text:
    STUBBLEFIELD et ux. v. HOUSTON, E. & W. T. RY. CO.
    (No. 310.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 21, 1918.)
    1. Eminent Domain <&wkey;293(l) — Constbuct-ing Switches — Right to Damages — Pleading.
    Petition, alleging plaintiff was owner of property fronting on street, on opposite side of which was a 150-foot railway right of way, in the center of which was the track, and that railroad caused depreciation of his property when it built switch track on edge of right of way and stored freight iu the street, held to state a cause of action.
    2. Eminent Domain &wkey;>120 — Constbucting Switches — Right to Damages.
    Under Const, art. 1, § 17, requiring compensation for taking or injuring property, the owner of property, which depreciated owing to construction of switch track near by, and storage and hauling of freight, could recover his damages regardless of negligence in construction or operation of the track,
    3. Eminent Domain <&wkey;284^CoNSTBUCTiNG Switches — Right to Damages.
    If property owner acquired land from common vendor after railroad had lawfully acquired right of way, he could not have damages for construction of a switch track causing depreciation in value of his property.
    4-, Eminent Domain <&wkey;102 — Opebation oe Railroad — Right to Damages.
    Property owners adjacent to side track cannot recover from personal inconvenience by operation of trains, in the absence of negligence therein.
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Action by W. H. Stubblefield, and wife against tlie Houston, East & West Texas Railway Company. Judgment sustaining general demurrer and special exception to the petition, and plaintiffs appeal.
    Reversed and remanded for new trial.
    H. E. Marshall, of Liberty, and P. C. Matthews, of Cleveland, for appellants., Sfevens & Stevens, McMeans, Garrison & Pollard, and Baker, Botts, Parker & Garwood, all of Houston, for appellee.
   HIGHTOWER, C. J.

The appellants, W. H. Stubblefield and his wife, brought this suit against the appellee, Houston, East & West Texas Railway Company, for damages alleged to have been caused on account of depreciation in the market value of three certain lots owned by them in the town of Cleveland, Tex., and occupied and used by them as a homestead, and also for damages on account of annoyance and personal inconvenience in consequence of noise, vibration, smoke, etc., which injuries were alleged to have been the result of the construction of a switch or side track in front of appellants’ property on the right of way of appellee. The appeal is from a judgment of the district court of Liberty county, sustaining a general demurrer and a special exception to appellants’ petition, and we therefore think best to here set out appellants’.petition in full, as follows:

“Now comes the plaintiffs, Mrs. W. H. Stub-blefield, joined by her husband, W. H. Stubble-field, and leave of the court being first had and obtained, file this, their first amended original petition in lieu of their original petition filed herein on the 20th day of June, 1916, and for cause of action represent:
“(1) That plaintiff Mrs. W. II. Stubblefield is married, and her husband is the plaintiff W. II. Stubblefield who joins her in this suit, and plaintiffs are residents of Liberty county, Tex., and the defendant is a corporation duly incorporated under the laws of the state of Texas, and has an agent at Cleveland, Liberty county, Tex., oh whom service of citation may be had.
“(2) That heretofore, to wit, on or about the 1st day of March, 1916, and ever since and now, the plaintiff Mrs. W. H. Stubblefield was, and has been and is, the owner of the following described lots or parcels of land, to wit, lots Nos. 18, 19, and 20, in block No. 10 in the town of Cleveland, Liberty county, Tex., and that the residence of plaintiffs during all of said time and for many years prior thereto has been on lot No. 20, above described, on which plaintiffs have a dwelling house, garden, barn, and such other houses as are usual and ordinary around a city residence, and also lots Nos. 18 and 19 are a part of plaintiffs’ residence and used in connection therewith.
“(3) Plaintiffs further say that they have, a family, and have actually resided upon said lot 20 in said house for a great many years, and are now residing upon same and making it their home; that the front of the house on said lot No. 20 is situated about 15 feet west of the east boundary line of said lot.
“(4) Now, plaintiffs show the court that the defendant company has a railroad and right of way through the town of Cleveland, and has had for a number of years; that defendant’s right of way lies east of plaintiffs’ property, to wit, lots Nos. 18, 19, and 20, in' block No. 10, above described. That just east of and .adjoining said three lots there is a street 25 feet in width; that the defendant has a right of way adjoining said street on the east, and said right of way is 150 feet in width, and defendant’s main line on said railroad is in the center of said right of way, and extends nearly north and south through the town of Cleveland, and said railroad always was in the center of said right of way, and said .main track was the only track that defendant had and maintained in front of plaintiffs’, house until about March 1, 1916.
“(5) That heretofore, to wit, on or about the 1st day of March, 1916, the defendant prolonged and constructed a switch, in conjunction with its railroad in Cleveland, and constructed and prolonged said switch along the west side of its main line and in front of, or east of, said lots Nos. 18, 19, and, 20, in block No. 10, and constructed said switch 30 feet east of the east line of said lots Nos. IS, 19, and 20, and along the entire east front of said lots. That said switch since that time has been used for the purpose of standing cars, switching cars by moving cars and engines along the same each and every day, and is used for the purpose of loading cars, all in front of and near plaintiff’s house and lots as aforesaid. Plaintiffs further say that since said time defendant has used the street or a part thereof as a yard or place for storing, stacking, and piling logs, ties, and other property to be loaded on cars of defendant. That part of defendant’s right of way adjoining said street and in. front of plaintiffs’ promises has been subjected to the storing, stacking, and piling of logs, ties, wood, and other property on ears on said switch. That wagons and teams unloading wood, ties, logs, and other property on said part of right of way and street to be loaded on cars on said switch are continually in front of plaintiffs’ residence, both day and night, obstructing said street in front of plaintiffs’ house, and by loud talking and other noises making plaintiffs’ residence unfit and undesirable for a residence.
“(6) That by reason of the construction of said switch, the moving of cars thereon, the operation of trains thereon, and the standing of cars thereon, and the storing, stacking, and piling of property on said street and right of way, -and the loading of cars thereon, as aforesaid., the residence of plaintiffs has been made unpleasant and disagreeable from the noise, smoke, noxious vapors of the engines and cars operated on said switch, and also from the vibration caused by the operation of said powerful machinery, consisting of engines and cars, and from all other causes above named, which did not exist prior to the construction of said switch, as aforesaid, and that the market value of said residence of plaintiffs has been materially diminished, an'd the enjoyment of the property by plaintiffs as a home has been materially lessened, and will be undesirable as a residence, and plaintiffs say said property .is so located that it can be utilized for residence purposes only.
“Plaintiffs further say that on account of the noise, smoke, noxious vapors, and vibrations of said cars, and on account of using said switch as a storage place for cars, and on account of cars being loaded on said switch and street in front of said property, as aforesaid, and on account of the depreciated market value of said lots, the plaintiffs have been damaged in the sum of $3,000.
“(7) Plaintiffs say that prior to the time the said switch was prolonged and constructed in front of and near their -house and residence and property as hereinbefore described, the said right of way of defendant was not subjected, in any manner, to the uses and purposes as above described herein, and said street was not used for the purposes herein described, and when plaintiffs 'purchased said house and property the only use the defendant made of its said right of way was by running cars over the main line thereon,'which was situated in the middle of defendant’s right of way. That cars did not stop or stand, nor were they loaded, in front of plaintiffs’ house and premises; nor were the logs, ties, or other property unloaded, stored, stacked, and piled in said street near and in front of plaintiffs’ premises, nor on defendant’s right of way, near or in front of plaintiff’s premises prior to that time.
“(8) That defendant has constructed and built said switch where it is so built for the purposes and uses it has used it for, and the defendant will continue in the future to so put said switch to such uses as it has up to this time since it was constructed.
“Wherefore, plaintiffs pray that deféndant be cited in terms of law to answer this petition, and that on a final trial hereof the plaintiffs have judgment for their damages, costs of suit, and such other relief, both general and special, in law and equity, as they may be entitled to, and this they will ever pray.”

The appellee answered with a general de-munrer, a special exception unnecessary here to mention, and by general denial. The court having sustained the general demurrer and special exceptions, and appellants refusing to amend, their petition was. ordered dismissed. We shall only discuss the action of the court in sustaining the general demurrer, since, as? we consider the special exception, it, too, is nothing more than a general de-, murrer.

It will be observed that appellants’ petition claims not only damages for personal inconvenience on account of noise, smoke, cinders, etc., but also claims that their property was damaged in consequence of the construction and operation of appellee’s side track opposite and near the property of appellants.

We find in appellee’s brief two counter propositions to appellants’ assignments and propositions complaining of the action of the trial court in sustaining the general demurrer, which counter propositions are as follows:

“(1) The general rule is that where a railroad company has entered into actual possession of land, the right to damages vests in the party owning the land at the time; the possession is taken; the right to damages is a personal right, vested in the vendor. As the right to damages is a personal one, it is supported by the general doctrine that personal rights do not pass by conveyance of the land, and hence the right of action remains in the vendor.
“(2) When appellants purchased the land in question they did so with notice, actual and constructive, of the occupancy by the railroad company of its right of way, consisting of a strip of land 150 feet in width, and are not entitled to recover any damages by reason of the use of said right of way in a legal way. The construction and maintaining of additional side tracks on its right of way, although no damage was ever paid to the owner of the land, at the time the road was constructed, would not give appellants any cause of action against ap-peUee.”

We also find in appellee’s brief the following statement:

“The statement of the nature and result of this suit as made by appellants is substantially correct, but in order that the court may properly understand the issues, we make the additional statement, which was made to the court and agreed to as being correct at the time of the argument on the general demurrer and special exceptions, that the appellee, Houston, East & West Texas Railway Company, holds, for right of way purposes, a strip of land 150 feet in width through the town of Cleveland, as appears from the Deed Records of Liberty County, Texas, vol. 7, pp. 210-212, said • deed being executed by C. L. Cleveland to Houston, East & West Texas Railway Company, of date June 20, 1877; that the main line and side tracks of appellee, Houston, East & West Texas Railway Company, was laid off and was being operated and used prior to the purchase of the property owned by the plaintiffs; that the map hereto attached is a correct map, showing the location of the main line and side track prior to the purchase of said property by the appellants herein, and that said map also shows correctly the location of the main line and side track as changed by the defendant in March, 1916; that said change in said side tracks were made at the time of the relocation of defendant’s depot in the town of Cleveland; that the yellow line as shown on said map shows the original location of the side track, as originally constructed, connected with the main line opposite the property of appellants, located on lot 20, in block 10; that in 1916, this side track was abandoned, and the side track as shown on the map was located; that the new side track was constructed in March, 1916, and intersects the main track opposite lot 16 in block 10; that the grantor under whom the railway company claims title to said right of way is the same grantor under whom plaintiffs claim title. While there is no record showing the facts above stated, we feel sure that counsel Tor appellants will agree that the additional tacts herein stated are true, and correct, and that same were admitted and considered by the court in passing upon the general demurrer and special exceptions.”

We may say at the outset that appellants’ attorneys, instead of agreeing to the facts as outlined in the above-quoted statement, expressly refused to do so, and, indeed, have filed a motion to strike out appellee’s brief on the ground that the same contains a statement of facts regarding matters that were shown on the hearing below, whereas, in fact, no such facts were shown, or agreed to. Prom an examination of the record before us, we conclude that there is nothing in the record showing, or tending to show, that the facts set forth in the above-quoted statement found in appellee’s brief were shown or agreed to on the hearing below. Nevertheless, we have declined to strike out appellee’s brief.

It will be observed that the two counter propositions of appellee, as above quoted, assume the truth of the facts mentioned in the above-quoted statement by appellee, and assume, in effect, that appellants’ petition shows such facts. Prom a careful reading of the petition, it will be observed that it is not disclosed thereby that appellants and appellee deraigned their title from a common source, or hold under the same vendor, and, further, that the petition does not disclose that appellants purchased their property after appellee had obtained its right of way and constructed its railroad, and this court, not being at liberty to consider, in passing on the action of the court in sustaining the general demurrer, anything other than appellants’ petition, we must proceed to dispose of the case by a consideration of the allegations in their petition alone; and, after a full consideration of the petition, we have reached the conclusion that the same states a cause of action, and right of recovery in appellants, in so far, at least, as appellants seek to recover damages because of the depreciation in the market value of their property.

The Constitution of this state (article 1, §17) provides:

“No person’s property shall be taken, damaged, or destroyed for, or applied to, a public use without adequate compensation being made, unless by the consent of such person.”

Accepting as true the allegations in appellants’ petition to the effect that their property has been damaged in consequence of the construction by appellee of its side track in close proximity to such property appellants would be entitled to recover against appellee to the extent of such damages without regard to whether appellee was guilty of negligence in the construction or operation of said side track or not providing the other elements necessary to a recovery by them exist. There c-an be no doubt upon this point. Railway Co. v. Hall, 78 Tex. 169, 14 S. W. 269, 9 L. R. A. 298, 22 Am. St. Rep. 42; Railway Co. v. Shaw, 99 Tex. 559, 92 S. W. 30, 6 L. R. A. (N. S.) 245, 122 Am. St. Rep. 663. Therefore the trial court was in error in sustaining the general demurrer, notwithstanding there were no allegations in appellants’ petition showing any negligence in the construction of operation of said spur track, or that its location at that point was unreasonable, or that there was no necessity for its location and operation at such point, or anything else of that kind.

On the other hand, if appellee lawfully acquired its right of way though the town of Cleveland, either by purchase or condemnation, it thereafter had the right to construct its railroad and such side tracks as it deemed proper and necessary in the vicinity of its depot in the town of Cleveland, and if thereafter appellants acquired their property from or through appellee’s vendor, then appellants would have no cause of action against appellee for damages to' their property on account of its depreciation in market value in consequence of the erection of said side track, unless it should be shown that such cause of action was assigned or transferred from the common vendor, and was in appellants at the time of the construction of such switch or side track. There is no necessity for discussion of this point at length, and a citation of the following authorities will suffice to show the correctness of our holding on this point: Elliott on Railroads, vol. 2, §§ 937, 994, 1000; Fordyce v. Wolfe, 82 Tex. 239, 18 S. W. 145; Railway Co. v. Adams, 58 Tex. 476. Roberts v. Railway Co., 158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873; McFadden v. Johnson, 72 Pa. 335, 13 Am. Rep. 681; Wood on Railroads, vol. 2, p. 994.

. Now, if it were true, as assumed by appel-lee, that appellants’ petition in this case disclosed that they purchased their property from appellee’s vendor long after appellee had purchased and entered into possession of its right of .way by constructing its railroad, or had disclosed that appellee and appellants held under a common source, and that appellants’ purchase of their property was subsequent to appellee’s purchase and construction of its main line, then we would have a different question before us; and, in the absence of an allegation in the petition showing that the canse of action which was in the common source for damages to the property had been transferred or assigned to appellants, we would hold that the petition stated no cause of action in appellants. We merely make these suggestions in view of another trial of the case.

If upon another trial the facts should show, in accordance with the views we have expressed, that the appellants are not entitled to recover for damages to their property, then, of course, it follows that they could not recover because of personal inconvenience, discomfort, etc., on account of the operation of the trains on the said side track, in the absence of pleading and proof of negligence on the part of appellee in the use and operation of said side track. It is a well-settled rule in this state that a railroad company, which has legally acquired its right of way, has a legal right to operate its road, its main line, and all necessary side tracks and switches, in the jirosecution of its public business and so long as such operation is properly done, that is to say, so long as its road and necessary side tracks are operated with proper care and without negligence, a person, although he may suffer injury in the way of personal inconvenience by reason of noise, vibration, smoke, etc., cannot hold the railway company liable in damages. This rule is so well settled that it needs no citation of authority at our hands.

Being of the opinion that the trial court was in error in sustaining the general demurrer, the judgment is reversed, and the cause remanded for a new trial, consistent .with the views above expressed.
      <&wkey;For other cases see same topic and KEYrNüMBEB. in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    THOMPSON v. THOMPSON.
    (No. 8070.)
    (Court of Civil Appeals of Texas. Dallas.
    May 25, 1918.)
    Injunction <&wkey;l(iS(l) — Extent of'Relief — Modification.
    In a suit by a father to annul the marriage of a minor son, a temporary injunction, restraining defendant and her counsel from communicating with the son, would deprive defendant and her counsel of the right to communicate with a view' of taking son’s testimony in the trial of the case, and will be modified so as to permit communication for the purpose indicated.
    Appeal from District Court, Navarro County ; H. B. Daviss, Judge.
    On second motion for rehearing. Overruled. except as indicated.
    For former opinion, see 202 S. W. 175.
    M. M. Crane, of Dallas, and Callicute & Johnson, of Corsicana, for appellant. Richard Mays, of Corsicana, and Etheridge, McCormick & Bromberg, of Dallas, for appellee.
   TALBOT, J.

The appellant’s second motion for rehearing, except as hereinafter indicated, will be overruled. We see no good reason for the changing of our rulings on questions heretofore raised, and, for the reasons given in our original opinion, we must adhere to them. The copy of the petition- purporting to have been filed by William Thompson, by his next, friend, and father, J. A. Thompson, in the district court of Bryan county, Okl., seeking to annul his marriage and that of appellant, in which he states, among other things, that to secure the license authorizing the celebration of the marriage of him and appellant, the said William Thompson, in the presence of appellant, and with her acquiescence and consent, represented to the licensing officer that he and appellant were of legal age and competent to enter into the marriage relation and contract without the consent of the parents • or guardians, and the copy of the original affidavit made by the said William Thompson, before the clerk of Bryan county, Okl., for the purpose of procuring a marriage license and other exhibits attached to the second motion for rehearing, for clear and obvious reasons cannot be considered now by this court.

The complaint, however, that the unqualified affirmance of the sweeping order of the district judge, who granted the temporary injunction in this case, will have the effect to deprive appellant and her counsel of the right to communicate .with the said William Thompson with the view of taking his testimony in the trial of the cause now pending in the district court of Navarro county, Tex., as well as in the cause pending in the district court of Bryan county, Okl., or in any way communicating- with him to find out what his testimony would be upon the matters complained of in the plaintiff’s petition, are probably well founded. The appellant and her counsel were enjoined by the temporary writ issued from having any communication with William Thompson by letter, telephone, telegram, signs, or otherwise. This language is broad enough to have the effect suggested by appellant, and, literally construed, would deprive the appellant of a legal right, as contended by her, to communicate with the said William Thompson for the purpose of ascertaining what his testimony would be upon the trial of the cause, and from taking his testimony in the event it should be regarded as material to her defense. The judgment of the lower court will therefore be reversed in this particular, and the temporary injunction modified so as to permit the appellant or her counsel for the purposes indicated to communicate with William Thompson.

The motion for rehearing in all other respects is overruled.


author: RAINEY, O. J.

text:
    SCHAUB v. RUCKER & HEARTSILL.
    (No. 7982.)
    (Court of Civil Appeals of Texas. Dallas.
    May 25, 1918.)
    Teial <&wkey;260(l) — Requested Instructions.
    There is no error in refusing a charge, the principle of which is embodied in the main charge.
    Appeal from Dallas County Court; T. A. Werk, Judge.
    Action by Rucker & Heartsill against Adam Schaub. Judgment for plaintiffs, and defendant appeals.
    Affirmed.

      Short & Field, of Dallas, for appellant. Lively & Goggans, of Dallas, for appellees.
   RAINEY, O. J.

This is an appeal from a judgment in favor of appellees for the sum of $252, with interest at the rate of 6 per cent, per annum from date of judgment.

There are several assignments of error presented by appellant, complaining of the action of the trial court in sustaining objections to testimony, in refusing to give special instructions requested by appellant, in giving special instruction requested by appel-lees, and that the judgment is contrary to and not wárranted by the evidence. We have given each assignment due consideration, and conclude that no reversible error is contained in the record. The case was tried before a jury, and the evidence warranted the verdict. The court’s charge was correct, and presented the necessary issues. The charges requested by appellant that were correct were either given or the principle embodied in the main charge. The testimony rejected was not prejudicial to appellant.

The principles announced in Bellis v. Hann, 157 S. W. 427, govern this case, and the judgment is affirmed.

         — .TTar other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    SCHALLERT v. BOYD.
    (No. 6047.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1918.)
    1. Appeal and Eeboe <&wkey;692 (1) — Sueficien-oy op Bill op Exceptions.
    Where the exclusion of a statement of account and the refusal to permit witness to testify as to items thereof are assigned as error, the assignments will be overruled, where bills of exception do not contain statement or show what witness would have testified to; the court being unable to ascertain if error was prejudicial.
    2. Appeal and Eeboe &wkey;>1064(2) — I-Iabmless Ebeoe — Instbuctions.
    An instruction, intimating that indebtedness chargeable against partnership property did not exceed certain amount, although on weight of evidence, was harmless, where appellant, who was accountable for partnership property, failed to specify in his statement any evidence from which jury could have found amount to be greater.
    3. Appeal and Eeboe <&wkey;213, 882(14) — Pbes-ebvation op Objection — Submission op Issue to Juey.
    The sufficiency of evidence to justify submission of an issue to the jury will not be reviewed on appeal, where no objection to the sufficiency of such evidence was made at time of submission of issue, and where appellant asked for charge on burden of proof thereon.
    4. Paetneeship <&wkey;249 — Death op Paetnee —Rights op Sueviving Paetnee.
    A surviving partner has no right to keep and refuse to sell partnership property, and thus avoid accounting to heirs of deceased partner.
    Appeal from Nueces County Court'; David M. Picton, Jr., Judge.
    •* Action by Mrs. Y. L. Boyd as surviving wife and as guardian against Robert Sehal-lert. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. Suttle & Todd, and Dawson & Anderson, all of Corpus Christi, for appel-lee.
   MOURSUND, J.

Mrs. V. L. Boyd, as the surviving wife of V. L. Orr, deceased, and as guardian of the estates of the minors, Mary, Vallie B., Zanna, Lillian,' and Dora Orr, sued Robert Schallert, to recover $815, claiming $750 to be due as one-half the value of 12 mules in the possession of defendant, belonging to a partnership composed of V. L. Orr, deceased, and said Schallert, and the sum of $65 as the value of a cow or calf presented by Schallert to one of the minors, and afterwards taken by him from the possession of such minor. The trial resulted in a verdict and judgment for $815.

By the first five assignments complaint is made of the exclusion of evidence. The first relates to a certain statement of items of the partnership account, and the second to the refusal to permit a witness to testify as to the items contained in such statement. The bills of exception do not contain the statement, and we are left to infer that injury might have resulted from its exclusion. Assignments 3, 4, and 5 reláte to the exclusion of evidence of value of the mules, but the bills of exception fail to show what the witnesses would have testified, and therefore fail to show reversible error. As we are unable to determine from the bills of exception whether any of the rulings were prejudicial to appellant, all of such assignments are overruled. Pridham v. Weddington, 74 Tex. 354, 12 S. W. 49; Shippers Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032.

By the sixth assignment a paragraph of the charge is complained of as being upon the weight of the evidence, in that it would indicate to the minds of the jury that the indebtedness which would be a legal charge against the partnership, and to be deducted fronpi the value of the firm property sued for by plaintiff, did not exceed $300. The charge is unusual, but was drawn in an effort to follow the pleadings of the plaintiff in which it was stated that the expenses of the partnership other than the amount paid for stock did not exceed $300, but it was not admitted that the same amounted to such sum. The charge really places the burden on plaintiff to show that the debt of the firm, or rather the amount chargeable against the firm, did not exceed $300; and unless the jury so found, the plaintiff had not made out a case. Of course, the defendant was not injured if the charge be viewed in that light. On the other hand, if it be construed as an intimation that the sum thus chargeable did not exceed $300, the defendant shows no injury, for he fails to point out in his statement any testimony from which the jury could have found a greater sum to he thus due than such sum of $300. In fact the statement shows that appellant contends he was deprived, hy excluding his evidence, of. th' right to prove that such expenses, exceeded $300. Of course the charge must he judged .by the evidence admitted, and not by that excluded. Appellant’s brief shows no error such as would require a reversal of the judgment, and the assignment is overruled.

By the seventh assignment it is contended no testimony was introduced showing that Schallert ever disposed of the mules on hand at Orr’s death, and showed that plaintiff could have no interest until the mules were disposed of at a profit; that Schallert did not agree to purchase any mules belonging' to the partnership. The proposition is abstract, and we are at a loss to comprehend exactly what appellant contends. The assignment amounts tó a contention evidently that the evidence was insufficient to justify submitting the issues to the jury in so far as they related to the partnership business. However, as no objection was made to such submission, except as to the form, and defendant ashed a special charge on the burden of proof, it appears that he is in no position to contend that there was no evidence to go to the jury. Modern Woodmen v. Yanowsky, 187 S. W. 728, and cases therein cited. There can be no merit in the contention that Schallert could keep the mules as long as he wanted to after the death of his partner, and thus avoid accounting for the profits made in the conduct of the partnership business.

The judgment is affirmed.
      (SssKor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HALSELL et al. v. FERGUSON et al.
    (No. 7665.)
    (Court of Civil Appeals of Texas. Dallas.
    May 25, 1918.)
    Appeal from District Court, Dallas County.
    Suit by Hugh W. Ferguson and others against J. W. Halsell and others. From an order directing issuance of a temporary writ of injunction as prayed, defendants appeal.
    Judgment affirmed in conformance to answers to questions certified to the Supreme Court (202 S. W. 317).
    Adams & Stennis, of Dallas, for appellants. Cecil L. Simpson, of Dallas, for appellees.
   TALBOT, J.

The appeal in this case is an court county, Tex., directing the issuance of a temporary writ of injunction, as prayed for by the plaintiffs below, appellees here, restraining the appellants,_ their agents and representatives, from building a house on lots 5 and 6 in block 668 of the city of Dallas, Dallas county, Tex., except in so far as the same may conform to the frontage of said lots on Harry avenue, as originally platted, in said city.

The questions arising upon the appeal material to a decision of the case were by this court certified to the Supreme Court for adjudication, and the answers of that court require an affirmance of the judgment of the district court. For a full statement of the nature of the case, and the questions certified and decided by the Supréme Court, we refer to the opinion of the court to be found in 202 S. W. at page 317. The Supreme Court, in answering the certified questions, held that section 3 of article 1 of the charter of the city of Dallas and section 2 of the ordinance of said city, constituting a part of what is known as the Building Code of said city, and which provides “that wherever any lots are laid off by any plat, showing a frontage for said lots on any street or avenue in the residence section of the city, all buildings erected on same 'shall keep their frontage on said street or avenue so as to conform to the frontage of the lots shown on such plat,” was a valid exercise of -the police power of the state and the city, and that, since the appellees purchased their property after appellant Halsell and associates had, by a map, with certificate of dedication attached, placed of record, extended Harry avenue to California avenue and subdivided their originally proposed blocks numbered 1 and 2 and fronting lots 5 and 6 of said block 2 on Harry avenue, and before the board of commissioners of the city, by resolution adopted, permitted the said Halsell and associates to amend and change said map, so as to front said' lots 5 and- 6 on California avenue, and since appellees had purchased their property fronting on Harry avenue with reference to the platting and map made by Halsell and associates, fronting lots 5 and 6 on Harry avenue, which map was accepted by the city of Dallas, said board of commissioners had no legal right to authorize or permit such change in the plat without consent of appellees, but that such facts precluded and estopped the city and appellants from changing the frontage of appellant’s lots from Harry avenue, and from erecting a residence thereon otherwise than in conformity to the frontage on .Harry avenue. The court say: “The principles announced in Harrison v. Boring, 44 Tex. 266, 273, compel the conclusion that, when appellees purchased their property in reliance on.the representations embodied in the plat filed by appellants and approved by the city, the property of appellants became impressed with easements or servitudes, of which appellees or their assigns could not be deprived without their consent.” It would serve no useful purpose for us to attempt to add anything to the discussion of the Supreme Court, and, adopting the opinion of that court, the judgment of the district court will be affirmed.

Affirmed.


author: RASBURY, J.

text:
    ESTES v. FERGUSON et al.
    (No. 7949.)
    (Court of Civil Appeals of Texas. Dallas.
    April 27, 1918.
    Rehearing Denied June 8, 1918.)
    1. Trial &wkey;>329 — Verdict—Conformity to Issues.
    Where, pursuant to agreement between Q. and E. for exchange of lands, Q. conveyed by direction of E. a tract to plaintiff, and plaintiff was forced to pay for improvements, and brought suit against E. and Q., in which suit E. set_ up a counterclaim, that, if plaintiff was entitled to recover from him, he was entitled to recoup from Q., a verdict against E. was responsive to the issues, and would support judgment for plaintiff against E., which judgment in addition adjudged that plaintiff take nothing against Q.; a verdict against E. disposing of his counterclaim.

      2. Appeal and Error &wkey;sl001(l) — Jury Finding — Review.
    A jury finding supported by evidence will not be disturbed on appeal.
    8, Appeal and Error <&wkey;>877(4) — Parties Entitled to1 Allege Error.
    Plaintiff’s right to recover against appellant’s codefendant, as well as against appellant, being a matter affecting plaintiff’s rights only, appellant cannot complain.
    4. Contracts &wkey;>100 — Mutual Mistake — Peremptory Instruction.
    ' That the other provisions of a contract are correct, and that the complaining party had ample opportunity to discover omission, is not conclusive on issue of mutual mistake, so as to warrant a peremptory instruction, but a mere circumstance, be considered by the jury.
    5. Evidence <&wkey;433(6) — Parol Evidence — Omissions in Contract — Mistake.
    Where terms and conditions of a contract have by .mutual mistake been' omitted, it is competent to show such fact and supply the omission by parol.
    0. Trial <&wkey;2G0(9) — Requested Instructions — Refusal.
    The effect of a charge that, unless the jury believed it was understood between named parties that the improvements were to be reserved, but through mistake or oversight certain provision was omitted, etc., was the same ás a refused requested instruction that the omission in the contract must have been by the mutual mistake of the parties, and the jury was not misled by failure to use the word “mutual.”
    7. Venue <&wkey;22(l) — Defendants Residing in Different Counties.
    Where in compliance with his contract with plaintiff, E. procured Q. with the consent of plaintiff to convey land to plaintiff, E. receiving the consideration, the contract to convey was satisfied by the joint act of E. and Q., and an action for breach of warranty, concerning ownership of improvements, could be brought against both E. and Q. in the county where Q. resided, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 4, providing that suit against two or more defendants may be maintained in the county of the residence of any of the defendants.
    Appeal from I-Iill County Court; R. T. Burns, Judge.
    Action by John A. Ferguson against John Estes and another. Judgment against defendant named, and he appeals.
    Affirmed.
    Collins, Morrow & Morrow, of Hillsboro, for appellant. J. Webb Stollenwerck and T. H. Jackson, both of Hillsboro, for appellees.
   RASBURY, J.

Appellee Ferguson sued R. H. Qualls and John Estes in justice of the peace court to recover $175. Ferguson alleged that prior to the suit appellant, Estes, contracted in writing to convey to appellee Ferguson by general warranty deed certain lands in Hill county then owned by appellee, It. H. Qualls, who had simultaneously in like manner agreed to convey said land to appellant, Estes, or his order, and that subsequent to both contracts appellee R. H. Qualls, by direction of appellant, Estes, conveyed said land to appellee Ferguson by general warranty deed, the consideration therefor being paid to appellant, Estes; that after said conveyance to appellee Ferguson, it transpired that certain improvements on said land were the property of Qualls’ son and tenant, and, to prevent their removal by said tenant appellee Ferguson paid the sun: sued for, which was their value; that said improvements were permanent fixtures on said land, and that he was, as a consequence, entitled to recover the value thereof from both defendants. In the justice court ap-pellee Qualls answered by general demurrer and general denial. Appellant Estes in that court filed plea of privilege to be sued in Deaf Smith county, his residence, to which county he prayed the cause he tyansferred. Subject to said plea lie alleged a misjoinder of parties, in that joint liability was not alleged, since the liability alleged against appellant, Estes, was upon contract, while that alleged against Qualls was breach of warranty. On the merits, he pleaded in substance that he did agree to convey the land to appellee Ferguson, and that the conveyance by Qualls to Ferguson was by his direction and in compliance with agreement between him and Qualls; that while he did not at the time know the improvements on the land were the property of Qualls’ tenant, yet ap-pellee Ferguson did and was advised that the tenant had the right to remove same, and acquired the land subject to that riglit. Prayer was that, if appellee Ferguson recovered of Estes, he in like manner recover against Qualls. In the justice court the plea of privilege was overruled. Upon jury trial there was verdict for appellee Ferguson against appellee Qualls, and for appellant, Estes, followed by similar judgment. Appeal was bad to the county court. In that court appellee Qualls amended his answer, in which on the merits he averred, In substance, among other matters, that he conveyed said land to Ferguson for appellant, Estes, who received the consideration therefor, and that said Estes knew before he contracted to purchase said land from appellee Qualls that the improvements were the property of another, and were to be reserved and removed from the land; that the agreement between himself and Estes was that said improvements were to be reserved to the real owner, but that by accident or mistake said agreement was omitted from the written contract. There was jury trial in county court, the' verdict being for appellee Ferguson against appellant Estes for $142.65. Judgment followed the verdict, and, in addition, adjudged that appellee Ferguson take nothing against appellee Qualls, and that the latter recover all costs.

The facts necessary to be stated are that Estes and Qualls agreed to an exchange of lands. The agreement was in writing, and provided, among many other matters, that the lands should be conveyed to the contracting parties or their respective orders by general warranty deeds. Concurrently with the foregoing agreement Estes agreed to sell and Ferguson to purchase one of the tracts of land which Qualls was to convey to Estes in their exchange. This agreement was in writing, and, among other matters, provided that the conveyance should be by general warranty deed, but that Estes should not be compelled to convey to Ferguson if he failed to acquire the land from Qualls. Neither contract contained anything in reference to the ownership of the improvements upon the land, nor any reservation thereof to the proposed vendors or another. Subsequent to the foregoing Estes conveyed to Qualls the lands he agreed to exchange, and Qualls similarly conveyed his land to Estes, save the tract Estes agreed to convey to Ferguson. This tract Qualls, under his agreement with Estes, conveyed by direction of Estes to Ferguson. The improvements on' said tract were the property of Qualls’ son and tenant, from whom Ferguson purchased them in order to prevent them being removed. The evidence introduced upon trial was sufficient to sustain a finding that Ferguson did not know that the improvements on the land belonged to the tenant and were to be reserved. Likewise the evidence would have sustained a finding that he did know the improvements belonged to the tenant and were reserved from the conveyance. The evidence will also sustain a finding that in the negotiations between Estes and Qualls for an exchange of properties Estes was informed that the improvements belonged to the tenant, and agreed that they should be reserved, but by accident or mistake the agreement was omitted from the written contract. Likewise the evidence would suslain a finding that Estes had no information concerning the ownership of the improvements, and that it was never agreed that the same should be omitted from the contract, and that there was.in that respect no accident or mistake. Prior and subsequent to filing the suit Estes resided in Deaf Smith county. During said time Qualls resided in Hill county.

The first contention in' effect is that the judgment is void because based upon verdict that is not responsive to the issues. The basis of the contention is that the jury returned no verdict upon the claim of Estes that if Ferguson was entitled to recover judgment against him he was in turn 'entitled to recoup against Qualls. Appellant Estes’ pleading, so far as relates to appellee Ferguson, in effect asserts that there was no agreement between them concerning the improvements, and that he did not know that the improvements in fact belonged to the tenant, but asserts that Ferguson did, and with such knowledge accepted the land; and, so far as it relates to appellee Qualls, his pleading asserts that the matter is controlled by the contract between them, which did not reserve the improvements. The pleading so standing, the court, after advising the jury of the contentions of the respective parties, instructed them, in substance, that if they believed, in view of the deed from Qualls to Ferguson, and in view of the contract between Estes and Ferguson, and in view of the oral evidence, it was the intention to convey the improvements with the land, to return verdict for Ferguson against Qualls; but if, in view of the deed, the contract, and the oral evidence it was agreed between Qualls and Estes that the improvements were to be reserved, and such agreement was by mistake omitted from the written contract, to return verdict in favor of Ferguson against Estes. It will thus be observed that the court, assuming that Ferguson was entitled in any event to recover against one of the parties, of which assump- . tion no complaint is made, directed the jury - under one* phase of the evidence to find against Estes and under the other to find against Qualls. The evidence so submitted comprehended the very facts which would entitle Estes to a judgment against Qualls on his counterclaim, and as a consequence the finding by the jury that as between Estes and Qualls the improvements had been reserved is a finding that Estes was not entitled to recoup against Qualls. Such conclusion is true because under the court’s charge, which in that respect is not complained of, any claim that Ferguson knew that the improvements were reserved is eliminated, and the sole remaining issue was, who, as to him, should reimburse Ferguson for his loss? To entitle Estes to judgment over against Qualls it was necessary for the jury to find that there was no agreement between them that the improvements were reserved. Precisely that issue was submitted to the jury, who were told, if there was no such agreement, to return verdict against Qualls, but if there was, to return verdict against Estes. Verdict was against Estes, which, under the charge, was a finding that the improvements were reserved. That issue was the only issue in the case. Hence the verdict of the jury was responsive, since a finding that appellant, Estes, agreed that the improvements should be reserved was a finding against his counterclaim. The finding is supported by the evidence, and, being so, we are without authority to disturb it.

Appellant, Estes, urges that the court erred in submitting the issue of mistake, as between Estes and Qualls, as a basis for appellee Ferguson’s recovery. We think for reasons hereinafter stated that the issue of mistake was correctly submitted between Estes and Qualls; and, while we are inclined to think it might be argued with some reason that appellee Ferguson was entitled to a recovery against both Estes and Qualls, yet that is a matter that can be complained of only by Ferguson, and cannot form the basis of a complaint by appellant, Estes.

Complaint is made of the court’s refusal to, in effect, peremptorily instruct the jury that there ,was no mistake in the contract between Estes and Qualls. The requested. instruction was based upon the admission of Qualls that the provisions of the contract correctly covered the things enumerated therein, and that he had ample opportunity to examine same before signing it. In our opinion the charge was properly refused. Where terms and conditions have been by mutual mistake of the parties omitted from instruments such as contracts, etc., it is competent to show that fact and supply the omission by parol. Such we believe to be the well-settled rule. The fact that the other provisions of the contract are correct, and that the complaining party had ample opportunity tó discover the omission, is not conclusive of the issue. It is at most a circumstance to be considered by the jury. A different rule, not necessary to discuss, obtains in cases where the contention is that there was a mutual mistake in reference to what was intended by what was actually incorporated in the instrument, etc.

In -connection with the issue raised counsel, however, further complains of the refusal of the court to allow a special charge, instructing the jury that the omission must have been due to the mutual mistake of both parties. While the court did not use the word “mutual” in his charge, and while its use would have been proper and preferable, we think the effect of his charge was the same, and that the jury so considered it, and were not misled by failure to use the term “mutual,”, since they were told that unless they believed it “was understood between Qualls and Estes * * * that the improvements were to be reserved, but through mistake or oversight said provision was omitted,” then to-find in favor of Estes..

It is also contended that, notwithstanding the fact that appellant Estes’ codefendant, Qualls, resided in Hill county, the former’s plea of privilege to be sued in- Deaf Smith county should have been sustained. The basis of the claim is that it appears from the record that appellee Ferguson’s cause of action against Estes is for breach of contract, while his cause of action against ap-pellee Qualls is for breach of warranty of title, and as a consequence the causes of action, being dissimilar, cannot serve as basis for joining Estes, a nonresident of the county, therein.

We conclude that Estes was properly joined in the suit, and that the court did not err in overruling the plea of privilege. The suit, as against Qualls, was unquestionably for a breach of warranty of title, and properly brought. The effect of the pleading, discarding the conclusions of the pleader, against Estes was that in compliance with his contract with Ferguson he procured Qualls with the consent of Ferguson to convey the land to Ferguson; Estes receiving the consideration. Thus the contract to convey was satisfied by the joint acts of Qualls and Estes, and the liability asserted obviously • was not due to any breach of the contract to convey the land, for the conveyance had been made, but due to breach of warranty concerning - ownership of the improvements on the land conveyed by the joint act of Estes and Qualls. The fourth subdivision of article 1830, Yernon’s Sayles’ Civil Statutes, provides, in substance, that suits against two or more defendants may be maintained in the county of the residence of any of the defendants. The generally applied test to determine the right of the plaintiff to maintain his action under that subdivision ■is whether the defendant sued out of the county of his residence is a proper or necessary party. It occurs to us that Estes in this proceeding was both. He was a proper party because, while the deed was from and the warranty by Qualls, he made the conveyance for and in the interest of Estes, to whom the consideration was paid; and he was a necessary party in order that the rights and equities of the parties under the facts surrounding the conveyance might be adjusted in one suit.

Finding no reversible error in the record, the judgment is affirmed.
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author: MORROW, J.

text:
    HARRIS v. STATE.
    (No. 4573.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.
    Rehearing Denied June 5, 1918.)
    1. Schools and School Districts <&wkey;176— Punishment of Pupils.
    'Vernon’s Ann. Pen. Code 1916, art. 1014, requires that punishment of a pupil by a teacher be moderate, but what is moderate punishment in a given case is to a large extent a question of fact.
    2. Criminal Law e&wkey;390 — Evidence—Punishing Pupil — Intent.
    In prosecution of a school-teacher for aggravated assault on a pupil, the accused may testify as to intent with -which a -whipping was given, but his statement will not be conclusive against other evidence tending to contradict it.
    3. Assault and Battery &wkey;>95 — Damages.
    Whether punishment of a pupil was excessive is a question of fact, or a mixed question involving fact.
    4. Assault and Battery i&wkey;92 —Punishment op Pupil — Aggravated Assault — SUFJTCIENCY OF EVIDENCE.
    Evidence held sufficient to sustain a conviction of aggravated assault by a school-teacher by reason of the mariner of punishing a pupil.
    Appeal from Harris County Court, at Law; Murray B. Jones, Judge.
    • Prances Harris was convicted of aggravated assault, and she appeals.
    Affirmed.
    J. M. Gibson, of Houston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for aggravated assault, the punishment a fine of $25. The sole question is the sufficiency of the evidence.

The appellant was a teacher in one of the public schools of Houston, and the alleged injured party was one of the pupils in the school. That appellant gave Max Larrieu, a boy between 13' and 14 years of age, a whipping is not denied, but is justified under article 1014, P. C., which permits the exercise of moderate restriction and correction of a pupil by the teacher. The boy, according to the testimony of appellant, had been unruly at a previous term; on the occasion in question, having left his seat several times and disturbed the recitation, was told by her that if he did so again she would whip him. She subsequently found him bn the floor under his desk; he claiming he was looking for his pencil, which she says she .thought he had thrown on the floor as an excuse. She undertook to whip him with a leather strap about 1 inch wide and 14 inches long. He resisted and struggled and Miss Johnson, another teacher, came to her assistance.' He got on a stairway and she pulled him down to prevent injury to him and took him to the principal’s room, where, while the principal was holding him, she hit him several licks with a strap about 2 inches wide and 14 inches long. She said she struck him about 25 licks altogether. She had, she said, no ill will or malice towards him, or intent to injure; did not know he was hurt; only used a strap that was provided by the school authorities; was actuated solely by desire to enforce discipline; was not mad or angry, but was only determined to conquer him. She left him in the principal’s office, and that official says he hit him 5 or 6 times with a strap after appellant left. She testified that she had heard him tell Miss Johnson that she (appellant) was a liar; that he did not misbehave.

The boy, Max, said he did not misbehave; that he did not hear Miss Harris tell him she would whip him if he left his seat; that he dropped his pencil and got down to get it"; that he resisted and tried to escape because he had not misbehaved; that appellant twisted his arm when he tried to escape and he told her she was breaking his arm and at Miss Johnson’s suggestion she released him; that after the whipping began he was taken to Miss Johnson’s room and saw two straps on the floor; picked up the larger one and threw it aside to prevent its use; that when he got to the principal’s room he picked up a baseball bat to protect himself, but did not try to use it; that while there he tried to explain he had not misbehaved. He claims appellant looked mad. He reported the incident to several persons after school was dismissed. Says he looked at his back in a glass and saw stripes making his back look like a flag; it was covered with marks; some of them blue two days after the incident, and in places the blood was clotted; his undershirt was bloody; that the straps used were about 2 feet long; that appellant struck him about 25 licks before going to the principal’s office, where she whipped him with the larger strap, as did the principal also. He claims that at the time of the trial there were marks remaining on him and he was still suffering pain from them.

The trial took place on the 12th day of April; the incident happened on the 4th of the same month. The assistant district attorney testified, that the boy was brought to his office on the evening of April 4th, and that he stripped him to his waist. We quote from him as follows:

“He was marked all over his back and arms; blood coming to the surface in a number of places. I did not count them, but there were such marks and bruises in approximately 40 to 45 places. There were marks and whelps all over the boy’s back and shoulders, on his neck, arm, and over one eye.”

The assistant county health officer said that he had examined the boy on the morning of April 5th; stripped him to his waist; and that he counted 25 stripes on his back, some wider than others and some bursted the skin. He said:

“The wounds that had ruptured the skin showed clotted blood on the surface and there was swelling and contusions. There were also marks on his neck which were bloodshot. The marks on his back were blue and inflamed. The skin was broken in places.”

While this, doctor was testifying the boy was identified and stripped to the waist, pants rolled up, and examined by the court. The witness says there was still evidence of bruises on his back, which were yellowish green, and a number of places where blood was oxidizing; that the wounds were very painful and showed evidence of a severe whipping. He declared that the boy was in average health, with no peculiarities of circulation or otherwise. It appeared that at the time of the whipping he was in his shirt sleeves; had on a calico shirt, undershirt, pants, and drawers of light material. Several other witnesses testified that they examined the boy on the evening of the incident and described his condition in substance like those referred to above.

Appellant stresses the case of Stephens v. State, 44 Tex. Cr. R. 67, 68 S. W. 281, in which the facts showed that the boy had been whipped with' two switches, receiving about 33 licks, causing stripes, bruises, and blue places upon him from just below the hips down nearly to the ankles, but the licks on the shoulders left no marks. He was wearing cotton pants, extending down to the ankles, but no drawers, but this fact was not known to appellant. Appellant in that case disclaimed any ill will or anger, but that the whipping was given alone to enforce discipline. The court said:

“The law confides in the teacher the discretionary power to punish pupils, and exonerates them from punishment unless the whipping is excessive or malicious.”

It further says:

“It is a presumption in favor of appellant that in correcting a pupil he did so in the exercise and within the bounds of lawful authority.”

The statute (article 1014, Vernon’s Pen. Code) requires that the punishment be moderate. There is no further legal definition of the measure or character of the punishment. Necessarily the question of what is moderate punishment in a given case is to a large extent a question of fact. In Whitley v. State, 33 Tex. Cr. R. 172, 25 S. W. 1072, a boy 17 years of age was punished by striking him 60-odd licks and the conviction was sustained ; the court remarking that it was not sound to assume,that a pupil might be whipped until he was subdued. Other cases discussing the matter are Spear v. State, 25 S. W. 125; Howerton v. State, 43 S. W. 1018; Bell v. State, 18 Tex. App. 53, 51 Am. Rep. 293; Smith v. State, 20 S. W. 360; Hutton v. State, 23 Tex. App. 387, 5 S. W. 122, 59 Am. Rep. 776; Dowlen v. State, 14 Tex. App. 61; Kinnard v. State, 35 Tex. Cr. R. 276, 33 S. W. 234, 60 Am. St. Rep. 47. In Howerton’s Case the opinion was written by Presiding Judge Hurt from which we quote as follows:

“If the testimony of Mrs. McGee, who examined the girl a fesv days after the whipping, be true, we do not feel that we would be warranted in setting aside the verdict of the jury in this case. She says that she examined the girl Tuesday afternoon, after school, and that there was a bruised place on her shoulder that she could not cover with her hand. Other witnesses testify to seeing marks of switching, both on the day it happened and for several days thereafter. The charge of the court required the jury to believe that the punishment was excessive, before they could convict defendant. As above stated, we do not feel that we are authorized to set aside the verdict of the jury. We have found no error in this record, and the judgment is accordingly affirmed.”

The intent with ■ which the whipping was given was a matter to which an accused may testify. Kinnard v. State, 35 Tex. Cr. R. 276, 33 S. W. 234, 60 Am. St. Rep. 47, but his statement will not be conclusive against other evidence tending to contradict it. In this case there was evidence that the idea of appellant was that the measure of her duty was not to exercise moderate correction, but to continue the punishment until the pupil was conquered. This seems also to have been the view of the principal, who says that when appellant brought the boy into his room it was apparent that he was not conquered, and that h'e authorized further punishment, and continued the punishment himself until the child was conquered.

Whether the punishment was excessive or not was also a question of fact; at least it was a mixed question involving fact. The fact that the punishment caused injuries which were due to some unusual condition of the skin of the child would not be chargeable against the teacher in the absence of knowledge of it. Ely v. State, 68 Tex. Cr. R. 562, 152 S. W. 631; but in this case that question is not involved, because the child appears to have been a normal child so far as the healthy condition of his skin was concerned. His statement that the teacher was mad is not more conclusive than her statement that she was not. Both are to be construed in connection with the other facts developed and passed on under the rule that the credibility of witnesses is for the court when trying the case without a jury. These were all before the trial judge. 1-Ie not only heard the witnesses but examined the boy. Under these circumstances, and in-view of the testimony of appellant that her determination was to conquer the boy, we do not feel authorized to disturb the finding of the trial judge, to whom the decision of the questions of fact and law were committed.

The judgment is affirmed.

PRENDERGAST, X, not sitting.
      <§^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    GIBSON v. STATE.
    (No. 4574.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.
    Rehearing Denied June 5, 1918.)
    Appeal from Harris County Court, at Law; Murray B. Jones, Judge.
    E. A. Gibson was convicted of aggravated assault, and he appeals.
    Affirmed.
    J. M. Gibson, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., of Houston, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $50.

' This is a companion case to that of No. 4573, Frances Harris v. State, 203 S. W. 1089, this day affirmed. The facts and the questions are practically the same in both cases. There is not enough difference, in the mind of the writer, to justify taking up the questions and reviewing them seriatim.

Following the opinion in the Harris Case, supra, this judgment ought to be affirmed; and it is accordingly so ordered.

PRENDERGAST, J., not sitting.


author: DAYIDSON, P. J. PRENDERGAST, J. DAVIDSON, P. J.

text:
    WILKIE v. STATE.
    (No. 4435.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.
    On Motion for Rehearing, June 5, 1918.)
    1. Cexminax, Law &wkey;>552(3) — CntouMSTANTiAD Evidence.
    Circumstantial evidence, to convict, must be sufficiently strong to exclude every reasonable hypothesis except the guilt of accused.
    2. Homicide c&wkey;233 — Motive.
    Although motive is not always necessary to be shown in a murder trial, yet if existent it is a circumstance to be considered by the jury with other facts.
    3. Homicide &wkey;>250 — Evidence — Sueei-cienct.
    Circumstantial evidence held not sufficient to support conviction of murder.
    4. Ckihinai, Law &wkey;>306 — Pkesumption.
    Presumptions cannot form the basis of other presumptions.
    Prendergast, J., dissenting.
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Alfred Wilkie was convicted of murder, and appeals.
    Judgment reversed, and cause remanded.
    Jas. A. Harley and J. M. Woods, both, of Seguin, and E. B. Coopwood, of Lockhart, for appellant. Dibrell & Mosheim, of Se-guin, Will G. Barber, of San Marcos, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant was convict•ed of the murder of Mrs. Dorathea Fisch-beck, his mother-in-law, and given 20 years in the penitentiary.

The case is one purely of circumstantial evidence. There are quite a number of bills of exception reserved to the rulings of the court. We have not entered into a discussion of these under the view we take of the-sufficiency of the evidence. The proposition with reference to the sufficiency of the evidence as applied to cases of circumstantial evidence is so well settled by so many decisions it is useless to discuss the legal aspect further than to state the evidence must be sufficiently strong to exclude every reasonable hypothesis except the guilt of the accused. Motive is not always necessary, yet if existent is a circumstance to be considered by the jury in connection with the other .facts. The cogency of the motive is to be determined also by the evidence. If there be motive in this case, it is found under the following statement: Appellant had bought from Mr. Fischbeck during his lifetime a tract of land for which he gave his note for $11,000 as unpaid purchase money. This was due in January, after the homicide on the 5th of December. Mr. Fisch-beck had died in June, before the homicide of his widow in December. The contention of the state is that appellant was anticipating trouble with his mother-in-law, who was left the sole heir by the will of her deceased husband; that he might be pressed by her on account of the unpaid purchase price. Evidence was introduced that something like six weeks prior to the homicide appellant and his wife visited Mrs. Fischbeck, and there were conversations between Mrs. Wil-kie, wife of defendant, and her mother, Mrs. Fischbeck, in which appellant did not directly engage; that his wife would talk to her husband and then to her mother, not in the presence of each other; but these matters seemed to' have been settled, and appellant and his wife remained at the residence of Mrs. Fischbeck at least one night, and their relations seemed to be pleasant, So far as the record shows there was nothing to break this pleasantness after this visit; also this was the last visit that appellant and his wife paid to his mother-in-law, the deceased. There is but little, if any evidence that would seem to justify the conclusion that Mrs. Fischbeck, deceased, intended to press her son-in-law for this money.

On the evening prior to the homicide, at night, appellant and a Mexican left his home in the edge of Caldwell county and went to the village of Martindale, reaching there about sunset, and from there they went to another village called Limerock. He and the Mexican, Pena, were in a hack. The evidence, is not clear as to the exact time the parties left Limerock, but the preponderance of the evidence indicates it was 'about or later than 9 o’clock. Some of the evidence is positive that it was about 9:30 o’clock. It was about 3 miles from Limerock to the point where it is claimed appellant got out of the hack; the scene of the homicide being something like % mile from where the hack is supposed to have stopped. The killing oe-curred along about 9:30, at least between 9 and 10 o’clock. It bad been raining, and tbe country was black land and muddy. There are a great many statements by tbe Mexican, Pena, wbo subsequently turned state’s evidence, or at least testified for tbe state, to tbe effect that appellant did not bave a gun in tbe back with him, and that on their return borne from Limerock they did not stop at any point. These statements of the Mexican were reiterated to different people and officers. Subsequently, however, for some reason, be changed bis testimony, and on tbe trial testified that he and appellant did stop the back; that appellant got out, and for tbe first time he saw a gun, which appellant got out of tbe bottom of tbe back, and then went away; that be was gone awhile and returned. There is other testimony showing appellant did not have a gun in the back, and also testimony by bis wife and daughter to the effect that be owned but one gun, and that it remained at home and his wife used it in hunting that evening. From this point on tbe state’s case hangs mainly around tracks. From where the back is supposed to have stopped to tbe place of the homicide no foot tracks were found until within a short distance of the residence of Jechow, where Mrs. Fiscbbeck was shot. Near that bouse was found the next morning barefoot tracks. Appellant was wearing shoes. These barefoot tracks went close to the house and left in a different direction from their approach. After leaving the house these tracks crossed a lane and muddy low place going in the direction of where Mexicans resided. The tracks seemed to have been lost at this point. Barefoot tracks resembling those found near the residence of Jechow were later found some 700 or 800 yards from the scene of the homicide inside on the farm of a Mr. Bauerschlag. These tracks went within a short distance of the-gate of Mr. Bauerschlag and were lost. There were no measurements of the tracks and no measurements of defendant’s foot, and the only testimony that indicates it might have been the bare foot of appellant was that the tracks indicated a large foot, and that appellant wore about a No. 9 or 10 shoe. There is evidence that at a certain wire fence some one went through the fence and evidently got on the ground with one knee. There was a hole found in the ground on the opposite side from where the party was getting through the fence. The state relied upon this hole as one of the circumstances against appellant because the gun had mud on it. Witnesses testified this hole might have been made by a gun or stick, or anything of that sort that could have made such a hole. What time appellant reached home that night is not clear, but about 2 o’clock parties went to appellant’s house and arrested him and the Mexican. At the time they reached appellant’s home he was hitching his team to the hack .to take his wife and daughter to the scene of the death of his mother-in-law; he having been advised of her death over the phone. Appellant and the Mexican had no way of communicating with each other after the arrest that night out of the hearing of the officers. They were taken prisoners and kept prisoners from that time. They were in the custody of the officers, and were carried that night to the scene of the homicide and thence to jail. Appellant’s wife and daughter testified that he did not have his gun with him on this occasion, and that his wife used it in shooting birds that evening and got a little mud on it. The officers testified that on the barrel of the gun they found a small quantity of mud or black dirt.

We are of opinion that this evidence does not show, under the rules of circumstantial evidence, that appellant and no one else killed deceased. Whoever did the killing the facts show that they did it by going to the house and making a noise which attracted the attention of those inside, who were deceased, Jechow and his wife, the youngest daughter of deceased, at whose house she was waiting for the return of her two sons who lived with her in her residence something' like 100 or more yards away. It would hardly be questioned under the circumstances stated that the party who shot Mrs. Fischbeck was guilty of a cold-blooded assassination. She was an elderly lady, and when she went to the door was shot to death by an assassin from the outside. The jury evidently more than seriously questioned the guilt of the defendant, else this verdict for 20 years would scarcely have been rendered. This evidence does not exclude every reasonable hypothesis except the guilt of the defendant. Outside of the witness Tena’s testimony there is nothing to show that appellant had a gun, and Pena denied this fact for quite a while after being placed in jail. Other witnesses testified, who seemed to have noticed the hack, that appellant did not have a gun with him that evening. His wife and daughter also testified that he did not have a gun. If appellant left the hack with the Mexican and went away half a mile to the scene of the homicide, the land being black and muddy, he could have been traced, or ought to have been traced, by foot tracks. He was wearing shoes. There is nothing to indicate that he got rid of these shoes and became barefooted, or when he again placed those shoes on his feet. If he left the hack with the shoes on he had to get rid of them at some point before reaching the house where the homicide was committed, if he fired the shot. There is no attempt to account for this by any fact or circumstance. The Mexican does not attempt to account for it, and no physical facts on the ground are put in evidence in this connection. In fact, the tracks were only seen near the house where the homicide occurred, going to and from it barefooted. The fact the party getting through the fence got on his knee in going through and there was a hole found that indicated it might have been made by a gun or a stick might be a circumstance, if connected properly. The fact that there was a hole made in the ground would not indicate that defendant made it, nor that a gun made it. To say that that hole in the ground was made by a gun would be but a presumption, and to say that it was appellant’s gun would be another presumption without basis. One presumption based upon another presumption and both presumptions based upon facts that are hardly tangible ought not to form the basis of a link in a chain of circumstances. Presumptions canncit form the basis for other presumptions.

There is another fact that could have been proved if true, and no reason is assigned why it was not proved. The party who went to the house unmistakably and unquestionably went through black muddy soil and on leaving through a lane and a low place where mud was soft and something like knee-deep. The party who made those tracks and went through these muddy places evidently carried some of the mud away on his person and clothes. This record is silent with reference to that matter. Appellant was arrested about 2 o’clock that night. There was no attempt at any time to investigate his clothes as to this matter. There was nothing to indicate that there was mud on his clothes, and no account given why this phase of the case was not investigated. It was one of the most, if not the most, important of the facts connected with the tracing of the guilty party. There was no attempt, so far as this record goes, to show from any source whether or not appellant’s clothes were muddy, or his feet 'were muddy, or his shoes were muddy, or that he was in any way shown to have been in position to have made the tracks and gone through the mud that the assassin evidently and necessarily did. The record is very voluminous, and deals a great deal in matters unnecessarily prolix, but the salient features are about as stated. We are not satisfied that 'this evidence excludes every reasonable hypothesis except defendant’s guilt, and especially in view of thé fact that existing facts shown by this record could have been proved or accounted for in some way that would have tended to identify the guilty party. It might be suggested in this connection also that so far as motive is concerned one of deceased’s sons might be equally charged with motive. 1-Ie had forged her name to a check, and she had stopped its payment and- ordered the bank not to accept any more checks unless she signed them. This son is shown by this record to be a fugitive from justice. It may be that he was not running from guilt with reference to this ■matter. It is also shown that this son employed two Mexicans to kill appellant subsequent' to the death of his mother. They undertook it. Appellant killed one of them, and the other went to the penitentiary, and the son got out of jail and became a fugitive.

There is another circumstance which tends to weaken the state’s case, and it is this: The evidence shows that appellant had not visited his mother-in-law’s residence' since some time in October, about six weeks or such matter prior to the homicide, and the evidence fails to show that he was aware of her habits and custom at night when her sons were away from home, two of whom lived with her at her home. It is not shown that, he knew that his mother-in-law was not' at home that night, but at her son-in-law’s, Jechow’s. The assassin must have had some knowledge of these facts, because there is nothing to indicate that the slayer went to her residence, * but that he went direct to Jechow’s residence. Take the case as it stands, we are not satisfied to affirm this judgment on this testimony, and especially in view of the fact that many things could have been proved if they applied to defendant which were not proved. Some of them have been mentioned. It is thought unnecessary to go further into detail.

Because the verdict is not supported under the rules of circumstantial evidence, ' this judgment will be reversed and the cause remanded.

PRENDERGAST, J.

I cannot agree to this reversal. I am of the opinion the evidence is amply sufficient to meet every requisite of circumstantial evidence, and to show that appellant, and no one else, killed deceased.

On Motion for Rehearing.

DAVIDSON, P. J.

The contention of the state on the original submission and on the rehearing, as we understand, was that the state’s case would have been stronger had it been shown that appellant had mud on his person -and clothes on the night of and following the homicide. It is a basic proposition in the case that the party who did the killing walked through black muddy soil for some distance, and that some of this mud was soft and deep, so much so that tracks could not be discovered by reason of the fact the soft mud covered them. It was a very prominent fact throughout the case that such was the condition of the country about the scene of the tragedy, and that'it had been raining heavily. This was testified by all the witnesses who testified in regard. to this phase of the case. It was known the night of and before the homicide that this was the condition of the country. It was also known at the time of and before appellant’s arrest the night of the homicide. The state undertook to follow tracks through this mud, and it is claimed that in some places where they expected to find tracks the ground was too muddy and soft to leave impression of foot tracks.

It is a fair deduction, if not an irresistible conclusion, that the party who did the killing' must have had mud on his person and clothing. The state proved that appellant’s gun had mud on it near the muzzle at the time of his arrest about 2 o’clock at night after the killing about 9:30 o’clock. There was no attempt by the state to show that appellant’s clothing or person was besmirched by the black soil. There was no attempt to prove that he had changed his clothes after the homicide and before his arrest. Had he changed his clothing this fact could have been shown by the state, as we understand this record, from various witnesses. The Mexican, for instance, went with appellant in the hack from his home . to- Martindale, thence to Limerock, and thence on his return from Limerock to his home, the place from which they started. He naturally would know, or ought to have known, how appellant was dressed from the time they left appellant’s home until they returned that night. It would be natural for him to observe appellant’s clothing on his return to the hack, if his testimony is true, and discover mud about his person if such-was to be found. Yet this witness was not asked anything with reference to these phases of the case. The state’s theory with reference to this witness was that the and appellant left home in the hack together, were together all the evening, and returned to appellant’s home together that night. Appellant and the Mexican were both arrested at appellant’s residence about 2 o’clock that night. Quite a number of witnesses also saw appellant at Martindale ;■ some of whom talked with him and were with him. There is evidence also that a number of witnesses saw him in a saloon at Limerock and in a store at Limerock as well. None of these witnesses were questioned with reference to whether he had changed his clothing, or with reference to the fact there was any mud upon his clothes. It is true that the witnesses at Martindale and Limerock may not have seen appellant, and doubtless did not see him, after he left Limerock, but they saw him at those places in the evening and up to about 9 o’clock or later, and they saw him again early the next morning, for he was arrested at 2 o’clock and reached the scene of the homicide at 4 or 5 o’clock in the morning. The witnesses who saw appellant at Limerock also saw him under arrest at the place where the homicide occurred. They could have given evidence, if such was a fact, that his clothing had been changed. The state, in its original submission and on rehearing, urges that appellant’s wife could have testified to whether or not his clothes had been changed, or that mud was on them, inasmuch as he returned that night about 12 o’clock and she saw him, and that because his wife was not subject to examination along this line therefore the jury should deduce from that that he did have mud on his clothing, and that he had changed his clothes. That she did not testify in regard tp this might be a matter, perhaps, under the decisions, that could be discussed before the jury, but this does not apply to the other witnesses, because the defendant could not close their mouths, and most of them weré state’s witnesses and earnest in the prosecution. Some of them were the children of deceased, who were sufficiently interested to employ prominent attorneys as counsel for the prosecution. These witnesses were not questioned as to the change of appellant’s clothing, and so far as this record is concerned defendant had on the same clothing when he was arrested that he had on when he left home before the tragedy. No witness in the case would have been better versed perhaps with reference to this matter than the Mexican, Pena, who was in the hack with appellant, and yet he did not see any mud upon appellant’s clothing, nor does -he speak of any change of clothing by appellant during the entire day or night. That he was not asked about it is no reason why the jury should presume that appellant did change his clothing.

It is the duty of the state to make out its case. It was not incumbent upon the defendant to prove a case for the state. He is clothed with the presumption of innocence, and in cases of circumstantial evidence the state by its evidence must exclude every reasonable hypothesis except that of guilt. Had appellant been found with mud upon his clothing, or that he had changed his clothing, or that he had pulled off his shoes and gone barefooted, might have been circumstances of more or less weight of an incriminating nature. The state must meet and overcome the presumption of innocence to the exclusion of every reasonable hypothesis except guilt. Failure of facts to prove the state’s case does not raise the presumption of guilt against the accused. Inferences and deductions from failure of proof are to be taken not against the accused but in his favor. The position of the state that the jury might presume against the accused in the absence of such facts is not a correct view ■of the law. The jury is not authorized to so presume. The rule is that the state must prove its case to the exclusion of every reasonable hypothesis except guilt, and where it fails to so prove incriminating facts it redounds to the benefit of the accused. There are a great many facts in this record that were not collated in the original opinion and will not be collated in this opinion. The record contains something like 180 pages of testimony, and deals very extensively in all character of details on direct as well as cross examination of the witnesses. We are of opinion in writing originally and now that the case was sufficiently stated as to the incriminating facts. To undertake to state all the testimony in a voluminous record of facts as contained in this transcript would render the opinion uselessly long.

As stated in the original opinion, the question of motive is not always a criterion, hut it adds to the strength of a case when proved as one of the circumstances, or it might detract from it with no motive proved. It is not a sine qua non in any event. The state’s theory on the question of motive seems to he based upon the fact that appellant owed his mother-in-law something like $11,000 on a, tract of land, and that he was afraid she would press him for payment in January as the note then fell due. This is more of a theory, however, than a fact. We have looked over this record again to ascertain if there is any tangible reason to believe that appellant thought his mother-in-law was going to press the collection of that debt, and we fail to so find. It is also urged that by the 'death of the mother-in-law his wife might secure her portion of her mother’s estate. That is speculative, because there is nothing to show what disposition the deceased was going to make of the property, and at the time it was not known, so far as this record is concerned, what her purpose and intentions were. One or more of her sons had signed her name to checks without her authority, irpon the discovery of which she protested and ordered the hank’not to honor any more checks unless she herself signed them. The killing of the mother-in-law by appellant would not have canceled the $11,-000 debt. She retained a vendor’s lien on the land and was supposed to be sufficiently secured, and there is no evidence what part of the property his wife or any of the children of deceased would get. We hardly think this is of any serious import. Had she died without a will his wife would have, under the law, secured her proportionate share as a child, and there is no evidence that a will had been written changing the legal status of her rights. This reason would apply to any of her brothers and sisters.

With reference to the testimony of Pena in regard to the trip taken by himself and appellant on the evening of the homicide, and especially as it relates to the hack and the gun and the contents of the hack, it may be stated that Pena made many statements to the effect that he did not see a gun in the hack, and that he never made a contrary statement showing there was one until he had been removed from the jail in Guadalupe county to the jail in San Marcos, Hays county, some two months or more after being placed in the Guadalupe county jail. Upon the trial he testified that appellant got out of the hack at a point he designates and went to the middle of the hack and got a gun from the hack, stating that he was going to see a man who owed him something. Pena assisted appellant in hitching the team to the hack before they left appellant’s home,' went with him to Martindale where Pena bought a lot of groceries and put in the hack, among other things a sack of flour, some coffee, and beans and possibly other groceries. The witness Sanderson testified that he saw a box of groceries placed in the hack by the Mexican, Pena, but saw no sacks in the hack; that he did not see any gun in the hack. He was asked if there might not have been a gun under the front seat. To this he answered there could have been one, but he did not see it; that a gun might have been placed under the seat of the hack by being taken to pieces, but he did not observe one. His language was this:

“I didn’t see any shotgun. I guess anybody could have -put one under that seat if he had taken it to pieces. I did not look under that seat.”

He also states:

“I didn’t see any sacks in there.”

Pena testified that he bought a sack of ' flour, some beans, coffee, and potatoes at Martindale. He says:

“I did not see anything in front of the hack where our feet were except the points of the sacks and the rubber .that was in there. I did not see any gun in the hack then.”

He also states:

“I did not see Mr. Wilkie barefooted any time that night. I was sitting on the front seat of the hack and Mr.' Wilkie got the gun from about the middle of the hack. I saw that he went around to the middle of the hack and got the gun, but he did not move anything.”

He also stated after his arrest, while at the justice court at Staples:

“I told my wife that Mr. Wilkie had no shotgun in the hack that night.”

Speaking also of an interview he had with the sheriff and deputy sheriff of Guadalupe county while in jail at Seguin he said:

“I did then and there tell them that Wilkie had no gun in the hack that night, and I told them that Wilkie did not get out of the hack after he left the saloon and until we got to the river.”

It was between the saloon and the river where the witness testified on the trial that Wilkie go out of the hack qnd got the gun from the middle of it: He also states:

“I never at any time told any one that Mr. Wilkie had a shotgun in the hack that night before I was taken to the San Marcos jail and had talked to the Mexican Santiago. I told Mr. Terrell that Mr. Wilkie had no gun in the hack that night, and that Mr. Wilkie had never got out of the hack from the time he left the saloon until he got to the river.”

These are some quotations from Pena’s testimony to show the divergence -and difference between his statements prior to the trial and his evidence on the trial. These quotations are taken from the record, and to which he testified on the trial.

We deem it unnecessary to go into a further detailed statement of these- matters. We have reviewed this record again, and are firmly convinced of the fact the opinion in the original hearing is correct. The burden is not on tile defendant to prove Ms innocence or to account for facts that can he proved by the state. This is not a question where facts are exclusively within the possession of the accused, and it is not one of those cases where deductions are adverse to the defendant for not disclosing facts exclusively within his possession. The state must make its case, where the accused pleads not guilty, to the exclusion of the presumption of innocence and reasonable doubt, and the burden never shifts to the defendant. These facts were not exclusively in his possession and within his knowledge, and if so he was not required to prove them.

Practically all the witnesses who testified knew that it had been raining and that the country surrounding the scene of the homicide for some distance was black soil and very muddy. They knew that a man could not approach the residence where the .deceased was killed without going through this black mud, for the residence itself was situated on this black soil. There is some evidence of the fact that the officers when they arrested- appellant were apprised of this, because they examined his gun and found, they claim, some black inud on it. They knew of the muddy condition of the country. They arrested appellant that night and took him to the scene of the homicide. The next morning early, in investigating, they found barefoot tracks approaching the house in one direction and leaving it in another. They said this was a large barefoot track. Appellant was a prisoner, as was the Mexican, and yet there is nothing to indicate that they examined his clothes or made any investigation as to whether he was the man who made those tracks or .had his clothes soiled with the mud from the scene of the homicide. If appellant did this killing he had to walk a half mile or more in going from the hack to where the killing occurred and same distance on his return, and all through this black mud. Here the matter rested, and it will not do to hold that any inference of guilt should be drawn from -the defendant’s silence with reference to these matters. It was the business of the state to make out its case to the exclusion of every reasonable hypothesis except guilt.

The motion for rehearing is overruled.

PRENDERGAST, J., dissents.
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