text:
    BROWN v. STATE.
    (No. 3205.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.)
    Indictment and Information (§ 111) — Sufficiency — Statutory Offenses — Negativing Exceptions.
    Under Penal Code 1911, art. 747, making it unlawful to sell, furnish, or give away cocaine or morphine, except upon the prescription of a physician, and excepting preparations recommended in good faith for cholera, etc., sales at wholesale to retail druggists, and to manufacturers or regular practitioners of medicine, an indictment for unlawfully selling, furnishing, and giving cocaine and morphine to one not having a written prescription of a physician was sufficient, without negativing the exceptions as to sales in good faith for cholera, etc.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. § 111.]
    Appeal from Erath County Court; A. P. Young, Judge.
    M. A. Brown was convicted of the unlawful sale of cocaine and morphine, and he appeals.
    Affirmed.
    Hickman & Bateman, of Stephenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted under the following indictment, omitting formal parts;

“Did then and there unlawfully sell, furnish, and give cocaine and morphine to M. E. Maddox; the said cocaine and morphine not then and there being sold, furnished, and given by the said M. A. Brown upon the original written order or prescription of a lawfully authorized practitioner of medicine, dentistry, or veterinary medicine.”

The only error relied on is that the court erred in overruling the motion to quash the indictment. The motion alleges that the indictment is defective, because it is not charged that the cocaine and morphine were not recommended in good faith for diarrhea or cholera; that it was not sold at wholesale to retail druggists; that it does not allege the purchaser was not a manufacturer or regular practitioner of medicine, etc. If it was necessary to negative these exceptions, of course the indictment would be defective; but in defining the offense article 747 of the Penal Code reads:

“It shall be unlawful for any person, firm or corporation to sell, furnish or give away cocaine, salts of cocaine or preparations containing cocaine, or salts of cocaine, or any morphine, or salts of morphine, or preparations containing morphine or salts of morphine, or any opium or preparations containing opium, or any chloral hydrate or preparations containing chloral hydrate, except upon the original written order or prescription of a lawfully authorized practitioner of medicine, dentistry or veterinary medicine,” etc.

We had the question here presented in Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112, and held adversely to appellant’s contention, quoting approvingly United States v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538, wherein it was held:

“Commentators and judges have sometimes been led into error by supposing that the words ‘enacting clause,’ as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in tho same statute, which is a misapprehension of the term, as the only real question in the case is whether the exception is so incorporated with the substance of the clause defining the offense as\ to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offense. Such an offense must be accurately and clearly described, and, if the exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then it cannot be omitted in the pleading; but, if it is not so incorporated with the clause defining the offense as to become a material part of the definition of the offense, then it is matter of defense, and must be shown by the other party, though it be in the same section or even in the succeeding sentence — citing 2 Lead. Cr. Cas. (2d Ed.) 12; Vavasour v. Ormrod, 9 Dowl. & Ryl. 597; Spieres v. Parker, 1 T. R. 141; Com. v. Bean, 14 Gray [Mass.] 52; 1 Stark, Cr. Pl. 246.”

See, also, Wade v. State, 53 Tex. Cr. R. 184, 169 S. W. 191; Chapman v. State, 37 Tex. Cr. R. 167, 39 S. W. 113; Brown v. State, 9 Tex. App. 171; and cases cited in the case of Slack v. State, supra.

The judgment is affirmed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    DICKSON v. STATE.
    (No. 3197.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.)
    1.Homicide (§ 174) — Evidence—Physical Facts — Bullet Holes.
    'Where, on a trial for homicide, it was the contention of the state that accused shot deceased through a closed door and that the bul-
    let passed through her body, the testimony of a witness, who examined the premises the next morning, that he found a bullet hole in the door and a bullet in the wall opposite the door, was properly admitted; these being physical facts which could be testified to hy any witness who saw them, and the next morning not being too remote in time.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    2. Homicide (§ 203) — Evidence—Dying- Declaration-Admissibility.
    On a trial for homicide, a statement voluntarily made by deceased after receiving the fatal wound as to the cause of the killing at a time when she was in possession of her senses and believed and stated that she could not survive was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430 — 437; Dec. Dig. § 203.]
    3. Homicide (§ 174) — Evidence—Flight oí Accused.
    Where, after a homicide committed in 1906, accused fled from the city and was not located until in December, 1913, it was not error to permit the chief of police to detail the search he made to find accused and that he coiild not be found in the city.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    4. Criminal Law (§ 706*) — Argument oí Counsel — Reply to Remakes of Opposing Counsel..
    On a trial for homicide, where accused placed his general reputation in issue by a plea for suspension of sentence and evidence in support thereof, accused was asked without objection if he had not killed a man in Louisiana, to which he replied that he had not. In his argument accused’s counsel charged the county attorney with acting unfairly in asking such question, called upon him to explain why he asked it, and stated that, if the state wanted to show that accused had been convicted in Louisiana, it knew it ought to do so by a certified copy of the judgment of conviction. The county attorney in reply stated that he asked the question because he had information which he considered reliable, that accused was a fugitive from justice from Louisiana, and that he thought if he asked accused he would speak the truth about it. Held, that this remark of the county attorney was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.]
    5. Cbiminal Law (§ 730) — Argument of Counsel — Reply to Remakes of Opposing Counsel.
    On a trial for homicide, accused’s counsel, in his argument referring to accused’s flight following the homicide, said there was nothing for him to flee from, as the indictment showed that he had not been indicted until shortly before the trial, nearly seven years after the killing. The county attorney having referred to this argument, accused’s counsel interrupted, stating that he knew what was coming and objected to any statement as to a previous indictment because there was no evidence of such indictment. The county attorney then stated that he intended to make no such statement, but that there was no evidence that a previous indictment was not found. Held, that the court’s refusal to admonish the county attorney that he could not refer at all to the argument of accused’s counsel about the indictment was not error, since, when counsel for defendant by their argument go out of the record and make comments or call upon the state’s counsel for an explanation, they cannot complain of matters thus brought out.
    [Ed. Note. — For other cases, see Criminal Law', Cent. Dig. § 1693; Dec. Dig. § 730.]

      Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    C. Dickson was convicted of murder, and he appeals.
    Affirmed.
    O. S. York, T. C. Turnley, and Henry O’Dell, all of Galveston, for appellant. Chas. H. Theobald, Co. Atty., Walter E. Cranford, and Eugene A. Wilson, Asst. Co. Attys., all of Galveston, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 20 years’ confinement in the state penitentiary.

Mr. Joseph Bonart had testified that on the night appellant shot his wife she told him they had trouble about her ironing a vest, and that he went out the door and she closed it, when appellant shot her through the door. No objection was made to this portion of the testimony, it being admitted that it was res gestee of the transaction. The shooting occurred at night, and Mr. Bonart testified he examined the premises the next morning and found a bullet hole in the door, and found the bullet in the wall opposite the door. This part of his testimony was objected to on the ground that it was not res gestte and too remote in time. The contention of the state was that appellant had shot his wife through a closed door, and the ball had entered her back and passed through her body. The attending physician so testified, and it was admissible to show that the bullet had entered the door from the outside as shown by powder burns, and, taking into consideration the point it lodged in the wall, the door must have been closed. These were physical facts shown on the ground which could be testified to by any witness who saw them, and the next morning was not too remote in time.

The testimony of Phoebe Bowman was admissible as a dying declaration. It is shown that deceased made the statement testified to by the witness at a time when she believed and stated she could not survive, but that death was impending; it was shown that she was in possession of her senses, and the statement was freely and voluntarily made. She was telling her mother how the shooting occurred, and the remarks were not solicited, nor were they in answer to any questions; but when her mother visited her she voluntarily told her version of how it occurred. There was no objection to the statement itself, but the only objection made was that no proper predicate had been laid rendering it admissible. We are of the opinion that the court was correct in holding that a proper predicate had been proven.

Neither was there any error in permitting the chief of police to detail the search he had made in an effort to find appellant, and that he could not be found in Galveston. The record conclusively shows that the killing occurred in 1906; that appellant fled from the city of Galveston, and was not located until in December, 1913, when he was recognized in San Antonio by a cousin of the deceased woman, who had him arrested, and he at that time gave his name as Charlie Blowers, and denied knowing the woman who had caused his arrest. It is always permissible to show flight.

It is shown by a bill that in his closing argument the county attorney said:

“That I had in my possession information which I considered reliable that the defendant was a fugitive from justice from the state of Louisiana,” — which remarks were objected to by appellant’s counsel.

The court, in approving the bill, states:

“Approved with the explanation that in the argument of Mr. Thos. 0. Turnley, one of the attorneys for the defendant, Mr. Turnley had made before the jury a very bitter attack on the county attorney for having asked the defendant on cross-examination if he hadn’t killed a man in Louisiana, and to which, without objection by or on behalf of defendant, defendant answered ‘No.’ Defendant had put his general reputation in issue by a plea for suspension of sentence and also by evidence on direct examination in support of such plea; defendant stating he had never been convicted of a felony in this state or any other state. In his argument Mr. Turnley accused the county attorney of having acted unfairly and dastardly in asking the defendant if he had not killed a man in Louisiana, and that such question could only have been asked to prejudice the defendant before the jury, and he called upon the county attorney to explain to the jury why he did it. That if the state wanted to show the defendant had been convicted in Louisiana, it knew it ought to do so by producing a certified copy of the judgment of conviction and it failed to do it. In reply to defendant’s demand through his said attorney, the state through its counsel answered that the reason it had asked such question was that counsel for the state had information which he considered reliable that the defendant was a fugitive from justice from the state of Louisiana, and he thought if he asked defendant he would speak the truth about it.”

As thus qualified, the bill presents no error, as the remark was called for by the argument of appellant’s counsel.

The court declined to approve appellant’s bill of exceptions No. 6, saying that it is inaccurate, but prepares and files the following bill in lieu thereof:

“What actually transpired was that Mr. O. S. York, counsel for the defendant, in his argument before the jury stated that, even if the defendant had been guilty of flight after the shooting, there was nothing for him to flee from, for the very indictment in the ease reflected he had not been indicted for any offense until the 3d day of February, 1914, nearly seven years after the killing. If the state, he continued, had regarded the defendant guilty of an offense, why hadn’t it brought in an indictment sooner, instead of waiting nearly seven years to do so. When counsel for the state in his closing argument, after discussing other matters, had gotten so far as to say, ‘Now, Mr. York, defendant’s counsel, referred to the fact that the indictment in this case was not filed until February, 1914,’ Mr. York interrupted by rising and stating to the court that he knew what was coming, that counsel for the state was going to say there was another indictment found long before, and that he was going to head off any such remarks of the district attorney and object to any such statement by the district attorney, as there was no evidence of a previous indictment. Counsel for the state answered that he did not intend to make any such statement, but would say there was no evidence that a previous indictment had not been found. Whereupon counsel for defendant excepted and took a bill of exceptions to the court’s refusal to admonish counsel for the state that he could not refer' at all to defendant’s argument about the indictment. In this connection and in approving this bill as set forth by the court, the court further adds that, that was all that was said by state’s counsel with reference to the question of the indictment, and further adds that Mr. York knew that, at the time he made his argument, another indictment returned in February, 1907, was pending in this court against the defendant for the same offense, charged in the indictment returned in February, 1914, having previously been appointed to represent defendant upon the charge made in the 1907 indictment.”

When counsel for defendant by their argument go out of the record and make comments, or when by their comments they call upon state’s counsel for an explanation of a matter, they cannot afterwards be heard to complain of matters which they themselves brought about, and, under the circumstances recited by the court in the bill of exceptions, there was no error committed in the premises.

Those matters complained of in the motion for new trial, to which no bill of exceptions was reserved, cannot be considered by. us, as they are not verified in a way which would authorize us to review such grounds.

No special charges were requested, and no objections were made to the charge as given either at the time it was given or in the motion for new trial.

The evidence for the state amply supports the verdict, and the judgment is affirmed.


text:
    HILL v. STATE.
    (No. 3185.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    1. Homicide (§ 106) — Evidence — Admissibility.
    Antecedent menaces, threats, grudges, and recent difficulties between accused and decedent are admissible on the issue of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 136; Dec. Dig. § 106.]
    2. CRIMINAL Law (§§ 763, 764) — Instructions — Weight of Evidence.
    A charge that the jury must find enumerated facts beyond a reasonable doubt before they may convict accused is not on the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768,1770; Dec. Dig. §§ 763, 764.]
    3. Criminal Law (§ 823) — Instructions— Reasonable Doubt.
    Where the court charged on reasonable doubt and the presumption of innocence., a charge submitting an issue was not objectionable for omitting any reference to reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    4. Homicide (§ 42) — Manslaughter—Evidence.
    Where accused and decedent, husband and wife, had a quarrel in the morning and then separated (she going to a sister’s home), and several hours thereafter accused appeared there armed with a gun, and all that the wife did was to decline to go home when he demanded it, there was no adequate cause to reduce the killing by accused of his wife to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 65, 66; Dec. Dig. § 42.]
    5. Criminal Law (§ 778*) — Instructions— Burden of Proof.
    A charge that, if the jury had any reasonable doubt as to the guilt of accused of murder in the first or second degree or of negligent homicide, they must acquit him, and if the evidence raised a reasonable doubt, accused was entitled to an acquittal, was not objectionable as shifting the burden of proof on accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.*]
    6. Criminal Law (§ 561) — Reasonable Doubt.
    The jury must find facts constituting an offense beyond a reasonable doubt before they may convict.
    [Ed. Note. — For other cases, see Criminal Law, .Cent. Dig, § 1267; Dee. Dig. § 561.]
    7. Homicide (§ 300) — Self-Defense—Evidence.
    Where neither accused nor any witness testified to any facts which could have led accused to believe that his life was in danger, or that he was in danger of any serious bodily injury, and no blow was passed nor attempted to be struck by any one, and no threatening words uttered or gesture made, the issue of self-defense was not raised.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    8. Criminal Law (§ 829) — Instructions— Refusal of Instructions Covered by the Charge Given.
    It is not error to refuse a special charge covered by a charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Homicide (§§ 17, 60) — Murder on Implied Malice.
    Where accused shot and killed his wife while intending to shoot a third person, the killing could not be reduced to manslaughter, but only to murder on implied malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 23, 84; Dec. Dig. §§ 17, 60.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Israel Hill was convicted of murder on implied malice, and he appeals.
    Affirmed.
    Jno. W. Scott and Geo. J. Ryan, both of. Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 161 S. W. 118. On the second trial of the case appellant was found guilty of murder upon implied malice, and his punishment assessed at 50 years’ confinement in the state penitentiary.

There are two bills of exception in the record relating to a quarrel between appellant and his wife the morning of the homicide. The same question was urged on the former appeal, and the testimony was held properly admitted. Hill v. State, 161 S. W. 118. Under such circumstances, we do not think it necessary to again discuss this question. Antecedent menaces, threats, grudges, and recent difficulties between the parties are admissible on the issue of motive. Neither do we think it necessary to again state the facts, as the former opinion sufficiently states the contention of the state and defendant. In that opinion this court held that negligent homicide of both the first and second degree should have been submitted, and on this trial the court did so instruct the jury.

The complaint that the court erred in submitting murder upon express malice need not be considered, as the jury acquitted of murder in the first degree.

The complaint as to the charge on murder upon implied malice, that “the court did not in this paragraph give the defendant the benefit of reasonable doubt, and is upon the weight to be given the testimony,” is without merit. This paragraph is in language frequently approved by this court. It is not upon the weight of the testimony, but instructs the jury they must so find beyond a reasonable doubt before they would be authorized to convict, and it was not necessary to instruct in this paragraph on reasonable doubt, when the court gave the defendant, in separate paragraphs, the benefit of reasonable doubt as between degrees, and then instructed the jury generally the law as to presumption of innocence and reasonable doubt, and, having so instructed the jury, it was not necessary to give the special charge requested on this issue. Douglass v. State, 8 Tex. App. 520; Neyland v. State, 13 Tex. App. 549; Gonzales v. State, 30 Tex. App. 224, 16 S. W. 978; McGrath v. State, 35 Tex. Cr. R. 423, 34 S. W. 127, 941; Barton v. State, 53 Tex. Cr. R. 445, 111 S. W. 1042; Carson v. State, 57 Tex. Cr. R. 398, 123 S. W. 590, 136 Am. St. Rep. 981.

There is no manslaughter in the case. While it is true the record discloses a quarrel in the morning, when appellant had his gun, and his wife had hold of it, crying, yet after this defendant and his wife separated, he going to the field and she going to a sister’s, several hours thereafter he appeared at this sister’s home armed with a gun, and all his wife is shown to have done was that she declined to go home, when he requested or demanded that she go. Nothing is suggested by the record that would be “adequate cause” to reduce the offense to manslaughter.

The charge on accidental homicide does not shift the burden of proof as contended by appellant. The court instructed the jury that if they should find from the evidence, or “if the evidence raises in your mind a reasonable doubt thereof,” etc., appellant was entitled to be acquitted. In addition thereto the court instructed the jury:

“If you have in your minds a reasonable doubt as to whether the defendant is guilty of murder in the first degree, you will find him not guilty of that offense. Then, if you have in your minds a reasonable doubt as to whether he is guilty of murder in the second degree, you will find him not guilty of that offense. And if you have in your minds a reasonable doubt as to whether or not he is guilty of negligent homicide in the first degree, or negligent homicide in the second degree, then you will acquit him and say by your verdict, ‘Not guilty.’ ”

The paragraphs of the charge presenting negligent homicide of the first and second degrees properly required the jury to find the facts constituting those offenses beyond a reasonable doubt before they would be authorized to convict appellant of either of such offenses. It is the law of this state that the jury must find the facts constituting an offense beyond a reasonable doubt before they are authorized to convict of any offense, and, if the court had not so instructed the jury, it would have been error. Hendricks v. State, 154 S. W. 1005. As shown above, in the charge he did give the defendant the benefit of reasonable doubt as between the different degrees submitted, and the benefit of reasonable doubt as to whether he was guilty of any offense, and then gave the usual and customary instruction of presumption of innocence and reasonable doubt as applicable to the whole case. In no instance was the burden of proof shifted to the defendant.

The evidence does not raise the issue of self-defense. The defendant and no other witness testifies to any state of facts which could or would lead defendant to believe that his life was in danger or he was in danger of suffering any serious bodily injury. Not a blow was passed, nor attempted to be struck by any one, and no threatening words uttered or gesture made. Therefore the court did not err in refusing the special charge presenting the issue of self-defense.

The charge as given on accidental homicide was a full and fair presentation of that issue, and it was not therefore necessary to give the special charge requested. Neither was there any testimony raising the issue that when defendant shot his wife he intended to shoot Becky Brown; but, if there was any such testimony, this would not reduce the offense to manslaughter, but only to murder upon implied malice, and this is the offense of which he was found guilty.

There is no evidence in the case suggesting the issue that Becky Brown assaulted defendant. He in his testimony does not so contend; but if she had attacked him without any weapon of any character, and with her naked hands, it would not be such an assault as would justify him in slaying with a deadly weapon. If there had been the suggestion of assault causing either pain or bloodshed, the issue of manslaughter would have been raised, but not justifiable homicide. But, as hereinbefore stated, there is no evidence that any one on this occasion assaulted defendant, or that any pain was in-dieted on him, or bloodshed produced, other than that caused by the firing of the fatal shot which killed his wife.

Appellant’s counsel filed a motion requesting the postponement of the submission of this case. As it was tried on the 19th day of last February, the motion for new trial being overruled on the 28th of that month, we think ample time elapsed in which to properly brief the case, and we therefore declined to further postpone the submission, inasmuch as our court must adjourn under the law the last Saturday in this month.

No error appearing in the record, the judgment is affirmed.


author: HODGES, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. TABB.
    (No. 1269.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 28, 1914.)
    1. Railroads (§ 441) — Injuries to Animals —Burden of Proof.
    One suing a railroad company for injuries to an animal alleged to have been struck by a train after escaping onto the right of way through a defective fence has the burden of proving that the animal was struck by a train.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1675-1595; Dec. Dig. § 441.]
    2. Railroads (§ 443) — Injuries to Animals —Evidence. '
    In an action against a railroad company for injuries to an animal alleged to have escaped onto the right of way through a defective fence, evidence held not to justify a finding that the animal was struck by a train.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by G. W. Tabb against the St. Louis Southwestern Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.
    Reversed and rendered for defendant.
    J. M. Burford, of Mt. Pleasant, E. B. Perkins, of Dallas, and Glass, Estes, King & Burford, of Texarkana, for appellant. Rol-ston & Rolston, of Mt. Pleasant, for appellee.

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

   HODGES, J.

The appellee recovered a judgment in the court below for the value of a mule which it is alleged was struck and injured by one of the appellant’s trains.

The testimony shows that the appellant’s right of way runs through a tract of land owned by the appellee; that the fence inclosing the right of way at this point was out of repair and insufficient to turn stock. It is conceded that it devolved upon the appellee to prove that the animal was actually struck by the locomotive or train. The appellee testified that he turned his mule into the pasture adjoining the appellant’s right of way on Saturday evening. The next morning he found it a few yards distant from the appellant’s track, and near a bridge or trestle, in an injured condition. There were some abrasions and skinned places on the mule’s legs, and it seemed to be weak in the loins. He further stated that about 100 or 150 yards south of the trestle he saw tracks indicating that the animal had gone upon the roadbed. There is nothing to indicate whether the mule crossed over and again entered upon the roadbed at a point nearer the bridge or trestle. He also stated that he saw hair on the cross-ties on the trestle. Another witness testified for the appellee that he saw hair on the edge of the cross-ties indicating that this mule had passed over them. He further stated that there was a depression in the ground under the edge of the bridge, showing that an animal had fallen off. There were no marks or evidences on the body of the mule to indicate that it had been struck by the locomotive.

The case was orally argued, and the theory advanced by counsel for appellee that the mule had been caught on the pilot of the engine at the point where his tracks were discovered 100 or 150 yards south of the trestle, and was carried to the latter place and thrown off. There is no evidence tending to show that this was practicable. If this court is permitted to take judicial notice of the form according to which engine pilots are usually constructed, It would be difficult to say that this could be done. If the train upon that occasion were going at a rate of speed sufficient to take up and hold on the pilot an animal of that character for that distance, the collision would have been so violent as to cause the death of the animal, or to leave sufficient marks to show that it had been struck. The fact that the signs indicated that the mule, in falling from the bridge, struck the ground directly under its edge tends to negative the fact that it was thrown off by force of a collision with the train. It did not devolve upon the defendant below to account for the injury; that burden rested upon the appellee.

The evidence, we think, is insufficient to sustain a recovery, and the judgment is therefore reversed and here rendered for the appellant, together with all costs both of this court and of the court below.


author: WILLSON, C. J.

text:
    TEXAS & P. RY. CO. v. BROWN.
    (No. 1277.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1914.)
    1. Appeal and Error (§ 230) — Instructions —Necessity of Objection.
    Objections to instructions given, not presented to the court before he read his charge to the jury, as required by Vernon’s Gayles’ Ann. Civ. St. 1914, art. 1971, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 230; Trial, Cent. Dig. § 680.]
    2. Appeal and Error (§ 544) — Instructions —Necessity of Exception.
    Rulings of the court in refusing special charges, not presented for review by bills of exception, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, providing that the giving, refusing, or qualifying of instructions shall be deemed to have been approved, unless excepted to in the manner provided, cannot be considered on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.]
    8. Explosives (§ 7) — Injuries fbom-x-Ver-DICT — SUFFICIENCY OF EVIDENCE.
    In an action for negligence proximately causing an explosion, in that defendant failed to furnish electric or other safe and sufficient lights which would not permit the flames thereof being communicated to oil used in torches, the fact that it appeared' that the oil furnished was that commonly used in torches, and that it was not shown that a better grade of oil could have been furnished for such use, did not render a verdict for plaintiff contrary to the evidence, where, for aught appearing to the contrary, the finding of defendant’s liability was based on its negligence in not furnishing safe and sufficient lights.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig. § 3; Dee. Dig. § 7.]
    4. Explosives (§ 7) — Injuries from — Question FOB JUBT — CONTRIBUTORY NEGLIGENCE.
    On the evidence in an action for negligence proximately causing an explosion, held, that whether plaintiff was guilty of contributory negligence in the manner in which he held his torch to be filled with oil was for the jury.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig. § 3; Dee. Dig. § 7.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by John Brown against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. M. B. Parchman and M. P. McGee, both of Marshall, for appellee.

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

   WILLSON, C. J.

Having granted the motion of appellant for a rehearing and set aside the submission taken of the cause, and, after permitting it to file briefs, having submitted the cause again on its and appellee’s briefs, the appeal will now be disposed of with reference to the assignments of error.

In nine of its assignments appellant complains of the action of the court in giving and refusing instructions to the jury. It does not appear from anything we find in the record that the objections made to the instructions given were presented to the court before he read his charge to the jury, as required by article 1971, Vernon’s Statutes ; nor are the rulings of the court in refusing special charges requ'ested by appellant presented to this court for review by bills of exception, as required by article 2061, Vernon’s Statutes. These assignments,, therefore, cannot be considered. Railway Co. v. Wadsack, 166 S. W. 42; Johnson v. Hoover, 165 S. W. 900; Roberds v. Laney, 165 S. W. 114; Railway Co. v. Galloway, 165 S. W. 546; Saunders v. Thut, 165 S. W. 553.

The verdict of the jury Is attacked as contrary to the evidence, in that, as appellant insists is true, it appeared from uncontradicted testimony that the oil it furnished was of the kind commonly used in torches, and did not appear that there was a better grade of oil which it could have furnished for use in the torches. If it should be conceded that appellant’s contention in this respect should be sustained, it would not be a reason why the judgment should be reversed. For appellee alleged that appellant was guilty of negligence which proximately caused the explosion, in that it failed to furnish “electric or other safe and sufficient lights ,which would not admit of the flames thereof being imparted to said oil and gas given off by said oil,” and proved facts authorizing a finding by the jury to that effect. For aught we know to the contrary, the finding of liability on the part of appellant was based on negligence in that respect. Railway Co. v. Woods, 149 S. W. 372; Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170.

It is further insisted that the verdict is contrary to the evidence, in that it appeared that the explosion must have been caused by the manner in which appellee “held his torch while Pierce was filling his torch with oil, and by the proximity in which Brown held his burning torch to the One being filled.” The testimony with reference to this phase of the case was that the oil can was on an iron block about iy2 feet high. Pierce was filling his torch by so tilting over the can as to cause the oil to run from it into the torch held under it, while appellee was standing 314 or 4 feet from him, holding his (appellee’s) torch up, over Pierce’s head, so the latter could see how to pour the oil. We do not think we would be warranted in saying from this testimony that it appeared, as a matter of law, that appellee was guilty of negligence in the manner in which he held his torch.

The judgment is affirmed.


text:
    CITY OF TEXARKANA v. LAWSON et al.
    (No. 1318.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 4, 1914.)
    Eminent Domain (§ 106) — Compensation-Streets — Vacation — “Damages” — “Property.”
    Where a city closed a part of a main street where it crossed a number of railroad tracks for a distance of 780 feet, diverting travel to a viaduct constructed over the tracks in another street one block west, which made complainant’s lots abutting on the street closed, but not on the part closed, inconvenient of access, complainant was entitled to recover damages sustained thereby, under the rule that the ownership of a lot abutting on a street carries with it as “property” the right of free and unimpaired access thereto and egress therefrom, and whatever impairs that right or eaus-es a depreciation of the lot constitutes “damage” within the meaning of the Constitution.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 282-289; Dec. Dig. § 106.

    For other definitions, see Words and Phrases, vol. 2, pp. 1812-1820; vol. 8, pp. 7625, 7626; vol. 6, pp. 5693-5728; vol. 8, pp. 7768-7770.]
    Appeal from District Court, Bowie County; W. T. Armistead, Judge.
    Action by Mrs. Kate Lawson and others against the City of Texarkana, Tex. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Appellees were the plaintiffs in the court below. In their petition they alleged that Mrs. Lawson owned in her own separate’ right lots 4 and 5 in block 86, abutting on Oak street within the corporate limits of the city of Texarkana,’Tex., and that said street constituted the only means of access to and from said lots to the business and principal residence portions of said city. They then alleged that appellant on November 22, 1912, “unlawfully and without the consent of plaintiffs, or either of them, and in violation of the rights of plaintiffs, closed up and abolished a large part of the said Oak street, and especially that part of the said street upon which the above-described lots abut, and that part of said street leading from said lots into the business and principal residence portion of the defendant; that on account of the closing of said street as aforesaid the said property has been greatly damaged and rendered practically useless and valueless, and its market value has been impaired and lessened in the aggregate and full sum of $1000.” In a trial amendment appellees alleged that:
    “The closing of that part of Oak street described in their petition herein rendered egress from and ingress to the property of the plaintiff Mrs. Kate Lawson far more difficult than it was prior to the closing of said street, and that, whereas before the closing said street access from said property to the main business and residence portions of said city was easy and direct, it is now circuitous, the way necessary to be traveled is much longer, and the said property has become, by the closing of such portion of Oak street, practically isolated, and is now at the end of a cul-de-sac, on account whereof it has been damaged in its value and market value as alleged in plaintiff’s original petition.”
    Briefly stated, the facts shown by the testimony were as follows: The course of Oak street in the city of Texarkana, Tex., is nearly north and south. After crossing Broad, the main business street in the city, it (Oak street) extends on south across the tracks (34 or 35 in number) of the railways entering Texarkana, to a residence part of the city known as Carmichael Hill. Appel-lee Mrs. Lawson owned in her own separate right two city lots abutting on Oak street at a point immediately south of said tracks, on which she had constructed three tenant houses. November 22,1912, the city, as authorized by its charter, but without appellees’ consent, closed the part of Oak street extending from a point just north of said tracks across same, a distance of 780 feet, to a point just south of same. Before it was so closed Oak street was the way used by appellees and their tenants in going from said lots to and returning thereto from the business and main residence part of the city, and by the general public in going from points south of said tracks to and returning from points north of same. The effect of closing the part of Oak street mentioned was to divert travel along same in front of the lots to a viaduct constructed over Elm street, a block west of Oak street, and to compel appellees, their tenants, and other persons who might have occasion to go to said lots from the part of the city north of said tracks, or to go from said lots to said part of the city, to travel about 500 yards farther than they had to travel before said Oak street was closed, and as a consequence thereof the market value of Mrs. Lawson’s property was depreciated in the sum of $600 as found by the jury.
    Rodgers & Dorough, of Texarkana, for appellant. Mahaffey, Thomas & Hughes, of Texarkana, for appellee.

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

   WILLSON, C. J.

(after stating the facts as above). Appellant insists that because it was authorized by law to close Oak street as it did, and because Mrs. Lawson’s property did not abut on the part thereof it closed, she was not entitled to recover anything on account of a depreciation in the value of the property caused by the closing of the street. In support of its contention it cites Wootten v. City of Crockett, 11 Tex. Civ. App. 474, 33 S. W. 391, decided by a Court of Civil Appeals. But we think the case must be held to be ruled by the decision of the Supreme Court in Powell v. Ry. Co., 104 Tex. 219, 135 S. W. 1153, 46 L. R. A. (N. S.) 615, where it was said:

“The ownership of the lot abutting upon the street carried with it as property the right of free and unimpaired access thereto and egress therefrom, and whatever impaired that right and caused a depreciation of the value of' the lot constituted damage to the lot within the meaning of the Constitution. * * * It was not necessary that the obstruction should be in front of or near to the plaintiff’s property, but the test of the right to recover in this action is, What effect did that crossing and the condition in which it was have upon the value of the plaintiff’s property and upon the exercise of his right of egress and ingress?”

After saying so much, the Supreme Court quoted with approval the following from Lewis on Eminent Domain, par. 354, p. 646:

“If a street or public way communicating with the plaintiff’s premises is obstructed elsewhere than in front of the plaintiff’s property, as by a viaduct or bridge, or approach thereto, or by a railroad crossing a street in a cut or embankment, or otherwise, and the result of such obstruction is to render such property less valuable either to sell or to use, then the property is damaged, and compensation may be recovered to tbe extent of the depreciation.”

There can be no doubt that this ease on its facts is within the rule stated. Therefore the objection urged by appellant to the judgment cannot be sustained.

The judgment is affirmed.


author: CONNER, C. J.

text:
    KELLEY et al. v. FAIN et al.
    (No. 7993.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 6, 1914.
    Rehearing Denied July 4, 1914.)
    1. Appeal and Error (§ 1097) — Law oe the Case — Subsequent Appeal.
    A decision on a former appeal is the law of the case on a subsequent appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427; Dec. Dig. § 1097.]
    2. Appeal and Eeeoe (§ 926) — Review — Pbesumptions — Evidence.
    Where a bill of exceptions to the admission of opinion evidence fails to state facts showing want of qualification of the witness, it will be presumed on appeal that he was qualified.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1279, 2899, 3729, 3730, 3735-3747; Dec. Dig. § 926.]
    3. Evidence (§ 379) — Documentary Evidence — Authentication—Attesting Witnesses.
    A-plat of land is not admissible as independent evidence’ on the mere testimony of a witness that he saw the surveyor make it, but did not know of his own knowledge that it was correct.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 1656; Dec. Dig. § 379.]
    4. Vendor and Purchaser (§ 329) — Remedies oe Purchaser — Action on Warranty —Evidence.
    In an action by a vendee upon his vendor’s warranty for an afleged deficiency in a lot, the amount deducted by the vefidee on a resale was not admissible to prove either the alleged shortage nor the value of the land.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. § 952; Dec. Dig. § 329.]
    5. Justices oe the Peace (§ 175) — Review-Evidence.
    On the trial of a case in the county court on appeal from a justice of the peace, the fact that judgment was rendered by the justice for plaintiff was not admissible or debatable for any purpose.
    [Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. §§ 694-698; Dec. Dig. § 175.]
    Appeal from Denton County Court; S. H. Hoskins, Judge;
    Action by J. A. Pain and others against M. P. Kelley and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Geo. M. Hopkins, of Denton, for appellants. Zumwalt & Key, of Denton, for appellees.

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

   CONNER, C. J.

Appellees sued appellants in the justice court as warrantors to recover damages in the sum of $150 because of an alleged deficiency in a certain lot situated in Denton, Tex. Appellants answered by a general denial and a special plea, to the effect that the lot was but a part of the sale of a larger whole which had been made in gross. Judgment was rendered for appellees in the justice court, from which an appeal was taken to the county court, where judgment was again rendered in appellees’ favor for the sum of $150, and this appeal has been prosecuted.

The lot in question was but a part of a laundry plant which, together with the machinery, wagons, etc., was conveyed by the deed containing the warranty declared upon; and the evidence gives much force to the contention that the sale was one in gross, and therefore not within the warranty. But this contention was decided adversely to appellants on a former appeal, and hence, without further discussion, must be accepted as the law of the case. See Davis v. Fain, 152 S. W. 218, and Railway v. True Bros., 159 S. W. 152.

The evidence in behalf of appellees to support the allegation of a deficiency in the lot conveyed' consists very materially, if not wholly, of the testimony of J. J. McLachlan, and a plat of the lot in controversy made by W. H. Pierce, the county surveyor. The testimony of McLachlan was objected to on the ground that he had not qualified himself to so speak, and the map was objected to because it had not been shown to be correct. While McLachlan’s qualification does not appear to be clear, yet the bill of exception taken to the admission of the testimony, as explained by the judge, tends to show that he knew the size of the lot, and the bill fails to state the facts showing the want of qualification. In the absence of such showing, it must be implied from the court’s ruling that the objections made were unsupported, and that the witness was qualified.

The court’s ruling, however, in permitting the introduction of the plat we think was erroneous. After McLachlan had testified, upon his examination in chief, as indicated above, and after appellants had introduced several witnesses whose testimony as to the size of the lot conflicted with that of McLachlan, appellees offered in rebuttal the plat objected to under the following circumstances as appears from the statement of facts, viz.:

“Plaintiffs’ Evidence in Rebuttal.
“Witness J. J. McLachlan, being recalled by plaintiffs, testified as follows: ‘There was a plat of the survey of the laundry property made by Mr. Pierce, the county surveyor. vI saw him make the plat. • I do not know how he made, nor why he placed the lines where they were placed. I do not know of my oyvn knowledge that the plat is correct. The plat shown me is the one made by Mr. Pierce.*' ”

Plaintiffs then offered in evidence the plat and statements appended thereto by the surveyor. The surveyor was not called to testify, nor did any other witness testify to the accuracy of the plat or of the appended statements. The plat and accompanying statements very clearly supported plaintiffs’ theory as to the deficiency, and quite as clearly was inadmissible as original evidence, or as corroborative of McLaehlan. We think the case easily distinguishable from that of Griffith v. Rife, 72 Tex. 185, 12 S. W. 168, cited in behalf of appellees, where our Supreme Court held it permissible for a witness who 'had testified to his knowledge of lines and boundaries to use a map or plat in explanation of his testimony. The plat here in question was evidently not offered for any such purpose, and the court’s ruling, we think, well within the decision in Smith v. Bunch, 31 Tex. Civ. App. 541, 73 S. W. 559.

The fourth, fifth, and sixth assignments of error urge objections to the testimony of Mc-Lachlan, and to the plaintiff J. E. Stanley, relating to the value of the laundry property; but these assignments must be overruled for-the want of sufficient bills of exception. The testimony as shown by the bills was objected to on the ground that the witnesses had not qualified themselves to speak as to value; but no evidence appears in the bills which supports these objections, which, therefore, must be accepted as groundless in view of the court’s ruling.

A number of other assignments of error are presented, some of which point -out occurrences not likely to happen again, and yet others not very clearly supported by proper bills of exception; but, in view of another trial, we deem it proper to say that it was expressly determined on the former appeal (¿at the amount deducted by the plaintiffs on a resale of the property because of the alleged deficiency was not admissible to prove either the “alleged shortage nor the value of the same,” and hence that it was certainly objectionable for appellees’ counsel during the course of the examination of witnesses, and in argument to the jury, to make any reference to such settlement. Nor was the fact that judgment had been rendered in behalf of appellees in the justice court for 8150 admissible or debatable for any purpose. The settlement and judgment referred to could in no view constitute proof that the shortage existed as alleged, or that the compensation properly allowable therefor was to be measured by the judgment of the justice court, or the amount of the settlement between the plaintiffs and their vendees.

. It is ordered that the judgment be reversed,- and the cause remanded for the error of the court in admitting in evidence the plat referred to in our opinion.

SPEER, J., not sitting.


text:
    TEXAS & P. RY. CO. v. SANCHES.
    (No. 1275.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1914.)
    Assignments- (§ 92) — Rights of Action — Rights of Assignee.
    An assignment of an undivided half interest in a cause of action involved in a suit by the assignor against a third person does not pass anything to the assignee, where the assignor has no cause of action, and the third person making a settlement with the assignor pending the action does not thereby become liable to the assignee.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 158; Dec. Dig. § 92.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Juan Sanches against the Texas & Pacific Railway Company, in which W. C. Lane intervened. Prom a judgment dismissing the action of plaintiff against defendant, and in favor of the intervener against defendant, the latter appeals.
    Affirmed in part and reversed and rendered in part.
    In his petition filed June 15, 1912, Sanches alleged that he was in appellant’s service as a section hand, and .that while riding on one of its trains was wrongfully thrown therefrom by the conductor in charge thereof, whereby his arm was so broken as to necessitate its amputation In its answer appellant, after denying generally the truth of the allegations made by Sanches, averred that he “attempted to board a moving train without any right, said train being a freight train, and not being provided for passengers, and at a time when the train was going at a rate of speed that was dangerous to board it, and he assumed the risk of being injured in mailing the attempt he did, and he was guilty of negligence in making the attempt at that time.”
    While the suit was pending, to wit, on July 6, 1912, Sanches executed and delivered to appellant a release in writing as follows, omitting formal parts thereof:
    “Whereas, on May 12th, 1912, at Ector, Texas, I, Juan Sanches, received personal injuries which resulted in the loss of my arm between the elbow and shoulder, said injuries being caused by falling or being thrown from train Second 92, a freight train on the Texas & Pacific Railway; and whereas, I have made claim against the Texas & Pacific Railway Company for damages on account of said personal injuries including the loss of my arm and any and aE other injuries that may have been sustained by me at said time; and whereas, the said Texas & Pacific Railway Company denies its liability for said injuries, but is willing for the sake of saving the expense of litigation and to forever settle and dispose of my said claim, to pay the sum of two hundred and twenty-five ($225.00) dollars in fuE settlement and satisfaction: Now, therefore, know aE men by these presents that I, Juan Sanches, in consideration of the payment to me by the Texas & Pacific Railway Company of the said sum of two hundred and twenty-five ($225.00) dollars the receipt of which is hereby acknowledged, do hereby release and discharge the Texas & Pacific Railway Company from any and all claim, demands or canses of action accruing to me by reason of said accident and said personal injuries. The said two hundred and twenty-five ($225.00) dollars is accepted by me in full and complete settlement and X hereby acknowledge that no promises or representations as to employment or as to any other consideration have been made to me to induce me to make this settlement. I further authorize the Texas & Pacific Railway Company to dismiss a certain suit filed in my name in the district court of Harrison county, to recover damages on account of said injuries, said suit being numbered •on the docket of said court. Said suit was brought without my knowledge and authority, and I disclaim any connection therewith, but this is to confer upon the Texas & Pacific Railway Company any and all authority that it may need from me to secure a dismissal of said suit.”
    By a petition filed September 4, 1912, W. C. Bane intervened in the suit, alleging that after it was instituted, to wit, on June 15, 1912, Sanches, by an instrument in writing, transferred to him an undivided one-half interest in the cause of action, “and that after-wards” Quoting from the intervener’s petition, “on or about, to wit, the 30th day of June, 1912, the said defendant, the said Texas & Pacific Railway, settled said suit with the said plaintiff without the knowledge and consent of this intervener and paid to the said plaintiff (Sanches) the sum of $500, with full knowledge and notice of the facts hereinbefore set up and of the rights of this intervener. So this intervener says that the said defendant is indebted to him in the sum of $250, the same being one-half of the amount paid plaintiff in settlement of said suit.”
    Appellant in an answer- to the petition of the intervener alleged that Sanches was a Mexican, did not understand the English language, in which the contract set up by intervener was written, therefore did not understand, and was not bound by, the contract, and then alleged that ‘intervener “has no cause of action, because the plaintiff, Juan Sanches, has no cause of action against the defendant, and the amount of money paid to him by the defendant was a mere gratuity, and not by any legal obligation to pay him the same; that Juan Sanches was guilty of negligence in attempting to board a fast-moving freight train without any authority to do so, and in trying to board said train he fell and received the injury for which he originally brought suit”
    The trial resulted in a judgment dismissing the suit of Sanches against appellant, and in intervener’s favor against appellant for $125.
    E. H. Prendergast, of Marshall, for appellant. Lane & Lane, of Marshall, for appel-lee.

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

   WILLSON, C. J.

(after stating the facts as above). The assignment from Sanches to the intervener was of “an undivided one-half interest in and to the cause of action involved in said suit of said Juan Sanches against defendant.” The intervener not only did not prove that Sanches had a cause of action against appellant, but the latter proved he did not have one against it, in that it was not guilty of any wrong toward him, and that the injury he suffered was due solely to his reckless act in attempting to board one of its moving freight trains. Appellant insists that the recovery had by the intervener against it therefore was unauthorized. We think the contention should be sustained. The case is not like Ry. Co. v. Ginther, 96 Tex. 295, 72 S. W. 166, cited by intervener. There the plaintiff in the suit conveyed to his attorneys “one-third of whatever may be recovered in said suit or by way of compromise.” The plaintiff having compromised his suit for a sum agreed upon between him and the defendant, and the latter, knowing the plaintiff had made the assignment to his attorneys as stated, having paid to plaintiff the entire sum agreed upon in the compromise, the court held it was liable to the attorneys for the part thereof the plaintiff had conveyed to them, on the ground that its position in the matter “was that of any other person paying a debt to the original creditor instead of an assignee.” Nor is the case like the other one (Railway Co. v. Vaughan, 16 Tex. Civ. App. 403, 40 S. W. 1065) cited by the intervener. There the plaintiff had conveyed to Yaughan “one-half of whatever sum may be realized out of and collected from said railway company, whether through compromise or by judgment of the courts.” The court said:

“Vaughan being the owner of one-half the cause of action, he was not bound by any settlement made by Waters (the plaintiff) with the company, and had the right to prosecute the suit for his own benefit to the extent of his interest.”

He did so prosecute it, and proved that the plaintiff had a cause of action against the defendant worth $750. The difference between that case and this one lies in the fact, as stated above, that in this one it did not appear that Sanches had a cause of action at all against appellant, but, on the contrary, it appeared that he did not have a cause of action against it. The assignment to inter-vener being of an interest in a thing that did not exist, it is obvious he acquired nothing thereby.

So far as the judgment was in appellant’s favor against Sanches it will be affirmed. So far as it was in intervener’s favor against appellant it will be reversed, and judgment will be here rendered that he take nothing by his suit against appellant.


text:
    INTERNATIONAL & G. N. RY. CO. v. ISAACS.
    (No. 1329.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 7, 1914.)
    1. Appeal and Error (§ 1064) — Harmless Error — Instructions.
    To instruct, in a railroad crossing accident case, that it was defendant’s duty to blow the whistle “within” SO rods of the crossing, instead of at least 80 rods from it, was harmless ; it being hardly probable under the evidence that the jury could have concluded from the evidence that the whistle was blown at least 80 rods from the crossing and not within that distance, and the evidence showing without dispute that the. train was running in- excess of the speed limited by ordinance, also charged as negligence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    2. Negligence (§ 72) — Contributory Negligence — Perilous Situation — Sudden Impulse.
    Contributory negligence, as generally understood, has no application as a defense where the injured party is placed in a perilous situation by negligence of the wrongdoer, and acts on a sudden impulse. Under such conditions, one is not expected to exercise that degree of deliberation and prudence demanded at a time when no danger exists.
    [Ed. Note. — Eor other cases, see Negligence, Cent. Dig. §§ 99, 100; Dec. Dig. § 72.]
    8. Railroads (§ 348) — Crossing Accident-Contributory Negligence — Perilous Situation — Sudden Impulse — Evidence.
    Evidence, in a railroad crossing accident ease, where the person injured attempted to cross in front of the train, after he, when 20 or 25 feet from the track, had seen the train, held to support a verdict for plaintiff on the theory of exoneration from contributory negligence by reason of his having acted on sudden impulse, when in a perilous situation, in which he had been placed by defendant’s negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by J. L. Isaacs against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Thompson & Barwise, of Ft. Worth, for appellant. Alexander, Power & Ridgway, of Ft. Worth, for appellee.

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

   HODGES, J.

On March 19, 1913, the plaintiff below, appellee here, was injured by one of the appellant’s locomotives while crossing its track on one of the public streets in the city of Ft. Worth. He brought this suit and recovered damages against the appellant in the sum of $1,000. According to his testimony, he was traveling east on Llano street, one of the public highways of * the city, approaching the appellant’s track and Intending to cross it. When within about 150 feet of the track, the horse he was driving became frightened at a lady who was sprinkling a lawn near the street, and began to run, hut was subsequently put under control before reaching appellant’s track. When about 20 or 25 feet from the track, and after looking in both directions, the appellee says, he discovered appellant’s train approaching the crossing. 1-Ie testifies as follows as to what he then did:

“I glanced for a train, and then went on. and as I got in 20 or 25 feet of the railroad, I looked again for a train. The first time I looked, I did not see the train, and the second time I saw it. Just the top of the train is all I could see, the smokestack and top of the boiler ; and I was scared, and I thought about getting away from 'there, that I had to get away from there, and I looked to my right, and there was a ditch, and I was afraid to try to turn. The wagon is not an undercut wagon, it is a high-wheel wagon, and I thought I had time to get across the crossing, and I tried to, and pushed my horse up to get away from it, and the train struck the back end of my wagon and knocked the wagon about 20 feet.”

Again he says:

“My first thought was to get away from it— to turn back, and I say I didn’t think I could make.it by turning away from it, on account of the ditch and the post and from the wagon being a high-wheeled wagon and not an undercut. I was afraid it would turn over and probably throw me under the train, and it struck me the best chance I had was to get across and get away from it. * * * I saw I could not turn without probably turning the wagon over and throwing me under the train and I thought I could make it across.”

He further testified that when he discovered- the train it was 50 or 60 yards from the crossing; that he then had his horse under control and could have stopped him, but he-did not try.

The court gave the following as a part, of his general charge:

“You are instructed that it was the duty of the trainmen in charge of said train to whistle-within 80 rods of the crossing on Llano street, and to keep the bell ringing continuously thereafter until after the crossing had been passed during all the time within the city limits while-the train was moving, and a failure to do this-would be negligence.”

It is contended that this charge does not-state the statutory requirements; that in effect it tells the jury that it was the duty of the ' appellant’s employés in charge of the train to blow the whistle after passing, the-point 80 rods distant from this crossing. Saying that the whistle must he sounded', within 80 rods of the crossing, when literally construed, means that it be sounded at or-after passing a point 80 rods distant from the-crossing. But did this charge probably mislead the jury and cause the rendition of an improper judgment? The only evidence that: the whistle was not sounded as required by law was the testimony of the appellee, and one or two others, that they did not hear it. Mrs. Carpenter, a witness for the appellant, testified that the only whistle she heard was-that sounded when the train was near Canadian street crossing, less than 80 rods from the Llano street crossing, where the accident occurred. It is hardly probable that the jury would have concluded from this evidence that the whistle had been blown at least 80 rods distant from Llano street and had not been blown within that distance. The evidence that the speed at which the train was running was in excess of six miles an hour, the limit fixed by the city ordinance, being undisputed, the jury must have placed their finding as to negligence upon that ground, and not upon the failure to blow the whistle within the 80 rods.

The court gave the following special charge at the instance of the plaintiff:

“If you believe from a preponderance of the evidence in this case that defendant’s employés in charge of the train which struck plaintiffs wagon failed to give the signals required by law, for the street crossing, or if you believe that said train was moving at a greater rate of speed than six miles an hour in approaching said street crossing, and that said street crossing, was within the corporate limits of the city of Ft. Worth, and if you further believe that by reason of such failure to give signals, if there was such failure, or by reason of such excessive rate of speed, if any, that plaintiff was placed thereby in a situation of real or apparent danger and was so alarmed and frightened that it appeared to him that he was in danger of the loss of his life or serious injury to his person, and you believe that plaintiff in an effort to save his life or to save himself from serious bodily injury continued across said track while so frightened, and you believe plaintiff was injured by his wagon being struck by said engine, then you are instructed that plaintiff would not be guilty of contributory negligence and would be entitled to recover such damages as you may believe from the evidence he is entitled to, even though you may believe that if he had acted differently he would have escaped injury.”

It is contended that this charge was vague and obscure and exonerated the plaintiff from contributory negligence, regardless of whether or not he acted as a person of ordinary prudence would have acted under the circumstances. Appellee further testified as follows:

“From the time my horse got frightened, up to the time that I saw the train, he was not running very fast, and I had been trying to stop him and had him about under control when I saw the train, but I don’t know that I could have stopped him, for I did not try. I think I had him under control by the time I saw the train, and, when I saw the train, I thought about turning away from the train and getting away from it, because I knew that the horse had been excited, and I knew in my own mind that he would not stand there while that train passed. If I had gotten out of the wagon and had let the horse go, the chances are I would have stumbled and fell, ahd the horse might have knocked me under the train. I thought about all that — I thought several thoughts. I did not think that the chances were the train would hit me and throw me up to the sky, but I thought I had plenty of time to make it across, and that is the reason I slapped by horse up to try. I saw I could not turn without probably turning the wagon over and throwing me under the train, and I thought I could make it across.”

Contributory negligence, as it is generally understood, has no application as a defense where the injured party is placed in a perilous situation by the negligence of the wrongdoer and acts upon a sudden impulse. Under such conditions, people are not expected to exercise that degree of deliberation and prudence which is demanded at a time when no danger exists. Ry. Co. v. Neff, 87 Tex. 308, 28 S. W. 283.

At the instance of the appellant, the court gave the following special charge:

“If you find and believe from the evidence that at the time the plaintiff first saw the approaching train he was far enough from the track and had his horse under control so that he could have stopped same and avoided a collision, and if you further find and believe that a reasonably prudent man under those circumstances would not have attempted to 'cross the track in front of such approaching train, then you will find for the defendant, even though you may believe that the employés of defendant were guilty of all of the acts of negligence charged against them.”

There was ample evidence to support the verdict rendered, and the judgment is affirmed.


author: DUNKLIN, J.

text:
    FIRST NAT. BANK OF MERKEL et al. v. ARMSTRONG et al.
    (No. 7960.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 25, 1914.
    On Motion for Rehearing, May 30, 1914.)
    1. Evidence (§ 157) — Best Evidence — Notes —Original Obligation.
    Where suit was brought for money advanced to pay a note executed by a bank after going into liquidation, by persons furnishing the funds to the liquidating bank to take up the note, the rule that a written instrument is the best evidence of its contents was not available to exclude testimony that the original obligation of the bank had not been paid at the time the bank went into liquidation, and that the note sued on was but a renewal of other notes evidencing an indebtedness created long prior to the liquidation.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 460-470; Dec. Dig. § 157.]
    2. Banks and Banking (§ 281) — National Banks — Liquidation—Liquidating Agent —Authority.
    A liquidating agent of a national bank, though authorized to pay its debts by the delivery of assets to creditors, has no authority to create a new and different liability either on the part of the bank or its stockholders.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1075-1079; Dec. Dig. § 281.]
    3. Banks and Banking (§ 281) — National Banks — Liquidation — Funds — Advancement.
    In a suit to recover money advanced to the liquidating agent of a national bank to take up a note executed by him in renewal of a note executed by the bank for the money borrowed, plaintiffs would be subrogated to the rights of the creditor, and it was therefore immaterial that the liquidating agent had no authority to execute the renewal note.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1075-1079; Dec. Dig. § 281.]
    4. 'Subrogation (§ 7) — Sureties—National Banks — Stockholders.
    Stockholders of a national bank are sureties for the debts of the bank to the amount of their capital stock, and, having advanced funds to pay such debts, are subrogated to the rights of the creditors against the bank and its securities.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 17, IS, 21-29, 58, 77, 83, 92; Dec. Dig. § 7.]

      5. SUBROGATION (§ 23) — ADVANCEMENTS — National Banks — Liquidation—Money to Pay Debts — Contribution.
    Where B., though not a stockholder, participated in an advancement of funds to the liquidating agent of a national bank with which to pay an indebtedness to another bank, in order to consummate a scheme to take over the liquidating bank’s assets for the benefit of another bank, such advancement was not the act of a mere volunteer, and he was entitled to sub-rogation and the same right with others participating in such advancement. '
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.]
    Appeal from District Court, Taylor County ; Thos. L. Blanton, Judge.
    Action by M. Armstrong and others against the First National Bank of Merkel and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    B. A. Cox, Cunningham & Oliver, and S. P. Hardwicke, all of Abilene, Harry Tom King, of Galveston, and Sayles, Sayles, & Sayles, of Abilene, for appellants. J. M. Wagstaff, of Abilene, for appellees.

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

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

   DUNKLIN, J.

In July, 1911, the First National Bank of Merkel went into voluntary liquidation, and C. L. Barker was appointed its liquidating agent. At that time it owed to the Commonwealth National Bank of Dallas a promissory note which had been theretofore executed for the principal sum of $10,000, to which was attached, as security, collateral of the face value of approximately $29,000. On December 28, 1911, and while in the process of liquidation, a renewal note for said indebtedness for the principal sum of $10,000 in favor of the Commonwealth National "Bank of Dallas, with the same collateral as was attached to the original note, was executed by C. L. Barker, as president of the First National Bank of Merkel, Tex.; the signature being: “First National Bank of Merkel, Texas, by C. L. Barker, Pt.” This note was made payable March 1, 1912, and was substantially a duplicate of the original note, with the exception of its date and the date of its maturity. When the note last mentioned fell due, the liquidating agent was unable to pay it for lack of funds. Thereupon M. Armstrong, John Sears, C. L. Barker, J. E. Faucett, and H. C. Burroughs advanced the' money to Barker for the purpose of paying the note, and with which money so advanced the note was accordingly discharged and the collateral attached thereto turned over to the liquidating agent, who afterwards used the same in liquidating the bank’s affairs. The persons so advancing the money instituted this suit against the First National Bank of Merkel' to recover the amount of money so advanced by them, with 6 per cent, interest thereon from the date of its advancement, alleging the facts above recited, and further alleging that, at the time the money was so advanced, the Commonwealth National Bank of Dallas, the payee of the note, was threatening to sell the collateral held by it, and that the advancement was made in order to protect the First National Bank of Merkel and its stockholders and plaintiffs themselves, and that the advancement was made at the request of the defendant bank and its liquidating agent. The truth of those allegations was established by uncontroverted evidence; the request so made being from Barker, president and liquidating agent, to his co-plaintiffs.

No answer was filed by the defendant bank, hut W. R. Bigham, T. J. Coggin, and several other stockholders in the defendant bank filed pleas of intervention in their own behalf and in behalf of all other stockholders of the defendant bank, alleging that each and all of the stockholders were subject and liable to assessments against them to meet the obligations of the defendant bank, including any judgment that might be rendered in favor of the plaintiffs. Their pleas of intervention contained special exceptions challenging the authority of the president of the bank to execute the note which was paid off and discharged by plaintiffs, and also a general denial. From a judgment in favor of plaintiffs for amount sued for, interveners have appealed.

Three notes were introduced in evidence, the first dated November 18, 1910, due December 31, 1910, the second dated January 4, 1911, due March 1, 1911, the third dated December 28, 1911, due March 1, 1912; the last note being the one paid off with the money advanced by the plaintiffs. The first two notes were stamped “renewed.” Over objection urged by appellants, plaintiff Faucett was permitted to testify that the original obligation of $10,000 of the defendant First National Bank of Merkel to the Commonwealth National Bank of Dallas had not been paid at the time the defendant bank went into liquidation. The objection urged by appellants to the introduction of this testimony was that the original obligation was the best evidence of the matters so testified to by the witness. The note first mentioned appears to be the original obligation and was introduced in evidence. The rule invoked that a written instrument is the best evidence of its contents would not avail to exclude the testimony that the original obligation had not been paid at the time the bank went into liquidation.

By several assignments of error it is insisted that neither the president of the defendant bank nor its liquidating agent had any legal authority to execute the note dated December 28, 1911, which was discharged by the money furnished by plaintiffs to the liquidating agent. The case of Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788, 30 L. Ed. 864, is the leading case cited by appellants to support their contention. In that case it seems that creditors of a bank, which was put into liquidation, made settlement with the president of the bank after it went into liquidation by accepting from the president bills receivable belonging to the bank with the bank’s written guaranty of payment indorsed thereon. In a suit by the creditors upon the bank’s guaranty indorsed upon those obligations, it was held that the president had authority to settle with the creditors by transferring any assets of the bank, but that, in making such transfer, no new •obligation could be imposed upon the bank, or upon its stockholders, and that the written guaranty of the bank was of no binding effect upon the bank, nor upon its stockholders. The following is an excerpt from the opinion rendered in that case:

“Payments, of course, may be made in the bills receivable and other assets of the bank in specie, and the title to such paper may be transferred by the president or cashier by an indorsement suitable to the purpose in the name •of the bank, but such indorsement and use of the name of the bank is in liquidation and merely for the purpose of transferring title. It can have no other effect as against the shareholders by creating a new obligation. It does not constitute a liability, contract, or engagement of the bank for which they can be held to be individually responsible. Every creditor of the bank, receiving its assets under such circumstances, knows the fact of liquidation, and is chargeable with knowledge of its consequences; he takes the assets received at his own peril; he is dealing with officers of the bank only for the purpose of winding up its affairs. If he accepts something in lieu of an existing obligation looking to future payment, it must be from other parties. It is not within the power of the officers of the bank, without express authority, by such means to prolong indefinitely an obligation on the part of the shareholders, which is imposed by the statute only as a means of securing the payment of debts by an insolvent bank when it is no longer able to continue business, and for the purpose of effectually winding up its affairs. This is the very meaning of the word ‘liquidation.’ ”

To the same effect is the companion case of Schrader v. Manufacturers’ Bank, 133 U. S. 67, 10 Sup. Ct. 238, 33 L. Ed. 564, in which it was said:

“The agreement of Holmes (president and liquidating agent), made after the bank went into liquidation, to continue its guaranty upon the notes, a liability under which the People’s Bank is now attempting to enforce against the stockholders, is not binding upon them, in view of what was said by this court in the case of Richmond v. Irons, before quoted.”

In National Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693, in discussing the legal status of a bank which had gone into voluntary liquidation, the court said:

“It is clearly, we think, the intention of the law that it should continue to exist, as a person in law, capable of suing and being sued, until its affairs and business are completely •settled. The proceeding prescribed by the law seems to resemble, not the technical dissolution of a corporation, without any saving as to the common-law consequences, but rather that of the dissolution of a copartnership, which, nevertheless, continues to subsist for the purpose of liquidation and winding up its business.”

In White v. Tudor, 24 Tex. 639, 76 Am. Dec. 126, it was said:

“It is also held, and mav be regarded as settled, that a general authority to one Partner, upon a dissolution, to settle the business of the firm does not authorize him to give a note in the name of the firm, for a firm debt, or to renew one given before the dissolution.”

To the same effect are Brown v. Chancellor, 61 Tex. 437; Baptist Book Concern v. Carswell, 46 S. W. 858; 30 Cyc. 659, 667, 668, and 669.

If the present suit was upon the last renewal note which was paid off by the plaintiffs, the foregoing authorities would be applicable. But the suit is not upon that note; it is a suit for money advanced for the purpose of discharging obligations of the defendant bank. The execution of the note dated December 28, 1911, was alleged to have been in renewal of a note in the same amount and to the same effect which had been executed by the defendant bank before it went into liquidation, and the petition concluded with a prayer for general relief. It was further alleged that the note had been paid; that it drew interest at the rate of 10 per cent., while plaintiffs only sought to recover the amount of the money advanced, with 6 per cent, interest thereon from the date of its advancement. If the president of the bank had no authority to execute the renewal note that was paid off, then there was no consideration for its acceptance by the payee, and the acceptance of that note would not operate to extinguish the original debt contracted before the bank went into liquidation. If it be held that ,the payee could not recover upon the last renewal note, it cannot be denied that it could have recovered upon the note outstanding at the time the defendant bank went into liquidation and for which the last renewal note was executed. Under the allegations in the plaintiffs’ petition, and under the undisputed evidence, plaintiffs were subrogated to the same rights of the payee. It was shown without dispute that all of the plaintiffs, except H. C. Burroughs, were stockholders in the defendant bank at the time the money was advanced to the liquidating agent, and that the advancement was made for the benefit of the stockholders in that bank and at the request of C. L. Barker, its president and liquidating agent, and that plaintiffs Faucett and Sears wete members of its board of directors. It further appears from the evidence that, at the time the stockholders of the defendant bank passed a resolution to put that bank in liquidation, another bank, known as the Southern National Bank of Merkel, was in the process of organization, and had offered to purchase the bank building with its furniture and fixtures belonging to the defendant bank, and had also offered to assume and pay amounts due by the defendant bank to its depositors, as well as such other obligations of the bank as might be authorized by the comptroller of currency, all of which facts were recited in the resolution passed by tbe stockholders of tbe defendant bank as one of tbe considerations for putting that bank into liquidation. It was further shown that plaintiff Burroughs was a director in the proposed Southern National Bank of Merkel, and that, in joining with the other plaintiffs in advancing the money to the liquidating agent to pay off the Dallas Bank, he did so for the purpose of consummating that arrangement, and that the money so advanced was borrowed upon a note signed by all the plaintiffs.

In the case of Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 28 L. R. A. 528, our Supreme Court said:

“Perhaps the courts of no state have gone further in applying the doctrine of subrogation than has the court of this state, of which we cite a few instances: One who discharges the vendor’s lien upon lands, even the homestead, either by paying as surety, or at the request of the debtor, or at a judicial sale, which, for irregularities in the process, fails to convey the title, is entitled to be subrogated to the lien of the creditor to the extent of the payment so made. McDonough v. Cross, 40 Tex. 285; Burns v. Ledbetter, 54 Tex. 385: Land & Loan Co. v. Blalock, 76 Tex. 85 [13 S. W. 12], The sureties on a sheriff’s official bond, who pay a judgment on account of the failure of the sheriff to return the writ or make collection of the debt, are entitled to be subrogated to the lien of the judgment creditor. Sayles & Bassetts v. Taylor, 36 Tex. 313. A surety on an appeal bond, who pays the judgment after affirmance, is entitled to he subrogated to the rights of the plaintiff in the judgment. Black v. Epperson, 40 Tex. 180. A purchaser at a sale by a guardian, who pays the purchase money, which is appropriated to the payment of debts against the minor’s estate, is entitled to be reimbursed for such payment before the minor can recover the property, although the sale did not pass the title. Harrison v. Ilgner, 74 Tex. 86 [11 S. W. 1054].”

Those plaintiffs who were stockholders in the defendant bank unquestionably were sureties to the ¡extent of the amount of capital stock held by them for the payment of the debt due the Dallas Bank, and as such sureties undoubtedly were entitled by subrogation to all the rights of the Dallas Bank after the discharge of the indebtedness to that bank. 37 Cyc. 370, 402-406, 410-417, 428.

While plaintiff Burroughs was not such a stockholder, and therefore was.not a surety for the defendant’s debt to the Dallas Bank, yet he participated in the advancement so made at the request of Barker', the liquidating agent of the defendant bank, and for the purpose of consummating the agreement of the Southern National Bank of Merkel to .take over the assets of the defendant bank and assume certain of its obligations; the consummation of such agreement being for the benefit of the defendant bank as well as for the benefit of the new bank and Burroughs individually. Under such circumstances, there was an. implied obligation on the part of Barker to reimburse Burroughs for the amount so advanced, and in contributing to such advancement ne was not acting as a mere volunteer, but was entitled to the equitable right of subrogation equally with his eoplaintiffs. 37 Cyc. 363-373.

If correct in the foregoing conclusion that plaintiffs were entitled to full subrogation to the rights of the Dallas Bank in the note held by it before the defendant bank went into liquidation, then the value of the collateral attached to that note and surrendered to the liquidating agent and the disposition of the same by the liquidating agent were immaterial issues, and no error was committed in refusing testimony offered by appellants to determine the same.

For the reasons noted, the judgment is affirmed.

On Motion for Rehearing.

Appellants insist that interveners filed an answer for and in behalf of the defendant bank. The pleas of intervention contained a request for “permission of the court to intervene herein in behalf of themselves and, if it be proper, in behalf of all other stockholders of the hereinafter mentioned First National Bank of Merkel, Tex.” The pleas also contained exceptions to plaintiffs’ petition, challenging their right to recover against the bank, also special answers, denying all the material allegations contained in the plaintiffs’ petition, and the judgment rendered recites that “the defendant, the First National Bank of Merkel, appearing by interveners in this cause.”

Appellants insist further that the evidence in the case did not support our finding that the purpose of plaintiff Burroughs in joining the other plaintiffs in advancing the money necessary to pay off and discharge the $10,-000 note owing to the Commonwealth National Bank of Dallas was to promote the consummation of the sale to the Southern National Bank of Merkel of the' assets of the' First National Bank of Merkel. While the evidence tends to support that conclusion, yet, upon a further examination: of the record,, we cannot say that the conclusion was established beyond controversy. However, it was proven beyond controversy that the money so advanced by the plaintiffs to the president and liquidating agent of the defendant bank was borrowed by plaintiffs from the Stock Yards National Bank of Ft. Worth, and appellants cite testimony from the statement of facts to show that Burroughs signed that note merely as an accommodation for the other plaintiffs. There is no evidence in the record to show who paid off and discharged that note fo-che Stock Yards National Bank, and, in the absence of testimony to the contrary, it could reasonably be presumed that the principals, and not the accommodation surety, discharged it. If they discharged it, then the entire-cause of action for subrogation would be in the coplaintiffs of Burroughs, and, if Burroughs was permitted to share with them in the recovery, it would be an error of which appellants could not complain. Furthermore, if Burroughs did assist in discharging the note to the Stock Yards National Bank, we are of the opinion that such advancement by him, at the special instance and request of Barker, who was the liquidating agent and president of the bank, and clearly for the benefit of the bank and all its stockholders, was sufficient of itself to give him the right of subrogation equally with his coplaintiffs. 6 Pom. Eq. Juris. § 921 (2 Pom. Equitable Remedies).

The motion is overruled.


author: RASBURY, J.

text:
    ROBINSON v. GIBSON et al.
    (No. 7187.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.)
    Justices of the Peace (§ 128) — Judgment —Restraining Enforcement — Remedy.
    Injunction does not lie to restrain the enforcement of a void judgment of a justice, where the right of appeal has not expired.
    [Ed. Note. — For other eases, see Justices of the Peace, Cent. Dig. §§ 402-407; Dec. Dig. § 128.]
    Appeal from Kaufman County Court; J. A. Cooley, Judge.
    Action by J. L. Robinson against W. M. Gibson and another. From a judgment sustaining a general demurrer to the petition, plaintiff appeals.
    Affirmed.
    Ross Huffmaster, of Kaufman, for appellant.

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

   RASBURY, J.

This is an appeal from the action of the judge of the court below in sustaining a general demurrer to appellant’s petition seeking to enjoin the enforcement of an alleged void judgment rendered against him by the justice of the peace of precinct No. 1, Kaufman county, Tex.

The facts alleged by the petition are that appellees, on December 27, 1913, sued appellant in the justice court, precinct No. 8, of Kaufman county, on a claim for $42.05 ; that shortly after filing the suit the justice of the peace, who was related to appellees within the third degree of consanguinity, entered upon his docket the recitation that appellant had been served with citation, and that he had appeared before the justice and moved a transfer of the cause to precinct No. 1 of Kaufman county, which was ordered; that both said entries were false and untrue, for the reason that appellant had never been served with citation in said cause or voluntarily appeared therein, but that induced thereby the justice of the peace of precinct No. 1 entered judgment by default for the debt sued for against appellant on February 23, 1914, and was about to issue execution thereon and levy same upon property of appellant; that appellant had paid to appellee the amount of the debt sued for. The petition was filed February 27, 1914, and temporary writ of injunction was, on March 4. 1914, directed to and did issue. March 16, 1914, the case was regularly called for trial, and as stated a general demurrer thereto was sustained.

At the time appellant filed his petition for injunction, the time in which he could have appealed from the void judgment had not expired; the judgment by default having been rendered February 23, 1914, while the petition was filed February 27, 1914. The settled rule is that injunction will not lie to restrain the operation of a void judgment, where a legal remedy exists; and that the right of appeal is such a remedy, and must be exercised before resorting to injunction, has been decided affirmatively a number of times. G. H. & S. A. Ry. Co. v. Ware, 74 Tex. 47, 11 S. W. 918; Texas-Mexican Ry. Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 31 L. R. A. 200; Rainwater v. Gwaltney (Civ. App.) 157 S. W. 1191. The rule stated is conclusive of the issues involved in the instant case, and makes it necessary to affirm the judgment of the court below.

Affirmed.


author: MOURSUND, J.

text:
    ZARB v. HOUSTON et al.
    (No. 5342.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 27, 1914.)
    Appeal and Error (§ 175*) — Review — Order Granting Injunctions.
    In. reviewing an order granting a temporary injunction the appellate court cannot consider an answer which was not before the trial court when he made the order appealed from.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1137-1140; Dec. Dig. § 175.*]
    Appeal from District Court, Wilson County ; F. G. Chambliss, Judge.
    Action by J. C. Houston and others against Rev. P. P. Zarb. From an order granting a temporary injunction, defendant appeals.
    Affirmed.
   MOURSUND, J.

This is an appeal from an order made in vacation by Hon. F. G. Chambliss, judge of the Thirty-Sixth judicial district, granting appellees, J. C. Houston and wife, Mrs. Gertie Houston, Henry King, and wife, Mrs. Nora King, a temporary injunction restraining appellant from taking down and removing and from molesting a windmill erected in the Catholic cemetery at Floresville, and from interfering with appel-lees’ use thereof; also from authorizing, permitting, or consenting for any other persons to bury any one upon two certain lots in said cemetery, alleged to be owned by appel-lees, and from selling or otherwise disposing of said lots. The injunction was granted on June 14, 1914, upon plaintiffs’ first amended original petition. On June 19, 1914, an answer was filed, but the same does not appear to have been called to the attention of the judge who granted the injunction, and ap-pellees have filed a motion to strike same from the record,, which is well taken. The appeal is from the order granting the injunction upon the verified petition alone, and this court cannot consider any answer which was not before the trial court when he made the order appealed from. Houston Electric Co. v. Glen Park Co., 155 S. W. 968; Jeff Chaison Townsite Co. v. McFaddin, 56 Tex. Civ. App. 611, 121 S. W. 717; Young v. Dudney, 140 S. W. 802.

We have not been favored by brief or oral argument presenting the contentions relied upon by appellant for a reversal, and upon an examination of the petition we conclude that the allegations show such rights in ap-pellees with respect to the windmill and the lots in said cemetery and such threats on the part of appellant as authorized the granting of the temporary injunction.

The judgment is affirmed.