author: WILESON, O. J.

text:
    INTERNATIONAL TRAVELERS’ ASS’N v. VOTAW.
    (No. 1816.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 18, 1917.
    Rehearing Denied July 28, 1917.)
    1. Insurance @==>618 — Accident Certificate —Action—Venue.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4798, provides that mutual assessment accident insurance companies shall be subject only to the provisions of this chapter. Article 4744, which is not a part of chapter 2, authorizes a suit on a policy issued by an accident insurance company to be prosecuted in the county where the beneficiary named therein resided. Held, that provision of article 4798 made article 4744, and other provisions of the statute pertaining to ordinary accident insurance companies not included in chapter 5, inapplicable to mutual assessment accident insurance companies, so that such a company had the right to contract to be sued only in the county specified in the certificate.
    2. Venue @=>32(2) — Privilege—Waiver.
    Where the record showed that a plea of privilege was filed during the term beginning on the first Monday in July, 1916, without showing that it was called to the attention of the court during that term or during the term beginning the first Monday in September, 1916, nor until December 12, 1916, during the term which began on the first Monday in November, 1916, it does not show that the appellant has not waived its right to insist upon the plea, or that the trial court erred in overruling it.
    3. Insurance @=>461(1) — Accident Insurance — Contract—(Construction.
    As a by-law made part of an accident policy, providing that the insurer should not be liable for the indemnity stipulated, if the death resulted, wholly or partially, directly or indirectly, because the insured was acting “as a soldier or sailor while engaged in military or naval service, voluntary or unnecessary ex-, posure to danger or obvious risk of injury dr death,” was ambiguous, and may be construed to mean either that the insurer would not be liable if the death was due to voluntary or unnecessary exposure, etc., or that it should not be liable if the insurer was acting as a sailor or soldier engaged in “either” military or naval service “or” voluntary or unnecessary exposure, the fact that the death of the insured was the result of voluntary exposure to danger, or obvious risk of injury or death, did not warrant an instruction in favor of the insurer.
    4. Insurance @=>146(3) — Contracts — Construction.
    A policy of accident insurance is to be liberally construed as against the insured and strictly construed against the insurer, and, if a provision is susceptible of two meanings, one of which would operate to relieve the insurer of liability and the other of which would operate to the contrary, the latter construction will' be adopted.
    5. Insurance @=>151(2) — Accident Insurance — Application.
    An application for an accident policy or certificate becomes a part of it when issued.
    6. Insurance @=>155 —PCliot—Construction.
    In construing a policy of accident insurance in absence of evidence to the contrary, it should be assumed that the duties of a general manager and his assistant of a railroad ■ company were the same.
    7. Insurance @=>377(2) — Accident Insure AN CE — P OLICY — Co NSTRUCTION.
    Where insured under an accident policy, when he applied for insurance, stated, his occupation to be general manager for a railroad company, a by-law made a part of the policy, relieving the company of liability for death due to voluntary and unnecessary exposure, etc., would have no application where insured was killed while discharging his duties as manager, or the same duties as assistant manager, of a railway company.
    8. Insurance @=>377(2) — Accident Insurance — Policy—Construction.
    A by-law made a part of a contract of accident insurance, exempting the insurer from' liability if the insured was killed while riding a “motor inspection car,” would not relieve the insurer of liability for the death of one insured as general manager of a railroad which occurred while riding in a motor inspection car as part of his duties, since, if it was the duty of such general manager to ride in such cars, insurer was chargeable with notice of that fact.
    9. Appeal and Error @=>1033(5) — Review-Harmless Eriror — Submission oe Issues.
    In an action on a policy of accident insurance, where the trial court might properly have instructed for the plaintiff on the question of exemption of defendant from liability on the terms of the policy, defendant - has no right to complain because of issues refused .or submitted on that point.
    10. Insurance @=>597 — Accident Insurance —Amount Payable.
    Under a by-law made a part of a policy of accident insurance, providing that payment of benefit thereunder shall become due and payable 90 days after receipt of the proofs provided for, and in case of liability in excess of $1,000, insurer reserved the right to pay such sum in five equal payménts, where the insurer did not exercise its option to pay in installments within 90 days after proofs of loss were filed with it, a judgment for the bulk sum of the policy was not erroneous.
    11. Insurance @=>602 — Accident Insurance —Failure to Pay Damages — Attorney’s Fees — Statute.
    As Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4746, authorizing, on conditions, a recovery against an accident insurance company of attorney’s fees arid damages or penalties is not a part of title 71, c. 5, and article 4798 provides that a mutual assessment accident insurance company shall be subject only to the provisions of chapter 5, in an action against such company a judgment for attorney’s fees and damages, or penalties, was not authorized.
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Mrs. Lou Votaw against the International Travelers’ Association. Judgment for plaintiff, and defendant appeals.
    Judgment reformed, and as reformed affirmed.
    By its certificate issued to Joseph Elmer Votaw July 8, 1912, appellant agreed, in the event of his “accidental death,” to pay to appellee, his wife, “in such manner as provided in” and “in accordance with” its bylaws, thé sum of $5,000. Votaw was then general manager for the Marshall & East Texas Railway Company. March 26, 1916, he was assistant general manager for the Memphis, Dallas & Gulf Railway Company. On that day, accompanied by J. R. Page, the railway company’s roadmaster, and John T. Dowling, one of its section foremen, he (Vo-taw) was traveling on a “section motor car” from Clark Junction to Glenwood, in Arkansas. The motor car was moving around a sharp curve in the track at the rate of about 15 miles an hour when Votaw and those with him discovered a log train moving toward them on the track at the rate of about 20 miles an hour. They all jumped from the motor car, and Page and Dowling escaped injury, it seems, but Votaw fell on the track in front of the motor car and was run over and killed by the locomotive pulling the train. Notice and proof of Votaw’s death having been furnished to appellant as required by the certificate issued to him, and appellant having failed to pay the indemnity stipulated for therein, this suit against it was commenced by appellee August 17, 1916. In addition to the $5,000 indemnity stipulated for appellee by her suit sought a recovery of 12 per cent, thereon as damages and of $2,000 as attorney’s fees she claimed to be entitled to by force of article 4746, Vernon’s Statutes. The appeal is from a judgment in her favor for the $5,000 appellant agreed with Votaw to pay, for $1,000 as attorney’s fees and for $600 as damages.
    One of appellant’s by-laws (which were a part of the contract between the parties) was as follows, the particular portions thereof referred to in the opinion being italicized:
    “This association shall not he liable to any person for any indemnity or benefit for injuries or disabilities resulting from injuries or for death, or loss of limb, or limbs, or the irreparable loss of the entire vision of an eye or eyes, resulting from an accident to a member which happens while said member is violating any law, or which shall happen on account of, or by reason of, or in consequence of the member being in any dogr.ee under the influence of intoxicating liquors or narcotics, or which shall happen on account of, by reason of, or in consequence of, the use, thereof, nor for death of a member occurring through inhaling of gas, voluntarily or involuntarily, consciously or unconsciously, or in case such disabilities or injuries, fatal or non-fatal, shall occur as a result, wholly or partially, directly or indirectly, of any of the following causes, conditions or acts or while the insured member was under the influence of, or affected by any such cause, condition or act, to wit: Disease of all kinds, bodily, or mental infirmity, orchitis, epididy-mitis, epilepsy, fainting spells, fits, vertigo, lumbago, sleepwalking, intentional or unintentional taking of poison, or from anything accidentally or otherwise taken, administered, injected, absorbed, or inhaled, consciously or unconsciously, contact with poisonous ivy or other poisonous growth or substance, injury resulting fatally or otherwise inflicted by the insured on himself while sane or insane, nor for intentional injuries inflicted on the insured by others, unless such injuries are inflicted for the sole ¡mrpose of burglary or robbery (intent to commit burglary or robbery to be established by the claimant), overexertion (unless in a humane & p © rf. Pju G E’m ° 2 Kg’® R P O'b'bJ (S9KD B-RO H P SU 2 “ e.2 ° 5 E.o » p 3 B,g&r0igJgB|-1s "•pf 3-® §.§ ¡?£-“ g-c p S’ a, | g-jL® ® g-o g g- n “.§ P 2 -i PSgo.pfiD' 8 §§'«• ¡B ® g.n-ú.ís s?1© S’§ &.§■§ § © <i &era (n 2 rvG M< lu _ g Oi " p & b i-crq 9,°m m- b W S2. op rfr_ ~ crScp H»G>S«c£J g© * b’gS^ ® cLw'-^Sg-SS» g igSi§Sg|á-f?|SgogÍ;«&gocí& © © r+G's^o m.PjHím C-I-M.P MsG & ísIsoilsállelgKlBilísí Pob © _ o B w 2 © G ¿¿*5. ® " P íi i ( — H--W ^ C^b^Oq ^ ^Tb o°mg2S «Í |G© *• § © 0 M a© § 3. Ms © fig's R*1"* p H © o w J ^«2.2 o .. ¿© © o Msg m p F-2 © .. o*g g g ^ § S¿j • . 2fG 55 ) » r£ g G +3 +j O G* JM © t-s, i ® :S O* § S.£5 S’g'M," 1 M-S O ^ ® ffi v j? „ &W-J S 2 m o o ® C P © B-m § üftrtMSg pigg* ^ Í? § &&&| H O gg-g o ® g® g g i-o g g-g;® b” e Ob‘o -gBpoigS Cj2 l-hfí hi 5. P I-Í H, Gh rt- ^ © © <-f m- Oj'-<J OP CQ ££ & P eo p pera o s+o cr-Hí’OiQ © b h^© a ¿-^era P^Ms© P ^ $ (+CÍ o H<0 *1 5 S © oüH © 2 2 2. o m.gj g b p © 2 w m <j o p b GG n-.b if C+ © m-© R d.© © b &.G b p“ : 55 © c < §r."s &B 11 o|ao I'd® I S ^ a “ ill» §-E-S £ VK o 4 g 2 S(S g»sg.gg;8®e<=>': o o m.© -j b b © g o ^ G ® o o ^ o "i IP'S §**0 o2wg‘ g g-'ra &« ® 6 o o-S | £g O &VJ g g.-^ 0,8® ® a» H 2 oi-t-t b*b*2 © p^ S ^ s Eogg.SPCW<wgs P M.gtl o p n {: ti Pj m M G . gp>rab^< g á i'era *< era 9 SsF ? & 5" O ©¿5 b aq ‘ g Su :Sa ‘ b P \ ^Pg{ Cj2 Pie , G'G . G 2 G G g°* © g g-5» S © 2-0 © rtRC g m^ - M © b © (A _ P M b & bS)

    Seay & Seay, of Hallas, and T. W. David'son, of Marshall, for appellant. R. A. Sexton and Hobart Key, both of Marshall, for appellee.
   WILESON, O. J.

(after stating the facts as above). In a plea in due form and filed in due order of pleading appellant asserted a privilege it claimed to be sued only in Dallas county where, aloné, it transacted business. The claim was based upon the fact that it was a “mutual assessment accident insurance corporation” withoiit capital stock and without lodges, and, upon provisions in its by-laws, in Votaw’s application for the certificate, and in the certificate itself, that any suit thereon should be filed in that county. In its first assignment appellant complains of the action of the court in overruling its said plea. The contention is that, because it was a “mutual assessment accident insurance company” within the meaning of article 4798, Vernon’s Statutes, it was not subject to the provision in article 4744, authorizing suit on a policy issued by an “accident insurance company” to be prosecuted in the county where the beneficiary named therein resided. A like contention made by appellant on its appeal against Branum, 169 S. W. 389, was overruled by the Court of Civil Appeals for the Third District; that court holding that the provisions specified in the application, by-laws and certificate were void because in contravention of said article 4744. It is insisted that the conclusion of the court in that case was wrong because of the provision in said article 4798, which is a part of chapter 5, tit. 71, that “mutual assessment accident insurance companies” “shall be subject only to the provisions of this chapter.” The argument is that article 4744 did not apply because it was not a part of said chapter 5. Contrary to the conclusion reached 'in the Branum Case, we think the effect of the provision in article 4798 specified was to make article 4744 and other provisions of statutes relating to ordinary accident insurance companies not included in said chapter 5 inapplicable to a “mutual assessment accident insurance company,” and that appellant, therefore, had a right to contract as it did that it should be sued only in Dallas county on certificates it issued. American Ins. Co. v. Collins, 149 S. W. 554. But we think it nevertheless does not appear from the record before us that the trial court erred when he overruled the plea. It was filed during a term of the court which began on the first Monday in July, 1916. There is nothing in the record showing that it was called to the attention of the court during that term, or during the term of the court which began on the first Monday in September, 1916, nor until December 12, 1916, during the term which began on the first Monday in November, 1916. If appellant was not in the attitude of having waived the right it had to insist upon its plea (Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224; Spencer v. James, 10 Tex. Civ. App. 327, 31 S. W. 540, 43 S. W. 556; Watson v. Mirike, 25 Tex. Civ. App. 527, 61 S. W. 538; Creswell Cattle Co. v. Waldstein, 28 S. W. 260; Bonart v. Lee, 46 S. W. 906), it should have seen to it that it so appeared in the record sent to this court.

It will be noted that it was provided in the by-law set out in the statement above that appellant should not be liable for the indemnity stipulated for if the death of the insured was—

“a result, wholly or partially, directly or indirectly, of any of the following causes, conditions or acts * * * to wit * * * while the insured is acting as a sailor or soldier while engaged in military or naval service, voluntary or unnecessary exposure to danger or obvious risk of injury or death.”

Appellant insists that it conclusively appeared from the testimony that Votaw’s death was due to “voluntary or unnecessary exposure to danger or obvious risk of injury or death” on his part, within the meaning of the by-law, and that the trial court, therefore, erred when he refused to instruct the jury to find in its favor. We are inclined to think it conclusively appeared from the testimony that Votaw’s death was the result of voluntary exposure “to danger‘or obvious risk of injury or death,” but do not agree, because it was, that the trial court should have instructed the jury as requested. When the provision in the by-law invoked is considered with reference to the language preceding and following it, its meaning is (obviously, we think) ambiguous. It may be construed to mean, as appellant contends it does, that appellant was not to be liable for the indemnity if the death of the insured was due to “voluntary or unnecessary exposure to danger or obvious risk of injury or death” on his part, or it may, perhaps with more reason, be construed to mean that appellant should not be liable if the insured was killed while acting as a sailor or soldier engaged in either military or naval service or voluntary or unnecessary exposure, etc. A rule applying in the construction of such contracts is stated in 1 O. J. 414, as follows:

“It is well settled as a general rule that a policy of accident insurance is to be liberally construed as against the insured, although strictly construed against the insurer. In case there is any ambiguity in the policy the rule is that all provisions, conditions, or exceptions which in any way tend to work a forfeiture of the policy or limit or defeat liability thereunder should he construed most strongly against those for whose benefit they are inserted and most favorably toward those against whom they are meant to operate and this rule is applicable to purely benefit accident policies as well as to the ordinary accident policy. Accordingly the court will adopt the construction most favorable to the insured when a doubt arises in respect to the application, exceptions to or limitations of liability, or clauses creating forfeitures or relating to matters subsequent to the attaching of the liability, the rule being specially applicable to the latter.”

And see, as illustrating the rule: Accident Asso. v. Fulton, 79 Fed. 423, 24 C. C. A. 654; Carr v. Ins. Co., 100 Mo. App. 602, 75 S. W. ISO. If, as we think it is, the provision is susceptible of two meanings, one of which would operate to relieve the insurer of liability and the other of which would operate to the contrary, the rule would require the adoption of the latter.

But if the provision in question should be construed as meaning what appellant contends it does, we still would be of the opinion it did not operate to relieve appellant of liability to appellee. It appears from Votaw’s application for the certificate, which became a part of same when it was issued, that he stated his business or occupation to be that of general manager for a railway company. It appeared from uncontradicted testimony on the trial that in traveling as he was at the time he was killed he was engaged in discharging duties he owed a railway company as its assistant general manager. The contrary not appearing from the testimony,, we think it should have been assumed that the duties of a general manager and Ms assistant of a railroad company were the same. The application of the provision in question, if construed as appellant contends it should be, should, we think, be limited to “voluntary and unnecessary exposure to danger or obvious risk of injury or death” by Yotaw while not engaged in the discharge of duties devolving upon him as general manager for a railway company. Any exposure to danger incurred by Votaw in the discharge of such duties would not have been “unnecessary” in the sense that word must have been used, if the provision was intended to apply to him while acting as manager for a railway company; and clearly, we think, it should not be held that the parties contemplated that appellant should not be liable if the death of Votaw was due to “voluntary” exposure by him to danger in the discharge of the duties of the business his application for the’ insurance notified appellant he was engaged in. To so hold would be to say appellant was not bound to indemnify against risks it knew it was the insured’s duty to incur in his business or occupation and against which, presumably, the insured meant to provide when he applied for the insurance. Therefore, we think it ought to have been assumed that the parties to the contract did not contemplate that the provision in question should apply if Votaw should be killed while discharging the duties of manager for a railway company. 1 C. J. 434 et seq.; 4 Cooley’s Briefs on Insurance, 3176 et seq.; Wilson v. Accident Asso., 53 Minn. 470, 55 N. W. 626; Richards v. Ins. Co., 18 S. D. 287, 100 N. W. 428, 67 B. R. A. 175; Ward’s Adm’r v. Ins. Co., 80 Vt. 321, 67 Atl. 821; Dailey v. Masonic Mutual Asso., 102 Mich. 289, 57 N. W. 184, 26 L. R. A. 171; Benefit Asso. v. Jackson, 114 Ill. 533, 2 N. E. 414.

What has just been said applies as well to the contention made that a further provision in said by-law exempted appellant from liability if the insured was killed while riding a “motor inspection- car.” If it was Votaw’s duty as general manager for the railway company to ride such cars, as undisputed testimony showed it was, appellant was chargeable with knowledge of the fact (Brink v. Accident Asso., 55 Hun, 606, 7 N. Y. Supp. 847), and should not, we think, have been relieved of liability if Votaw was killed while riding such a car. But it conclusively appeared that Votaw was not riding a “motor inspection car” at the time he was killed, but was riding a “motor section car,” which, according to the testimony, was in material respects unlike a “motor inspection car.”

It follows from what we have said that we are of the opinion the trial court might properly have peremptorily instructed the jury to find in appellee’s favor on the question appellant sought to make as to its liability. And of course it also follows that we therefore think appellant has no right to complain because of issues in that respect which the court submitted, nor because of issues he refused to submit to the jury.

Another one of appellant’s by-laws provided as follows:

“A payment on a benefit hereunder shall become due and payable * * * ninety days after the receipt by the secretary at Dallas, Texas, of the proofs herein provided for. * * * In case of any liability in excess of $1,000 incurred hereunder said association reserves the right to pay such claims in five equal payments until the entire claim is paid.”

It is insisted that the judgment is erroneous because it is in appellee’s favor “for the bulk sum of $5,000,” whereas, appellant having pleaded said by-law, the judgment should have provided that the sum be paid in five annual installments. In appellant’s appeal against Branum referred to above, the Court of Civil Appeals held to the contrary of the contention appellant makes here on the ground that it must have exercised the option it claimed to pay in installments within 90 days after proofs of loss were filed with it. We concur in the ruling made in the Branum Cas§ and overrule appellant’s contention.

The contention made that the judgment, so far as it was for appellee for $1,000 as attorney’s fees and $600 as damages, or penalties, was not authorized by law, and therefore is erroneous, will be sustained. As noted above, it was provided in article 4798 that a “mutual assessment accident insurance company” should “be subject only to the provisions” of chapter 5, tit. 71. Article 4746 which authorizes, on conditions specified, a recovery against an accident insurance company of such fees and damages, is not a part of said chapter 5, but is a part of chapter 2 of said title.

The judgment will be so reformed as to award appellee a recovery against appellant of $5,000 and interest thereon from December 12, 1916, and, as so reformed, wiR be affirmed.
      @=>For other oases see same topic and KEY-NUMBER in all-Key-Numbered Digests and -Indexes ,


source: Caselaw Access Project

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

license: Public Domain

text:
    MIZELL v. STATE.
    (No. 4397.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.
    Dissenting Opinion, July 18, 1917.)
    1. Rape (@=347 — Statements ox Prosecutrix.
    In prosecution for rape, defendant may show that on being taken in charge by the authorities prosecutrix said her brother was in the room with her, and that she changed the accusation to defendant, when told that otherwise her brother would be prosecuted, but that if it were defendant he alone would be prosecuted.
    2. Criminal Law <@=925}4(3) — New Trial— Misconduct op Jury.
    In prosecution for rape, it was misconduct warranting new trial for jurors before reaching a verdict, and to influence others, to refer frequently to accused’s failure to testify, though others each time immediately said that that could not be considered.
    3. Criminal Law <@=92514(3) — New Trial-Misconduct ox Jury.
    In prosecution for rape, it was misconduct warranting a new trial for jurors before reaching a verdict and to influence others to say that they knew the 'state’s principal corroborating witness and that he was truthful.
    Prendergast, J., dissenting.
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    George Mizell was convicted of rape, and he appeals.
    Reversed and remanded.
    Mantooth & Collins, of Lufkin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape by force and given 12 years’ confinement in the penitentiary.

The indictment contains two counts, one charging rape and the other incest. The facts show that the prosecutrix was appellant’s niece. His wife -was in ba'd health, and appellant induced prosecutrix with the consent of her mother, to come from her home in another county to stay with his (appellant’s) wife. After remaining at appellant’s home about three weeks, she and appellant’s wife disagreed, so that prosecutrix concluded to return home. Appellant took her to Lufkin to meet a night train. After arriving there, they went to the hotel owned by the witness Puller, engaged a room, and retired. They occupied the same room. Appellant put in a call for himself about 5 o’clock in the morning. It seems that the train passed Lufkin at about that hour. The state’s theory is that he had intercourse with the girl while in the room and over her protest. She testified to those facts, and also to some matters which tended to excuse her for not making an outcry. She gave as a reason for not making an outcry that defendant made certain statements to her which- tended to terrorize her. Mr. Puller, a state’s witness, testified that he heard noises in the room occupied by them, and among other things that somebody was sobbing or crying. The next morning when the girl was questioned about the matter, and perhaps taken in charge by the authorities, she gave her name as Lillian Jones, and stated that her brother, Charley Jones, spent the night in the room with her, and that she was sobbing and crying because her brother had notified her of her mother’s death. She was carried before the grand jury and made these or similar statements. After being informed that an accusation would be brought against her brother for incest in another county, she changed her testimony and imputed the whole matter to appellant. This was a case of rape by force and without the consent of the prosecutrix. If she agreed to it or did not make sufficient resistance to come within the statute of rape by force, this case would not be one of rape under that count in the indictment; but, if the act of intercourse was consummated, it could and would be a case of incest. This was one of the serious questions, and perhaps the most serious question, in the case.

There are several bills of exception in the record. That with reference to the application for continuance is not discussed, as it may not arise upon another trial. The witnesses can be obtained.

Bill No. 8 was reserved, and this quotation is made from it;

“I will ask you if they did not talk to you for some time about the fact that it would put your brother in the penitentiary, and if they did not indicate to you that if you would tell on this deféndant they would drop and would not consider any further action about your brother, and what you had said about it (this had reference to the testimony of prosecutrix before the grand jury and the contention of defendant that before she told on defendant they had offered her brother immunity from a charge of incest in Montgomery county), and the state objected to the admission of said proposed testimony, to permitting the witness to answer such question, and the court sustained same, to which the defendant then and there excepted and tenders this his bill of exception, for the reason that he expected to prove by the witness that she was promised immunity for her brother, or that in some way it was substantially indicated to prosecutrix that if she would disclose on this defendant she and her brother would be given immunity and no punishment would follow, otherwise her brother would be subject to a prosecution for incest, and an affidavit would be forwarded to the district attorney of Montgomery county to enable him to base the charge.”

While this bill is somewhat indefinite and not sufficiently full, yet upon another trial this matter should be permitted to go to the jury if denied by the prosecuting witness. These remarks with reference to this matter are made in passing so that, upon another trial, if the matter comes up it will be proper for the defendant to show this as attacking the truthfulness of the prosecuting witness and as to her reasons for changing from her original statements showing that her brother was with her in the room and not the defendant.

Another bill alleges misconduct on the part of the jury in two respects; First, that they received testimony with reference to the character and standing of the witness Puller that was not in evidence on the trial; and, second, comment and discussion of the failure of the defendant to testify in his own behalf. The testimony shows beyond question that whatever there is in this case occurred in Puller’s hotel, and that he was an important witness and heard some of the noise which he testified was carried on in the room occupied by appellant and the girl. His reputation for veracity and as being a man of good reputation was not placed in evidence. There was nobody in the room with appellant and the girl; they occupied it alone, and no witness could have known what occurred except the two. Puller overheard some noises and confusions and sobbing and crying, but was not present in the room, and interposed no interference in these matters, although they occurred in his hotel, and he and the girl both knew that no outcry was made. There was nobody then who could testify to the immediate facts except the girl and the defendant, and Puller was the state’s main corroborating witness.

The affidavit of Chester Davis was attached to the motion for new trial setting up misconduct of the jury in both respects. This affidavit was introduced in evidence on the trial of the motion in addition to the affiant’s evidence, and several of the jurors testified in regard to these matters. Among other things, it is shown:

“I was on the jury that tried George Mizell. He was sentenced for 12 years. During the deliberations of the jury, the fact that the defendant did not testify was discussed by the jury. Some of the jurors said that the defendant did not get on the stand and deny anything. They argued what the prosecutrix and others swore against defendant must be true, or else defendant would have gotten on the stand and denied it. They said he must be guilty or he would have gotten on the stand and testified that he pleaded not guilty and then would not get on the stand and testify or deny anything tíiat was testified to against him. Several times when an argument was being advanced in favor of defendant against the truth of some statement testified to against defendant, some of those jurors favoring rape and the highest punishment would meet the argument by saying that if it was not so defendant ought to have taken the stand and denied it. About three of the jurors were in favor of finding the defendant guilty of incest only, while the others wanted to find him guilty of rape. Several of the jurors wanted to give him 50 years, and some were for 25. Some of the jurors were for as low as 10 years, before the conversations above set out about the defendant’s failure to testify. In discussing the evidence of prosecutrix, some of the jurors said that, if it was not true, defendant ought to' have gone on the stand and explained it. All this discussion about defendant’s failure to testify took place after we retired to consider of our verdict and before we had agreed whether it was rape or incest, and before we had agreed on the penalty. After we had retired to consider of our verdict and before we had agreed as to whether it was rape or incest, and before we agreed on the punishment, some one of the jurors suggested that they did not believe all of what old man W. R. Puller, a state’s witness, testified while on the stand. Some other jurors spoke up at once and said they had known old man Puller for many years, and knew personally that he was a truthful, honest, and straight man, who would not tell anything but the truth. Several others on the jury agreed to this last statement about knowing him personally and knowing him to be truthful, straight, honest, and honorable. Those who suggested that they did not believe all Mr. Puller said about the matter was some one of the jurors who were in favor of a low punishment. Quite a good deal was said by different members of the jury about their being personally and intimately acquainted with Mr. Puller for many years and knowing him to be truthful and a man of splendid reputation.”

This juror was for convicting for incest and assessing bis punishment at 10 years in the penitentiary, but he says:

“After all of the discussion about the defendant’s failure to testify and the splendid reputation of Mr. W. R. Puller by those represented that they had known him for many years, I finally agreed to convict the defendant of rape and give him twelve years’ confinement in the penitentiary.”

Further he says:

“I did not know anything about his reputation as to whether he was a reliable man, or otherwise, until after I heard the discussion of his reputation by other members of the jury. The statements made by other members of the jury as to the splendid reputation and truthful character of Mr. Puller and the argument about the defendant’s failure to testify had some influence on me in finally agreeing to find the defendant guilty of rape and giving him 12 years in the penitentiary.”

Mr. Mann, foreman of the jury, says:

“I was for incest with the highest penalty— 10 years. There were two others with me. Mr. Harry Hays and Mr. Chester Davis. That was when we first went out. Between the time when we first went out and the time we finally got together on a verdict of 12 years for rape, the matter about the defendant’s failure to testify was mentioned several times; it was mentioned several times.”

This witness further stated:

“It is my recollection that Mr. Russell went over that and Mr. McGaughey. I don’t know hardlv how it came up and how- they would mention it, but they would make him guilty for it; they would make him guilty for not testifying. I don’t .know whether they argued much about it or not, but there was a good deal of argument out there, and I heard that mentioned several times. I was not arguing that he was not guilty of rape, but was arguing that I was not satisfied to convict him for rape. I was of the belief that it was incest, and they wanted to make him guilty of rape because he did not testify, is the way that it was I think. I don’t know how it came up, but I was not satisfied with the evidence enough to convict for rape at first, and argued that; but some of the others said it was rape and wanted to make him guilty because he did not testify. I don’t know what all was said — so much was said — but several seem to view it that he was guilty because he did not testify. But to tell you just what was said, I couldn’t do it now. We were arguing in there a good long time. Some said he was guilty of incest, and some rape, and in that argument it was argued a good deal about him not testifying.”

Again:

“I heard' some men on the jury say they knew W. R. Fuller who testified for the state; that they knew him personally, and knew what sort of a man he was. As to whether or not anybody said he was a good fellow, everybody agreed to that. I think I heard some say that they had known Mr. Puller for years; I hoard that mentioned a good deal. Mr. Puller’s evidence was discussed a good deal, you know. I understand that when we first went out Chester Davis was for conviction for incest and giving him 10 years. X do not know whether he agreed to convict for rape before or after it was discussed about Mr. Fuller. I think Mr. Puller’s testimony was discussed all along before and after that. I think when that was first mentioned Mr. Davis was for incest and 10 years, but after that he agreed to convict for rape and 12 years. When we first went out, Mr. Davis and Mr. Hays and myself were for incest and 10 years. After considerable argument we agreed to rape and 12 years. I have already told you that some of the jurors mentioned the fact that the defendant failed to testify, but I could not tell you who that was, but I think Mr. McGaughey and Mr. Russell had the most to say about it. Mr. Russell was for conviction and rape at first, but I don’t know what penalty he wanted. They were scattered all along, 1 don’t know just how many years he wanted, tie wanted to give a higher punishment than I wanted to give, and Mr. Mc-Gaughey was the same. I wanted to give 10 years for incest, but some of the others would not come down, didn’t want to come under 15 years for rape, and we finally agreed on 12 years for rape. I think Mr. Ooupland suggested 12 years for rape, and' I put it to a vote, and all voted that way. Three of us before that had voted for 10 years and incest. I remember Mr. Coupland reading that paragraph of the charge wherein the court instructed the jury not to consider the failure of the defendant to testify, but I don’t think it is true that that was the last time it was mentioned; it was discussed all along as far as that is concerned. I don’t believe I mentioned about him not testifying. I know some of them mentioned it all along off and on during the time we were out, but I don’t think I ever mentioned it.”

Chester Davis testified. His testimony is not materially different from his affidavit already mentioned. In answer to this question: “Now, you finally agreed to the verdict of 12 years for rape; I want to know if what they said about Mr. Puller being a truthful and honest man had any influence on you finally agreeing to a verdict of rape and twelve years?” He responded: “I think that would have influenced any man, because it is.like this — ” Here the state interposed objection, which was sustained by the court Further the witness stated:

“There seemed to be several of them just like I was about Mr. Puller’s testimony. I think it influenced me some. I will say it did influence me some.”

Again he states: “I think it influenced me to some extent.” The following is also quoted from his testimony:

“After we went out in the jury room and had been there a few minutes, we elected Mr. Mann foreman, and he gave the charge to Mr. Coup-land to read. X believe it is true that Mr. Coupland read that paragraph in the court’s charge where the court told us not to consider the defendant’s failure to testify, but some of them had mentioned that before then. There was something said two or three different times before the court’s charge was read about the defendant not testifying. After it was read, some of them said we shouldn’t consider that matter. It was mentioned after that about the defendant not offering any testimony; that no witnesses were offered by the defendant’s side. That is what was said about that — that no witnesses testified on the defendant’s side, and some said something about him not going on the stand. Some of them said the girl had testified, and I think Mr. Hays raised the question about the truthfulness of her testimony, and then it was mentioned about Mr. Puller’s testimony, and then some one said the defendant’s side did not put any one on the stand to deny it, and it was mentioned about the defendant not going on the stand and testifying, too. When we first got in the jury room is when I first heard it mentioned about the defendant not going on the stand, but that is not the only time I heard it.”

Mr. Coupland testified he did not hear any of the testimony with reference to the defendant’s failure to testify, but he says:

“I remember hearing some one say that they didn’t see why the defendant didn’t put any one on the stand, and that is all I heard about that; some one just said they didn’t see why the defendant didn’t put any one on the stand.”

With reference to Puller, he says:

“I think some one said something about his reputation being all right, or something to that effect; but I wouldn’t undertake to say that is just what was said.”

This witness wanted to convict for rape and 25 years, which he says was his top notch.

Russell testified substantially as did Coup-land. He says:

“I never mentioned defendant’s failure to testify myself, but it occurs to me that when we first went out some one said, and it may have been me, that we were surprised at not hearing any of defendant’s witnesses. I may have said that I was surprised at no witnesses being put on the stand by the defendant’s side.”

McGaughey testified:

“I remember some one reading the charge, and I remember it said something about us not considering the fact that the defendant didn’t testify; but I don’t remember whether any one said then, ‘Boys, we must remember that.’ ”

He did not remember any discussion in the jury room about it. He was for 25 years and rape. He says he did not know whether he took a great deal of interest in trying to get a conviction for rape; he says that he was doing what he thought was right about it, and says “he was for rape first, last, and always.”

The witness Brea'zeale testified:

“I have known Mr. Puller personally for a number of years, and I have always regarded him as a truthful and honorable man. I don’t think he would swear a lie. I never heard any one question his evidence. I told the jury I had known Mr. Puller for a number of years, as he moved into our settlement when he came from Newton county, and that I had known him always to be an honorable and upright man, and I didn’t believe he would swear a lie. I believed everything he said. I don’t know how many jurors I heard say they knew Mr. Fuller personally, but possibly I heard one or two say that. I heard several say they knew him personally and knew he had a good reputation. I heard that before we agreed on the verdict and before we assessed the penalty, but we were all for conviction as soon as we went out. I heard that mentioned before we agreed or assessed the penalty.”

Another witness says that, when they went out, the court’s charge with reference to not discussing the fact that defendant did not testify was read. He said it was said that that had nothing to do with it.

‘‘After that I heard some one speaking something about the defendant not going on the stand and testifying. Some one said, ‘I guess he thought there was no use, didn’t have any witnesses to put on the stand,’ or something to that effect. If anybody said the defendant had pleaded guilty and then wouldn’t go on the stand and deny it, I don’t know who it was. All of them seemed to discuss that some, but I eouldu’t name them now. The failure of the defendant to testify wasn’t discussed so very much. It was mentioned, but most of them would say that didn’t have anything to do with_it._ I couldn’t tell you whether any one said, if it wasn’t so why didn’t the defendant take the stand and deny it, as I don’t know just what all was said. I think I heard some one say they wondered why the defendant didn’t go on the stand, and then somebody remarked that that didn’t have nothing to do with the case. I don’t know how long before the verdict was rendered that happened, but it was a good while. I don’t know whether it was an hour or two or not, for it was mentioned more than once.”

The court in qualifying the hill says:

“I concluded that the jury did not discuss -the failure of the defendant to testify, but that defendant did not offer any evidence to contra■dict the witnesses, and that the court charged the jury not to consider the matter of the defendant not testifying, and when the jury read this part of the charge it was stated by the jury that the jury must not consider such failure of ■defendant to testify. !As to the witness Fuller’s reputation, the evidence taken on the motion for a new trial is referred to, and I concluded that the verdict of the jury was not affected by same.”

Further detail of this evidence, in the mind of the writer, would be unnecessary. There seems to be two rules with reference to defendant’s failure to testify: One is what is termed a bare allusion in the jury room to defendant’s failure to testify, when immediately suppressed, will not of itself cause the judgment of conviction to be set aside. These cases will be found collated in Mr. Branch’s Ann. Penal Code, on page 293. The second rule is that an. allusion to or discussion of defendant’s failure to testify is error, and an indirect reference to defendant’s failure to testify is as much error as a direct reference to such failure. These cases will be found collated on page 209 in section 374 of Branch’s Ann. Penal Code. See, also, Huddleston v. State, 70 Tex. Cr. R. 260, 156 S. W. 1168; Walling v. State, 59 Tex. Cr. R. R. 128 S. W. 624; Richards v. State, 59 Tex. Cr. R. 203, 127 S. W. 823; Stone v. State, 184 S. W. 193; Buessing v. State, 43 Tex. Cr. R. 85, 63 S. W. 318. In Huddleston v. State, supra, it is said that persistence of one or more jurors in bringing up the subject of defendant’s failure to testify makes a mere allusion or reference thereto become a matter of importance.

The quotations from the testimony on motion for new trial we think presents this maitteir clearly and sufficiently strong to show that, before they agreed on the punishment and before they agreed as to whether •defendant was guilty of rape or incest, his .failure to testify was discussed by the jury both before and after reading the charge. The state evidently, by its examination and cross-examination as developed by the quoted testimony, undertook to show that, because when the matter was mentioned some of the jurors would say that we must not consider that. Therefore it was not considered ; at least, it was not sufficient to require a reversal of the judgment. There is too strong an indication here that this allusion to and discussion of defendant’s failure to testify was attended by too many cautions not to consider it to say that this would come within the rule of bare allusion. It would not do to hold that where jurors discussed the failure of a defendant to testify that because other juror cautioned that they could not consider it and this continued through their retirement, that this would relieve the case of prejudicial misconduct of the jury. This would amount to practically a travesty on the statute.

As to the other question of misconduct —that is, the use of testimony not delivered before the jury in regard to the good reputation of Mr. Fuller — this ought not to raise a question of why this verdict ought not.to stand. The rule is settled in Texas, as we understand it, that a new trial will be granted where the jury, after being retired to deliberate upon the case, has received other testimony, and when a juror testifies to Ms fellow jurors during their deliberations and vouches for the credibility of a material state’s witness the jury has received other testimony. Tate v. State, 38 Tex. Cr. R. 261, 42 S. W. 595; Blalock v. State, 62 S. W. 571; Battles v. State, 53 Tex. Cr. R. 202, 109 S. W. 195; Key v. State, 72 Tex. Cr. R. 129, 161 S. W. 130; Knight v. State, 66 Tex. Cr. R. 335, 147 S. W. 268; Williamson v. State, 62 Tex. Cr. R. 132, 136 S. W. 1071; Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 822; Branch’s Ann. Penal Code, p. 292.

It seems to be practically conceded in this record that Mr. Fuller became the subject of discussion. There was no attack made upon Mr. Fuller’s testimony by the defendant, and therefore none offered to sustain it by the state. This was a matter that came up only in the jury room, and not on the trial. Several of the witnesses stated in, the jury room to their fellow jurors that he was an honest, law-abiding man, and a truthful, straight man. Under the authorities cited, this was clearly receiving testimony after their retirement which was not before them on the trial That these matters affected the verdict in this ease is not questioned, as the writer understands this record. Three or four of the jurors were for incest with a. punishment of 10 years. By reason of these matters of misconduct of receiving other testimony and comment on the failure of defendant to testify, these jurors changed their views and consented to a verdict of 12 years for rape. It was a very crucial question, conceding the state’s testimony to be true that defendant was the man in the room with the girl at the hotel, that it was incest and not rape. Defendant, of course, was fairly interested in the verdict as much so as the state. This testimony did change at .least three of the jurors from incest and 10 years to a conviction for rape with 12 years. That these jurors were affected by this testimony unfavorably to the defendant is not the subject of doubt. This was not only injurious, but shown to be affirmatively so by the testimony. The law has made a distinction between rape and incest and the punishment attached to the two offenses. Under the incest view, appellant could not have had in excess of 10 years. Under the rape view of the case, he could have had assessed against him a punishment far in excess of 12 ye'ars, but the jury did award him 2 years higher for rape than some of the jurors were willing to give him had they remained of the opinion it was incest. This is shown affirmatively to ¡be true. It did jnerease the offense and the punishment with-them, and they testified in substance and one of them expressly that it had a hearing on his verdict and changed him, as it did the other two, from incest to rape.

For the reasons indicated, the judgment is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). This is an appeal from a conviction of rape with force committed by appellant upon his 16 year old niece, with his punishment assessed at 12 years in the penitentiary.

He contends that the evidence is insufficient to sustain the conviction, and that the court erred in refusing his special charge peremptorily requiring the jury to acquit him .of said offense. All the evidence has been read and carefully studied. The evidence was sufficient to sustain the conviction. The substance of it will here be stated.

' Appellant was a married man, had been married some years, and lived at Lufkin with his wife and two children, one eight, the other three, years old. He weighed about 200 pounds, was about 5 feet 9 inches tall, and was a strong, robust man. His wife for a long time was sickly from some female trouble. Early in October, 1916, he went from his home to the home of his niece’s parents, who lived in Montgomery county, about five miles in the country from the railroad town of Splendora, and induced her parents to let their daughter, the assaulted girl, named Mollie Hough, return with him to his home for the purpose of her assisting his wife in doing the household work, cooking, washing, etc., because of the condition of his wife. The girl at that time was staying in Splendora attending school. At first her mother, his sister, refused to let her go on that account; but upon his stating to her that they had a good school at Lufkin whi'ch she could attend, and that he would take good care of her and furnish her plenty of good school clothes, she consented that her daughter might go with him. He went back to Splendora, got the girl, and took her to his home. She remained at his home about three weeks, worked at his home during that time, and went to school there about two weeks. Trouble arose between her and his wife, and she thereupon determined to return home on the night of October 29th with his consent. After supper that night he took her from his home, first, to one of the railroad depots, then to a hotel where she left her grip, then to a drug store where he left her for a time, telling her that he would have to get some money for her. with which to pay her railroad fare home. She remained about the drug store some time, until it closed up. She then saw him, and he told her to go to a certain restaurant and wait for him there, which she did. He went back there for her about 9 o’clock, then took her. to another hotel in the town, reaching there between 9 and 10 o’clock. The lights of the hotel had been extinguished, and the proprietor, Mr. Fuller, and his family had gone to bed. Mr. Fuller’s brother, it seems, was still up, and appellant applied for' and procured a room upstairs. He and the girl were taken to the room, and he there gave Mr. Fuller’s brother a $5- bill to pay for the room. This was taken down to Mr. Fuller for change, which was procured, and taken back up by his brother to appellant. At this time appellant told him to call him at 5 o’clock. He put in no call for the girl, and neither did she, other than his call for 5 o’clock. This was in her presence, and she heard it.

There was but one bed in the room. As soon ■ as he got his change, he closed and locked the door.

The girl testified: She was unwilling .for him to stay in the room, and asked him a time or two to go; but he refused. He told her that he was going to stay with her; that he did not know when he would see her again; that he was not going to bother her; and she consented for him to stay. That she removed her shoes and top dress only, and went to bed. That he removed his shoes and pants and lay down on the same bed. That she was unwilling for him to do that. He did not tell her why he was lying down on the bed, and she did not know what he meant by it. Soon she went to sleep, and was later awoke by his trying to feel of her, and when she awoke he had his hands on her private parts. She asked him to quit. He refused and kept on, going further and further, and she kept on begging him to quit and cried, and he would not quit. She then detailed his conduct towards her. ' That she repeatedly got off of the bed to go to the door and escape, but he would immediately jump up, catch her, and throw her back on the bed and get on top of her. That she wormed and screwed around and tried to work Mm off of her, tried to push him off with her feet and hands, but could not do so. He was much stronger than she was. That he did not tell her what he was trying to do, but she then knew from his actions that he was trying to have intercourse with her. That all this was going on for a long time from soon after they went up into the room and she lay down until towards 11 o’clock, when he finally overcame her and by force succeeded in having sexual intercourse with her. That she was crying and begging him all the time to desist. That she did not holloa, because he told her if she did he would have her put in jail and they would arrest her and put her in jail, and she was afraid to holloa. That she did everything she could trying to keep him from ravishing her. That finally she got away from him one time and got under the bed. That he caught her and pulled her out, put her on the bed again, got on her, forced her legs apart, tore her drawers open, and accomplished the act. That when about to succeed, she told him she was going to holloa anyhow and started to do so, but he put his hand over her mouth, and she could not. That she exerted all the strength she had in trying to keep him off of her and tried to prevent his having intercourse with her. That she tried every way she could to prevent the act That just after he had thus completed the act and accomplished his purpose, the proprietor came up and asked, in substance, what their conduct meant. That she was then crying, and her uncle told her to hush and not say a word or the proprietor would take her and put her in jail and if she said anything would put her in jail. That Mr. Fuller then went downstairs. Her uncle jumped up, put on his pants, took Ms jumper, coat, and shoes in Ms hands, and fled. That she never consented to his said a,ct with her, but that it was without her consent, and she exerted all the strength and power she had to keep him from doing what he did.

Mr. Fuller, the proprietor, testified: That, soon after appellant procured said room and he and the girl went to it, he went to sleep. That later his wife awakened him, and he heard the racket in the room occupied by appellant - just above the one he and his wife occupied. . That it was a constant rustle, lumbering about, heavy falling on the bed, getting off of the bed onto the floor, the girl crying. His testimony substantially corroborated that of the girl as to the struggling, her crying, etc. So far as he could tell it and judge it from the sounds which occurred and which he heard, Mr. Fuller said that when he could stand this no longer he went up, knocked on the door, and asked: “What in the devil is going on here?” That everything became perfectly still, and he asked again, and appellant said: “Not me.” He asked if he was asleep, and appellant replied, “Yes.” And he asked if his light was bum-ing, and he said, “No.” He then told him: “This cutting up has been going on all night, and I have been putting up with it as long as I am going to.” That he then returned downstairs, phoned for the sheriff and one of his deputies. That immediately upon his return downstairs appellant broke to run as if he was going down the back stairs, and he ran to the foot of that stairs to head him off. Thereupon, appellant ran back the other way, went out the front door running before he could stop him, and that he thus ran away. That he had his shoes and some of his clothes on his arms. He had not put on his shoes nor all of his clothes. Much more testimony on these lines could be detailed, but it is unnecessary.

It is true that the girl herself, the officers, and Mr. Fuller all testified that, when they went up into the i:oom after appellant had escaped and fled therefrom undressed, upon their inquiry of her, the girl told them her name was Lillian Jones; that it was her brother Charley Jones who had been in the room with her; that he had come from Tyler and met her there at the train and took her to this hotel; and that it was him who was with her. That, when she was asked if he had bedded up with her, she made no reply and stated that the cause of her crying was that she had just heard that her mother was very sick. That she told that she was 15 years old, when in fact she was 16. That the officers then took her to jail, and that, after they reached there with her and she was inside, appellant came there, and when asked what he wanted told the officers he wanted to see the girl and take her out of there and that she was Ms niece. That the girl then broke down and told the officers she had not told them the truth about who it was with her and what had occurred, but that it was appellant and not her brother who had been with her. The grand jury was then in session. She' was taken before it the next morning and at first testified before them she was 15 years old; that appellant had not had sexual intercourse with her the night before; but that one of her brothers-some months before that had had sexual intercourse with her. Thereupon she was told that they would take her affidavit, send it to-the district attorney of Montgomery county, where she claimed that act had occurred, and have her brother prosecuted and sent to the penitentiary. She said she told this tale to-the grand jury, believing that that would secure her release from jail. Upon further questioning, she then stated that her brother had at no time and place ever had sexual intercourse with her, but appellant had the night before, and she then detailed to the grand jury the treatment of her by her uncle. She also sw.ore before the grand jury that her given name was Louise and did not at first tell them that her true name was Mollie. -She said that Louise was a nickname by ■ which she was called. .

The offense as applicable herein is: Rape is the carnal knowledge of a woman without her consent obtained by force. Article 10G3, P. O. The statute further is (article 1004, P. O.) that this force “must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties, and other circumstances of the case.”

The girl on this trial, which began December 4th and was concluded December 6th, either on her direct or cross-examination, or both, testified fully to all of what she had told Mr. Fuller and the officers when they took her to jail and her testimony first before the grand jury denying that appellant had ravished her, and every other fact tending to impeach her testimony, and the further fact that when on her cross-examination she was asked if she would permit her person to be examined to see if it evidened any act of sexual intercourse she refused to be examined, was all before the jury, and no doubt appellant’s able attorneys made the most of all of this impeaching testimony of her before the jury that could have been made by any one. Yet all of it and her manner of testifying, her demeanor, etc., was before the jury, and, notwithstanding it all, they being the exclusive judges of the facts, credibility of the witnesses, and the weight to be given thereto, believed her testimony against appellant and found him guilty of rape. The state’s testimony, measured by the law, was sufficient to sustain the verdict. She was a young inexperienced girl under the care, custody, and protection of her uncle. She had affection for him, confidence in him, and trusted him. According to her testimony, supported by that of Mr. Fuller, her uncle had carnal knowledge of her without her consent and obtained it by force, and without doubt such force as not only was reasonably supposed sufficient to overcome her resistance taking into consideration the relative strength of the parties and the other circumstances, but did actually overcome her by such force.

On October 30th the grand jury returned ^n indictment against appellant in two counts, one for rape, the other for incest, alleging that said girl’s name was Louise Plough. After the case had been set for trial later and then postponed twice at least on appellant’s application under that indictment, when it was learned that her true name was Mollie Hough, the grand jury preferred another indictment on November 27th so averring her name. The two indictments were the same except as to her name.

When this cause was ultimately called for trial on December 4th and the trial then began, appellant made a motion for a continuance in addition to his previous motions for postponement or continuance in which he had succeeded on account of the absence of some nine witnesses. The state contested this application, showing that two of these witnesses were fugitives from justice and that several of the others were expected to testify solely to his good reputation as a law-abiding, etc., man. The testimony of all the others, including his wife, would have been solely for the purpose of impeaching said girl.

It has always been held by this court that a continuance will not be granted for witnesses to prove an appellant’s good character. Darks v. State, 35 Tex. Cr. R. 378, 33 S. W. 872; Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088; Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103; Duncan v. State, 30 Tex. App. 1, 16 S. W. 753; Benson v. State, 38 Tex. Cr. R. 487, 43 S. W. 527; White’s Ann. C. C. P. § 611. It is unnecessary to cite the many other cases.

It is also well settled that a continuance will not be granted on account of the absence of witnesses whose testimony would only be for impeachment of a state’s witness. Butts v. State, 35 Tex. Cr. R. 304, 33 S. W. 866; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088; Bolton v. State, 43 S. W. 1010; Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; White’s Ann. C. C. P. § 612. A great many other authorities could be cited.

The court qualified appellant’s bill to the overruling of 'his motion for a continuance as follows:

“That Mr. and Mrs. Toliver and Clark Edwards could not be found, and further that Mollie Hough testified on the witness stand that she had at all times denied having anything to do with defendant, and she admitted everything that defendant set up that he expected to prove by said three witnesses, further the defense had some 50 to 75 witnesses in attendance upon couit, most of said witnesses being out of county witnesses, and no witnesses at all were introduced by defendant. Further qualified that the witness Hugo Carter reached the court before the case was finished and could have be'en .placed on the witness stand and the state offered to cross depositions to the wife of defendant. This case had been called two Qr three times before the trial started. The old indictment and the new one were for tho same transaction.”

The court’,s action in this matter was not error.

In his motion for a new trial he alleged misconduct by the jury in that some one or more of them told the others that they knew the reputation of said witness Fuller and that it was good, and also that they discussed the failure of the appellant to testify. This was denied and contested by the state. The court heard the jurors testify when acting on this motion. It is unnecessary to recite the testimony by each of them. The appellant introduced three of them, and from their testimony, if believed, and there had been no other testimony contradicting theirs, it may have been sufficient for the court to have sustained his motion on these grounds; but the state then introduced the other Jurors, some, If not all, of whom testified that no such things occurred. In the majority opinion some of this testimony, which is most favorable to appellant, is stated, hut that of the same jurors favorable to the state, as well as that of the other jurors, is not given. The true rule is stated in Lamb v. State, 75 Tex. Cr. R. 78, 169 S. W. 1158.

The court in qualifying his bill on this subject said:

“After hearing the evidence, I concluded that the jury did not discuss the failure of the defendant to testify, but that defendant did not offer any evidence to contradict the witnesses, and that the court charged the jury not to consider the matter of the defendant not testifying, and, when the jury read this part of the charge, it was stated by the jury that the jury must not consider such failure of defendant to testify. As to the witness Fuller’s reputation, the evidence taken on the motion for a new trial is referred to, and I concluded that the verdict of the jury was not affected by same.”

Clearly the judge’s conclusions were amply supported by the testimony of the jury. Their credibility was a matter thát he not only had the right, but it was his duty, to pass upon. He did not have to believe the testimony of those who would have supported appellant’s contention when others, and more of them, testified in effect to the reverse. This court, and no judge of it, can possibly be as well qualified to determine the real facts and who was telling the truth as the judge of the trial court. His conclusion on disputed facts ought to be, and is, conclusive on this court.

Appellant has several bills showing that he objected to certain questions asked different witnesses, claiming that such questions were leading. As a sample, this is one of them to said witness Fuller:

“Q. ‘Will ask you whether or not at any time just shortly before you went and knocked on the door you heard a smothering noise up there?’ (The door knocked upon was. referred to as the one to the room in which the prosecutrix and defendant were at the time of the alleged commission of the offense.) To which the witness answered: ‘Yes, sir; crying.’”

Clearly this question was not leading. It did not suggest the answer, and besides, even if it had, no prejudice is shown by asking the question under the circumstances of this case. 1 Branch’s Ann. P. C. p. 90, Some of the bills on this subject were qualified by the judge; others were not. Taking the several bills, neither those that were qualified by the court nor those which were not show any such error as would authorize or justify a reversal of this ease.

Appellant’s bill complaining that the court refused to permit him to ask said girl a certain question as qualified by the judge shows no error.

This case without any doubt shows that appellant by force raped Ms own 16 year niece while she was peculiarly and specially under his care, custody, control, and influence. The reversal of this case will no doubt result in his going “scott free” of any conviction. There is no reversible error, tie had a fair and impartial trial, and his conviction should stand. I dissent.
      (SxsjPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    CITY OF FT. WORTH v. ASHLEY.

    (No. 8609.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 21, 1917.
    On Motion for Rehearing, May 19, 1917.)
    1. Eminent Domain <&wkey;277 — Overflow of Land — Action—Notice to City — Necessity.
    Where plaintiff’s property was damaged by an overflow due to a change of grade by defendant city, the charter provision exempting the city from, liability unless notice in writing was served upon the board of city commissioners was no defense to an action for damage in view of Const, art. 1, § 17, forbidding that any person’s property be'taken or damaged without adequate compensation.
    2. Appeal and Error <&wkey;232(3) — Grounds op Review — Instructions — Refusal—Objection to General Charge.
    The assignment that the court erred in refusing a special instruction will not be considered, where the court’s general charge of effect contrary was not objected to on the grounds urged in support of the assignment.
    3. Appeal and Error <&wkey;232(3) — Grounds op Review — Specific Objections to Charge-Necessity.
    Assignment that the award of certain damages was unauthorized because the notice served upon defendant city did not specify such element will be ovex-ruled, where the court’s charge submitting such element of damages was not objected to on any such ground.
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Suit by H. S. Ashley against the City of Ft. Worth. Judgment for plaintiff, and defendant appeals.
    Modified and affirmed.
    T. A. Altman and B. L. Agerton, both of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short and D. B. Trammell, all of Ft. Worth, for appellee.

       For opinion on motion for second rehearin.gr> see 197 S. W. 336.

   CONNER, C. J.

This is a suit by appellee to recover damages of the appellant city occasioned by the acts of said city in changing the grades of certain streets and alleys in the vicinity of plaintiff’s property, whereby the property was overflowed to the plaintiff's damage in the way of - a depreciated value of the premises and because of inconvenience to and sickness of himself and family. Under a general charge, the- jury returned a verdict in favor of the plaintiff for damages in the sum of $3,000, itemized by the jury as follows: Property damage, $1,500; discomfort and annoyance caused by defendant’s negligence,. $1,000; suffering of plaintiff’s wife caused by 'defendant’s negligence, $500.

The provision of the charter of the city of Ft. Worth pleaded and proven by the defendant requiring notice in writing to be served upon the board of city commissioners of damages and injury of any kind to. persons or property is without doubt valid and enforceable. Parsons v. Ft. Worth, 63 S. W. 889; City of Ft. Worth v. Shero, 16 Tex. Civ. App. 487, 41 S. W. 704; English v. Ft. Worth, 152 S. W. 179; Lube v. El Paso, 60 S. W. 303. But it cannot be said that by reason thereof the court erred in refusing to give a peremptory instruction for the defendant, because, as appears from the evidence, a recovery for damages for the deteriorated value of plaintiffs premises was recoverable, not only because coming within the terms of the notice given, but also because, it seems, of the constitutional right to recover such damages regardless of the question of notice. Section 17, art. 1, Constitution of Texas; Shows v. Dallas, 172 S. W. 1137; Houston v. Kleinecke, 26 S. W. 250; Houston v. Isaacks, 68 Tex. 116, 3 S. W. 696; Dallas v. Young, 28 S. W. 1036; Dallas v. Cooper, 34 S. W. 321; Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467; Ft. Worth v. Howard, 3 Tex. Civ. App. 537, 22 S. W. 1059; Powell v. Houston & T. C. Ry. Co., 104 Tex. 219, 135 S. W. 1153, 46 D. R. A. (N. S.) 615.

Nor do we feel justified in sustaining appellant’s second assignment of error to the action of the court in refusing a special instruction requiring the jury in their assessment of damages to disregard “any sickness or deterioration of the health of the plaintiff’s wife which occurred more than 30 days prior to December 2, 1913,” the date of appellant’s first notice; for the reason that the court’s general charge of effect contrary to that of the special charge was not objected to on the grounds urged in support of the second assignment. See G. T. & W. Ry. Co. v. Dickey, 187 S. W. 184; Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991; Railway Co. v. Wheat, 173 S. W. 974; Elser v. Putnam, 171 S. W. 1052; Van Zandt-Moore Iron Works v. Axtell, 58 Tex. Civ. App. 353, 126 S. W. 930.

The contention urged under appellant’s third assignment, to the effect that the award of 'damages for discomfort and annoyance in the use of the plaintiff’s premises was unauthorized because the notice served upon the board of commissioners specified no such element, must be overruled, for the reason that the court’s charge submitting this element of damages and complained of in the assignment was not objected to on any such ground. See Railway Co. v. Dickey and Railway Co. v. Barnes, above cited.

■We have concluded, however, that appellant’s fourth and last assignment, to the effect that the verdict of the jury is excessive, must be sustained. The plaintiff testified to the changes in grade alleged and to subsequent frequent overflows of his premises by rains which stood in accumulated quantities for short periods of time upon his lots; that upon two occasions, at least, such overflows brought dead animals upon his premises and at other times refuse of objectionable character, so that the evidence doubtless justified the inference that his property was damaged. But in fixing the amount of the damage to his property he stated that the market value of such property “immediately before it began to overflow” was $3,500. The evidence suggests that the witness’ estimate of value as indicated was made up of the cost to him, rather than from a knowledge of market conditions. He testified that he purchased the property originally for $1,800, and then described the improvements made- by him, consisting of the addition of one room, improvement of the street in front of him, etc. But, as we view the testimony, the market value of the property was not satisfactorily shown, particularly after the changes in grades and after the overflows, which were principally in 1912 and 1913. His evidence on this subject was:

“I have sold that property out there. I believe I sold it on February 25, 1915. I sold it to a man named W. E. Cole. The deed is recorded as a sale for $2,500 cash. I believe the deed I made recited $2,500 cash. * * * I had $3,500 interest actually in this place; that is what it cost me. I got for the place a thousand dollars and a one-lialf interest in an automobile, not a new one,- but an old one, a Hudson, one old Daddy Cole here at Ellison’s had been driving around for a number of years. I expect the reasonable market value of that automobile, secondhand as it was, was $500 or $600.”

As stated, we are not satisfied on the evidence as a whole to approve the jury’s finding of $1,500 damage to the real estate. What effect, if any, the improved streets, adjacent park, etc., had in the way of enhancing the value of plaintiff’s property, does not appear; nor, as already noted, does it appear what the market value of the premises was immediately after the injuries complained of. Nor does any consideration appear to have been given to the depression in values of real estate during the periods complained of. The mere fact that plaintiff, a year or so after-wards, sold the property for less than it cost him, cannot be accepted as a proper-criterion.

We feel likewise dissatisfied, after a consideration of the evidence, which we will not undertake to set out, to approve the findings of $1,000 for discomfort and inconvenience, and $500 for the subsequent sickness of the plaintiff’s wife. Assuming that both of these elements of damages have foundation in the evidence, - yet the amount awarded for discomfort and inconvenience seems disproportionate to the value of the premises. There was evidence to the effect that the principal inconvenience and sickness of the plaintiff’s wife occurred in 1912, prior to the date upon which the notice of plaintiff’s damages was given to the city, yet at that time no specific claim in the notice of injuries or damage was made on the ground of inconvenience and discomfort; the specific claim for damages in the notice being confined to injuries to his property and to the health of his family. Nor is any proof pointed out of the value of the time lost by the plaintiff’s wife during her period of sickness in the early part of 1913, or of moneys, if any, paid for drugs or medical attendance on this account. So that, on the whole, as before stated, the verdict of the jury as to the amount of the damages awarded will not be approved; but the verdict and judgment will be set aside and the cause remanded for a new trial, rather than to undertake a correction by requiring' a remittitur. See T. & R. Ry. Co. v. Rasmussen, 181 S. W. 212.

Reversed and remanded.

On Motion for Rehearing.

Appellant’s fourth assignment, which was sustained by our original opinion, attacks the verdict as excessive upon each element of the recovery, but the propositions following' the assignment are limited to the element of discomfort and annoyance. Appellee, therefore, insistently urges that we erred in considering the evidence relating to elements other than the one attacked by the propositions.

It is time, as insisted, that ordinarily questions presented in an assignment, not followed by an appropriate proposition, are deemed to have been waived; but in the case before us we did not feel it to be our duty to follow this rule. The rule has no application to fundamental error, and, as pointed out in our original opinion, a very material part, as shown by the evidence, of both the elements of sickness and of discomfort and inconvenience occurred more than 30 days prior to December 2, 1913. the date of the appellee’s first complaint to the city, and we are of the opinion that it was fundamentally wrong in the charge of the court to authorize a verdict covering such damages as so occurred more than 30 days prior, to December 2, 1913, and fundamentally wrong to give judgment therefor. The provision of the special charter of the city of Ft. Worth, granted by special act of the Legislature of the state of Texas approved March 10, 1909 (Loe. & Sp. Acts 31st Leg. c. 31), having reference to the notice mentioned is section 4 of subchapter 11, and reads as follows: “The city of Ft. Worth shall not be held to” be liable “for and on account of any damages or injury of any kind whatsoever to persons or property, unless the person claiming same, his agent or attorney, shall within thirty days after such injury or damage has been sustained serve notice in writing upon the board of commissioners, giving the day and date, the time and place where such injury or damage occurred, and the nature and character of the injury.” Section 6 of the same chapter provides that: “This act shall be taken and held to be a public law, and all courts and tribunals shall take judicial cognizance and knowledge of the contents and provisions thereof, and it shall not be necessary to plead or prove the same.”

As will be seen by an examination of the authorities relating to that subject cited in our original opinion, a compliance with section 4 by giving notice of any “damages or injury of any kind whatsoever to persons or property”' was a prerequisite to the establishment of liability of the city for any of the damages occurring, more than 30 days prior to December 2, 1913. Indeed, Mr. Associate Justice BUCK, at least, is of the opinion on re-examination that we should have sustained appellant’s second assignment of error, complaining of the action of the court in refusing to give the special instruction noticed in our original opinion disposing of that assignment; the error in the main charge being only one of omission, and the rule announced in Railway Co. v. Barnes, 168 S. W. 991, not being applicable. While the views above stated were not mentioned in our original opinion, in view of the fact that we had concluded to reverse the -judgment, nevertheless they originally were entertained by us in an unexpressed form, and now present our convictions upon reconsideration. So that it can hardly be said that our reversal of the judgment comes within the meaning of Rev. St. art. 1631, requiring the suggestion of a re-mittitur in cases where it shall be the opinion of the Court of Civil Appeals that the verdict and judgment of the trial court is excessive, and for that reason only shall remand the cause. We therefore feel that we cannot give effect to the contention so vigorously presented on the motion for rehearing that this court should, as a condition for affirmance, indicate the amount of the excess in the verdict and judgment, even though the majority were in error, as it seems, in entertaining the view expressed in the Rasmussen case that article 1631 did not apply in every case in which the judgment was reversed because only of an excess in the verdict and judgment. Wilson v. Freeman, 185 S. W. 993.

We conclude that the motion for rehearing should be overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    TOWN OF JACKSONVILLE v. McCRACKEN et al.
    (No. 1751.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 7, 1917.
    Rehearing Denied July 28, 1917.)
    1. Municipal Corporations &wkey;>742(5) — Private Nuisance — Evidence—Sufficiency.
    In an action against a town for damages due to the maintenance of a septic tank, evidence held sufficient to make an issue whether the alleged nuisance existed and was regularly occurring and permanent.
    2. Limitation of Actions &wkey;s55(6) — Accrual —Permanent Nuisance.
    Where the sewer was a permanent structure and became a continuing nuisance from the beginning of its operation, the depreciated market value to plaintiff’s land was susceptible of ascertainment when the use of the sewer began, and the statute of limitations began to run from that time.
    3. Municipal Corporations <&wkey;742(6) — Nuisance — Proximate Cause of Death — Evidence — Sufficiency.
    In an action for damages for unsanitary condition created by operation of a septic tank by defendant town, evidence that death of plaintiff’s son was caused by alleged nuisance held sufficient for submission of question to jury.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by J. L. McCracken and another against the Town of Jacksonville. Judgment for plaintiffs, and defendant appeals.
    Modified and affirmed.
    The plaintiffs o.wn about 29 acres of land crossed by a branch draining about one-half of the incorporated town of Jacksonville. Their residence is located just outside the corporate limits of the town, and is 70 or 100 feet distant from the branch. In the fall of 1913 the town of Jacksonville constructed a sewer system which flowed through a septic or settling tank. The septic tank and appurtenances were about 300 yards from plaintiffs’ residence, and the outflow from the septic tank emptied into said branch. In July, 1914, and afterwards, the odors and smells and outflow from the septic tank became obnoxious and offensive. The plaintiffs sue for damages proximately resulting frprn alleged nuisance created and permanently continuing through the operation and maintenance of the disposal tank. The petition also prayed for abatement of the nuisance by injunction. The defendant excepted to the petition, pleaded a general denial, the statute of two years’ limitation, and specially that the injury or nuisance was not permanent, but an abatable one. In accordance with the findings of the jury and upon the evidence, the court entered judgment for the plaintiffs for $5,000 damages, but denied plaintiffs an injunction as prayed for.
    The jury made answer as follows: That the septic tank was first constructed and completed by the town of Jacksonville on or about September 13, 1913, and that said town first started emptying the sewerage into the septic tank on or about September 15, 1913; that the operation and maintenance of the septic tank, as well as the outflow into the branch, were disagreeable to the plaintiffs and produced an unpleasant odor; that the reasonable fair cash market value of the plaintiffs’ land and premises immediately before the erection and maintenance of the septic tank was $3,300, and after the erection and operation of said septic tank was $1,500; that the erection of the septic tank neither decreased nor increased the value of plaintiffs’ property, but that its operation and maintenance and the outflow therefrom decreased the value of said property $1,800; that said septic tank and the effluent therefrom became offensive and interfered with the comfortable enjoyment of plaintiffs’ home; that this condition began about July, 1914, and that the sewerage disposal plant of the town of Jacksonville, since the changes made, gives off offensive odors and allows foul and fecal matter to go from same into the branch which goes upon plaintiffs’ property and pollutes same to such an extent as to interfere with the comfortable enjoyment by plaintiffs of their home. The jury further found that the operation and maintenance of the septic tank caused the sickness and death of Grady McCracken, and caused sickness of the plaintiff Mrs. S. E. McCracken and of her son Sam McCracken and of her daughter Fannie May McCracken; that since the erection and maintenance of the septic tank plaintiffs have paid for doctors’ bills and medicines the sum of $100, and because of sickness and of the death of their family have lost time to the value of $100; and that $3,000 would compensate the plaintiffs for the death of their son Grady McCracken. There are involved in the judgment of the court the findings of fact that the conditions existing constituted a nuisance and that the same were permanent.
    Lee G. Carter and John C. Box, both of Jacksonville, for appellant. Norman, Shook & Gibson, of Rusk, for appellees;
   LEVY, J.

(after stating the facts as above). The appellee offered evidence, over the objection of appellant, going to show depreciation in the market value of his premises by reason of the conditions existing from the operation of the septic tank and the outflow into the branch onto his premises; and the court authorized the jury to make findings respecting the permanent depreciation in the market value of the land. The appellant by appropriate assignments of error asserts that it was conclusively shown that the conditions existing from the operation of the septic tank and the outflow therefrom could be corrected and abated, and that it was the purpose of appellant to correct the same, and that therefore appellee may not legally recover damages for permanent depreciation in the value of his land. The appellee pleaded that the alleged nuisance was a permanent one. The appellant answered that alleged causes of nuisance were of a nature capable of being abated, and that the vicious elements of the situation could and would be removed. The witnesses for appellant testified to the effect that the outflow from the septic tank never did become offensive, and that the alleged causes of the nuisance did not exist. And there was evidence by appellant that shortly after this suit costly and permanent changes were made respecting the septic tank and settling beds entirely corrective of any cause for injury or nuisance. And there is evidence that appellant intended to prevent the tank from becoming offensive by further changes if necessary so to be done. There was no evidence that appellant intended to abandon the use of the septic tank and its appurtenances. The evidence for appel-lee is to the effect that alleged causes of the nuisance existed and constantly and regularly occurred even after the city made the changes in the septic tank and filter bed; and there was some evidence for appellee that any further improvement as an abatement of the alleged causes of nuisance by subirrigation or piping away the outflow was impracticable. It was shown by the evidence of appellant’s officials that appellant intended to continue to use the septic tank.

It is believed that the evidence is sufficient to make an jlssue of whether or not the alleged nuisance existed and was regularly occurring and permanent. City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62; City of Clarendon v. Betts, 174 S. W. 959. Thus there is no error, it is concluded, in the rulings of the court as complained of.

There is distinguishment between the Paris Case, supra, and the case of City of Paris v. Jenkins, 57 Tex. Civ. App. 383, 122 S. W. 411. In the latter ease the evidence went to show:

“That the use made of appellant’s land as a place to dump its refuse had decreased, as it had extended its sewer system, and would continue to decrease as said system was further extended ; and there was also evidence to show preparation by appellant to construct an abattoir •which would enable it to altogether dispense with the use of the land as a place on which to dump dead animals.”

And thus, in view of the facts, it was concluded that the alleged nuisance was a temporary one.

In the Allred Case, supra, though, it is concluded l>y the court that the alleged nuisance should be deemed a permanent nuisance under the facts that:

“When the sewer, the cause of the injury, was constructed, it was evidently intended by the city authorities that it should be permanent, and it has been so treated and used ever since.”

It is thought the instant case is a similar one in the facts and is ruled by the latter case.

Appellant contends that appellee’s cause of action for permanent depreciation in the value of his premises was barred by the statute of limitation of two years. It appears that the sewerage system was constructed in the summer of 1913, and use and operation of it began on September 15, 1913; and it appears that the suit was filed December 2, 1915. It appears that the sewer was established at much cost and in a substantial and permanent manner, and was, as concluded, the cause of and constituted a permanent nuisance effecting permanent injury to the appellee’s land. From the construction of the sewer the use of the sewer has continued in the same manner and to the same extent during the whole period from the beginning of its operation to the institution of the suit. It was the structure of the sewer that created a permanent status of injury to the premises from the beginning of its operation; the subsequent odors and conditions arose as a necessary consequence of the construction and operation of the sewer. As the structure was permanent and became a continuing nuisance from the beginning of its operation, the depreciated market value of the appellee’s property was susceptible of ascertainment when the use of the sewer began in September, 1913; and. the statute of limitations began to run from that time. Railway Co. v. Graham, 12 Tex. Civ. App. 54, 33 S. W. 576; Lyles v. Railway Co., 73 Tex. 95, 11 S. W. 782; De Geofroy v. Railway Co., 179 Mo. 698, 79 S. W. 386, 64 L. R. A. 959, 101 Am. St. Rep. 524; Sutherland v. Railway Co., 108 S. W. 969; Abilene Light & Water Co. v. Clack, 58 Tex. Civ. App. 129, 124 S. W. 202; Perry v. Railway Co., 162 S. W. 1185.

The case of Railway Co. v. Goldman, 8 Tex. Civ. App. 257, 28 S. W. 267, was upon facts showing that the damage was not occasioned by the immediate construction of the ditch, but from consequential effects of the erection of-the ditch. And the other eases cited in the brief follow the same rule as to consequential injuries. This instant case does not, it is thought, come within that class of cases. It is believed that there was error in allowing a recovery for the depreciation in the market value of the land, because such recovery was barred by limitation.

It is contended by appellant, -by appropriate assignments of error, that neither the death of Grady McCracken nor any of the sickness on account of which the plaintiff recovered proximately resulted from the things complained of by plaintiffs. The jury made the findings of fact that the sickness and death of Grady McCracken, and the sickness of the other members of the family, were caused from the operation and maintenance of the septic tank and its working condition. There is evidence showing that the stench and odor and excreta from the outflow of the tank was offensive and disagreeable. ' Plaintiff testified:

“As to the effect this had on my house at nights, will say it has been awful, one couldn’t hardly describe it, and especially in the summer time. Frequently on account of the odors and stench we just close the doors and windows and sit there and endure the heat to keep the odors out of the house.”

And while it appears that Grady McCracken died of meningitis, it further appears from the testimony of Drs. Travis, Canon, and Fuller, each, that the meningitis germ is brought about by an unsanitary condition, and that “it is generally believed by the medical profession that any unsanitary condition might bring about meningitis.”

It is believed, in view of all the evidence, that it may not be said by this court as a matter of law that the unsanitary condition created by the operation of the -tank was not the producing cause of the death and sickness in evidence, and that the court properly passed the decision of the question to the jury. And it may not be said, it is concluded, that the amount awarded plaintiff for the death of his son Grady was not authorized by the pleading and evidence.

By what has been said we have disposed of the assignments of error submitted by appellant, and, except as to the question of limitation, find no reversible error. The action for the recovery for the permanent depreciation in the market value of the land being barred, as concluded, by limitation of two years, that portion of the judgment allowing a recovery for the damages to the land is reversed, and judgment is here entered in that respect for the appellant.

The judgment of the trial court will otherwise be affirmed. The costs of appeal are taxed against appellee.