property, however, and he and his wife and son went to Lindale, the son going horseback, and appellant and his wife in a wagon, which was stopped at a point about 100 feet from the store of deceased. Appellant claims to have met deceased, and to have remonstrated with him about bringing the suit, when deceased drew a knife on him, whereupon appellant told him that he would dispute the amount of the account, and that he would come to his store and make a settlement, and that he went to his store for that purpose, when deceased cursed him and refused to show his books, and that deceased had a knife, and said he would get his gun and kill him; that appellant then went and got in his wagon, took hold of the lines, when deceased persisted in cursing him, calling him a s-of a b-, and threatened him; that he then took his gun and went to a point near deceased’s gallery, when deceased started in his store, stating, that he would get his gun and kill him, upon which appellant raised his gun and ordered the deceased not to go in the store, when deceased turned around and said he would cut his throat with his knife, starting off the gallery toward appellant with his knife waving in his hand, when appellant fired. There is testimony by state’s witnesses that appellant, after reaching Lindale, went to the office of a lawyer and discussed the controversy about the suit and the horse levied upon, and that in the conversation he told the lawyer he was going to kill the damned old son of a bitch, referring to deceased. This occurred, according to some of the testimony, about five minutes before the shot was fired. Other state witnesses testified that the appellant, in passing deceased’s store while deceased was sitting on the gallery in a chair, entered into a wordy altercation with him, in which the appellant called the deceased a son of a bitch, cursed him, told him he could whip him, asked him to get off thd gallery; that deceased declined, but rose to his feet, and was standing on the gallery gesticulating when appellant walked or trotted to his wagon, got his gun, his wife and son importuning him not to shoot deceased, returned to a point near the gallery, raised the gun to a shooting- position, lowered it, raised it again, and fired.

The appellant claimed, and introduced, evidence to the effect that deceased was a dangerous man. On the two former appeals (79 Tex. Or. R. 254, 185 S. W. 15, and 194 S. W. 944, L. R. A. 191715, 930) this court held that the trial court, under the facts, was justified in qualifying appellant’s'right of self-defense by a charge on the law of provoking the difficulty. The correctness of this view is again challenged on this appeal. If the deceased made an assault upon the appellant, or was about to do so, as claimed by him, it was immediately after the controversy) between them, in which, according to the state’s witnesses, appellant, after using the insulting language toward the deceased, walked rapidly or trotted to his wagon, which was near by, pointed his gun at deceased, and lowered it. It can hardly be said that this conduct upon the part of appellant was not reasonably calculated to bring about a difficulty, especially when directed to a man whom the appellant describes as violent and dangerous. Appellant claims that it was followed by the assault with a knife, and that upon this assault he fired. The occasion for the homicide did follow the conduct described by the state’s witnesses upon the part of the appellant, and there was evidence, we think, justifying the conclusion by the jury that appellant’s intent in bringing about the assault by the deceased was to produce the occasion to kill him. He had, according to the evidence, expressed .malice towards him, and threatened to kill him. He explains his presence in town and his possession of the gun upon other grounds, but the jury was in possession of the facts, and entitled to draw therefrom legitimate inferences in favor of the state’s theory.

The following part of the sixteenth paragraph of the charge of the court is complain-. ed of by appellant as shifting the burden of-proof:

“If, however, you find from the evidence beyond a reasonable doubt that on the occasion of the homicide the defendant, by words or acts intended by him and reasonably calculated to provoke a difficulty with the deceased, did provoke the deceased to assault him or to do some act evidencing an immediate intention to assault him with a knife, and in a difficulty thus brought about, if it was, the defendant shot and killed deceased with a gun, and if you further find from the evidence that the defendant, when he provoked the deceased in such manner, if ho did, did not intend then or thereby to kill the deceased or to inflict upon him serious bodily injury in the contest or difficulty thus provoked, if you find it was,” etc.

This paragraph must, under well-settled rules, be construed in connection with other paragraphs of the charge upon the same subject. Among these we find the following special charge No. 18, given at the request of appellant:

“You are charged at defendant’s request that, although you may find that before the defendant met J. E. Vickery on the morning of the homicide he intended to have a difficulty with him, or intended to kill him, yet ¡unless you find that at the time of the homicide he by some act or word intended by him, and which was reasonably calculated to provoke a contest or difficulty with deceased, and did provoke the deceased to assault him or to do some act evidencing an immediate intention to assault him with the knife introduced in evidence, then his right of self-defense would not in any manner bo abridged, and you will acquit, provided you find that defendant was justifiable under the law of self-defense as given you in other instructions.”

The specific criticism advances the theory that the portion of the charge quoted is susceptible of the construction that it shifts to the appellant the burden of proving that his intent in provoking the difficulty was to inflict upon the deceased some lower degree of injury than death or serious bodily harm. We quote the seventeenth paragraph of the charge as follows:

“If you find from the evidence that the defendant did not, on the occasion in question, employ words or conduct reasonably calculated to provoke a difficulty with deceased, or if (you have a reasonable doubt as to whether he did so, or if you find that defendant, on said occasion, did employ such words or conduct toward the deceased, but if you find that he did not intend thereby to provoke deceased into a difficulty, or if you have a reasonable doubt as to whether defendant did so, then, in either event, the defendant’s right of self-defense, if any, would not be abridged or cut off; and if you find the defendant in killing deceased acted in his self-defense, under the law of justifiable homicide hereinbefore given you in charge, or if you have a reasonable doubt as to whether he did so, you will acquit the defendant.”

In the ninth paragraph of the charge relating to murder the court used the following language:

“If you are further satisfied from the evidence beyond a reasonable doubt that such killing was not manslaughter under the law of manslaughter given you in this charge, it will be your duty to find the defendant guilty of murder.”

In the fifteenth paragraph of the charge the jury was told, in substance, that if the appellant provoked the contest with no purpose to kill the deceased, or inflict upon him serious bodily injury, and thereby brought about the necessity of killing him to save his own life, or prevent serious bodily injury, while he would not be justified, he would not be guilty of murder, hut of manslaughter only.

The part of the sixteenth paragraph not quoted above is as follows:

“If you find from the evidence beyond a reasonable doubt that on the occasion of the homicide the defendant, by words or acts intended by him and reasonably calculated to provoke a difficulty with the deceased, did provoke the deceased to assault him or to do some act evidencing an immediate intention to assault him with a knife; and if you further find from the evidence beyond a reasonable doubt that in a difficulty thus brought about, if it was, the defendant shot and killed deceased with a gqn; and if you further find from the evidence beyond a reasonable doubt that defendant, when he provoked deceased in such manner, if he did, then and thereby intended to provoke deceased to assault him or to do some act evidencing an immediate intention to assault him, and also that the defendant then further intended to kill deceased or to inflict upon him some serious bodily injury ⅛ the difficulty thus provoked, if you find it was — then the defendant, if he killed deceased under these circumstances, cannot claim that he acted in his self-defense, but would be guilty of minder,- if such killing was upon his malice aforethought as hereinbefore explained.” .

While the part of the charge assailed might well have been framed in different language, we think, considered in connection with the other portions of the charge mentioned, and viewed in the light of the evidence from which the jury was justified in concluding that appellant had determined to kill deceased, expressed his intention to do so a few moments before the fatal shot was fired, had provided himself with a weapon of deadly character, which he used with fatal effect when deceased attacked him with his knife, or started to do so, the jury was not misled thereby to the injury of appellant.

Appellant’s complaint of the failure of the court to charge on the law of abandonment of the difficulty cannot be sustained, in view of the twenty-third special charge, given at the request of appellant, which is as follows:

“You are, at the request of the defendant, charged that, although you may find beyond a ■reasonable doubt that defendant did provoke deceased into making a demonstration toward him with a knife, yet, if you find, or have a reasonable doubt, that thereafter he, defendant, went to his wagon with the intention of abandoning such altercation, if any, and got up in same and started to drive off, then if you find or have a reasonable doubt that deceased continued to curse, abuse, and threaten defendant, then, if thereafter defendant got out of his wagon and armed himself and shot and killed deceased to prevent deceased killing him or inflicting some serious bodily harm on him, you will acquit the defendant, provided the killing took place while deceased was in the act of killing defendant or of inflicting on him some bodily injury, or after some act donp by the deceased showing evidently an intention to kill defendant, or to inflict on him some serious bodily harm; viewing the facts and circumstances from defendant’s standpoint.”

The court gave the following charge on malice aforethought:

“Malice aforethought, which is absolutely -essential to constitute the offense of murder, includes all those states of the mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is the doing of a 'wrongful act intentionally, without just cause or excuse; it is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.”

It is assailed upon the ground that the court erred in failing to define the terms “will in law justify, excuse or extenuate the homicide,” and “without just cause or excuse.” The charge, in terms, has heretofore been approved. Davis v. State, 204 S. W. 652; Self v. State, 28 Tex. App. 398, 13 S. W. 602; Honeycutt v. State, 63 S. W. 639; Logan v. State, 53 S. W. 694; Gallaher v. State, 28 Tex. App. 266, 12 S. W. 1087; Tooney v. State, 5 Tex. App. 163; Branch’s Ann. P. O. § 2064. The case of Swain v. 'State, 48 Tex. Cr. it. 98, 86 S. W. 335, is referred to as supporting appellant’s contention. The court there erroneously failed to charge the jury on the law of manslaughter. Here the court charged on the law of manslaughter and self-defense. As we' understand the decisions, the ■ terms “justify, excuse or extenuate” mean such as do so in law. Under the facts of this case the evidence which if found true by the jury would extenuate was that which related to manslaughter, which is “a mitigation of murder.” Honeycutt v. State, 63 S. W. 639. Self-defense is a justification or excuse for homicide. One who kills in self-defense “has just cause.” The jury in passing upon appellant’s case was not without instructions from the court as to what facts, if found true, would in law justify, excuse, or extenuate the homicide. The charge on defensive theories fully advised the jury what in law would be just cause.

At the time the shot was fired appellant claims that the deceased was in the act of starting off the gallery with a threat to cut his throat on his lips, and with an open knife in his hand. Appellant’s wife said that at the time the shot was fired the deceased was close to appellant, and was coming on him with his knife, “was coming right on him.” The court in the fourteenth paragraph of its charge used the following language:

“When a homicide takes place to prevent the infliction of death or some serious bodily injury, if the weapon or means used by deceased on the occasion of the homicide was such as would have been calculated to produce death or some serious bodily injury (provided deceased- used any such weap'on or means), the law presumes that he designed to inflict death or serious bodily injury with the same.”

Complaint is made of the words in parenthesis as indicating to the jury that in the opinion of the court the deceased was not using a weapon. Appellant also requested special charges, in one of which, requesting the court to use the term “deadly weapon” in a charge embodying the language of article 1106, which is substantially given in the fourteenth paragraph of the charge quoted, and another asking that the jury be told that if deceased had an open knife in his hand ■and was making a demonstration at the time the shot was fired, this would be using it within the meaning of the charge. The state controverted the fact that the deceased had a knife in his hand, and we think there was no reversible error in the court putting into paragraph 14 the words in parenthesis, the effect of which was to leave to the determination of the jury the question of fact as to whether the deceased had a knife in his hand; nor do we think there was error in failing to explain to the jury what was meant by using the knife. If they believed the evidence to the effect that deceased had the knife in his hand as described by the only witnesses who testified to that fact, they could not have failed to understand the correct application of the charge quoted to these facts. There was no -specific testimony that the knife which deceased had was a deadly weapon. Its size and length were described, and the 'paragraph of the court’s charge mentioned was, we think, a correct application of the law so far as relates to the criticism of the court’s failure to use the term “deadly weapon.”

The view advanced by appellant that his rights were invaded by the court in the eleventh paragraph of its charge, in that it withdrew from the jury, in passing upon self-defense, the words used by the deceased, and confined appellant’s right to his interpretation of the acts of deceased, is not, we think, sustained by the record when the part of the charge complained of is read in connection with the remainder of the charge on self-defense and the special charges upon the subject given at appellant’s request. The assignment complained of the following language:

“If the deceased made an unlawful attack upon the defendant, or did any act or made any demonstration which produced in the mind of the defendant, viewing all the facts and circumstances from his standpoint, a reasonable expectation or fear of death or some Serious bodily injury.”

In the twelfth paragraph is found the fol ■ lowing:

“Provided the killing took place after some act done by the deceased showing evidently an intent to kill defendant or inflict on him some serious bodily injury, or provided it reasonably appeared to the defendant, at the time of the killing, from the acts of the deceased, or from his words coupled with his acts, that it was then the purpose and intent of deceased to kill defendant or to inflict on him some serious -bodily injury.”

The second special charge, given at request of appellant, is as follows:

“You are, at the request of defendant, charged that if you find that defendant and deceased1 had a wordy altercation when defendant returned from the depot, and that thereafter defendant went to his wagon, intending to leave, and that deceased thereupon cursed and abused defendant and threatened to kill him, then defendant had the right to arm himself; and, if he thereafter killed deceased in his self-defense, under the law of self-defense given to you in the main charge of the court, or if you have a reasonable doubt thereof, you will acquit.”

And in, the twenty-fourth special charge the court instructed the jury that if the deceased had threatened the life of defendant in his presence and hearing, and done some act manifesting an Intention to execute the threat, or they had a reasonable doubt upon the subject, they might acquit. Both the appellant and his wife testified that immediately before the shooting the deceased threatened to kill the appellant

The jury having been told in various parts of the charge to view the matter from appellant’s standpoint, taking into consideration all facts and circumstances in evidence, the failure of the trial court to embody in his charge a specific instruction, calling attention to the evidence hearing upon the character of deceased, was not an omission authorizing a reversal of the judgment. The general terms used by the court were obviously so broad that they included evidence of character, and if specific reference thereto was authorized by the law and desired by appellant, the duty of seeking it by special charge was incumbent upon him.

The appellant throughout the history of this case has been represented by counsel displaying 'marked skill and commendable zeal. In ruling on matters of evidence the conduct of the trial by the court is beyond question, and in his charge to the jury he has displayed a liberality toward the appellant which has carried him in several instances to a point in appellant’s favor beyond the strict requirements of the law, and on the whole fully protects the rights of appellant. The jury for the third time has rejected appellant’s view, and under the record we are constrained to believe that the judgment entered against him is the result of a fair trial, and, so believing, order its affirmance.

The judgment is affirmed.

On Motion for Rehearing.

We were mistaken in stating that the appellant failed to request a specific instruction to the effect that the evidence of the character of deceased might be considered by them. The appellant did make such request, and, we think, there was no error in refusing to read it to the jury. The court, in language so broad that it could not be misunderstood, had informed the jury that in passing upon the defensive issues in the case they should take into consideration all of the facts and circumstances in evidence, and view them from the appellant’s standpoint. It was incumbent upon the court to submit to the jury the law touching the issues in the case arising from the evidence. It was not his duty, in the absence of some rule of law requiring that the jury be told the purpose and limit that might be given to some particular evidence, to single out specific facts and call them to the attention of the jury. There are cases in which it has been held that the complaint of the appellant of a reference to the character of the deceased in connection with other facts in the charge to the jury did not present reversible error. Spangler v. State, 42 Tex. Cr. R. 233, 61 S. W. 314.

In' this ease, however, the appellant was a younger and a stronger man than the deceased, and was armed with a shotgun. He claims deceased was attacking him with a pocketknife, and we do not think it is one requiring the court, in submitting the issue of self-defense or manslaughter, after telling •the jury that they would consider all the facts and view them from appellant’s standpoint, to single out as an additional subject of charge the evidence of the character of deceased. We refer to Salazar v. State, 55 Tex. Cr. R. 307,116 S. W. 819 f Giles v. State, 60 Tex. Cr. R. 436, 132 S. W. 359; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. 583.

We have given attention to the other matters urged by the appellant in his motion for rehearing, but since they have been fully considered and reviewed in the original opinion, and we have not been able to modify the conclusions therein expressed relating to them, we deem it unnecessary to make further reference to them here.

The motion for rehearing is overruled.
      <S=»For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (gx^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, Í.

text:
    ORIENTAL OIL CO. et al. v. CITY OF SAN ANTONIO et al.
    (No. 6186.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Injunction <&wkey;147 — Temporary Injunction — Evidence.
    On motion for temporary injunction by oil company to restrain city from enforcing ordinance prohibiting cutting of sidewalks to give access to filling station, evidence held sufficient to sustain refusal.
    2. Estoppel <&wkey;62(8) — Municipal Cobpoba-tions — Estoppel to Abate Nuisance.
    If conduct of gasoline filling station is determined, in suit between oil company and city, to be menace to pedestrians or nuisance to street traffic, city cannot be estopped to abate it by having permitted construction.
    3. Injunction <&wkey;>144 — Temporary Injunction — Pleading—Sufficiency.
    Oil company, suing to restrain city from enforcing ordinance prohibiting company from cutting sidewalks to give access to filling station, and failing to allege it received written permit to make alterations in sidewalk and curbing, as required by another ordinance, held not entitled to temporary injunction.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by the Oriental Oil Company and another against the City of San Antonio and' others. Prom an order refusing temporary injunction, plaintiffs appeal.
    Judgment affirmed.
    Terrell & Terrell, of San Antonio, for appellants.
    R. J. McMillan, of San Antonio, for ap-pellees.
   SWEARINGEN, Í.

This is. an appeal from an order refusing a temporary injunction, petitioned by the appellants, the Oriental Oil Company and Ed. N. Oeffinger, against the city of San Antonio, its commissioners, officers, and agents, and against Sam C. Bell, Ray Rambert, Phil. L. Wright, Andreas Coy, and Louis Heuermann individually.

The temporary injunction sought was to restrain the enforcement of the following ordinance:

“An Ordinance.
“Whereas, the Oriental Oil Company, Grover 0. Cain and P. J. Cain have cut the sidewalk at the southwest corner of Travis and St. Mary’s streets, on both the Travis street and St. Mary’s street sides, for the purpose of permitting and inviting the ingress and egress of automobiles to and from a gasoline filling station, which they propose to establish and maintain at said point; and
“Whereas, said sidewalks have been cut without the proper permission, required by the ordinances of the city of San Antonio; and
“Whereas, said sidewalks are located in one of the busiest and most populous parts of the city and the use of same by autos will be extremely dangerous to the public and practically destroy the use of said sidewalks as such; and after a public hearing at which said parties were represented the commission has decided that such use of the sidewalks is a public nuisance: Therefore,
“Be it ordained by the commissioners of the city of San Antonio:
“Section 1. That the operation or maintenance of a gas-filling station to be reached by cars driving over, across or upon the sidewalks at the corner of Travis street and St. Mary’s street as aforesaid would be and the same is hereby declared to be a menace to the public safety and a public nuisance.
“Sec. 2. That the Oriental Oil Company and the said Grover C. Cain and P. J. Cain, their servants; agents and employes, and all other persons, are hereby forbidden to establish or maintain a gas-filling station at said point, to be reached by cars driven over or upon said sidewalks or to proceed further with the work being done at that point upon said sidewalks.
“Sec. 3. The said Oriental Oil Company and the said Grover C. Cain and P. J.. Cain are hereby ordered and instructed to forthwith restore said sidewalks to the condition in which same were prior to the time they were out, said restoration to be done under the supervision and direction of the city engineer, and said sidewalks in their present condition are hereby declared to be a public menace and a public nuisance. In the event said parties shall fail and refuse same forthwith, then and in that event the city engineer is directed to restore said sidewalks at tffe expense of the said Oriental Oil Company, Grover C. Cain and P. J. Cain.
“Sec. 4. The chief of police of the city of San Antonio and the other police officers acting under his direction, are specially instructed to enforce the provisions of this ordinance by obstructing any further work on said sidewalks, save as provided for herein, and by restraining the use of said sidewalks at this point by automobiles crossing or attempting to cross same or drive thereon.
“Sec. 5. Any person, firm or corporation, their agents or employes, violating any provisions of this ordinance or refusing to comply with any provision thereof, shall be guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than five ($5.-00) dollars nor more than twenty-five ($25.00) dollars, and each separate day on which said parties shall violate said ordinance or refuse to comply therewith shall constitute a separate offense.
“See. 6. This ordinance, being an urgent public necessity by reason of the facts apparent upon the face thereof, and being for the immediate preservation of the public safety and welfare, and being passed by a four-fifths vote of the commissioners, shall take effect from and after its passage and approval.
“Passed and approved, this 10th day of October, A. D. 1017. -,
“Mayor of the City of San Antonio. “Attest: -, City Clerk.”

The cause of action is alleged as follows:

“That the plaintiff Oriental Oil Company has leased certain property in the city of San Antonio, in accordance with a lease, a copy of which is hereto attached, marked ‘Exhibit A’ and made a part hereof for all purposes, as fully and completely as if incorporated herein, said contract providing, among other things, for a lease by the said Oriental Oil Company of certain property at the corner of St. Mary’s and Travis streets in city block 403 in the city of San Antonio, Bexar county, Tex., said property having a frontage of 62 feet on the west side of St. Mary’s street and extending back 168 feet to the south side of Travis street. Said lease also provides for the erection of a building to cost $2,500 more or less, and for the payment of a monthly rental by the Oriental Oil Company to the Bancroft Building Company of $325 per month, payable in advance, the first payment becoming due on October 15, 1918. Said lease further provides that it cannot be assigned without the consent of the lessor, and many other provisions fully set out in said lease, Exhibit A.
“That said lease was executed on the 16th day of August, 1918, and shortly thereafter the Oriental Oil Company entered into a contract with Ed. N. Oeffinger for the construction of a certain building on said property to cost $3,-600; that a copy of said contract is attached hereto, and marked ‘Exhibit B,’ and made a part hereof for all purposes, and that, among the provisions of the said contract, is an agreement by the said E. N. Oeffinger to complete said building in accordance with certain plans and specifications, a copy of which is attached hereto and made ‘Exhibit C.’ And to secure said contract a bond was executed, a copy of which is hereto attached, marked ‘Exhibit D,’ and made a part hereof for all purposes. Said contract further provides that the work shall be done in accordance with the city ordinances covering this class of work, and it further provides that the Oriental Oil Company agrees to< pay to the said Ed. N. Oeffinger $3,-600 on the completion of the job, on presentation of the receipted bills for labor and material entering into said building.
“Plaintiffs further represent that thereafter the Oriental Oil Company, through its proper agents, applied to the building inspector, John L. Richter, of the city of San Antonio, for the permit for the erection of said building, and that they secured said permit on September 4, 1918, a copy of same being hereto attached, marked ‘Exhibit E’ and made a part hereof for ail purposes.
“That thereafter M. J. Kane, a subcontractor under plaintiff Oeffinger, applied to the city engineer of the city of San Antonio, for the furnishing of grades and directions for cutting the sidewalks and curb on Travis street and also on St. Mary’s street, and for the driveways for the oil-filling station, said driveways being fully shown in the plan for said building, shown ánd exhibited to the building inspector at the time said building permit was issued, and that in pursuance of that request an assistant to the city engineer, who was duly authorized to do so, did come to the property described herein, showed the subcontractor where to cut the sidewalk and curb on each of said streets, and did give them the grade of the sidewalk, and did tell them how to construct said driveways and entrances thereto, and told them to proceed with the work.
“That said work was done in strict accordance with said- instructions, and proceeded toward completion until October 6, 1918, when Phil. L. Wright, one of the defendants herein, acting under his own initiative, or under instructions from the mayor, appeared at the side of the building, stopped all work, and threatened to put in jail any one doing any further work on this property of any kind or character, with reference to the use of the driveways and contemplated construction of the sidewalks and curbs.
“Plaintiff Ed. N. Oeffinger represents that he is unable to complete the driveways provided for in the contract because the city of San Antonio, through its mayor, Sam O. Bell, and its commissioner of fire and police, Phil. L. Wright, has stated to the said M. J. Cain, subcontractor, and to the agents of the Oriental Oil Company, that if they continue with the work, and if they do not restore the sidewalk and curb as it was prior to the time it was changed, they will have all of them arrested and prosecute them for a violation of some of the city ordinances.
“Plaintiffs further represent that the city of San Antonio, through its building inspector, knew that the driveways, as shown by said map attached hereto, and marked ‘Exhibit E’ were to be placed as now partially constructed, and that same was known to many of the officials of the city of San Antonio, including the mayor of the city, chief of the fire department, and the fire and police commissioner, Phil. L. Wright.
“That more than one week before the said work was stopped on said building, and while it was under construction, the mayor and Fire Chief Goetz appeared on said property and instructed these plaintiffs to change the location of the gasoline tank that was to be placed underground. That thereafter the mayor of the city of San Antonio and Phil. L. Wright, commissioner of fire and police, appeared on said property, on or about October 4, 1918, and instructed these plaintiffs to again change the location of the gasoline tank which was to be placed underground, and that on each and all of these occasions the pipes for delivery of gasoline were in place, the sidewalks had been cut, and it was plainly apparent to them and each of them that these plaintiffs intended constructing the driveways into the property from Travis street and out on St. Mary’s street in direct accordance with the plans theretofore exhibited to the city building inspector, and that during all that time the plaintiffs were erecting and having erected the improvements on said property-now partially finished, costing about $3,600, several hundred dollars of which was erected after the mayor and fire chief had visited the property, and probably $200 after, the visit of the said Sam C. Bell and Phil. Wright, on or about October 4, 1918, and that all of the money was spent except a small part to finish the building after the building inspector had, with full knowledge of the plans, issued a permit for said building.
“Plaintiffs further represent that, on or about October 6, 1918, certain parties owning property on St. Mary’s street violently protested with the mayor and commissioner against the building of driveways and the change in the sidewalks. Plaintiffs are informed and believe that all of said protesting property owners know, or could have known by the use of ordinary care, that the said building was being erected for the purpose of selling oil and gas to parties coming to same and desiring to purchase. * * *
“Plaintiffs represent that the said driveways were constructed in accordance with the ordinances of the city of San Antonio and in accordance with the instructions of the engineering department thereof, acting through an assistant city engineer, and that, in the event plaintiff Ed. N. Oeffinger is not allowed to complete the said driveway in accordance with the plans and specifications and in accordance with his contract, the plaintiff, Oriental Oil Company, will suffer irreparable damage, in that it cannot use the said premises for which they, have agreed to pay, for a period of five years, the sum of $326 per month, and will lose the entire value of their improvements of approximately $4,000, same representing the building and other amounts already expended thereon in the event it is required to pay the said contractor, and that these plaintiffs are without an adequate or complete remedy at law.
“Plaintiffs further represent that the action of the city of San Antonio, its commission and officials, deprives them of their property without due process of law. Plaintiffs further represent that the cities all over this land, and especially cities of the size of San Antonio and larger, have gasoline filling stations, as shown by the plat attached hereto, and they have been operated without injury to the public in any shape or form, and that the same are convenient and practical for the public to deal with the plaintiff Oriental Oil Company, and that such cities as Dallas, Ft. Worth, Houston, St. Louis, New York City, and many other cities have similar stations in the business section, and these plaintiffs believe and represent that-such a station as is being built and almost completed by the plaintiffs herein is the best me'ans of selling gasoline and oils to the owners of automobiles, in that they do not block the streets, interfere with traffic, nor injure the pavements by dropping oil thereon. Petitioners represent that there are other such stations in the city of San Antonio, and in fact many have been operated here for several years, and only recently the city of San Antonio, acting through its may- or and commission, has authorised another company to install a similar station on Avenue O, and about one year ago another was installed on Travis street just one block from the location of the one being constructed by the plaintiff Oriental Oil Company, and that there are many throughout the city, and that this fact is well known to the city officials of the city of San Antonio and to the commission, and that they have been recognized as such. That during May, 1918, the city of San Antonio passed an ordinance, prohibiting any one from driving into the stations except for the purpose of purchasing and procuring the delivery of gasoline and oils and other supplies to said stations.
“Plaintiffs further represent that, by reason of the permit issued by the building inspector, by reason of the knowledge on the part of the officials mentioned herein, the work was progressing and money was being expended, and by reason of the fact that the grades were given and places properly pointed out for cutting the sidewalks and curbs, and directions given for the installation of new sidewalks, and by reason of the fact that the full plan of the said building and its full operation was known to said city officials, as shown above, the said city of San Antonio and other defendants herein are estopped, and should be estopped, from interfering with these plaintiffs in the completion of said building, driveways, curbs, and sidewalks, and the operation of same as an oil and gasoline station, as hereinbefore set out.
“Plaintiffs further represent that on October 10, 1918, and after the mayor and the city attorney had been informed that an injunction suit would be filed by the plaintiffs, the city commission passed an ordinance, a copy of which is hereto attached and marked ‘Exhibit G,’ which ordinance was passed without any notice of any kind or character to these plaintiffs, and these plaintiffs say that the same is invalid, in that it seeks to deprive these plaintiffs of their property without due process of law.”

The appellees in defense relied upon the ordinance copied above, and in justification of the ordinance alleged that the city of San Antonio has, by virtue of its charter, vested in it the absolute regulation and control of the streets and sidewalks within the city for the welfare and safety of traffic and pedestrians, and alleged that the business of operating a gasoline filling, station on the property described in appellants’ petition was a public menace and a nuisance for five reasons. The reasons alleged are:

(1) That the gas-filling station invited the public to drive motor driven vehicles across the sidewalks on St. Mary’s and Travis streets abutting the property described, for ingress and egress to and from the station, thus effectively converting the sidewalks into street uses by the public, thereby blocking the traffic on the streets and endangering the pedestrians on the sidewalk.

(2) That the appellants changed the construction of the sidewalks abutting their property in such manner as to make them dangerously, slippery with rain and grease.

(3) That the driveway across the said sidewalks was beyond control of the traffic officer directing traffic at the intersection of the two "said streets.

(4) That the said driveway over the sidewalks would cause violations of the ordinance prohibiting turning on streets except at street intersections.

(5) And lastly, repeating, in different terms, the first of the five reasons above mentioned, alleged that, to use appellant’s said driveway, the public would either move, too slowly and thereby block the street traffic or move too quickly and thereby endanger the sidewalk pedestrians.

The answer further alleged facts showing the volume of traffic on the two streets, alleged the general widening of streets in San Antonio, and alleged the expense paid by the city and property owners for such improvements; the answer closing with the allegation that appellants had not obtained a written and signed permit to cut the curbs or sidewalks abutting their said property, as required by city ordinance.

There is little, if any, conflict in the facts testified to in support of the pleadings. The issue is drawn by opposite deductions from the same facts in evidence. For instance, there is no dispute about the congestion of traffic at the intersection of Travis and St. Mary’s street, nor about the construction of the driveway, sidewalks, and curbs, but appellees deduce from these uncontroverted facts that traffic will be blocked and pedestrians endangered, while appellants deduce from these same facts that the congestion will be relieved and traffic benefited. We, therefore, will make no detailed statement of the, evidence except in the discussion of the issues that may appear to us.

There seem to be but two issues presented. The first is the one given above for an illustration, wherein appellees contend, as. stated in the attacked ordinance, that the business as contemplated will constitute a menace and a nuisance, and wherein appellants insist that it is not a menace, but rather a benefit. It is obviously the contention of appellees that the business is a nuisance because its conduct is a menace to pedestrians, or blocks street traffic, and we may confine our discussion to the question whether or not the conduct of the gas-filling station business is a menace to pedestrians, or an inconvenience to street traffic. The discussion is further limited by the fact that the only menace claimed by appellees is that causad by inviting the public to drive motor vehicles across the sidewalks and that caused by the construction and location of, the sidewalks and driveways.

It is conceded by counsel for appellees in their memoranda of authorities, as shown by the following quotation, that the ordinance attacked is insufficient to constitute the business a menace if in fact it was not, and that the question is one of fact that may be determined by the courts:

“All of appellant’s authorities finally come back to the proposition that if the matter complained of is a nuisance, it can be abated, but that the simple declaration it is a nuisance by ordinance does not constitute it so.' We recognize that principle. It is firmly established by the casej of Yates v. Milwaukee [10 Wall. 497, 19 L. Ed. 984], decided by the Supreme Court of the United States, .and the city has never contended the contrary.”

This admission is supported by the following authorities: Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608; G., C. & S. P. Ry. v. Belton, 57 Tex. Civ. App. 460, 122 S. W. 413; Evansville v. Miller, 146 Ind. 613, 45 N. E. 1054, 38 L. R. A. 161; People ex rel. Reime v. Blocki, 206 Ill. 363, 67 N. E. 812; 19 R. C. L. p. 817, § 122; McQuillin on Municipal Corp. §§ 899-902; Joyce on Nuisances, §§ 322-335.

That a property owner has the inherent right to drive over the sidewalks for ingress and egress with vehicles for his private use and for the conduct of his business, provided the use thus made of the sidewalks is reasonable, is expressly eliminated by the decree appealed from. To such an issue the following authorities are pertinent: Tolman v. Chicago, 240 Ill. 268, 88 N. E. 488, 24 L. R. A. (N. S.) 97, 16 Ann. Cas. 142; Joyce on Nuisances, § 226; Zimmerman v. Railway, 154 Mo. App. 296, 134 S. W. 40; Standpoint v. Doyle, 14 Idaho, 749, 95 Pac. 945, 17 L. R. A. (N. S.) .497; Tire Co. v. Commissioner, 163 Mich. 249, 128 N. W. 410, 30 L. R. A. (N. S.) 1074; Crawford v. Marion, 154 N. C. 73, 69 S. E. 763, 35 L. R. A. (N. S.) 193; Thompson v. Boston, 212 Mass. 211, 98 N. E. 700; Laundry v. Louisville, 168 Ky. 499, 182 S. W. 645; Bowers v. Machir, 191 S. W. 758.

The pleadings raise the issue whether the city is authorized to prohibit and' prevent the use of the sidewalks in the conduct of the business. The principal, if not controlling, objections are those detailed in the first and fifth reasons alleged by appellees and above mentioned, namely, that the public use of sidewalks by vehicles blocks traffic in the street and endangers pedestrians on the sidewalks. The conclusion that street traffic will be blocked is not clear. The congestion at the intersection is due, primarily, to currents of traffic passing each other at right angles, and, secondarily, by all the traffic of both streets concentrating upon one-half of the space open for use before the intersection square is reached, if both intersecting streets are the same width, as in the present case. All vehicles that turn out of Travis street before reaching the congested spot relieve the crowded area, avoiding or being avoided by a right angle current of traffic using an otherwise unused space. It does not necessarily follow that to turn out of Travis street delays the current; on the contrary, it may hasten it by removing from it — moving out can be effected as quickly as moving forward. On the other hand, the conclusion that driving autos across the sidewalks will increase the hazard to pedestrians on those sidewalks is unquestionably true.

Whether this increased hazard to pedestrians is of sufficient importance to warrant the practical destruction of appellant’s property -in the interest of public welfare is ultimately to be determined by a trial upon the merits -of this case. As presented to us now, the ordinance itself is not sufficient to satisfactorily establish that fact, but there is evidence to sustain the trial court’s judgment.

The three other reasons for which it is alleged the gasoline filling station is a menace are of doubtful merit. The charge that the sidewalk will be hazardous when wet because the sidewalk is not level is not sustained by the evidence. The city engineer testified without contradiction that the sidewalk was four feet wide and level, except for the usual sidewalk drop of one-fourth of an inch. The similar charge that the sidewalk would be dangerous because of grease is met by the fact that the only testimony in the record concerning the allegations is that there would be no grease on the sidewalk.

The further ' charge, alleging that the traffic officer could not control traffic turning out of Travis street into the driveway, loses its force from the fact that there is no reason or necessity for the traffic officer controlling the traffic that does not use the congested area, which alone he is to regulate.

The charge that the maintenance of the driveways would cause violations of the ordinance prohibiting turning in streets between intersections, and then only by keeping to the driver’s right, is without force. Appellant’s driveway can neither- repeal that traffic ordinance nor prevent its enforcement. Moreover, appellant’s uncon-tradicted testimony is that- the driveway could only be used by ingress from Travis and egress to St. Mary’s. There is sufficient evidence to sustain the trial court’s refusal of the temporary injunction, thus holding the situation in statu quo until a final trial.

If the conduct of the business is determined to be a menace to pedestrians or a nuisance to street traffic, the city cannot be estopped to abate it. Belton v. Baylor Female College, 33 S. W. 680; Belton v. Central Hotel COi, 33 S. W. 297; .City of Llano v. County of Llano, 5 Tex; Civ. App. 132, 23 S. W. 1008.

The second issue joined is that appellants reéeived no written permit for making alterations in the sidewalk and curbing as required by ordinance.

That the permit was not in writing and signed is admitted by appellants, but they insist that oral permission was expressly given, that the writing was deferred at the request of the city engineer for his convenience. This contention is proven by the undisputed testimony of the city engineer as well as the testimony of Oeffinger, one of the appellants.

There is a valid city ordinance regulating the altering and building of sidewalks and curbs which requires a written and signed permit. This was not obtained by appellant. The well-known rule so often cited:

“The rule with regard to the pleading in injunction suits is well established as follows: 'The rule of pleading that the statements of a party are to be taken most strongly against him is reinforced' in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.’ Gillis v. Rosenheimer, 64 Tex. 246; Cotulla v. Burswell, 22 Tex. Civ. App. 329, 64 S. W. 614; City of Paris v. Sturgeon, 60 Tex. Civ. App. 522, 110 S. W. 459; 10 Ency. Plead. & Prac. pp. 923-927.”

There was no error in refusing the temporary injunction restraining the city, and thereby permitting appellants to alter the sidewalks and curbs.

The judgment is affirmed.


author: WILLSON, C. J.

text:
    BAKER v. MEMPHIS, D. & G. RY. CO.
    (No. 1977.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1918.
    Rehearing Denied Nov. 14, 1918.)
    1. Carriers <&wkey;219(5) — Connecting Carriers — Interstate Shipments.
    Under U. S. Comp. St. 1916, § 8604a, an initial carrier in the case of an interstate shipment is liable for injuries to the shipment caused either by it or by connecting carriers.
    2. Judgment <&wkey;415 — Restraining'Enforcement — Grounds.
    To restrain enforcement of a default judgment, it must appear that the judgment was void on the face of the record or that the defendant was not served and had a meritorious defense which it failed to present without fault.
    3. Justices op the Peace &wkey;>128(l) — Restraining Enforcement of Judgment — Grounds.
    Where a judgment in justice court recited that the defendant was duly and legally cited, and it did not appear from any other portion of the record that the recital was untrue, the enforcement of the judgment cannot be restrained1 unless defendant shows a meritorious defense.
    Appeal from District Court, Cass County;’ H. E. O’Neal, Judge.
    Suit by the Memphis, Dallas & Gulf Railway Company against J. S. Baker.
    Erom a judgment for plaintiff, defendant appeals. Reversed and rendered.
    Claiming that certain cattle delivered by him to appellee, the Memphis, Dallas & Gulf Railway Company, at a point in Arkansas, to be transported by it over its owm and connecting lines of railway to a point in Texas, were injured en route, appellant sued said appellee in a justice court in Cass county and recovered judgment by default against it for $130.31 and costs. Having afterwards had a writ of garnishment issued on that judgment, appellant had same served on the Texarkana & Ft. Smith Railway Company. That company having answered that it was indebted to said appellee in • the sum of $283.08, judgment was rendered against it in said justice court in appellant’s favor for the amount of his judgment against said ap-pellee. This suit was then commenced by said appellee by a petition in which it prayed: (1) That appellant be restrained from enforcing the judgment he had obtained against it and the judgment he had obtained against the Texarkana & Ft. Smith Railway Company; (2) that said railway company be restrained from paying said judgment against it; and (3) “that said judgments in said justice court be set aside and be declared null and void.” The trial was to the court without a jury. The appeal is from a judgment granting said appellee the relief it prayed for.
    Hugh Carney, of Atlanta, for appellant.
    C. A. Wheeler and Mahaffey, Keeney & Dalby, all of Texarkana, for appellee.
   WILLSON, C. J.

(after stating the facts as above).

It appeared without dispute that the cattle were received by appellee, the Memphis, Dallas & Gulf Railway Company, at a point on its line of railway in the state of Arkansas, for transportation over its own and connecting lines of railway to a point in the state of Texas. It must be said that it therefore appeared prima facie that said appellee, as the initial carrier, was liable to appellant, by force of the federal statute (article ,8604a, U. S. Comp. Stat. 1916), for any injury, to said cattle caused either by it or by any other common carrier over whose line or lines same were then being transported to said point in Texas.

So much appearing, said appellee sbonld have been denied the relief it prayed for, unless it further appeared either that the judgment of the Cass county justice court against it (1) was void “on the face of the record” of the suit in which it was rendered, or (2) was without service of process on said appellee, which resulted in its failure, without fault on its part, to present a defense it had to the recovery sought by appellant against it. We say this because the law is that, if the judgment did not appear from the face of the record to be void, said appel-lee was not entitled to relief against it without showing that it had a meritorious defense against appellant’s suit. San Bernardo Town-Site Co. v. Hocker, 176 S. W. 644; Railway Co. v. Miller, 192 S. W. 358; Walker v, Chatterton, 192 S. W. 10S4; Railway Co. v. Hoffman, 193 S. W. 1140; Foust v. Warren, 72 S. W. 404.

It appeared from a recital in the judgment that said appellee was “duly and legally cited as the law directs,” and it did not appear from any of other portions of the record offered in evidence that the recital was not true. Hence it must be said it did not appear “from the face of the record” that the judgment was void because rendered without service of process on said appellee. It follows that the judgment appealed from is wrong unless it appeared that said appel-lee had a defense against the recovery appellant obtained against it in said justice court. It is clear that it did not so appear. It seems, indeed, that said appellee made no effort to prove that appellant’s cattle were not injured as he claimed they were, or, if they were so injured, that the amount of the damages appellant was entitled to recover was less than the amount he did recover.

In this attitude of the case as shown by. the record, we think the judgment should have been in favor of appellant. Therefore it will be reversed, and judgment will be here rendered denying said appellee the relief it sought.
      (JSsaFor other cases see same topic and KEY-NUMBER in all Key-NUmbered Digests and Indexes


author: GRAVES, J.

text:
    WESTERN UNION TELEGRAPH CO. v. HUFFMAN.
    (No. 7629.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 20, 1918.
    Rehearing Denied Jan. 16, 1919.)
    1. Telegraphs and Telephones <&wkey;68(5)— Failure to Deliver Message — Damages.
    Where sender of telegram had written his brother that he was going to pass through town and would wire him before starting, and that the brother should meet him at the train and tell him of his father’s condition, and, if he was j worse, he would stop off, and before starting telegraphed, “Meet me at train 6 p. m. I am going to M.” — telling the agent all the circumstances, and the telegram was not delivered, damages for distress of mind suffered by the sender, because of failure to see his father before he died, were not too remote.
    2. Telegraphs and Telephones <&wkey;53 — Failure to Deliver Message — Proximate Cause,.
    Where plaintiff sent telegram to brother that he was coming through town on a certain train, and, if his father’s physical condition was not better,'.brother should meet him at the train, and plaintiff would stop off, and the message was never delivered, the subsequent negligence of the,brother in not notifying plaintiff of his father’s dying condition would not bar recovery.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Suit by Forest Huffman against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hume & Hume, of Houston, and Albert T. Benedict, of New York City, for appellant.
    Woods, King & John, of Houston, for ap-pellee.

      writ of error denied by Supreme Court March 19, 1919.

   GRAVES, J.

Forest Huffman lived at New Caney, and his brother, B. D. Huffman, lived with their father at Humble, Tex.; both towns being on the Houston, East & West Texas Railway, 11 miles apart. Knowing that his father was ill, Forest, on November 17, 1915, from New Caney wrote and mailed a letter to his brother at Humble, saying he expected to have to go to McDade, Tex., where his wife was sick, which would take him through Humble, and, continuing, “so if I go, I will send you a telegram Saturday, November 20th, and I want you to meet the train and let me know just how papa is, and if he is no better I will get off and stay a day or so with him. Be sure and be there.” The letter was duly received by the brother next day, November 18th. On the following Saturday, November 20th, between 12 and 1:30 p'. m., before taking the train for Mc-Dade, and pursuant to the promise made in the letter, Forest Huffman delivered to the Western Union Company’s agent at New Caney the following prepaid telegram:

“[Signed] Forest Huffman.”

His testimony as to what contemporaneously occurred between the agent and himself being in part:

“When I delivered this message to the agent I told him my father was ill, and I was sending my brother a telegram to meet me at the train and let me know what his condition was. X told him that B. D. Huffman, at Humble, was my brother, and that I wanted him to meet me at the train and let me know the condition of my father, and, if he wasn’t better, that I would get off and stay with him a day or so, and X told him that, if my brother wasn’t at the train to meet me, I would go on through. I advised the agent of the fact, what the message was for, and asked him would it be necessary to write it on the message, and he said no, he would tell the agent at the other end. He charged me 26 cents for sending that message,, which I paid him, and he told me that the’ message would be delivered to my brother. * * * That was the purpose in sending the message, to give me a chance to pay him a visit in case he wasn’t well. * * * I did not know how serious his condition might bo, and I told the agent that. * * * I was very apprehensive of my father’s condition.”

The telegraph company negligently failed to deliver the message to his brother at all, who consequently did not meet the train as directed therein, and Forest Huffman, although being on the train and reaching Humble and looking for his brother at about the time stated, did not stop over^ but, believing from the fact that the brother had not met him that their father was better, went on through to McDade, arriving there next day, and hearing nothing further about his father’s condition until his death four days later. If the telegram had been promptly delivered, as it easily could and should have been, the brother would have met Forest at the train and would have informed him that their father was not better, but was then very sick, and Forest would have stopped over and remained with his father until his death.

Upon the undisputed facts given, thei- court below, in response to a jury’s verdict fixing that amount as the measure of Ms damages, entered judgment for $400.29 against, the telegraph company, in favor of Forest Huffman as compensation for the grief and distress of mind suffered by him because of the failure to see and be with Ms father before he died.

Through a number of assignments presented in this appeal the telegraph company says the judgment should not stand, because, it is contended, the damages, 'both alleged and proven, were too remote, uncertain, contingent, speculative, and not within contemplation of the parties to the contract of transmission.

We tMnk otherwise; the agent at New Caney was- told that the father was ill, how seriously was not known, but the sender of the message wanted his brother to meet the train and give him that information, and if the father was no better he would get off and stay there with him; that if his brother was not at the train to meet him, he would go on through to McDade to attend Ms sick wife.

Being thus explicitly told in detail just what the purpose of the telegram was, precisely what reliance and dependence would be put upon it, and exactly the action ap-pellee would take if its intended and easily accomplished object were not attained, that is, bringing his brother to meet the train with information about his father’s condition that would' have caused him to stopoff and remain until his death, it seems to us,, under the very cases cited and relied upon by appellant, it should have anticipated just what happened, the death of his father before appellee saw Mm. W. U. Tel. Co. v.. Edmondson, 91 Tex. 209, 42 S. W. 549; W. U.. Tel. Co. v. Linn, 87 Tex. 13, 26 S. W. 490,. 47 Am. St. Rep. 58; W. U. Tel. Co v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St Rep. 826.

There can be no doubt, nor does it contend otherwise, that appellant’s inexcusable negligence in nob delivering the message directly caused Huffman not to get off the train-at Humble and remain there with his father;. 'but is it relieved from the consequences of that act because of any supposed negligence in the conduct of either appellee or his brother, B. D. Huffman? It insists that both were so remiss in their duties toward each other and to appellant as to preclude the recovery had, the former in relying solely upon the telegram to bring the information he sought and in’ assuming from his brother’s failure to meet the train, without further inquiry,, that their father was better, the latter in neglecting to communicate their father’s serious condition to Forest in some such way as would have enabled Mm to reach and be with the father anyway before death;, it being shown that Dr. Cooper told the-brother on the same night that Forest had passed through Humble going to McDade,. and there being then four days of time and ample opportunity for that to be done.

We think added answer over what has before been said to these suggestions lies in the-fact that the jury specifically acquitted the-appellee of any negligent action in the very course here criticized, while the court itself,, even if B. D. Huffman’s subsequent inertia could be chargeable to appellee, and consequently be said to have been an issue in the-case, which we do not think could properly be done, resolved the matter adversely to appellant in its recited conclusion that all issues, of fact raised by the pleadings and evidence and not submitted to the jury, as this one neither was nor was requested to be, had been found in favor of the appellee. If in issue at all, the negligence of either brother was a question of fact which, upon sufficient evidence, or as against the sole objection here made that it was such as a matter of law, having 'been determined adversely to it, we think, left appellant in no condition to complain.

For this reason we conclude the court committed no error in refusing to give various special instructions upon this point requested by appellant, since tbey all, except an inapplicable general one, told tbe jury as a matter of law that appellee could not recover because of his brother’s negligence.

Furthermore, we cannot agree that appellee was in law bound by the subsequent failure of his brother,. B. I>. Huffman, to notify him of his father’s condition; he had not constituted the brother his agent for any other purpose than to meet him at the train at Humble on the particular occasion and there advise him of his father’s condition. We think this question is disposed of by the Supreme Court in Xoper v. W. U. Tel. Co., 70 Tex. 60S, 8 S. W. 602, where it is said:

“It is also insisted that it appears from the petition that the plaintiff’s wife could have been at her son’s burial but for the fault of the railroad, and that therefore the petition is insufficient. To this it must be answered that we think it is affirmatively shown that, if the message had been promptly delivered, the wife would have arrived before the burial, so that any subsequent default on the part of the railroad company in failing to make connections, ■on the trip actually made, would not affect the ■case.”

All questions raised and assignments presented have been carefully considered, but none of them in our opinion present reversible ■error, and the judgment will be affirmed.

Affirmed.
      <&wkey;>3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TACQUARD v. KEMPNER.
    (No. 7597.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1918.
    Rehearing Denied Jan. 9, 1919.)
    Sales <&wkey;150(l) — Salt? oe Salvaged Cotton —Failure to Perform — Impossibility.
    Where plaintiff salvaged baled cotton cast on shore by a storm, and agreed to sell it to defendant f. o. b. cars at a shipping point, but cotton was seized by receiver in suit between other parties, so that performance became impossible, ■defendant was not liable for price on ground that but for enforced delivery to receiver plaintiff could have carried out his contract, which amounted in law to delivery to defendant.
    Appeal frota District Court, Galveston County; Robt. G. Street, Judge.
    Action by H. G. Tacquard against Eliza Kempner. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Stewarts, of Galveston, for appellant.
    Williams & Neethe, of Galveston, for ap-pellee.

      writ of error denied by Supreme Court March 19, 1919.

   GRAVES, J.

This case upon its facts presents a situation somewhat out of the ordinary. Following the Gulf Coast ?torm of August, 1915, hundreds of bales of unidentified cotton were found scattered promiscuously over lands bordering the Gulf and bays in the vicinity of Galveston. Appellant had collected together and placed upon skids on his own premises many bales of such cotton cast by the storm upon the “mainland” in that territory. He then entered into a contract with appellee, who acted through her authorized agent, H. L. Roberts, or H. D. Roberts & Co., evidenced by the following two memoranda, both bearing the date of August 28, 1915, but-the first copied having been in fact signed and delivered on the same day, presumably in advance of the other:

“Hitchcock, Texas, August 28, 1915.
“We have this day sold to H. L. Roberts & Co. 1,000 bales or more of good cotton at $6.50 per bale f. o. b. cars at Alta Loma, Texas. No linters or round bales to be included.
“We hereby acknowledge receipt of $25.00 cash paid to us to bind this contract, the said $25.00 to apply on final settlement for the cotton. H. G. Tacquard.”
“I have this day salvaged to H. L. Roberts, of Hitchcock, Texas, representing H. Kempner, of Galveston, one thousand or more bales of cotton washed up by the storm of the 19th instant, said H. L. Roberts to pay us $6.50 per bale delivered on cars at Alta Loma, Texas, $5.00 per bale of this salvage and $1.50 per bale allowance for hauling and loading cars.”

It will be noted that under the express terms of both writings the obligation taken by Tacquard was to sell the 1,000 or more bales of cotton to Kempner f. o. b. cars at Alta Loma, Tex.

Now, the undisputed proof showed that not a bale of it was ever so delivered or tendered; not only that, but further, as the trial court found, that Tacquard never actually did anything pursuant to the agreement, nor suffered anything in consequence of it. He himself testified:

“At the time Roberts and I finally made a trade, that cotton was at my place and had been put on skids. We were to salvage it and take it to Ata Loma.”

In other words, he did not remove the cotton out of the drift where it was first deposited and place it upon skids up at his place in part performance of his contract with Kempner, but had done all that before he made such a contract.

And with matters in that precise condition, althoilgh Tacquard had in the meantime contracted with some one to haul the cotton to Alta Loma for him at $1.50 per bale, but, as he himself pleaded, “before he could by the exercise of reasonable diligence deliver any of said cotton” under his contract with Kempner, it was all seized and so placed beyond his further control by the receiver appointed by the United States District Court for the Southern District of Texas in equity action No. 67 therein, styled Bush & Wither-spoon v. Garner Co. et al.

Appellant then followed the cotton into that receivership proceeding, intervened therein upon a claim for compensation for having so salvaged it, and on account thereof finally received from the proceeds of the sale through the receivership the gross sum of $2,-168.

His contention is that his enforced delivery to the receiver of the cotton he had ready for, and could otherwise have carried out his contract to Kempner with, amounted in law to a delivery thereof upon his part to Kemp-ner, absolved him from further obligation to the latter, and entitled him to collect the full contract price. We cannot agree with him. It seems to us that he both pleaded and testified himself out of court, and that notwithstanding the recitation in the contract itself that, of the total consideration of $6.50 per bale of the cotton, $5 was for salvage and $1.50 for hauling f. o. b. cars; the contract was none the less a single and unequivocal agreement to deliver the cotton f. o. b. the cars at Alta Loma, which, not having been in any respect performed, left appellant without a cause of action.

He still says, however, that he was relieved from his obligation to so deliver the cotton' at Alta Loma because it became impossible, through the receiver’s taking possession, for him to do so. As we understand the authorities, impossibility of performance under such circumstances, not existing at the time the contract was made, but arising subsequently, and not caused by a party thereto, furnishes no excuse. Smoots Case, 15 Wall. 36, 21 L. Ed. 107; Irrigation Co. v. Dodd, 162 S. W. 946; Irrigation Co. v. Watkins, 183 S. W. 431; Corpus Juris, vol. 13, p. 639, note 67; Klauber v. San Diego Street Car Co., 95 Cal. 353, 30 Pac. 555; Sample v. Irrigation Co., 129 Cal. 222, 61 Pac. 1085; Page on Contracts, vol. 3, par. 1347.

We find it unnecessary to- pass upon the legality of the contract 'in the first instance, and do not do so.

Finding no error, the judgment has been affirmed.

Affirmed.
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author: BOYCE, J.

text:
    JACKSON v. HOUSER.
    (No. 1484.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1.Elections - <&wkey;259 — Canvass—Results— Province of Commissioners’ Court.
    Under Rev. St. 1911, arts. 3030-3032, and Vernon’s Ann. Civ. St. ,Supp. 1918, art. 3044a, commissioners’ court was acting within province of its lawful duties in determining whether particular returns should be estimated in the canvass, though such action in rejecting particular returns may have been wrongful.
    2. Elections <&wkey;267 — Right to Oefice — Certificate op Election — Estimate op Canvassing Board.
    The estimate of the commissioners’ court as to result of election under Rev. St. 1911, art. 3030, followed by the. issuance of certificate of election by county judge under article 3032, is prima facie evidence of right of office, and is conclusive evidence of such right until it shall have been otherwise determined in some appropriate proceeding of some, tribunal having authority in such matters.
    3. Officers <&wkey;S0 — Holding Over — Inquirí1 as to Successor’s Right.
    The holdover whose term of office has expired has no right to or interest in the office itself, his only right and' duty being to protect its possession against an intruder until the qualification of his successor.
    4. Officers <&wkey;80 — Holdover Officer — Results of Election.
    It is no part of the duty of an officer to ascertain the result of the election held to elect his successor, if the result has been declared by officials authorized by Rev. St. 1911, arts. 3030, 3032, to ascertain result.
    5. Officers <&wkey;lll — Liability—Care of Office Records — Delivery to Successor.
    Holdover officer is fully absolved from further liability as to the preservation of records and the further discharge of the duties of his office when he shall have delivered them to the holder of the certificate of election from properly constituted authorities after having duly qualified according to law.
    6. Officers <&wkey;82 — Injunction—Occupancy of Office — Equity.
    In view of Rev. St. 1911, arts. 3057-3061, 3068, providing method of contesting results of election and providing for bond to protect contestant, equity will not intervene on behalf of contestant by enjoining contestee from taking office pending result of contest.
    7. Injunction <&wkey;74 — Acts of Officers.
    Courts are cautious of interfering with action in the political departments of the government.
    Appeal from District Court, Sherman County; Reese Tatum, Judge.
    Action by John Houser against Sallie Jackson.
    From an interlocutory order granting temporary injunction, defendant appeals. Temporary injunction dissolved, and cause reversed and remanded.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellant.
    W. I. Gamewell, of Stratford, Tatum & Strong, of Dalhart, and Madden, Trulove, Ryburn &' Pipkin, of Amarillo, for appellee.
   BOYCE, J.

This is an appeal from an interlocutory order, granting a temporary injunction, restraining tlie appellant from qualifying and assuming the duties of the office of county and district clerk of Sherman county. The injunction was granted upon allegations made in a petition filed by ap-pellee to the following effect: That appellant and appellee were rival candidates for the office of county and district clerk of Sherman county, at the regular election held in said county on November 5, 1918. That at said election, in fact and as appears from the face of the returns of the various election precincts, appellee received a majority of the votes cast. That the commissioners’ court fraudulently and illegally rejected and threw out the election returns from election precinct No. 3, though the same had been made in accordance with law, and after canvassing the returns from the other precincts, in which appellant had received a majority of the votes cast for said office, illegally declared appellant to be elected to said office. That thereafter the county judge of said county, who had knowingly and illegally participated in said unlawful proceedings, issued to the appellant a certificate of election, that unless restrained from so doing appellant would make bond as such officer and take possession of the records and instruments belonging to the custody of such officer. That appellee is the duly qualified, elected, and commissioned and acting clerk of said court and has been the county and district clerk for the past four years and was so elected to said office for the ensuing two years at the election held on November 5, 1918. That appellee has filed in the district court of said Sherman county a contest of said election, but that the same cannot be tried before the January, 1919, term of said court. That appellee is charged by law and by the obligation of his bond with the preservation and protection of the records of said office and that appellant, unless restrained, will qualify as such officer and take possession of such records and receive and collect the fees and emoluments of the of-' fice “to the prejudice and irreparable injury of the plaintiff and the injury of the public and property owners and taxpayers in Sherman county.” We do not understand that appellee claims that he has actually qualified and assumed the duties of the office of district and county clerk under the election of 1918. Evidently under his allegations his holding possession of the office is by virtue of his qualification under the election of 1916, awaiting the qualification of his successor, elected at the 1918 election. The injunction prayed for and granted restrained appellant:

“From presenting her official bond to the commissioners’ court of Sherman county for its approval and from taking the oath of office as such county and district clerk, and from entering into such office and taking possession thereof, and of the books, papers, records, and property pertaining thereto, and from discharging any of the duties pertaining to the office of county and district clerk of Sherman county, Tex., until said contest above referred to has been officially determined and defendant has been legally adjudged entitled to said office.”

It was the duty of the commissioners’ court to canvass the returns and estimate the result of such election. K. S. art. 3030. Article 3031 provides that—

“No election returns shall be opened or estimated, unless the same have been returned in accordance with the provisions of this title.”

Article 3032 provides that after such estimate the county judge shall issue and deliver, to the candidates thus appearing to have received the greatest number of votes for a particular office, certificates .of election to said office. Article 3044a Vernon’s Ann. Civ. St. Supp. 1918 (Act March 30, 1917, e. 143, § 1), provides that the officers elected at a general election shall qualify and assume the duties of their respective offices on the first day of December following the election, or as soon thereafter as possible. -From the foregoing it will be seen that the commissioners’ court was acting within the province of its lawful duties in determining whether particular returns should be estimated in the canvass — though such action in rejecting particular returns may have been wrongful. It seems clear that the estimate of the canvassing board, under these circumstances, followed by the issuance of the certificate of election, is prima facie evidence of right to the office. A proper regard for the orderly administration of government and the acts of its constituted authorities would require that this evidence of right should be conclusive until it should have been otherwise determined in somfe appropriate proceeding by some tribunal having authority in such matter. As against this right of appellant, appellee asserts the right of a holdover in possession of the office and a contestant in a statutory contest proceeding, and we will proceed to consider whether a court of equity ought, on the basis of either right, to maintain him in possession of the office pending the decision of such contest.

The holdover whose term of office has expired has no right to or interest in the office itself. His only right and duty would be to protect its possession against an intruder until the qualification of his successor. Tom v. Klepper, 172 S. W. 721. It is no part of his duty to ascertain the result of the election held to ascertain who his successor might be. The law has clothed other officials with such duty, and it would seem that the holdover has no such right or interest as would authorize him to contest the result as declared by such officials. It would be a menace to good government to permit the holdover to deny possession of the office to one declared by such authorities to have been duly elected. The appellee, we think, will be fully absolved from further liability as to the preservation of the records, and further discharge of the duties of his office, when he shall have delivered them to the holder of the certificate of election from the properly constituted authorities, after having duly qualified according .to law. We then proceed to consider appellee’s right as a contestant under the election of 1918.

The statutes have provided a method of contesting the result of the election as declared by the commissioners’ court, and appellee, by his contest proceeding referred to in his petition, is pursuing the method thus prescribed for determining the right to the office. It does not appear to us that the statutes have left the courts free to determine which of the claimants shall be entitled to hold the office pending the decision of the contest. R. S. arts. 3057 to 3061, 3068. It is there provided that, after notice of the filing of the contest, the contestee shall, within a prescribed time, execute bond payable to the contestant for his protection in the event the decision shall, be in the contestant’s favor; that, in the event the contestee fails-to file such bond, the contestant may himself give bond payable to the contestee, and in such event shall be entitled to be .commissioned to perform the duties of the contested office. If the contestee gives the bond, or if both contestant and contestee fail to give such bond, then the commission shall be issued to the contestee. Article 3068 provides for the measure of recovery on such bond. It thus appears that there is no necessity for the intervention of a court of equity to protect the rights of appellee in the position in which he is placed, and that the injunction granted actually prevents the operation and application to the facts of the case of specific articles of the statute intended to control such situation. The courts are cautious of interfering with action in the political departments of the government. City of Dallas v. Elec. Ry., 105 Tex. 337, 148 S. W. 292, and authorities there cited; Gilmore v. Waples, 108 Tex. 167,188 S. W. 1043; Fuller v. Mcllaney, 192 S. W. 1159. We are convinced that no good ground for such intervention appears in this case.

The cases of Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S. W. 328, and Ware v. Welch, 149 S. W. 263, do not appear to us to support the right of the court to issue an injunction in this case. Without detailing the nature of those cases, it is sufficient to show the distinction between them 'and the case we are considering to call attention to the following statement made by the court in the case of Callaghan v. Tobin:

“The suit does not purport to be one between claimants for the office, each claiming to have the legal title thereto, but is a proceeding to enjoin persons making no claim to the office, but who are contemplating and intending to dispossess the party seeking the injunction. This distinction must be kept in view in the consideration of the questions submitted. The title to an office cannot he tried through the medium of an injunction, but the remedy by an injunction can be invoked to protect the possession even of officers de facto against the acts of intruders on such possession.”

The case of Ware v. Welch quotes almost in toto the opinion, in the case of Callaghan v. Tobin, and plainly holds that, had it appeared from the petition in such case that the true question involved was the title to the office in question, the injunction would not have been proper.

The temporary injunction will be dissolved, and the cause reversed and remanded.
      <&=}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      i&wkey;For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes