author: GREENWOOD, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. STEPHENS.
    (No. 2530.)
    (Supreme Court of Texas.
    May 8, 1918.)
    1. MASTER AND SERVANT &wkey;>284(3) — INJURIES to Servant — Scope op Employment — Question por Jury.
    In car checker’s action for injuries, facts that no specific directions were given to him about riding trains, except that he should ride trains moved while checking, and that car checkers in order to work faster habitually rode' trains in the yards in going to their work, and that the railroad knew and approved such method, negatived holding as matter of law' that the checker, when injured while attempting to board a moving train to return to the station, was acting without the scope of his duties.
    2. Master and Servant &wkey;>291(l) — Injuries to Servant — Instructions.
    In servant’s action for injuries, instruction requiring as prerequisite to verdict for plaintiff that in boarding a moving car plaintiff was performing his duty in the manner expected of him by the defendant, and that the switch stand which struck plaintiff was so located as to indicate negligence of defendant, did not permit recovery on state of facts constituting plaintiff a mere licensee.
    3. Master and Servant &wkey;>S9(l) — Injuries to Servant — Safe Place — Railroads.
    The obligation of the master to exercise ordinary care to provide reasonably safe premises can be invoked as the basis for liability for a personal injury to a servant only when the injury has been received in the line of the servant’s duty.
    4. Appeal and Error &wkey;>1050(1) — Harmless Error — Evidence,—Admissibility.
    In servant’s action for injuries when boarding a car to go back to the station to report, admission of his statement that he would not have ridden on the car had he been instructed not to ride cars was not reversible error, since it could not affect the jury’s verdict on the facts, as they existed showing that he had not been so instructed.
    5. Evidence i&wkey;539:>4(l) — Experts—Qualification.
    The yardmaster of the defendant railroad could say whether it would have been safer to have the tracks further apart, since he was a duly qualified expert upon the subject.
    Certified Questions from Court of Civil Appeals pof Eighth Supreme Judicial District.
    Action by Joe K. Stephens against the Houston Belt & Terminal Railway Company. There was a judgment for plaintiff, defendant appealed, and the judgment was reversed and the cause remanded, and the case came up on certified questions from Court of Civil Appeals, 155 S. W. 703.
    Questions answered.
    Andrews, Ball & Streetman, McDonald Meachum, and Jno. M. King, all of Houston, for appellant. Jno. Lovejoy and J. W. Parker, both of Houston, for appellee.
   GREENWOOD, J.

Questions certified from the Court of Civil Appeals of the Eighth Supreme Judicial District of Texas, in an appeal from the district court of Harris county.

This case is before us on the following certificate of the Court of Civil Appeals, to wit:

This was a suit by Joe K. Stephens to recover damages for personal injuries alleged to have been inflicted upon him while in the service of the Houston Belt & Terminal Railway Company, and upon trial before a jury verdict and judgment in his favor was rendered for $15,000.

Appellee, upon the date of his injury, was a minor, 18 years of age, and was employed by appellant as one of its car checkers in its yards situated in and near Houston, Tex., and it was his duty to enter the numbers, initials, and seals numbers of cars received by appellant in said yards in a book provided for that purpose. This hook was kept in the office of the chief clerk in the freight depot at the end of appellant’s yards, and whenever appellee had finished checking. a train of cars it was his duty to return the book to the chief clerk’s office. Appellee had been employed for one month as a call boy by the International & Great Northern Railway Company prior to his employment by appellant, and had been in the service of appellant for one month prior to the date of his injury. On the occasion of his injury appellee and a co-car checker, Clifford Joplin, had just finished cheeking a train of cars, and the day’s work was ended, but it was appellee’s duty to return the seal record back to the office of the chief clerk. Just at this time a train passed, and appellee and Joplin undertook to board the caboose of same for the purpose of riding to the depot, which the train would pass, where it , was appellee’s duty to go to deposit Ms record book. Joplin succeeded in boarding the train, and appellee was attempting to do so, but before being able to lift himself into the caboose the movement of the train carried him forward and against an upright switch stand adjacent to the track, and the contact with the switch stand precipitated him to the ground, and the wheels of the caboose passed over and severed one leg. The train which he attempted to board and from which he was thrown was a through Trinity & Brazos Valley train, which was departing for the north from appellant’s yards, without any stop. The switch stand was negligently placed too near the track.

The train was operated by the Trinity & Brazos Valley Railway Company, and the record is silent as to the relation between such company and appellant, except that it appears the train was in and departing from appellant’s yards, and was upon its tracks and would be upon appellant’s tracks until it passed the depot for which appellee was bound.

The evidence pertinent to a consideration of the questions certified is as follows:

Appellee, Stephens, in his own behalf testified:

“I worked for the Houston Belt & Terminal Company. I began to work for that company on September 29, 1908, in the yards, at Houston, in the capacity of car checker. Chief Clerk Hope employed me. I went down there and asked him for a job, and he said, ‘Yes, there is a place open for a car checker,’ and he asked me did I know how to do that, and I told him I had never done that kind of work, and he said I would do all right, and he put me to work. The only instructions he gave me was about what I would have to do each day, just the kind of work I would have to do checking ears, and things like that. I worked there one month, up to the time of my injury. During that month I was checking cars, every train that would come in; while there I was checking cars. How I would do that work, that is, what I mean by checking cars, I had a book called a seal record, and when a train came in I would have to go out and take the seals off the side doors, see what they were, some were, numbers and some were just letters, then the little end doors, I -would have to take them, too, and write them in the seal record, put them down in the seal record. I would do that work whenever a train would come into the yard. The yard was about two miles long, I guess; I don’t know where the limits are, but the main tracks across are about 2 miles; there were two yards. Well, there is one they call the ‘New Yard,’ then an old yard, and the 49 was the ‘South Yard.’ I guess there would be three yards, if you. count those separately. Those yards were named by ‘49’ and the ‘old yard.’ The old yard was right along where the Santa Fé freight depot used to be, the first tracks before they built this new part down there; that was inside the corporate limits of Houston. The 49 yard was about 3 miles or 3% miles below the old yard. The dimensions of the old yard, the one in the city, the length of the yard, it was a mile and a half across, or 2 miles, and the width is — it has about seven or eight tracks, I suppose. In the old yard in the city here, I think there is seven or eight tracks, may be ten, I am not certain how many; there was four :in the 49 yard then, I believe, I am not sure. My duties required me to check cars in both of these yards. The trains that I would check in the old yard would generally be on the side track, on either side of the main line; they were ■on different tracks, they would pull in on any, most, that was open. I didn’t have a particular place where I checked every train. The way I would find out when I had to check a train, the chief clerk would tell me. X would have to check about 15 or 18 or 20 trains a day, may be, 15 or 18. Assuming that a train has come into the old yard, the one in the city, and that I have been directed by the chief clerk to take the seal numbers, to check it, the way I would proceed: The chief clerk would tell me, whenever a train would come in, that I would have to go out and check it, and X had a book there that we called a ‘Seal Record,’ and I would go out where this train was, it would be on one of the side tracks, and I would start at one end and take the side seals and put them down-in the book; then, I would go in between and get the end seals, and, after finishing that side, I would walk on the other side and take them the same way as the other side, then take the seal record back to the office. The seal record was kept in the chief clerk’s office. It would be on his desk when he would tell me to check a train, or in one of the pigeon holes. I would then get the record and go out into the yard. After I finished checking I would take it back to the chief clerk’s office. The seal record would be in my possession only the times when I was checking trains. The office in which the ■ seal record was kept was in the old freight depot, right on Preston by the passenger depot. The trains that I would have to check would be located, they would be on different tracks, in •different parts. This depot where the seal record was kept with reference to these seven or eight ■or ten tracks that I have mentioned as being in the yard, the old yard, is at the north end of the tracks. With reference to the depot, some of the tracks was a good piece away, then others ■would run right up to it. The closest track to the depot was the main line. I don’t know the numbers (meaning the tracks), I didn’t know they were numbered. The yard was crooked; there is a curve in the yard. Most of them are straight on the other side, some straight ones on the other side. The furtherest one of these tracks is about a half a mile, I suppose, from this depot, at the south end, but crosswise, it was about a block or something like that, and they ran from the main line across to this track furtherest away, and that distance was about a block. Sometimes I would have to go to the south end of the old yard in getting to a train that I had to check in this old yard, and that ■would be, I suppose, about three-quarters of a mile, or a mile. I would be called upon to check cars between that distance all the way back to the station, and I did that daily. In checking cars in yard 49, one way I would cheek them there, every morning in the old yard, I would have to check every morning, I would have to check that every morning, take the numbers and initials of all cars in the yard every morning; that had to be done every morning; that was in addition to the work of checking the trains. Then, at the South Yard, all I would do down there was, I would check the whole yard. To get from the old yard to the south yard, or yard 49, I would have to ride, with a switch engine going down, or other trains that stopped there, and I would get back the same way, I would have to ride. I did not have any particular train or particular engine that I would ride in going to and from this yard; I would take any that came to hand. In doing my work in the old yard, the one in the city here, the way I would get about in the yard, I would, if I was checking a train going out or in, I would know where the train was before I left, he (meaning the yardmaster) would tell me where it was, then I would walk out and check it as much as I could. It had occurred that before I finished checking the train that the cars in it would be moved, that happened every once in a while. In that case, about the work, I would have to get on them wherever they took the cars. I would get on the side or the top, I generally got on right where I checked, right where I would be checking; I would hang on the side, on the handlebars at the side and the end of the car, that ran by the side of the car; and if the car was moved, I would catch onto it and ride it until it came to a stop; then I would start checking again I would go on with my checking; I done that often, I had to do that because they moved them (meaning the train) often. When I would be going to check a train that was some distance away, and the engine or car, or train, happened to be moving in that direction, my practice was, I would ride if there was one coming that way. Now, after I would get through with my work, and the engine, or engine and car, or train, was passing in the direction of the depot, where I would have to leave my seal record, I would ride if there was one that was going that way; I done that every time, may be two times a day; any time they came by I would do that, I did that often both in going to my work and returning.
“The yardmaster’s name was Mayfield, Charley Mayfield, I believe. I saw him in the yard; he was in the yard all the time. The yardmaster had charge of the yard there, this man Mayfield. He was where he could see me, he was up and own in the yard all the time. My duties required me to work there in the yard, and his (the yardmaster’s) duties required him to work there in the yard; he was working right at the same place I was. He was where I could see him during the day. I was right there working where he would be passing at all times of the day, and I could see him; he would be passing right by me. I was close enough to speak to him; I was close enough to him to touch him. That was often; that was a daily occurrence to be close to him. We were both working there in the same place. Not when I saw him would there be any obstructions between me and him; he would be right along by me. I have talked with him. He didn’t have so much to do about telling me about performing my duties, only going to 49 and doing my work. Of course if I didn’t do my work, he would have to tell me. They have told me to ride cars in the yard there, the yaz-dmaster did that — I mean Mr. Mayfield. These trains that would come into the yard that I would have to check, there would be the engineer and fireman and the conductor, and may be two brakemen composing the crew. I would see these men. I saw them getting on and off cars moving through the yard there all the time. I think there was four switch engines employed there in the yard then. The engineer and fireman and the foreman of the engine and three helpers composed the switch crew, and each engine had that number of men in its crew. Those men were under my observation all the time. I have seen them get on and off cars moving in the yard there, moving on the same tracks that I mentioned, and moving on these tracks on which I checked the trains. It was a frequent occurrence to see these men getting on and off moving cars in the yard there, it happened all the time. With reference to riding or not riding cars, they never told me not to ride them; the yardmaster just told me to ride, and the chief clerk told me to do work where I would have to ride, and where I did ride, and neither of them never told me not to ride cars. In riding cars my idea was it was my duty, I would have to do it, or I couldn’t do the work. My work was done in the day. I worked days. I would go on duty at 7 in the morning, and was supposed to go off duty at 6. I had never worked as a ear checker for any other company. The work I did there in the yard was the first work I ever did as a car checker.
“Nobody, I guess, had ever told me what were the duties of a car checker other than as I have stated — they had not told me. Nobody had undertaken to tell me what were the duties of a ear checker other than as I have told here. Only the time I got hurt did any accident befall me while I was working there as car checker, that very day, that very time. That was October 29, 1908. I had been working there then just one month. To tell the jury in my own language how that accident happened: Well, on the 29th of October, 1908, the chief clerk, P.arsons, sent me out to check a train that had just come in' from the south, I think it was a B. & M. train, I think there was about 80 cars in this train, and it was on the side track just below the freight depot, the old yard, which is on that side of the main line, and I went out there; it was about 7, I guess, or 7:30 at night, getting — just getting dark, and I didn’t have any lantern; they didn’t furnish me any. On the way down I found Clifford Joplin who was a car checker in the yard, and he said he would go with me. He had a lantern, and we started. We went down on the other side, the east side, I guess of this train, and he was going up and getting the seals with the lantern and seeing what they were. He would go in between the cars and get the end seals, then the side seals, and he would bring the lantern back, and I would put them down in the book; that went up on the east side; and we were turning to come down on the other side and was getting the seals on that side, and we were just finishing up when a train come up pulling very slow — it was about 8 o’clock, I suppose, and we were supposed to get off at 6 — and we got on this train to go back to the depot, he had just got on, and 1 had got on and rode about 10 or 12 feet when I got hit in the side by a switch stand, and it knocked me off. My right foot went under the truck of the caboose, and this boy, when he saw what happened, he got off (meaning Clifford Joplin), and he seen that I was hurt, and he flagged a switch engine that was coming right in behind that train, and they put me in the cab of the engine and took me to the St. Joseph’s Infirmary, and they amputated my leg, my foot. They cut it off about 2 inches above the ankle. The train that I got on was going north. I undertook to get on the other side, the east side, I guess it is. On the other side of the depot would be on the east side. It was a caboose that I undertook to mount; I didn’t know at that time what kind of a caboose it was, it had a side step on it; that ran in, right along the side door. There was one door on each side of the caboose; the caboose had side doors, one of those kind that had side doors. Underneath the door there was a board, I guess about 12 inches wide — I don’t know about that — and about 7 or 8 feet long. This board was there as a step to be used in entering the door of the caboose. I think the caboose door was closed, most of it anyhow. It was the step that I undertook to get on, this board or step. My object in getting on it was to go to the depot to put the seal record and the lantern up to go home. Joplin had got on just before I did; he got on ahead of me. I did not know that that switch stand, recall that that switch stand, was there when I undertook to get on; there was no telling whether it was close or not. It was dark; there was no lantern on it; it was not lit if it was. I say I didn’t know it was there when I went to get on. It must have-been an upright switch stand that struck me, it hit me on the side right along here. (He stands up and indicates!) I had a watch here, and it hit the bottom of the watch. I know I was struck by the switch stand; I did not know that it was close enough to the track to strike me. I had never learned at any time while I was at work there in the yard that that switch stand was close enough to strike a man riding on the foot-board, or undertaking to get on it when passing, I never heard anybody say; nobody never told me this switch stand was too-close, and I didn’t know it was too close for anybody to be hit by it. Now, when I undertook to get on this board, and while I was on it, as to whether I did or not consider that I was in the performance of my duty as a car checker, well, I thought it was part of my duty to go from any part of the yard to the office, and from any part of the — I mean the office to other parts of the yard, to ride on the train. I knew where all of the tracks were, and I knew that there is a switch for every side track, and I knew it prior to the accident.
“I say I was 18 years old when I entered the service of the defendant company. My appearance then as to being a boy or otherwise, I was young-looking for my age at that time; I weighed at that time about 118 or 119. My face was smooth. I suppose I have grown 4 or 5 inches since then. I was small for my'size at that time. At that time boys were employed in the service of car checking. At the time I was employed there was one car checker that worked in the same part of the yard I did, and there was a transfer clerk. Clifford Joplin was the name of the one who worked in the yard with me. He was a boy about my age. He was with me on the night of the injury. In doing his work he would ride the cars under the circumstances I would. They called that switch the old round house switch. I was never told by anybody that if I undertook to ride a car under the circumstances I was doing on the night I was injured by that switch stand that I would be in danger of being knocked off by it; nobody ever told me it was too close. * * * When I would go to the south yard I would go on a switch engine or whatever was going down. While I was checking cars in the Congress street yard, if they were moving, why I had to get on; if they were moving, I got on them and went with them. I had to got on them or lose trace of them when the switch engine took the cars away. In other words, if I had not finished checking, if checking a train when I was moved, I would have to go with it to finish checking it. That is the purpose I got on the train for. * * * This train that I was checking was south of the freight depot on the side track east of the main line. About two or three blocks south from the freight depot. I don’t know exactly about how many cars there were in that train, I suppose about 80. The train was not moving at any time I was checking the cars there, that train. I stated that on my way down I met Clifford Joplin, and he went down there with me. I don’t know how long it took me to check the cars in that train, about 30 or 40, something like that, minutes, may be an hour, I am not certain. I had just finished checking the cars in that train when_ I had started back to the depot. When I finished I was ready to go back to the depot. I didn’t have to check any more that night. _ My work of checking was finished for the night; that was the last train I would have to check — my work wasn’t finished, I had to take the seal record and put it in the office before I left. They had to stay in the office all the time because they done their work by that, by the seal record, by that book, I mean. When I finished checking this train, I was two or three blocks then south of the depot. This train that was passing; that I was injured by, at the time I was injured, was a north-bound freight train — I don’t know what it was — that train was pulling through the yard going north. It was not a string of cars with a switch engine, or anything like that; it was a freight train; and it was not my duty, or I didn’t intend at that time, to cheek any cars in that train, and I hadn’t checked any cars in that train. I had just got on the side of that train; I made an effort to ride back to the freight depot to put this seal record up, and this other boy had to put his lantern up, and we would be off. The reason I attempted to get on this train instead of walking down to the depot, it is customary for all employSs in the yard to ride if they want to go to any part of the yard there; if they go out of the yard, they got on the train and go out. As to its being a fact that I just decided it would be a little more convenient to go back that way, and for that reason I got on that train — it was customary; that was my understanding. I say it was customary for them to ride if going back to the depot, and you can do your work quicker. As to whether it is a fact that I attempted to get on the train because it was more convenient for me to do it than to walk, well, you can do your work quicker; it is just as easy to do your work that way; you can do your work quicker. As to whether that is the reason I attempted to get on the train instead of walking back to the depot, I do anything to do my work quicker; 'and in daytime even the yardmaster sees you, and all the others see you; it is customary to ride on trains. On this particular occasion I had finished all my work of checking cars, I had finished checking the train, and I was going back to the depot to leave my book there, and then I was going home; that was part of the work, to put the book back, I was not finished until the book was in the office. After I put up the book, I didn’t have any more work to do that night. I had checked cars in the south yard. I said that when I worked at the south yard to check cars, when I went there, I would get on the switch engine and ride out.
“Q. Now, Joe, isn’t it a fact that the only time you were authorized to get on cars and ride was when you were going out to the south yard, or coming back, or when you were checking a train of cars, and they moved the cars before you finished your checking? A. No, sir; you could ride any time; the yardmaster was around there; and if it was not custonjgry, I suppose he would have said so; he could have said so, I suppose. He has told me to go out to 49, and he has told me to come back, and if the train was moving, he has told me to get on there and check it, and I had to check it; he would tell me to ride. If trains that I was checking started to move, why I would get on and go with the train to finish my checking. I was standing a little back of the door on the side upright on the running board when I was struck. It is a fact that I testified on a former trial of this case, when I was asked the question: ‘At the time you were hurt you were standing up on that running board?’ and I answered -‘Tes.’ No one told me that I was to ride trains after finishing my work in the yard for the purpose of putting up my book. I said after I had got on the running board the caboose had gone something like 10 or 12 feet before I was struck. I was struck at the right side. Clifford Joplin was not hit, he was standing on the running board leaning in the door; he was not hurt. As to -whether it is a fact that I testified on a former trial of the case that the only time I was authorized to ride trains was when I was going to or coming from the south yard, or when I was checking a train, and they moved that train before I had finished that checking, that might be the only time I was authorized to. The only time I was authorized to ride on trains was when I would go out to the south yard, or come back, or when I was checking a train, checking a cut of cars, and hadn’t finished my checking and they moved them, and I got on them and rode; those are the only times he told me to ride; he has told me that. The south yard is about 3miles south of the Congress street yard. As to whether there is any yard between the Congress street yard and the south yard, well, there are some tracks at the roundhouse; they do a little switching at the roundhouse, not much; that is not just with engines and things like that. They have cars out there, too, there are two or three tracks. The roundhouse from the Congress street yard is about a mile, and the south yard is about 2% miles south, to the south yard, I guess. Between the Congress street yard and the roundhouse, and between the roundhouse and the south yard, as to whether they make up or break up any trains at those points, well, I don’t know about that; they stop there; I know the roundhouse, I — I don’t know whether they do or not between the roundhouse and the south yard. I never cheeked any cars between the roundhouse and the south yard, and I never checked any cars between the roundhouse and the Congress street yard. « * * This other boy, Clifford Joplin, was not hit by the switch. He was standing or leaning in the door with his feet on the running board. He was not hurt at all. * * * I was employed to work for the Houston Belt & Terminal Railway Company, and I was working in the yard of that company when I was injured, during the month of my service. In answer to a question of Mr. Burns, I said that nobody ever instructed me to ride the cars in the yards in going to and from my work; that nobody ever told me not to do it. * * * If the railroad company or any of its representatives had ever told me not to ride those cars, I would not have done it, I couldn’t do the work without riding; I thought it was right to do it.”

Defendant introduced and read in evidence paragraphs 16 and 17 of the application for work signed by plaintiff. “16. Do you understand that in the discharge of your duties it will be sometimes necessary for you to use tracks, cars, machinery and appliances that are defective, and that it is necessary for you to examine cars, machinery and appliances, that you have to use carefully, to prevent injury to yourself and others? Yes. Also do you understand that as far as possible you should acquaint yourself with the condition of the track? Yes. Do you agree to use diligence in ascertaining the condition of cars, machinery and appliances with which you have to come in contact or use in the performance of your duties which would render your work dangerous or subject you to injury? Yes.”

“I say that I had been working for the Houston Belt & Terminal Company about a month when the accident happened.”

C. E. Mayfield, defendant’s yardmaster at the time appellee was injured, testified; “The people employed in that yard and about it are under my supervision. I had authority to forbid any practice that I saw proper, and that applied to car checkers as well as other employes, outside of switchmen. Of course that was their business. With reference to my answering Ool. Jackson’s questions that I didn’t tell Joe to ride on passing trains or any cars switching around there going to the office after he had gotten through checking in order to deliver the books, I don’t believe I did tell him not to do it. * * * I don’t suppose I would know Joe Stephens if I would see him. I remember the circumstances of his being injured. I remember a young man by that name in the employ of the company. I never did give instructions to him or any one else in the Congress street yard to get on moving trains and ride from the yard up to the office. Within my knowledge while I was yardmaster there, or while I was switchman there, it was not the custom and practice for car checkers, after finishing their work, to get on moving trains or cars and riding to the office for the purpose of leaving their book, I don’t remember seeing them do it, but I suppose they did do it; I never instructed, permitted, or authorized that; my instructions did not authorize or permit it. * * * The south yard is 2*4 miles from the city yard. * * * If the trains happened to be moved at some other place in the yard, as to whether he rode those cars around, and whether it was his duty to do so, in the Congress street yard it was his duty to walk over there and tag them; he had no business on the cars when they were switching them up and down. Say he is now taking the numbers and seals on a string of cars and the switch engine comes along and takes them, moves them entirely', moves them to another part of the yard and mixes them up with some other train or goes around to some other train, if they did that, it would be his duty to go to get the seals and tag them, but — it was his duty to follow the cars; it was his duty to — they marked the cars and seals; they didn’t ride the cars in doing that. I couldn’t say that I never saw them ride the cars; I don’t recollect seeing them ride the cars, because the tracks are close together. As to my being told that they did ride the cars after they got through checking back into the office, I was told the next morning after that young man was hurt; I was not told before that that the boys did it. I was around in the yard every day. I never seen them riding cars back to the office; I see those men riding the cars, I couldn’t say whether they were checkers or not. It is not a fact that I have seen those checkers riding cars and following them about for the .purpose of doing that work, I didn’t see them. I have seen some of them do it, of course I have. I did say I told them to ride the cars down to the lower yard, for the purpose of checking and ■ doing their work. This uptown yard is about five blocks long, five or six blocks, about 1,200 to 1,500 feet.”

W. B. Edwards, witness for defendant, testified: “I worked for the Trinity & Brazos Valley Railroad Company, and ran over the Houston Belt & Terminal Railway Company’s tracks. I held the position of brakeman with the Trinity & Brazos Valley Railway Company; I was working for that company in the year 1908. I do recall something of an accident to the plaintiff, Joe K. Stephens. I was rear brakeman on the train that the accident happened on. The train at the time of the accident was in the Houston Belt & Terminal Railway Company’s yard and heading out north to go to Tomball, in what was known as the Congress street yard. That train had come from Galveston; it was a freight train. We stopped out in the lower part of the yard and set out about half of our train; we left with 27 cars. We stopped in the Congress street yard — that was before the accident happened — and then we started out north. I was standing in the caboose door and watching ahead, and the boy that was with Stephens caught the caboose; that attracted my attention, and I looked around, I looked back, and as I looked back I saw the boy running to catch the caboose, and just as he reached to catch it, he fell, he struck the switch stand and fell. I say there was another boy with him, with the one that caught the caboose. This was a box car caboose, a box car converted into a caboose. The boy that caught the caboose was standing on the rear end of the step, on the east side, or right-hand side of the train. The train was going north, and he was standing on the right-hand side on the running board. I saw as we were going out we were looking north, and when this boy caught on the caboose that attracted my attention, and I looked around; it was not our intention to stop at the depot; we were going straight through. When the plaintiff stumbled there, I did not know at that time whether or not he had injured himself; I first learned that he had after we arrived at Belt Junction. Belt Junction with reference to the Congress street yards, I would suppose it is about 5 miles, and it is north, it is north of here. This was between 7 and 8 at night, as well as I can remember. * * * I don’t remember whether the following question was propounded to me on the former trial: ‘Did you think he got hurt in any way?’ and that I answered ‘No, sir.’ I suppose the following question was asked me on the former trial, ‘You did see him fall off?’ and I answered, ‘I said just about the time he reached up or caught hold he hit the switch stand’ and I suppose it was true when I answered it this way. To the question asked me on the last trial, ‘As well as you remember, why couldn’t you remember if he was on the ground or if he was on the foot-board?’ I did answer, ‘Just about the time he reached for the iron he fell; it happened so quick, I don’t remember whether he swung onto the step or hit the switch stand and fell first.’ That was true. I can’t state definitely whether his foot was on the board or not, on account of the fact it was done so quick. The step was not dark; the light from my lantern was on the step. I was not looking for any accident to happen, and I didn’t, I said, I didn’t know about it until I got up to Belt Junction.”

Clifford Joplin, witness for defendant, testified: “I was employed by the Houston Belt & Terminal Railway Company. I was working for that company in September and October, 1908. I was working for the company at the time of the accident to the plaintiff Joe K. Stephens. My position at that time was checking cars and doing calling, everything of that kind, though I was a car checker. I think that was the same kind of a position that Joe K. Stephens held. Relative to my duties and what I would have to do as a car checker, in the morning, the first thing in the morning, we would have to go out and check the yard; I believe they had three checkers at the time I was there, one for the old roundhouse, and one for the new yard, and one for the old yard. We would go out in the morning and check the yards, then come back there, and there would probably be a train or something, and they would send you out to get the numbers and seals of that. They never instructed me about riding on trains, with the exception of going out to the south yard; then you would probably go on a switch engine and ride out, then get off. If I was going out to the south yard, they never told me to get on; I never had any instructions as to returning to the depot after I had finished the train in the Congress street yard. As to riding trains, I was never given permission by those who employed me to ride trains after I had finished checking a train in the Congress street yard on my way back to the depot. Supposing I was checking a train in the Congress street yard, and before I finished taking the numbers of the ears there and they moved the train, as to what instructions I had as to riding that train, if we could get them without getting on the train, why get them, best to get them; we were supposed to got them without getting on if we could; I don’t know exactly about getting on, but you would have to get them. I don’t know whether it was a month or two months that I had known Joe Stephens prior to the time of this accident; I don’t remember the exact time. Joe and I had occasion at times to woivk together in checking cars; I think he is a little younger than I am; I will he 22 in April. My relations with Joe were friendly while I was working there; they are friendly now, on my part. I remember about the time Joe got hurt down there. At the time of his injuries, I had got through checking; I had checked a Santa Eé train, the ‘Bobbie,’ I believe they call it. * * * I came over to Joe. Joe was on a B. V. that had been set out, and I had finished mine, and I came over to him and helped him. I had a light; Joe didn’t have a light. We finished somewhere between, I don’t remember, but 7 and 8 at night. While me and Joe were working there together and in checking that train and taking the numbers off of it, the one that had the hook would put them down in the book. Joe had the book on that trip. I would call the numbers off to Joe, and he would put them down in the book. We had finished checking the cars in that train, I had hollered the number on the last car. Then me and Joe started to the depot. The depot was about 2y2 or 3 blocks from the place where we were when we finished checking the train; we did not walk down to the depot. There was a train coming, and we hopped it; I got on it, and Joe tried to get on; he grabbed at it, and he hit the switch, and I got — and I heard him halloa, and he says he broke his leg, and I hopped off and went back to him, and picked him up; I didn’t know how bad he was hurt. He had on black stockings, and I picked him up; he wasn’t bleeding; and there was a switch engine coming back there, and I flagged it, and we brought him to the depot, and then after-wards taken him to the infirmary in a hack. The train was going: north, towards the depot, it was moving between 7 and 8 miles an hour; I say it was a T. & B. Y. freight train. I couldn’t say for sure whether it was a through train or not; it went right on through. I spoke of some B. Y. train Joe was checking, that was the one that came in, and that was set out. That train was a different train from this T. & B. Y. train that was going out that me and Joe tried to get on.”

The court charged the jury as follows:

“Now, therefore, if you believe from a preponderance of the evidence that Joe K. Stephens, the plaintiff, was in the employ of the defendant as a car checker, and that it was his duty to enter in a book provided by defendant for that purpose the numbers and initials and the seal numbers of the cars received by defendant in its yards in and near the city of Houston, Tex., and believe defendant expected plaintiff and its other car checkers to ride cars which might be passing when going to or returning from then-work in the yard, then it was the duty of the defendant to use ordinary care to furnish plaintiff and its other car checkers a yard that was reasonably safe for performing the work in the manner expected of them; and, if you believe from a preponderance of the evidence that the plaintiff, in the performance of his duty, took the seal numbers of certain cars in defendant’s yards in this city, and that after doing that he got on the steps of a caboose attached to a train that was then passing, to ride thereon to the depot for the purpose of leaving the book in which the seal numbers had been entered, and believe that in so doing he was performing his duty in the manner expected of him by the defendant under the circumstances, and believe that after he had got on the said step he came in contact with an upright switch stand and was thereby knocked down and his right foot run over by the wheels of the caboose and injured at the time and place and in the manner substantially alleged in his petition; and you further believe from a preponderance of the evidence that the said switch stand was maintained in such proximity to the track on which the said caboose was moving as to be a menace to the safety of defendant’s car checkers in the performance of their duty in the manner they were expected to perform it; and you believe that defendant in so maintaining the said switch stand, if it did that, should have foreseen that plaintiff, or some other car checker, would, in the performance of his duty, in the manner expected of him, be injured by coining in contact with the said switch stand, while riding upon cars passing the same under circumstances similar to those under which the plaintiff was injured, and was guilty of negligence, and believe that such negligence was the proximate cause of the injury of plaintiff; and you do not believe plaintiff himself was guilty of contributory negligence, or assumed the risk of injury — you will return a verdict for the plaintiff, and assess his damages according to the rule hereinafter given you; but, unless you so find, you will return a verdict for the defendant.
“Or, on the other hand, if you do not believe from a preponderance of the evidence that the plaintiff was injured at the time and place and in the manner substantially as alleged by him in his petition, you will, without inquiring further, return a verdict for defendant; or if you do not believe that plaintiff undertook to get on the caboose and was injured after he had gotten on the step thereof by coming in contact with the switch stand; or if you believe he was thus injured, but yet do not believe that the plaintiff was expected in the performance of his duties to ride on the car under the circumstances; or if you believe the plaintiff attempted to get on the caboose step and in doing so ran against the switch stand and was thereby caused to fall and be injured; or if you believe plaintiff’s injury was due to dangers and risks and conditions which were ordinarily incident to his service; or if you do not believe the injury of plaintiff or some other car checker under like circumstances, in view of the way plaintiff was expected to perform the services, was one which should have been foreseen as likely to occur under the circumstances — you will, in either, any or all of such cases, likewise return a verdict for defendant.”

On the trial exception was taken to the admission of certain testimony of appellee. The material portion of the bill is as follows:

“Q. If the railroad company, or any of its representatives, had directed you not to ride those cars, would you have ridden them, or not have ridden them? Defendant: I object to that as calling for a conclusion of the witness as to what he would have done, and as being ii-relevant and immaterial. Court: I overrule the objection. Defendant: We except. A. If they had ever told me not to, I would not have done it. I couldn’t do the work without riding.”

Exception was also taken to admission of certain testimony of appellant’s witness Mayfield. The material portion of the bill is as follows:

“Q. You state, in answer to Mr. Jackson’s question, that this switch was as close as it was to the track because the tracks were closer? A. Yes, sir. Q. Couldn’t you have built your tracks further over? A. They didn’t do it. Q. Couldn’t you have done it? A. It ain’t impossible to do anything. Q. Just answer the question you could have done it? A. Could have done it; yes, sir. Q. The reason the switch stand was as close as it was is because you built the tracks so close together? A. Yes, sir. Q. It would have been safer to have had them further apart, would it not? A. It certainly would. Mr. Bums: We object to the question, ‘It would have been safer to have had them further apart, would it not? A. It certainly would,’ on the ground that it is certainly calling for a conclusion of the witness. Mr. Parker: I offer it on the ground — this is the yardmaster, and we have taken his testimony, and he is thoroughly qualified to speak on that point. He was in charge of the yard, and familiar with its construction. Court: I overrule the objection. Mr. Burns: Note our exception.”

Under the facts stated and evidence quoted above, the majority of this court are of the opinion, under authority of Railway Co. v. Spivey, 97 Tex. 143, 76 S. W. 748, that ap-pellee, in attempting to board and ride upon the train from which he was precipitated, was a trespasser, or, at best, a mere licensee, and as such he accepted the train and track over which it was passing in the condition in which he found them, and that appellant was under no obligation to arrange its yards, tracks, and switch stands to secure his safety while so riding or attempting to ride upon said train, and was not liable for the injury caused by the negligent proximity of the switch stand to the track over which said train was- passing.

Question No. 1: Is this view of the majority correct ?

It is objected by appellant that the paragraphs of the court’s charge quoted above submit an erroneous basis of recovery and authorize a recovery by appellee upon a state of facts which would have constituted him a mere licensee in riding the train from which he was thrown. The majority are of the opinion that this objection is well taken. '

Question No. 2: Is this view of the majority correct?

Question No. 3: Was the testimony of Stephens and Mayfield quoted in the foregoing bills of exception subject to the objection urged against its admission?

Question No. 4: If such testimony was objectionable, does its admission constitute reversible error?

The diverse views of the majority and minority of this court upon the questions certified are set forth at length in their respective opinions accompanying this certificate, and the court is respectfully referred thereto for a more complete statement of the conflict existing between the members of this court upon such questions.

We answer the first question in the negative. The issue as to whether appellee was acting in the line of his duty, when he received his injury was for the jury, under the facts certified. Viewing the facts in the most favorable light to appellee, the jury had a right to find: First, that no specific •directions were given to appellee about riding trains, in going from the depot to his work on the yards and in returning from, the yards to the depot, save that he had been told to ride in going to, and in coming from, the south yards, and that he had been told to ride trains which were moved while he was checking them; and, second, that in order to increase the volume of work to be accomplished for appellant, in a given time and for a given wage, appellee and his fellow car checkers had habitually ridden on the trains in all the yards of appellant, in going to their work, and in returning to the depot from their work, and that appellant, with full knowledge, approved this method of carrying on its car checking business. Such findings must negative the holding, as matter of law, that appellee was acting without the scope of his duties when injured. For, as was said by the Supreme Court of Pennsylvania, in Rummell v. Dillworth, 111 Pa. 348, 2 Atl. 358:

“The scope of his duties is to be defined by what he was employed to perform, and by what, with the knowledge and approval of his employer, he actually did perform, rather than by the mere verbal designation of his position.”

The rule, which finds application to facts certified, was expressed in the case of Bowles v. Ind. Railway Co., 27 Ind. App. 674, 62 N. E. 95, 87 Am. St. Rep. 279, in the following language:

“In view of the migratory character of the service, such transportation facilitated the prosecution of the work, and was beneficial to both employer and employés. It was, by the conduct of the parties, if not by their express agreement, an ingredient and instrumentality of the employment. * * * The defendant was not carrying the plaintiff gratuitously for the mere accommodation of the latter, without regard to the relation between them created in their contract, but was doing so because of that relation, and as an incident of the employment.” Bowles v. Ind. Ry. Co., 27 Ind. App. 672, 62 N. E. 95, 87 Am. St. Rep. 279.

St. L. S. W. Ry. Co. v. Spivey, 97 Tex. 144 to 147, 76 S. W. 748, determined that the allegations of the petition in that case showed no cause of action against the railway company, since it was not alleged that by the duties of the plaintiff as call boy he “was required or expected to ride upon freight trains which might be passing through the yards,” and since the facts which were alleged did not “indicate that his duties required him to ride upon such trains.” Here it is alleged and there is evidence to establish that appellee was both required and expected to ride the trains moving in appellant’s yards, in the performance of his duties as car checker.

In C., R. I. & T. Ry. Co. v. Oldridge, 33 Tex. Civ. App. 439, 76 S. W. 582, 583, approved in M., K. & T. Ry. Co. of Texas v. Rentz (Civ. App.) 162 S. W. 960, much prominence was given in appellant’s brief to the contention that appellee was not in the discharge of his duty as a freight brakeman when he entered the caboose in the switch yards before his train had been made up, and that hence appellee was a mere licensee or trespasser. In rejecting the contention, the Court of Civil Appeals said:

“The testimony of appellee tended to show that it was customary for freight brakemcn, when called to go out with a train, to meet the conductor in the caboose, with the food and clothing required for the journey, while the caboose was yet in the yards, and before the train had been made up. If it be true that appellant’s business, as well as that of other railway companies, had been habitually conducted in this manner, as the evidence tended to show, in the absence of a definite rule or positive requirement to the contrary, we could not say that appellee was a mere volunteer wlien he entered the caboose in this instance. His conduct should be interpreted in the light of the usage or custom pertaining to the service in which he was engaged, and the question was one for the jury.”

Answering the second question, we cannot agree that the court’s charge authorized a finding in favor of appellee “upon a state of facts which would have constituted him a mere licensee in riding the train from which he was thrown.” For, before the jury were authorized to find for appellee, the charge, as a whole, expressly required the jury to find, among other matters: Hirst, that plaintiff, in getting on the steps of the caboose to ride to the depot, “was performing his duty in the manner expected of him by the defendant under the circumstances”: and, second, that the switch stand was maintained in such proximity to the track on which the caboose was moving as to be a menace to the safety of defendant’s car checkers in the performance of their duty in the manner they were expected to perform it, and that defendant, in so maintaining the switch stand, should have foreseen that plaintiff or some other car checker, would, “in the performance of his duty, in the manner expected of him, be injured by coming in contact with the said switch stand while riding upon cars passing the same under circumstances similar to those under which the plaintiff was injured.” Besides, the jury were further expressly instructed that, if they did not believe “that the plaintiff was expected in the performance of his duties to ride on the car, under the circumstances,” then to find for defendant.

The obligation of the master to exercise ordinary care to provide reasonably safe premises can be invoked as the basis for liability for a personal injury to a servant only when the injury has been received in the line of the servant’s duty. The charge, of which complaint is made, required appellee to be doing, not only the work expected of him by his master, but to be doing it in the performance of his duty as servant, and we do not think it failed to safeguard every right of appellant.

We answer to questions Nos. 3 and 4, that the admission of the quoted testimony of witnesses 'Stephens and Mayfield did not constitute reversible error. The testimony of Stephens as to what he would have done under circumstances, shown not to exist by uncontradicted evidence, could not have affected the findings of the jury on the issues submitted, and we concur in the opinion of the Court of Civil Appeals that the opinion of Mayfield was that of a duly qualified expert.
      (g^jITor other oases see' same topic and KEY-NUMBER in all Key'Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    WHITENER v. STATE.
    (No. 4994.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.
    Rehearing Denied May 8, 1918.)
    1. Assault and Battery <&wkey;92 — Aggravated Assault — Decrepitude — Sufficiency oe Evidence.
    Evidence that accused weighed 180 pounds, and that assaulted person weighed 140 pounds, and was and had been for some time afflicted with tuberculosis, is not alone sufficient to show assault was aggravated because of decrepitude of assaulted party.
    2. Criminal Law <&wkey;296 — Judgment—Former Jeopardy.
    Adjudication by the court of matter claimed to constitute former jeopardy is necessary where such plea is decided adversely by the court, and not submitted to the jury.
    Appeal from McLennan County Court; James P. Alexander, Judge.
    C. C. Whitener was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Jos. W. Hale, of Waco, for appellant. E. B. Hendricks, Asst. Atty. G-en., for the State.
   DAVIDSON, P. J.

This conviction was for aggravated assault; the fine being $25. The evidence shows that Whitener, his wife, and child were ^driving in an automobile, and the alleged assaulted party, Jenkins, was driving a service ear; that Jenkins ran into the car occupied by appellant and his family, knocking his child from the car. A personal difficulty ensued, in which appellant struck Jenkins, caught him by the coat, and pushed him down. The assault was alleged to be aggravated by reason of the fact that Jenkins was decrepit. The evidence on this point is that appellant weighed ISO pounds, and Jenkins weighed 140 pounds, and was afflicted with tuberculosis, and had been for some time. The evidence is silent as to any further weakness or incapacity or decrepitude on the part of the assaulted party, Jenkins. We are of opinion the evidence is not sufficient to support the allegation.

Appellant had pleaded guilty in the corporation court for this assault, and paid a fine of $15. A plea of jeopardy was interposed in.the county court on the proposition that he had previously been convicted and fined in a court of competent jurisdiction, and, second, that when first tried in the county court the jury was out considering their verdict for something like six hours. The jury came in after being out about three hours, and reported they could not agree. After being out a while longer, amounting to six hours from the time of the submission of the case, in the absence of the defendant and his counsel, the court discharged the jury on their statement that they could not agree. The jury stood 5 to 1, but it is not shown how the 5 or the 1 stood, whether for acquittal or conviction. Tile court did not adjudicate this matter in a judgment. We are of opinion that under the authority of Hooper v. State, 42 S. W. 398, Wright v. State, 35 Tex. Cr. R. 158, 32 S. W. 701, and Woodward v. State, 42 Tex. Cr. R. 200, 58 S. W. 135, the adjudication by the court was necessary. The plea of jeopardy was not submitted to the jury, but decided by the court adversely to the defendant. If the question of jeopardy arises upon another trial, it should .be governed by the decisions above mentioned.

The judgment is reversed, and the cause remanded.

PRENDERO AST, J., absent.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MIZELL v. STATE.
    (No. 4974.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.)
    1. Criminal Law <&wkey;878(3) — Verdict—Several Counts.
    Where accused was tried under counts for rape and incest, and both were submitted to the jury, which affirmatively found the defendant guilty of rape, and disregarded the charge as to incest, there was an acquittal on the charge of incest, and where the conviction of rape was reversed, he could not be convicted of incest on a second trial.
    2. Criminal Law <&wkey;>180 — Former Jeopardy —Abandonment op Count.
    Where an indictment contains two counts, and defendant pleads to the indictment, and after such plea and impanelment of jury a count is dismissed or abandoned by the state, and he is tried on remaining count, he cannot again be tried on count so dismissed or abandoned.
    Appeal from District Court, Angelina County ; L. D. Guinn, Judge.
    George Mizell was convicted of incest, and he appeals.
    Reversed and remanded.
    Mantooth & Collins, of Lufkin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for incest. The history of the case and the questions involved for decision may be briefly stated as follows: An indictment was preferred against appellant containing two counts, one for rape, and the other for incest. There was a trial before a jury on both counts; the jury convicting under the count charging rape. From this conviction an appeal was prosecuted, and this court reversed the judgment; the case being reported in 197 S. W. 300. In that trial both counts were submitted to the jury by the charge of the court, and the jury specifically found for the state on the count charging rape. Upon the last trial the count as to rape was dismissed, and appellant was tried upon the incest count.

The contention was in the trial court, and is here urged, that on the first trial appellant was acquitted of the incest by the conviction for the rape under the circumstances already stated. This proposition is sound under all of our authorities. There is a kindred proposition that may also be asserted that, where an indictment contains two counts, and the appellant had pleaded to the indictment containing the two counts, and after such plea and impanelment of the jury either is dismissed or abandoned by the state, and he is tried upon the remaining count or counts, as to those dismissed he cannot be again tried. There are a great number of authorities bearing upon this proposition. See Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742. In that case the defendant was convicted upon an indictment charging rape in one count and incest in another; the conviction being for rape. The second count having been ignored, the said indictment could not be used to predicate a subsequent prosecution for incest. That case is in line with the authorities on the question See, also, Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; Millner v. State, 75 Tex. Cr. R. 22, 169 S. W. 899; Hewitt v. State, 74 Tex. Cr. R. 40, 167 S. W. 40; Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742; Parks v. State, 46 Tex. Cr. R. 100, 79 S. W. 301; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45; Hooton v. State, 53 Tex. Cr. R, 6, 108 S. W. 651; Jolly v. United States, 170 U. S. 402, 18 Sup. Ct. 624, 42 L. Ed. 1085; Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Cox v. State, 63 Fla. 12, 58 South. 49; People v. Weil, 243 Ill. 208, 90 N. E. 731, 134 Am. St. Rep. 357; Ford v. State, 79 Neb. 309, 112 N. W. 606; State v. McAnally, 105 Mo. App. 333, 79 S. W. 992; State v. Maurer, 96 Mo. App. 347, 70 S. W. 264; Parish v. State, 130 Ala. 92, 30 South. 474; Smith v. State, 40 Fla. 203, 23 South. 854; Morris v. State, 1 Blackf. (Ind.) 37; Short v. State, 63 Ind. 376; Dickinson v. State, 70 Ind. 247; Lamphier v. State, 70 Ind. 317; Stuart v. Commonwealth, 28 Grat. (Va.) 950; Bigcraft v. People, 30 Colo. 298, 70 Pac. 417; Beaty v. State, 82 Ind. 228; Johnson v. Commonwealth, 102 Va. 927, 46 S. E. 789.

It is not the purpose of this opinion to go any farther into a review of this question. Appellant’s position is correct. Under the first trial of the case appellant was acquitted of the charge of incest. The conviction for the rape under the peculiar facts and circumstances of this case was an acquittal of the incest, as the jury passed upon both necessarily in order to reach a conclusion in their verdict on the first trial.

The judgment will be reversed, and the cause remanded.

PRENDERGAST, J., absent.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    SOLOMON v. STATE.
    (No. 4859.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.)
    1. BubglaRY <&wkey;29 — Possession oe Stolen
    Goods — Burden oe Prooe.
    Where stolon goods are found in the possession of accused, who explains that he has gotten them from another, the state has the burden of disproving the truth of his explanation.
    2. Burglary <&wkey;41(l) — Evidence — Sueei-ciency.
    In a prosecution for burglary of a residence in the nighttime, evidence held insufficient to sustain a conviction.
    Appeal from Criminal District Court, Williamson County; James 'R. Hamilton, Judge.
    A. H. Solomon was convicted of burglary of a private residence at nighttime, and he appeals.
    Reversed and remanded.
    J. E. Taulbee, of Georgetown, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a conviction for the offense of burglary of a private residence at nighttime.

The evidence shows without contradiction that the private residence of Hiram Hunt was burglarized on the night of about April 4, 1917, and that the property taken therefrom was two bedspreads and three pillows. These articles were found soon thereafter in possession of Ethel Robinson, a negro girl. It was her testimony alone upon which the state relies to connect the appellant with the offense. She appears to have been sick at the time from a malady affecting her leg, and shortly after the occurrence had gone to Oklahoma, where her leg was amputated. She had also been on the poor farm for some offense which is not named. She testified that she had seen the defendant prior to the time the offense was committed, but that she had never had any transaction with him; that he had never been to her house; and that she had never been with him at any place except upon the occasion described in her testimony; that on the night of the offense she was asleep and was sick; that staying at the house was a negro man about 23 or 24 years of age called “Peaches”; that she woke up and found “Peaches” standing near her bed; that the window was open and appellant was near the window outside the house; that when she woke up “Peaches” called her and said there were some things for her, and she looked and saw the things. She asked where he got them, and he said, “Mr. Dick, or somebody, gave them to him.” At that time “Peaches,” the negro man, was standing by her bed and the other man was out by the window about two steps away. That she spoke to the man at the window, appellant, and asked him where he got those goods, and—

“he said another man gave them to him to hold for him. And I said, ‘Who was he?’ and he said he didn’t know who it was. ‘I don’t know who it was, but somebody walked around the corner of my house; I don’t know who it was.’ And he said, ‘If anybody comes here asking for those things, you give them to him; if they don’t, you just keep them.’ The defendant said that.”

State’s counsel asked this question:

“Is this defendant the man who left those things there? A. No, sir; he didn’t leave them with me; this colored boy, he gave them to me.”

State’s- counsel stated that he was surprised at the witness’ testimony, and asked permission to impeach her or lay a predicate therefor by making an inquiry as to her testimony before the grand jury. The court granted this. The district attorney stated, in this connection, that the witness had made an entirely different statement on the stand from that made by her in the grand jury room; that her statement was an entire surprise and nothing like her former statement. The court having given permission to lay the predicate, the district attorney asked this question:

“I will ask you if you didn’t testify in the grand jury room that this man brought those things there and gave them to you and told you that he got them from a negro ? A. No, sir ; ■ I didn’t tell you that he gave them to me.”

Another question:

“Didn’t you' tell me that this morning in my office in the presence of Mr. Young? A. No, sir; I didn’t say that.”

In this connection the district attorney asked her if she was not on the poor farm and if appellant did not go out and pay her fine and get her. She replied that he did come out there, but that her father gave him the money to pay the fine. On cross-examination she said that the negro Ered Loveless, called “Peaches,” had gone soon after the burglary, and she had not seen him since; she was informed that he stayed a week or two before leaving.

The state’s case against appellant rests wholly upon circumstantial evidence. This was recognized in the trial court in an appropriate charge. Summarized, it is that the property recently stolen was found in the possession of the witness Ethel Robinson. She accounted for her possession by her statement that she got it from the negro man called “Peaches,” and that he said he got it from appellant, and appellant said he got it from another person, and that she saw another person go around the corner of the house. The rule laid down by Mr. Branch, in his Annotated Texas P. O. § 2346, that a verdict resting upon proof of the possession by the accused of property recently stolen from the burglarized house will not be set aside unless clearly wrong where the other facts in evidence justify the jury in believing that the explanation of possession of the property is untrue, is invoked by the state. It can hardly be said to apply, for tile reason that the recently stolen property was not found in the possession of appellant. His connection with it rests alone upon the statement of the witness Ethel Robinson to the effect that “Peaches” said he got it from appellant, and that appellant said he got it from some one else. The absence of the witness “Peaches” is a circumstance weakening the state’s case, being consistent with the innocence of appellant and the guilt of another, who was proved in possession of the stolen goods. If he fled, as is intimated, and cannot be produced as a witness, his flight would tend to support the presumption of innocence with which the law surrounds the appellant. If he did not flee, the failure of the state to produce him as a witness is to the same effect. If the rule of the possession of recently stolen property would be extended to apply to the appellant by reason of his statement that he had gotten the things from another man, it would rest upon the state to disprove the truth of his explanation of his possession. Ross v. State, 16 Tex. App. 559; Oliver v. State, 69 Tex. Cr. R. 263, 153 S. W. 309. On this point the state’s witness declares, in connection with her assertion that appéllant made the statement that he had gotten the things from another, that she saw another man go around the corner of the house, thus tending by her testimony to corroborate rather than to disprove the explanation which she says that appellant made.

Aside from the testimony of Ethel Robinson, there is no evidence tending to connect the appellant with the commission of the offense. He was a white man; he was not shown to have any intimacy with either the witness Ethel Robinson or the negro man called “Peaches,” nor are there any circumstances showing a motive for burglarizing the house in order to give the stolen goods to the witness Ethel Robinson, nor any circumstances bringing him in proximity to the burglarized premises. Under the facts we think it would be clearly wrong to sustain the conviction, and that the trial court erred in refusing to grant the motion for a new trial.

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

PRENDERGAST, J., absent.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOORE v. STATE.
    (No. 5005.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.)
    1. Criminal Law <&wkey;1090(15) — Appeal—Defective Verdict — Exceptions.
    Code Cr. Proc. 1911, art. 744, making necessary a bill of exception to any decision, opinion, order, or charge that is to be reviewed on appeal, not applying to the form or substance of a verdict, does not, in view of article 773, making it the duty of the court to refuse to receive a defective verdict, make failure to object to a defective verdict a waiver of such defect.
    2. Criminal Law &wkey;3l090(15) — Appeal—Defective Verdict — Bill of Exceptions.
    The objection that the verdict does not support the judgment is fundamental in view of Code Cr. Proc. 1911, art. 837, subd. 9, and article 853, and can be raised for first time on appeal without bill of exceptions.
    3. Darceny <&wkey;>8 — Persons Liable — Receiver of Stolen Goods.
    Where an indictment charges theft of an automobile in one count, and receiving the automobile as stolen property in another count, a verdict finding defendant guilty on both counts is improper; it being impossible for defendant, guilty of receiving a stolen automobile, to have stolen it himself.
    4. Criminal Law &wkey;878(l, 2) — General Verdict — Several Counts.
    Where an indictment charges theft in one count, and receiving stolen property in another, a general verdict of guilty, will support a judgment of guilty under either count, but a verdict of guilty on both counts will not support a judgment of conviction for the theft.
    Appeal from District Court, McDennan County; Richard I. Munroe, Judge.
    George Moore was convicted of theft, and he appeals.
    Reversed and remanded.
    J. A. Kibler and Shurtleff & Cummings, all of Waco, and Chas. D. Black, of Austin, for appellant. Jno. B. McNamara, Co. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by indictment with theft, and in the same indictment, by separate count, with fraudulently receiving stolen property. The facts are sufficient to lead to the conclusion that one Oscar I-Cimball and the appellant acting together stole an automobile, the property of Templeton. The theft charged was based upon these facts, and the receiving stolen property is alleged to have been from Oscar Kimball, the same person who acted with appellant in the theft. Each of the counts were embraced in the charge; the verdict received is as follows:

“We, the jury, find the defendant guilty on both counts and assess his punishment at confinement in the state penitentiary for five years.”

The court on this verdict entered a judgment declaring appellant guilty of theft and condemning him to confinement in the penitentiary for not less than two nor more than five years.

Appellant insists that the verdict does not support the judgment. That the verdict is informal is conceded by the state, but its counsel insists that the failure to call the court’s attention to it at the time constitutes a waiver of its defect. We are of the opinion that article 744, touching bills of exception, is not directed to objections to the form or substance of a verdict. The statute (article 773) puts it within the power of the trial judge to direct the correction of an informal verdict, and, we think, places the duty upon him to examine it and determine its sufficiency, and to refuse to receive a defective one. Taylor v. State, 14 Tex. App. 340; Black v. State, 68 S. W. 683, and other cases cited in Vernon’s C. C. P. p. 582. The statute (article 837, subd. 9) makes the fact that the verdict is contrary to law a ground for motion for new trial. The judgment is based on the verdict, which must he shown in the judgment entered. C. O. P. art. 853. If the verdict appears insufficient to support the judgment, the matter is fundamental. Oye. vol. 2, p. 707; Bennett v. Butterworth, 11 How. 669, 13 L. Ed. 859.

The indictment contained two separate offenses, theft and fraudulently receiving stolen property. Brown, v. State, 15 Tex. App. 581; Gaither v. State, 21 Tex. App. 527, 1 S. W. 456; Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Fernandez v. State, 25 Tex. App. 538, 8 S. W. 667; Street v. State, 39 Tex. Cr. R. 134, 45 S. W. 577; Clark v. State, 194 S. W. 158. In the Brown Case, 15 Tex. App. 581, supra, the court says:

“A theft must be perfected before that of receiving stolen property can be perpetrated, and the receiver of the stolen property must be another person than the thief.”

The verdict in question finds that the appellant took the automobile under circumstances constituting theft. It also finds that another person stole it, and that appellant, after the theft, fraudulently received the property. A general verdict could have been applied to either offense charged in the indictment and supported by the evidence. Rosson v. State, 37 Tex. Cr. R. 87, 38 S. W. 788.

The verdict here is not general; it is a specific finding that appellant is guilty of each of the offenses charged. A holding that such a verdict does not support the judgment is made by the Supreme Court of Massachusetts in Commonwealth v. Haskins, 128 Mass. 60, and from which we quote as follows:

“By that record it appears that there had been the larceny of a cow, and but one larceny of that cow. The defendants were charged in one count of the indictment with such larceny, and in the second count with having received her knowing her to have been thus stolen. It is certain that the defendants could not be guilty upon both counts, because in law the guilty receiver of stolen goods cannot himself be the thief; nor can the thief be guilty of a crime of receiving stolen goods which he himself has stolen.”

This is supported by the case of Crawford v. State, 31 Tex. Cr. R. 55, 19 S. W. 766, wherein an indictment was for forgery and uttering the forged instrument, charged in separate counts. The verdict, like that in the present ease, was specific in finding guilty of each offense. The court in an opinion reviewing the authorities held the verdict did not support the judgment.

From the state’s standpoint the appellant and Kimball acted together in theft of the automobile. If guilty, he is a principal in the theft, and upon another trial, the evidence being in substance the same, the case should be submitted upon the theory that he and Kimball acted together in the theft, and the charge on fraudulently receiving stolen property should be omitted. '

Because the verdict does not support the judgment rendered, it is reversed and remanded.

PRENDERGAST, J., absent.

       — 'Frvr other cases see same topic and KEY-NUMBER in all Key-Numiered Digests and Indexes


text:
    KING v. STATE.
    (No. 5009.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.)
    1. Bail <&wkey;64 — Bond and Recognizance— Time fob Filing.
    An appeal bond filed during the term at which the trial took place is not a compliance with Codo Cr. Proc. 1911, art. 902, requiring a recognizance, when the case is appealed during the term.
    2. Bail <&wkey;70 — Appeal Bond — Approval by Teial Judge.
    Under Code Cr. Proc. 1911, art. 904, required approval of appeal bond by the sheriff and court trying the case, an appeal bond bearing the approval of the sheriff, but not of trial judge, is insufficient.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Joe King was convicted of burglary, and appeals.
    Appeal dismissed.
    E, B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Conviction is for burglary. The indictment was returned November 28, 1917, the verdict rendered the 4th of December, 1917, the motion for new trial was overruled December 13, 1917, the appeal bond appears dated the 2d day of December, 1917, approved by the sheriff, the 2d day of January, 1918, filed the 3d day of January, 1917, the term of court at which the trial took place adjourned January 6', 1918. These dates are stated in connection with the motion to dismiss the appeal made by the state. We infer that the filing date of the appeal bond is a clerical error. It was probably intended to be January 3, 1918. When one desires a release pending his appeal the law requires him to make a recognizance if his case is appealed during the term at which he is tried. Article 902, C. C. P. Failing to make a recognizance during the term, he may, after the term, be released pending his appeal by the execution of an appeal bond which must be approved by the sheriff and by the court trying the cause. C. C. P. art. 904, Vernon’s C. C. P. pp. 873, 874.

This court is without jurisdiction to entertain an appeal from a judgment in the absence of compliance with the statutory regulations governing appeals, and has held uniformly that an appeal bond filed during the time at which the trial took place was not such compliance. Taylor v. State, 189 S. W. 142; Bloss v. State, 79 Tex. Cr. R. 617, 187 S. W. 487; Lang v. State, 190 S. W. 146; Gallon v. State, 194 S. W. 1116.

Neither is an appeal bond sufficient which fails to bear, the approval of both the sheriff and the trial judge. Wells v. State, 68 Tex. Cr. R. 277, 150 S. W. 1163. The bond in this instance bears the approval of the sheriff, but not that of the trial judge, and if filed January 3, 1918, it was during the term at which the trial took place.

On the record we have no alternative but to sustain the motion to dismiss the appeal.

PRENDERGAST, J., absent.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    LUTKER v. STATE.
    (No. 4982.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    Libel and Slander <&wkey;144 — Actions—Evidence — 'Weight and Sufficiency.
    Evidence that defendant, who was too far away to distinguish whether something “white” on the track “was a bunch of women, horses, or cows,” remarked that it was just a bunch of whores following the soldiers, is insufficient to convict defendant of the wanton or malicious slander of two women in the group.
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    H. W. Lutker was convicted of slander, and he appeals.
    Reversed and remanded.
    J. K. Russell, of Cleburne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of slander and fined $100.

The complaint and information alleged that on November 10th he falsely and maliciously and falsely and wantonly orally imputed to Mrs. Ballew and Mrs. Conner and divers other females, married and unmarried, a want of chastity, in that, in the presence and hearing of B. D. Currie he said of and concerning said females that they were nothing but whores following the soldiers. The uncon-tradicted testimony shows that on said date some soldiers stopped at a stockpen in Cle-burne to water their stock; that appellant and Currie were working together in the Santa Fé railroad yards. Currie swore they saw some soldiers coming down the track and saw something “white” coming. Currie said to appellant, “What is that white coming down the track?” Appellant replied that it was just a bunch of whores following the soldiers. Currie further swore that whoever or whatever it was white which they saw they were at such a great distance from them that he could not tell who or what it was; “whether it was a bunch of women, horses, or cows”; that they could just see something white up there; that he ascei'tained the next day that it was a bunch of women and children, and at least one man, perhaps several more men, in the crowd.

The evidence in no way suggests that appellant could see or tell that said two ladies or either of them were in said crowd of men, women, or children, or that he even knew or could tell that they were human beings or were horses or cattle, and there is nothing in the record to show that the remark he made directly or indirectly referred to both or either of said ladies. The testimony by no reasonable or proper construction could be held to have been made by appellant either maliciously or wantonly to apply to either of both’ of said ladies. It is therefore wholly insufficient to sustain the conviction. The judgment of conviction therefore cannot stand.

' Reversed and remanded.


text:
    ALT v. STATE.
    (No. 4996.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    1. Perjury <&wkey;25(3) — Before Grand Jury-Indictment — Sufficiency.
    An indictment for perjury committed before the grand jury, alleging that after defendant had been duly sworn it became and was a material inquiry before said grand jury, ■ and necessary for the due administration of the criminal laws of the state and for the ends of public justice, to wit, whether said W, D. A. cashed a certain check for and signed by N. A., said check being of a certain tenor, and .whether the said W. D. A. presented said check for payment thereafter, and whether payment was refused, that said W. D. A. did on, etc., in said county and state, before and to the said grand jury under the sanction of said oath deliberately and willfully state and testify in substance as follows, that on, etc., he cashed said check here-inbefore described for said N. A., that some time thereafter, during the month, etc., he presented said check hereinbefore described, and that payment therefor was refused, was insufficient, in that it failed to show- the materiality of the false testimony, or that the matters inquired about could become a matter for investigation of the grand jury from a criminal standpoint.
    2. Grand Jury &wkey;>l — Extent of Inquiry.
    The grand jury is only empowered to inquire into violations of criminal laws.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    W. D. Alt was convicted of perjury, and he appeals.
    Reversed, and prosecution ordered dismissed. 4
    A. S. B'askett, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of perjury; his punishment being assessed at two years’ confinement in the penitentiary.

The indictment alleges this perjury was committed before a grand jury in Dallas county, and of which W. H. Noble was foreman, and that appellant—

“did then and there take his corporeal 9atk and was duly sworn as a witness before said grand jury, said oath being then and there duly administered to him by the said foreman, who was then and there authorized by law to administer the same, and which said oath was then and there required by law, and was necessary for the ends of public justice, and was administered for the ends of public justice, whereupon it then and there became and was a material inquiry before said grand jury, and necessary for the due administration of the criminal laws of said state and for the ends of public justice, to wit:
“(1) Whether said W. D. Alt, in the city of Dallas, in Dallas county, Texas, on the 16th day of Juno, A. I>. 1916, cashed a certain check for and signed by N. A. Dawson; said check being of the tenor following: ‘No. 77. Stephen-ville, Texas, 6/16, 1916. 88-357. Cage & Grow, Bankers (Unincorporated): Pay to the order of W. D. Alt iflOO.OO one hundred & 00/100 dollars. Bexar Construction Go., Per N. A. Dawson. Gashed for NAD.’
“(2) AVhether the said W. D. Alt in the month of July, 1916, presented said check hereinbefore described for payment to W. E. Crotty, assistant cashier of the Gage & Grow Bank, at Stephenville, Texas, and whether payment thereof was refused by said W. B. Crotty, assistant cashier, as aforesaid; and the said W. D. Alt did on the 27th day of September, A. D. 1917, in said county and state, before and to the said grand jury, under the sanction of said oath administered to him as aforesaid, deliberately and willfully state and testify in substance as follows, to wit:
“(1) That in the city of Dallas, in Dallas county, Texas, on the 16th day of June, A. D. 1916, lie cashed said check hereinbefore described for said N. A. Dawson.
“(2) That some time during the month of July, 1916, he presented said check hereinbefore described for payment to W. E. Grotty, at the Gage & Crow Bank, at Stephenville, Texas, and that payment thereof was then and there refused by said W. E. Grotty.”

The indictment, after charging that defendant testified to the truthfulness of both assignments, traverses the truth of both. The indictment was attacked on motion in arrest of judgment, by general demurrer, and specific exceptions. It is contended the indictment does not show a violation of the criminal laws in the matters stated, and that there is no allegation that the grand jury was examining into any particular matter which constituted an offense, nor was. that body inquiring of defendant in general terms whether he had knowledge of the violation of any penal offense, or that any questions were asked defendant in regard thereto. The further contention is made that there is no allegation sufficiently showing the materiality of the statement to any matter about Which the grand jury was authorized by law to act or investigate. There is no allegation to show they were inquiring about any particular violation of the law, or in general terms whether he had knowledge of any violation of the law. This indictment fails to allege sufficient facts to show the materiality of the testimony about which inquiry was being made. It does allege that appellant testified that he had cashed a check drawn , in his favor by N. A. Dawson, who purported to represent a construction company, which check is alleged to have been given in June, and he testified that in July he presented it to a bank in Stephenville, Erath county, for payment, which payment was refused. These matters are alleged to be false. Appellant swore they were true.

There is nothing alleged to show how these matters became,- or could become, a matter for investigation by the grand jury from a criminal standpoint. The grand jury would have no right to • inquire into other matters than violations of the penal law. It is not alleged that this testimony was given in regard to any matter criminal, nor does it allege any fact that would show that it related to any criminal offense. The grand jury is only empowered to inquire into violations of criminal laws of Texas. Upon this subject we cite Gallegos v. State, 50 Tex. Cr. R. 191, 95 S. W. 123; Pigg v. State, 71 Tex. Cr. R. 600, 160 S. W. 691; Scott v. State, 72 Tex. Cr. R. 26, 160 S. W. 960; Higgins v. State, 38 Tex. Cr. R. 539, 43 S. W. 1012; Weaver v. State, 34 Tex. Cr. R. 554, 31 S. W. 400. Neither allegation in the indictment shows even indirectly that it was a violation of any criminal law; that is, either to pay the check or to present it to the bank in Erath county for payment and its refusal. Without in some way showing that these allegations could form the basis of a criminal prosecution which would form the subject of an inquiry by the grand jury, that body would have no right to inquire into it.

There are other matters in the case that might be of importance, presented by bills of exception to charges asked and refused, and to the introduction of evidence; but as the matter is presented we will not discuss them.

The judgment will be reversed, and the prosecution ordered dismissed.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes