author: KEY, C. J.

text:
    ST. LOUIS S. W. RY. CO. OF TEXAS v. BLEVINS et al.
    (No. 5418.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1914.
    Rehearing Denied Feb. 3, 1915.)
    1. Master and Servant &wkey;>284 — Actions for Injuries — Questions for Jury.
    In a railway section band’s action for injuries caused by a coemployé starting a hand car on which he was sitting after they had placed their tools in the section house for the night, evidence held to make a question for the jury as to -whether he got upon the hand car, and the coemployé went upon the hand car and started it, for the purpose of taking it to the point to which they returned when their labors for the day were completed, or whether they were playing and pranking with the hand car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. &wkey;s2S4.]
    2. Master and Servant <&wkey;180 — Liability for Injuries — Negligence of Fellow Servant — 1 ‘Oferating. ’ ’
    Within the statute abrogating the fellow servant doctrine when the injured party and his negligent fellow servant are engaged in the work of operating a car, the word “operating” does not require that the car should be actually moving at the time, or that the injured employs should at the particular time be actively engaged in the performance of manual or other labor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec.’ Dig. &wkey;>180.
    For other definitions, see Words and Phrases, First and Second Series, Operate.]
    3. Master and Servant &wkey;>180 — Liability for Injuries — Negligence of Fellow Servant.
    Under the statute abrogating the fellow servant doctrine where the injured party and his negligent fellow servant are engaged in operating a ear, if a section hand got upon a hand car for the purpose of assisting in taking it to the point to which the section employés returned when their labors for the day were completed, and a coemployé went upon the' car and put it in motion for the same purpose, they were both engaged in operating the car, though. the section foreman had given them no specific order to take the ear to such point.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. <S&wkey;180.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Action by L. J. Blevins and another against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, Scott & Ross, of Waco, and Sadler & Cobb, of Gatesville, for appellant. Moore & Short, of Gatesville, for appellees.
   KEY, C. J.

In this case the plaintiff L. J. Blevins recovered a verdict and judgment against the defendant, St. Louis Southwestern Railway Company of Texas, for $75, and the plaintiff Ed Blevins got a like recovery for the sum of $337.50, and the railway company has appealed.

Ed Blevins was a minor, and L. J. Blevins was his father. The judgment in favor of the former was for personal injuries sustained by him, and the judgment in favor of the latter was for medical expenses incurred by him on account'of the injuries to the former.

Several questions are presented in appellant’s brief, all of which have been duly considered, and are decided against appellant, but only one of which we deem it necessary to discuss in this opinion. That question is raised by the assignment which complains of the action of the trial court in refusing to give a requested instruction directing a verdict for appellant. In this case the injury complained of was caused by the negligence of Ben Cathey, a fellow servant. The defense of fellow servant was interposed, and counsel for appellant contend that the undisputed testimony brings the case within the doctrine of fellow servant, and therefore the court should have given the requested instruction directing a verdict for the defendant. Counsel for appellees contend that the case comes within the purview of a statute of this state which abrogates the defense of fellow servant when the injured party and his negligent fellow servant are engaged in the work of operating a car.

The proof shows that on the occasion in question the plaintiff Ed Blevins and Ben Cathey were fellow servants in appellant’s employ as section hands. In appellant’s brief the testimony bearing on the question under consideration is summarized as follows:

Ed Blevins testified:

“I got hurt on the 7th day of June. It was on the 7th day of June, one Saturday evening, and I was tightening bolts on the railroad, and that evening, after the 3 o’clock passenger train came by, he told us to put our tools on the car. That was Tucker, the foreman, that told us to do that. We loaded the tools on the car, and went to the section house and unloaded them, and put them in the tool house, and wired back the door, and I was sitting down. The hand car at that time was standing' in front of the tool house door. The hand car was on the track in front of the tool house door. We had gone up there, and had gone under instructions of the foreman, and had unloaded the hand car under his directions, and were waiting for further orders from him as to what to do next. It was not quitting time at that time. We had unloaded the car, and I was still under the foreman’s instructions until we pulled into the Junction. The foreman lived at the Junction. My day’s work is never complete until I pull the foreman into the Junction. That was part of my duty. On the date of my injury we had pulled up to- the section house and unloaded the tools and wired back the door; wired it up, you know. And I went and got me a drink of water', and was sitting down on the car, and told Tucker to ‘Come on, and let’s go.’ I sat down there, and was waiting for further instructions from him what to do, and Ben Cathey was behind the car, and when I sat down he pushed the car with such force it caused me to fall backwards and caught my head under the bars.' Ben Cathey was there for the company, just the same as I was. He was working for the defendant company, just as same as I was. He was doing the same work I was doing. He was working as a section hand along with the section crew. He was under the same foreman that I was under. Ben Cathey at the time I was hurt was somewhere about 16 years old. I don’t know of my own knowledge whether the section foreman knew that Ben and I were minors or not. I don’t know whether he knew that Ben Cathay was a minor or not. The car was pushed south when I got hurt. We call it running north and south there by the section house. The car was pushed towards Leon Junction when I was hurt. I was not on the end that I always handle coming this way when I got hurt. I always pulled behind the handle bars. I did not know, nor have any warning, that that hand car was going to be pushed or shoved before it was pushed or shoved. No one told me that they were going to push it or shove it. I do not know how near the foreman was to the car when we got to the hand car and when I got hurt. He was away from the hand car. He was out somewhere sitting on one of those boards that runs from the car house out to the railroad that you walk from the railroad to the car house. It was about five minutes after the time I said, ‘Gome on, let’s go to the Junction,’ until I got hurt. I guess it was about 4:30 in the afternoon when I got hurt. I don’t know what time we usually quit work before that day. I did not carry a watch. We usually quit at 6 o’clock. That was the time to quit, I think. We had about 2 and 2% miles to go from the tool house to the Junction. It usually took about 10 minutes to ride that 2% miles ordinarily. I had no particular object in getting back to the Junction that afternoon. No particular reason for telling the foreman, ‘Come on, let’s go to the Junction.’ The foreman never said a word when I told him to ‘Come on, and let’s go to the Junction.’ He had his back to me at the time I told him that. He had his back toward the car at that time. I was on the front end of the car, but my feet was not on the ground. My feet was hanging down towards the ground. No; I was not lying down on the hand car. No; I did not have my feet upon the car. Por me to have been doing my duty, so far as operating the car, I would have had to got up on the car with my feet and turned around and took hold of the handle bars and went to work. That is what I would have done if I had not gotten hurt. When I sat down on the front end of the car, the handle bars were behind me. I was sitting up erect and straight when I got hurt; that is, I was when he shoved the car. The foreman was sitting at the place where I had left him with his back to me when the car moved. Ben Cathey was at the back end of the car at that time. I did not hear Ben jump on the car. I heard no noise of any kind at all. Ben and I were down there as section hands, and were employed for the same character of work. We both did the same character of work in handling and operating the car. He and I did not work side by side all the time. In handling the car we had hold of the same handle bar as a rule. He and I generally worked behind together. I never did get on one end and he on the other end. He and I were together as we pulled the car up there. We were at the same end; in going back to the Junction that afternoon, if I had not got hurt, we would have worked side by side. We would have done that pulling the car back to the • Junction. I got hurt, and could not help pull it back at all. I don’t know why I went to the front end and Ben to the back end that afternoon.”

Mrs. Adams testified lor plaintiffs:

“When they closed up the tool house, Ed Blevins was the first party to the hand car. He sat down on the car. His feet was swinging down between the rails, between the rails of the main track. Ed Blevins was not sitting up .straight when the accident occurred, but was kinder leaning back that way. He was sitting on the end of the car towards Leon Junction. Ben Cathay was going from the tool house to the hand car when I first noticed him. The hand car at that time was standing still. Cathey pushed the back end of the car. As soon as the thing hit Ed, Ben pulled it off his head and relieved Ed from the position he was in. He pulled it down. Blevins got up then, and came around to Ben, and said, T would not thought you would have done that.’ Ed told Blevins that he was as much to blame as he was. Blevins did not make any reply to that.”

G. G. Adams, witness for plaintiffs, testified:

“The foreman had us put the hand car on the track when we were working to run up there. Tes; that was the usual and customary way we did in the afternoons. After we unloaded the car, Ed Cathey and Tucker used the car in going to their homes — in going to the Junction.”

Ben Catliey, for plaintiffs, testified:

“We all had been at work that day, and came to the section house with the hand car, and put the tools up; and the way Ed got hurt, he was sitting down on the car, and me or Ed, one, started the car. Ed or I started the car. I may have started it myself, and I heard Ed holloa, ‘Oh,’ and I pulled the lever up off him. If I started the car myself, I was just kinder monkeying and fooling with it. I did not mean to say, if I did say it, that I started the car, if I did start it, that I was starting it for the purpose of going to the Junction at that time. I said I may have started the car. Ed might have started it. If I started it at that time, I was not starting it for the purpose of going to the Junction, but was just monkeying or fooling with the car.”

Counsel for appellees in their brief have summarized the testimony as follows:

Appellee Ed Blevins, while upon the stand in his own behalf, testified as follows:

“I was working for the defendant company under Tucker as section foreman. I got hurt on the 7th day of June. It was on the 7th day of June, one Saturday evening, and I was tightening bolts- on the railroad, and that evening, after the 3 o’clock passenger train came by, he told us to put our tools on the car. That was Tucker, the foreman, that told us to do that. We loaded the tools on the car, and went to the section house, and unloaded them, and put them in the tool house, and wired back the door, and I was sitting down. The hand ear at that time was standing in front of the tool house door. The hand car was on the track in front of the tool house door. We had gone up there, and had gone under instructions of the foreman, and had unloaded the hand car under his instructions, and were waiting for further orders from him as to what to do next. It was not quitting time at that time. We had unloaded the car, and were still under the foreman’s instructions until we pulled him into the Junction. The foreman lived at the Junction. My day’s work is never complete until I pull the foreman into the Junction. That is a part of my duty. The foreman was not living at the section house at that time. We began work at the Junction, and went back to the Junction each night. That was our place of starting and returning. That is when my day’s work was done. I went and got me a drink of water, and was sitting down on the car, and told Tucker to ‘Come on, let’s go,’ and sat down there, and was waiting for further instructions from him what to do, and Ben Cathey was behind the car, and when I sat down he pushed the car with such force it caused me to fall backwards and caught my head under the bars. Ben Cathey was there for the company, just the same as I was. He was working for the defendant company in the same capacity that I was. He was doing the same work I was doing. He was working as a section hand along with the section crew. He was under the same foreman that I was under.”

G. G. Adams, while a witness on the stand in behalf of plaintiffs, testified as follows:

“When I heard Ed say ‘Oh!’ Ben Cathey came around and was on the back end of the hand car, and had his hands on the handle bar levers. Ed Blevins was on end of the hand ear towards the Junction. When I saw Ed, was standing in front of the car down on the track. The hand car was perfectly still when I looked up. Cathey was on the car. That is all I saw of the transaction. I began working on that section March 4th, and had made a pretty steady hand up to that time. Tucker, the foreman, was living in Leon Junction at that time. Tucker started from his home at Leon Junction, and returned back there at night. . That was the beginning and ending of his day’s work. We were returning to the Junction when the plaintiff got hurt. It was Some between half past 4 and 5 o’clock when the accident occurred. It was not quitting time. It was not 6 o’clock., It was not quitting time, and we had not quit. We were all still on duty; yes, right there at that place where the accident occurred. * * * The foreman had us put up the hand car on the track when we were working to run' up there. Yes; that was the usual and customary way which we did in the afternoons. After we unloaded the car, Ed [meaning plaintiff] and Cathey and Tucker used the car in going to their homes — in going to the Junction. The car was kept'over there all night, there at the Junction. I hardly ever went with these parties to the Junction.”

Mrs. Emma Adams, witness for plaintiffs, testified:

“I know Ed Blevins, one of the plaintiffs in this suit. I knew him the 7th day of June last year. I was living at that time at the section house; that is, the section house on the Cotton Belt Railroad; at the section house down by Leon Junction. I can tell how the boy got hurt. They came up to the section too] house and unloaded the tools. All of the section hands did that, and they left the hand car standing on the track, and they put all the tools off, and Ed went and sat down on the front end of the hand car, and Ben Cathey ran and closed the door, and went and jumped on the- car, and pulled the lever down. He had to operate the car to do that. The car was traveling backwards, I reckon. I would call it that way. It was going back towards the Junction. I know Mr. Tucker, the foreman of that crew. Tucker was living at the Junction at that time. It was customary for the hands to all come down to the tool house and leave the tools before they quit work. They would then go back to the Junction, to their homes, and stay all night. They did that all the time; that was their custom. The hand car was on the track that evening for that purpose of going back to the Junction. Ben Cathey was going from the tool house to the hand car when I first noticed him. The hand car at that time was standing still. Cathey pushed the back end of the car. I saw Ben get upon the car myself. I saw Ed Blevins at that time. He was still sitting on the end of the hand car.”

Ben Cathey, witness for plaintiffs, testified:

“I know Ed Blevins. I was with Ed at the time he got hurt on the railroad. I was working for the defendant railroad company at that time as a section hand. I had been working for the company at that time about five days. That was the first work I ever did on the railroad as a section hand. I was about 14 years old at that time. Ed Blevins and myself and George Adams and the foreman was working on that section at that place. I had no experience whatever as a section hand, except those five days.”

Redirect:

“Ed was on the end of the car towards the Junction. Ed and I had both gone to that car ready to start on to the Junction. We were going to the Junction. We both went to that car with the intention of going to the Junction just as soon as the foreman came on. We had not quit work that day. We were still' on duty when Ed got hurt. That was the purpose I got on that ear, to start to the Junction, and that is what I started it for, if I did start it.”

Counsel for appellant contend that at the time the plaintiff Ed Blevins was injured he and his negligent fellow servant, Cathey, were not engaged in operating the car, and in support of that contention they cite Railway v. Howard, 97 Tex. 513, 80 S. W. 229, and several other cases in line with the Howard Case. Howard was an engineer, and at the time he was injured was on his way and near to the engine for the purpose of taking charge of it, but he was not actually in charge or assisting in its operation at that time; and some of the other cases cited by appellant come within the doctrine of that case, which holds that Howard and his fellow servant were not engaged in operating the engine.

In Railway v. Walton, 47 Tex. Civ. App. 43, 104 S. W. 415, the plaintiff, Walton, was an engineer in charge of a switch engine. One Greer was the fireman, and they carried the engine to a water tank, for the purpose of taking water. It was noon, the hour when the switching crew usually took lunch, and some of them were so engaged. The fireman, however, proceeded to fill the tank with water, and the engineer got down from the engine and was engaged in oiling its various parts. While doing so the fireman returned from the tender to the cab and opened the blow-off cock to clean out the boiler, and as a result of so doing large jets of steam and hot water were thrown upon the engineer, and lie was thereby injured; and the Court of Civil Appeals for the First District, in a strong opinion by Chief Justice Gill, held that the injury was inflicted while the engineer and fireman were engaged in operating the engine within the purview of the statute referred to.

In Freeman v. Shaw, 126 S. W. 53, the plaintiff was engaged with others in distributing ties along the railway track. The ties were placed on a car which was pushed along the track by the plaintiff and the other workmen, and the ties pulled or thrown off where needed, without stopping the car, if possible. It was the duty of the plaintiff to assist in starting, stopping, and moving the car, as well as throwing off the ties. While he was moving a tie thrown off, a coemployé caused another to slide off, which injured him; and it was held by the Court of Civil Appeals for the Sixth District that the plaintiff and his coemployé were engaged in operating a car within the meaning of the statute. In that case Mr. Justice Devy in a luminous opinion reviews most, if not all, of the former cases construing the statute referred to, and says that, while former decisions have made the law seem clear, the difficulty has been in determining its application in certain instances ; and we concede that this case belongs in that difficult class.

We have a statute in this state which declares that the rule that statutes in derogation of the common law shall be strictly construed shall not prevail in this state, and that our statutory law shall be liberally construed for the puipose of accomplishing the object which the Legislature had in view. Keeping in mind that rule of construction, we think the Howard Case has construed the statute as strictly as any one has the right to demand, and we hold that this case does not fall within that class.

The court, in effect, instructed the jury that in order for the plaintiffs to recover the jury must find from the evidence, among other things, that on the occasion in question the plaintiff Ed Blevins had taken his position on the hand car to await the orders of his foreman, and with the intention of beginning his journey to the point from which the section hands in question began work, and to which they returned when their labors for the day were completed, and that while on the hand car his coemployé, Ben Cathey, without warning or notice to him, suddenly began to operate the hand car, thereby setting it in motion, etc. The court also instructed the jury that if they believed from the evidence that Ed Blevins was injured while he and Cathey, his coemployé, were playing and pranking with the hand car in question, without the knowledge and consent of their foreman, and out of the line of their duties and work as section hands, then to return a verdict for the defendant. Thus it will be seen that, in order to find a verdict for the plaintiffs, the court required the jury to find that the plaintiff and his coemployé, Cathey, were in fact engaged in operating the car within the line of their employment; and we are not prepared to say that the evidence did not justify the court in submitting that issue to the jury.

While in order to avoid the fellow servant doctrine, and bring a case within the purview of the statute, it is necessary that the injury should be inflicted while the two employés are engaged in operating a car or engine, the word “operating,” as used in the statute, should not be construed as requiring that the car or engine should be actually moving at the time, or that the injured employé should, at the particular time, be actively engaged in the performance of manual or other labor. As an illustration, it is the duty of the fireman, under the directions of the engineer, to supply the engine with sufficient fuel to maintain the necessary amount of steam; but, as a general rule, it does not require continuous physical exertion to perform that duty, and some, and perhaps much, of the time the fireman is sitting still and doing nothing. Still it would seem absurd to hold that he, as well as the engineer, are not throughout the entire trip engaged in operating the engine. Nor is it correct to say that employés are not engaged in operating an engine or car, if they are moving the same without a specific order from the employé under whom they are working. So we hold that if, on the occasion in question, the plaintiff Ed Blevins was on the car for the purpose of assisting in carrying it back to its proper destination, and if his coemployé, Ben Cathey, with or without the consent of the foreman, got on the car and put it in motion for the purpose of carrying it to such destination for appellant railway company, then they were each and both engaged in operating the car at that time. That the plaintiff Ed Blevins got on the car for the purpose referred to is clearly shown by his own testimony. On direct examination Ben Cathey said:

“We both went to that car with the intention of going to the Junction, just as soon as the foreman came on. We had not quit work that day; we were still on dtity when Ed got hurt. That was the purpose I got on that car, to start to the Junction, and that is whát I started it for, if I did start it.”

On cross-examination he stated that he did not mean to say that, if he started the car, he started it for the purpose of going to the Junction at that time, and said that if he started the car at that time it was not for the purpose of going to the Junction, but he was just “monkeying” or “fooling” with the car. The jury had the witness before them', and therefore .were better qualified than we are to determine which of his contradictory statements was correct. A hostile and untruthful witness may sometimes inadvertently tell the truth, and afterwards undertake to hedge against it by saying that he did not mean what he had said. We do not mean to say that the witness Ben Cathey belongs in that class, but he did state on direct examination that, if he started the car, he did so for the purpose of carrying it to the Junction; and although on cross-examination he made a different statement, the jury had the right, if they deemed it proper, to conclude that his former statement was true, and the latter was not true. Hence we hold that the trial court ruled correctly when it refused to direct a verdict for the defendant, and we also hold that there was testimony which supports the verdict of the jury.

As stated above, some other questions are presented in appellant’s brief, all of which have been considered, and are decided against appellant.

No reversible error has been shown, and therefore the judgment is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    WEST END DOCK v. STATE.
    (No. 5426.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 3, 1915.)
    1. Navigable Watees &wkey;>9 — Channel and Dock Companies — Geant oe Lands eeoh State — Natuee of Title.
    Under Rev. St. 1911, arts. 1249-1251, relating to the creation and powers of channel and dock companies, where defendant corporation was chartered to dredge a channel across Galveston Bay, it did not acquire the title to the property granted in its charter by making. a survey of the proposed channel and mapping its course, but merely acquired a special right. of user in such property on the implied condition that it be subjected to such use within a reasonable time.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 26-29; Dee. Dig. >&wkey;>9.]
    2. Navigable Watees &wkey;>9 — Channel and Dock Companies — Gbant of Lands — Necessity foe Usee.
    Under Rev. St. 1911, arts. 1249-1251, relating to the creation and powers of channel and dock companies, a quasi public corporation, organized to dredge a channel across Galveston Bay and given by charter certain rights of user in flats, etc., has no right to hold, such property indefinitely while remaining inactive.
    [Ed. Note. — Eor other cases, see Navigable Waters, Cent. Dig. §§ 28-29; Dec. Dig. <&wkey;>9.]
    3. Navigable Watees <&wkey;9 — Channel and Dock Companies — Public Geants — Effect of Nonuses.
    A quasi public corporation, organized to dredge a channel across Galveston Bay and given certain rights of user in flats, etc., by public grant in its charter, forfeits whatever rights thereto it may have acquired by its charter and survey of the proposed channel, if it neglects for an unreasonable period to dredge the channel; the state having the right to reassert its original claim to the subject-matter of the grant, which is subject to defeasance by implied condition subsequent — i. e., nonuser by the corporation.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 26-29; Dec. Dig. &wkey;>9.]
    4. Coepoeations <&wkey;596 — Channel and Dock Companies —Foefeituee of Chaetee foe Nonuseb— Statute.
    Under Rev. St. 1911, art. 1205, providing that, “where a corporation created under this title or a general law of this state shall fail to commence active operations within three years, its charter is hereby forfeited,” a quasi public corporation, organized to dredge a channel across Galveston Bay, that has received grants of public lands, has failed to exercise its corporate franchise, and has rendered future exercise impossible by a sale to railroads of its property in the granted lands, will forfeit its charter at the instance of the state.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2386, 2387; Dec. Dig. &wkey;596.]
    5. Appeal and Eeeoe <&wkey;548 — Review—Necessity foe Statement of Facts as Basis foe Review of Finding Below.
    ' In an action by the state against a quasi public corporation to oust it from its franchise for nonuser for an unreasonable time, in the absence of a statement of facts on appeal, the court cannot review a finding below as to the unreasonableness of the time for which the alleged nonuser was continued.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. i&wkey;>548.]
    6. Coepoeations <&wkey;596 — Channel and Dock Companies — Public Geants — Fobfeituees —Ceeditoes’ Rights.
    Where no showing is made upon its dissolution for nonuser of its franchise that there are debts owing by a quasi public corporation, organized to dredge a channel across Galveston Bay and granted public lands in its charter for that purpose, a judgment for the state for the land involved is proper.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2386, 2387; Dec. Dig. &wkey;596.}
    Appeal from District Court, Travis County; 'Chas. A. Wilcox, Judge.
    Action by the State against the West End Dock, a corporation. From a judgment forfeiting and canceling its charter, defendant appeals.
    Affirmed.
    G. E. Mann, of Galveston, for appellant. B. T. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., and Lewis Fisher, of Galveston, for the State.
   KEY, C. J.

The state of Texas, acting by its Attorney General, brought this suit against the West End Dock, a private corporation, and obtained a judgment forfeiting and canceling the charter of the defendant and awarding to the state certain land and premises described in the state’s petition, and the defendant has appealed.

There is no statement of facts, and the case is presented in this court on the trial judge’s findings of fact and conclusions of law, which are as follows:

“Findings of Fact.
“1. I find that the land involved in this suit is comprised of certain submerged flats or land covered by the shallow waters of Galveston Bay, situated on the north side of Galveston Island, and being particularly described in plaintiff’s petition, to which reference is here made.
“2. That on the 25th day of May, 1897, the defendant incorporated under chapter 16, title 25, under the corporate name of West End Dock, and was authorized by its charter to construct a channel from the deep water known as ‘Galveston Channel,’ in Galveston Bay, to the railroad bridge across Galveston Bay known as the ‘La Porte Bridge’; said charter providing that said, channel was to be not less than 150 feet in width and not less than 15 feet in depth. The southerly edge or bank of said channel was to begin at the northwest corner of the property of the Galveston Wharf Company.
“3. Soon after the incorporation of the defendant company its officers and agents were instrumental in having the United States harbor line changed from the point where it was located at the time defendant’s charter was issued to a point in said bay about 1,200 feet farther north.
“4. Soon after its incorporation the defendant caused a survey to be made of its proposed channel, which survey designated a channel,500 feet wide, with a right of way 700 feet wide on each side of said channel, said channel and right of way extending from the property of the Galveston Wharf Company on the east in a southwesterly direction over said submerged flats to the La Porte Bridge on the west, a distance of about 2% miles. Maps were caused to be made of said survey, which maps were filed in the office of the county clerk of Galveston county and with the Railroad Commission of Texas, and also in the state land office.
“5. Thereafter, during the years 1897 to 1899, the defendant corporation engaged in certain litigation with what was known as the Galveston City Company, which latter company owned certain lands adjoining the Galveston Wharf Company’s property, which litigation involved the north line of the said City Company’s property, and which north line conflicted with certain of the. territory embraced in the defendant company’s survey. In this litigation the defendant corporation incurred considerable expense. The litigation was terminated about the year 1S99. On the - day of -, 19 — , the defendant corporation donated to the Southern Pacific Railway all of that portion of the territory embraced within its charter and survey extending from its eastern limits in a westerly direction about three-quarters of a mile, and executed to said railway company a deed to such portion of the flats claimed ■ by the defendant company. The Southern Pacific Railway Company afterwards constructed docks and railway terminals on a portion of said property, over one-half of same, however, remaining undeveloped.”
“7. In May, 1905, the defendant corporation executed a deed to the Rock Island Company, conveying nearly one-half mile of its right of way as surveyed, beginning at the west line of the property theretofore conveyed to the Southern Pacific Railway Company and extending west. In consideration for said conveyance the Rock Island paid to the defendant the sum of $2,750 in cash, the same being the amount estimated to be necessary to cover the expense the defendant had incurred in making the survey of its route and in procuring its charter, in the litigation with the Galveston City Company, expenses in endeavoring to have the United States harbor line changed, and all other expenses and costs which had been incurred by the defendant up to that time. The Rock Island has not improved this property.
“8. On the 14th day of October, 1907, the defendant corporation entered into a contract with the Bowers Southern Dredging Company, whereby the said dredging company, in consideration of the use of the material to be taken from said channel, agreed to dredge the channel of the West End Dock to a depth of not less than 12 nor more than 25 feet below mean low tide, and a width not to exceed 500 feet. I. find that said dredging company had certain contracts which required that it procure material for filling in certain low lands along the shore, and that said contract was made principally in order to provide material for such purpose; it not being contemplated by the parties that a channel suitable for use should be made. Said dredging company did remove material from a small portion of said channel, but not to an extent sufficient to aid in the use of same for navigation.
“9. At the time of the incorporation of said company the channel constructed by the United States government, and known as the ‘Galveston channel,’ and which is used by vessels coming to and leaving the port of Galveston, had been constructed to a point near the east end of the survey made by the defendant company. Said deep water channel has been extended in a westerly direction north of the property owned by the Southern Pacific Railway Company to a point near an extension of the dividing line between said Southern Pacific property and the Rock Island property. It is also shown that it is contemplated by the United States government that said channel extend further west along the north boundary of the property owned by the Rock Island Railway Company. The property now claimed by the defendant company does not reach the Galveston channel, and if the Galveston channel is extended west as contemplated it could be reached by the defendant company only by changing the course of the channel as originally surveyed by it, so as to make same cui've in a northerly direction through the northeasterly portion of the property designated in defendant’s survey as its right of way.
“10. The property described in defendant’s charter and in its survey does not touch the shore line at any point. The defendant company does not own or control any land upon the shore, and it is contemplated by the defendant company that their docks shall be constructed on either side of its proposed channel on the 700 feet designated as right of way.
“11. The defendant corporation had done no dredging or work of construction of any kind on the property claimed by it, with the view of constructing channel or docks, with the exception of making the survey as above set out, and has no plans looking to a development of the property at any time in the immediate future.
“12. I find that the storm of 1900 interfered materially with the development of the city of Galveston for several years succeeding, and rendered it more difficult than would have been the case otherwise to organize and finance new commercial and business institutions. I further find that the city of Galveston is at present supplied with docks and wharves reasonably adequate for the present needs.
“13. The island of Galveston has a large frontage on natural deep water channel of Galveston Bay owned by Galveston Wharf Company and developed into docks. East of this the Gulf, Colorado & Santa Eé Railroad owns approximately 2,650 feet of frontage, one dock constructed, balance unimproved; and east of this the Galveston City Company owns approximately 2,200 feet of channel frontage, nine of which has been improved. On the other or north side of said natural channel, the city of Galveston owns Pelican Island and flats, with a considerable frontage on the said channel, and none of this has been made into docks.”
“14. The docks and wharves of the Galveston Wharf Company were greatly injured by the storm of 1900, but were thereafter reconstructed and enlarged. Since the date of the incorporation of the defendant company, wharves and docks have been constructed at Texas City, and at Bolivar, both on Galveston Bay and near the city of Galveston.
“15. The defendant corporation has not regularly held its directors’ meetings and stockholders’ meetings, sometimes two or three years elapsing between such meetings, the officers of said company have not been elected regularly, and no regular minutes have been kept. Said corporation has no real property and no personal property other than probably $-in cash, which represents the sum paid on its capital stock.
“16. I find that much more time has elapsed from the date of the incorporation- of the defendant company than was reasonably necessary in which' to construct and put in operation its channels and docks.
“Conclusions of Law.
“1. I conclude that under the facts stated the defendant corporation, by reason of its procuring a charter and making the survey as above set out, did not acquire a fee simple title in and to the property described in- said charter and embraced in said survey, but only acquired the right to use said property for channel and dock purposes, provided said property was subjected to such uses within a reasonable time.
“2. I conclude that such corporations have no legal right under our statute to impound and hold property suitable for the construction of channels and docks for an indefinite period, and until such time as the directors of such corporations may believe that the demands of commerce would justify the construction of such channels and docks.
“3. I further conclude that whatever right the defendant company may have acquired’ by reason of its incorporation and survey has been forfeited on account of .its failure to make use of said property within a reasonable time, and that the state is entitled to recover said property free from any and all claims of the defendant company.
“4. I further conclude that by reason of the fact that the defendant company has failed to make use of its corporate franchises, and has put itself in a position where it will be impossible for it to so use them in the future, its charter should be forfeited.
“C. A. Wilcox, District Judge.”

Opinion.

We approve and adopt the conclusions of law so tersely and accurately expressed by the learned trial judge. The ease involves the proper construction of chapter 16 of title 25 of the Revised Statutes, and especially article 1250, which chapter and article relate to the subject of channel and dock corporations. Articles 1249, 1250, and 1251 read as follows:

“Art. 1249. This chapter shall embrace and include the creation of private corporations for the purpose of constructing, owning and operating deep water channels from the waters of the Gulf of Mexico along- and across any of the bays on the coast of this state to the mainland, for the purposes of navigation and transportation, and for the construction, owning and operating docks on the coast of this state for the protection and accommodation of ships, boats and all kinds of vessels for navigation and their cargoes.
“Art. 1250. Every such channel corporation shall, in addition to the powers herein conferred, have power:
“1. To cause such examination and survey for its proposed channel to be made as may be necessary to the selection of the most advantageous route for such purpose, by its officers, agents or servants; to enter upon any of the waters of such bays and upon any of the lands of this state, or of any person.
“2. To take and hold such voluntary grant of real estate and other property as shall be made to it to aid in the construction and maintenance of its deep water channel and works pertinent thereto.
“3. To construct its channel across, along, through, or upon, any of the waters of the bays within the jurisdiction of this state, and so far into the mainland as may be necessary to reach a place for its docks that will afford security from cyclones, storms, swells and tidal waves, with such depth as may suit its convenience and the wants of navigation, not less than five feet and a width of not less than forty feet.
“4. To furnish to vessels and boats adapted to the purpose facilities for navigating in and along the entire length of its channel and to charge and collect a toll therefor, to be prescribed and established by its by-laws, not to exceed one cent per barrel bulk of the capacity of each vessel for each mile of the length of its channel used by the vessel going either way.
“5. To borrow such sums of money as may be necessary for constructing, finishing, br operating its channel, and to issue and dispose of its bonds for any amount so borrowed, and to mortgage its corporate property and franchises to secure the payment of any debt contracted for the purposes aforesaid: Provided, that damages for any property appropriated by such corporation shall be assessed and paid for as is provided for in case of railroads.
“6. To enter upon and condemn and appropriate any lands of any persons or corporation that may be necessary for the uses and purposes of such channel corporation; the damages for any property thus appropriated to be assessed and paid for in the same manner as provided by law in the case of railroads: Provided that no damages shall be assessed against or paid by it for any portion of the route of the channel embraced within and covered by the waters of any bay or lake on the coast of this state, nor for any portion of any island belonging to the state that may be requisite and necessary to the construction and successful operation of its channel ; and provided, further, that its right of way shall not be less .than the actual width of its channel, and not more than seven hundred feet in width on each side of its channel: Provided that when the land sought to be condemned under this chapter is arable land, such right of way shall not extend further than six hundred feet on each side of the channel from edge or boundary of said channel.
“7. To construct, own, and operate its channel so far into the waters of the Gulf of Mexico as may be necessary to obtain an adequate depth of water at its gulf entrance to facilitate the ingress and egress of such vessels as may navigate the same in so far as this state may have the power to grant such right, which shall be in subordination to that of the government of the United States, in so far as that government has the constitutional power to control the same.
“Art. 1251. Every such dock corporation shall, in addition to the powers heretofore conferred, have power:
“1. To purchase, take and hold such land or real estate as shall be necessary for the construction and operation of its docks, approaches, entrances, moorings and ways and the construction, use and enjoyment of such warehouses, stores and sheds as may be necessary to the receiving and discharging of freights, goods, wares and merchandise, and the proper protection and preservation thereof; provided, that no such dock corporation shall ever have the right or power to take or condemn to its use any private property without the free consent of the owner thereof, expressed by a sufficient deed in writing.
“2. To construct its dock or docks in such manner and ■ of such size and depth as it may deem meet and proper to suit the convenience of such vessels as may see fit to use and occupy the same, and to collect from the vessels using the same, or from their masters, owners or consignees, such sum or sums for the use thereof as may be authorized by its by-laws and agreed to by such masters, owners or consignees.
“3. To borrow such sums of money as may be necessary for constructing, completing or operating its dock or docks, and to issue and dispose of its bonds for such amount so borrowed, and to mortgage its corporate property and franchises to secure the payment of any debt contracted for the purposes aforesaid.”

It is contended on behalf of appellant that a proper construction of these articles should result in a holding that appellant had acquired a fee-simple title to the property in controversy, and therefore judgment should have been rendered against the state as to any right to recover the property. We are unable to give sanction to that contention, and concur with the trial court in holding that appellant never acquired a fee-simple title to the property, but only the right to use it for channel and dock purposes. We also-concur in the holding that the right of user for the latter purpose was not perpetual, and was lost by the failure to exercise it within a reasonable time. In determining the legislative intent and ascertaining whether or not that intent was to authorize a corporation or any one else to impound and hold property suitable for the construction of channels and docks for an indefinite and unreasonable period, the surrounding circumstances, as well as the language of the statute, should be considered. While channels and docks may be •constructed for private gain, when the Legislature deals, with that subject its motive should be (and in this instance no doubt was) the promotion of the public good; and therefore, unless the plain language of the statute admits of no other construction, it should not be so interpreted as to place it in the power of any one to prevent the construction of channels and docks, and thereby retard instead of promote the public interest. For instance, suppose there had been no channels and docks at the port of Galveston and appellant had acquired the same right that it has in this case to all the property suitable for the construction of channels and docks, and had then refused to construct any or to permit anyone else to do so. In such ease, if the statute is to be construed as conferring a fee-simple title it would result in placing it in the power of a single corporation to seriously handicap, if not entirely destroy, a seaport. There is nothing in the language of this statute requiring it, and therefore we decline to adopt such a construction. On the other hand, to construe the law as conferring only a right of user within a reasonable time results in no injustice to appellant, and, instead of impairing, it promotes, the public welfare.

It is also contended by appellant that the court erred in finding that it had failed to exercise its right of user for an unreasonable time; but, in the absence of a statement of facts, that contention cannot be sustained. Counsel for appellant refers to certain other findings of the court which it is claimed tend to furnish an excuse for not having heretofore constructed a channel or dock; but there may have been other testimony showing ample ability and willful-and capricious refusal to do so.

As to that portion of the judgment which forfeited appellant’s charter, it is sufficient to say that it was authorized by that portion of article 1205 of the Revised Statutes which reads:

“Where a corporation created under this title or a general law of this sj:ate shall fail to commence active operations within three years after filing its charter with the .secretary of - state, its charter is hereby forfeited, and the corporation is dissolved.”

We are of opinion that the facts found by the trial court show that appellant failed to commence active operations within three years after filing its charter, and therefore the state was entitled to a decree canceling the charter, although it may have been dissolved by force of the statute and without any judicial proceeding. Those things which the findings show appellant did within the time referred to fall short of being active operations in the construction of a channel or dock, and therefore they do not militate against the court’s finding of fact upon that subject.

As to the contention that the court should not have rendered judgment for the state for the land involved, but should have appointed a receiver to administer the property for the benefit of creditors, it is sufficient to say that it is not shown that the corporation owed any debts or that there was any necessity for taking action looking to the protection of creditors. Furthermore, creditors could have no greater right in the property than appellant had, and as it had by nonuser forfeited all of its rights to the property, its creditors, if any there be, have ño claims upon this property.

All the questions presented in appellant’s brief have been considered, and our conclhsion is that no ground for reversal is shown, and therefore the judgment is affirmed.

Affirmed.
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author: RICE, J.

text:
    WICKIZER v. WILLIAMS.
    (No. 5376.)

    (Court of Civil Appeals of Texas. Austin.
    Dec. 9, 1914.
    Rehearing Denied Feb. 3, 1915.)
    1. AnvEBSE Possession <&wkey;108 — Requisites— Masked Boundaries.
    Where plaintiff claimed 160 acres of land by adverse possession, it was not necessary that he prove he had ever marked and identified on the ground the specific 160 acres, but it was sufficient that he prove peaceable and adverse holding of a portion of the land in controversy including his improvements, and that he lived, cultivated, used, and enjoyed the same claiming adversely 160 acres including the improvements for 10 years prior to the filing of the suit, to constitute a compliance with the 10-year statute of limitations (Rev. St. 1911, arts. 5675, 5676).
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 624-628; Dec. Dig. <&wkey;> 108.]
    2. Adverse Possession <©=» 46— Elements — Continuous Possession.
    Where plaintiff’s possession of the land in controversy was continuous for more than the statutory period, except for a short time in the spring of 1904 when he was absent at work in a nearby sawmill, when his house was occupied by tie cutters with Ms consent for about _ two months, he haring returned to his home within two weeks after the tie cutters left and continued to remain there thereafter, his possession was continuous.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. &wkey;* 46.]
    3. Adverse Possession <&wkey;46 — Requisites— CONTINUOUSNES'S.
    Short breaks in the continuity of possession will not defeat the possessor’s adverse claim, where the absence is reasonable.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. <&wkey;> 46.]
    4. Adverse Possession &wkey;el09 — Requisites— Acknowledgment oe Tenancy.
    Where plaintiff claimed title to land in controversy by adverse possession, the court properly limited evidence of an alleged acknowledgment of tenancy by plaintiff after the completion of the bar of the statute to its effect on the question whether plaintiff’s prior possession was adverse, since such admission could not defeat a title already acquired.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 629-635; Dec. Dig. <§=> 109.]
    5. Parties <&wkey;96 — Joinder — Necessity — Attorneys — Interest in Result.
    Where, prior to instituting suit to try title to certain land which plaintiff claimed by adverse possession, he conveyed to his attorneys a part of the land, and the attorneys thereafter prosecuted the suit to a successful issue and asked an affirmance of the judgment on appeal, they were estopped to complain of the judgment, and hence the court did not err in refusing over their objection to make them parties.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 167-177; Dec. Dig. &wkey;96.]
    6. Jury &wkey;>45 — Competency op Juror — Conviction op Felony — Pardon.
    Where a juror had been convicted of a felony in a foreign state, but had been restored to citizenship by the grant of a full pardon, he was not disqualified under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5115, subd. 6, providing that no person who has been convicted of a felony shall be a qualified juror in Texas.
    [Ed. Note. — Eor other eases, see Jury, Cent. Dig. §§ 249, 251; Dee: Dig. &wkey;45.]
    Appeal from District Court, Montgomery County; L. B. Hightower, Judge.
    Trespass to try title by John Williams against T. C. Wickizer. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baldwin & Baldwin, of Houston, for appellant. A. L. Kayser, J. Llewellyn, and Wj N. Foster, all of Conroe, for appellee.

       writ of error pending in Supreme Court.

   RICE, J.

This is a suit in trespass to try title, brought by appellee against appellant to recover title and possession of 160 acres of land out of the P. Hunter survey in Montgomery county, based upon the 10-year statute of limitation. Appellant answered by plea of not guilty, and also asserted that ap-pellee was his tenant, which fact was denied by appellee. A jury trial resulted in a verdict and judgment in behalf of appellee, from which this "appeal is prosecuted.

It is contended by the first and second assignments of error on the part of appellant that the court erred in refusing to give a special charge directing a verdict in his favor, on the ground of the insufficiency of the evidence to warrant a judgment for appellee. Appellee objects to the consideration of these assignments for the reason that the refusal to give such charge was not excepted to at the time of the trial, as required by the Acts of the 33d Legislature, pp. 113, 114, for which reason we think we might refuse to consider said assignments. Waiving this, however, we hold that said charge was properly refused because, in our judgment, the evidence was sufficient as to each of the issues raised to require the submission of the case to the jury. Wherefore said assignments are overruled.

We do not think there was any error in giving the charge complained of in the third assignment, because, under it, it was not necessary, in order for plaintiff to recover, to show that he had ever marked and identified upon the ground any specific 160 acres. It was only necessary to show that he had held peaceable and adverse possession of a portion of the land in controversy, including his improvements upon which he lived, cultivating, using, and enjoying the same,- claiming adversely 160 acres thereof, including his said improvements, for a period of 10 years prior to the filing of this suit, which is in accordance with the requirements of the 10-year statute of limitations. See articles 5675, 5676, R. S. 1911; Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; Id., 142 S. W. 990; Louisiana-Texas Lumber Co. v. Stewart, 130 S. W. 199; Ball v. Filba, 153 S. W. 685; Bering v. Ashley, 30 S. W. 838.

It is urged by one of the propositions under this assignment that possession was not continuous. With reference to this, it appears that appellee and his wife went upon the land in controversy in 1897, erected a small cabin thereon, in which they lived, and thereafter put a few acres in cultivation, which was increased from time to time. They continued in possession of the land, using and cultivating the same by themselves or through their tenants, year by year, until a short time before the filing of this suit, which was on the 30th of September, 1912, with the possible exception of a short period in the spring of 1904, when it seems that the appellee was absent from home at work at a nearby sawmill, when his house was occupied by some tie cutters, with his consent, for some two months; but within two weeks after they left he returned to his home, where he continued to live until 1912, as above stated. It has been held by our courts that short breaks in the continuity of possession will not defeat one’s claim under our statute of limitations, where the same is shown to be reasonable. See Dunn v. Taylor, 102 Tex. 85, 113 S. W. 265 et seq. This assignment is therefore overruled.

By the first proposition under the fourth assignment, it is complained that, in submitting the case to the jury, the court instructed them that a verdict might be returned for plaintiff, without requiring the jury to believe that the possession was continuous for a period of 10 years. This objection is not tenable, because, taking the charge as a whole, it does require the jury to believe that the possession must have been continuous for a period of 10 years before they could find for appellee. And, further, taken as a whole, the charge did not authorize a verdict for the appellee, as contended by appellant, without reference to what might be the finding of the jury as to his occupying the land as appellant’s tenant, because the court did, at the instance of appellant, instruct the jury that, if he (appellee) had occupied the land as the tenant of appellant, then they should find for appellant.

Appellee requested, and the court gave, the following charge:

“You are further charged in this case that if you believe from the evidence that plaintiff had possession of the land and occupied the land in question, cultivating, using, and enjoying the same by himself and tenants for 10 consecutive years prior to the filing of this suit, but you should further believe that thereafter the plaintiff acknowledged himself to be the tenant of the defendant, either in writing or verbally, you will only consider such acknowledgment of tenancy, if any, as bearing upon the nature of plaintiff’s prior possession; that is, whether the same was adverse to defendant or not.”

This furnishes the basis for the fifth assignment. This charge, we think, was proper, because if an acknowledgment of tenancy is made after the completion of the bar of the statute, as appears from the evidence here, then the court should, we think, limit the effect of such acknowledgment to the question of the character of such prior possession; that is to say, as to whether the same was adverse or not. Such admission could not defeat a title already acquired. See Barrett v. McKinney, 93 S. W. 240; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 511; Williams v. City of Galveston, 58 S. W. 552; Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104; Thayer v. Clark, 47 Tex. Civ. App. 61, 104 S. W. 196.

Prior to the institution of this suit, ap-pellee employed Llewellyn & Poster, a firm of attorneys, to bring the suit for him, and, in consideration of such services, conveyed to them a part of the land in controversy. They were not made parties to this litigation, for which reason it is urged by appellant that the court erred in rendering judgment for the appellee, and in failing to grant a new trial on the ground that they were not made parties. These attorneys prosecuted this suit in the lower court and likewise represent appellee here, and ask an affirmance of the judgment, for which reason we think they could not be heard to complain of it. They are so connected with the suit as to be bound by the judgment. In Bonner v. Green, 6 Tex. Civ. App. 96, 24 S. W. 835, involving a similar question, where an attorney, who had been employed to bring suit for a party against a railway company for personal injuries, was shown to have been entitled to a portion of the recovery for his services, it was held that it was not necessary to make him a party; and in discussing this matter Mr. Justice Key said:

“As attorney for the plaintiff he brought the suit, presented the exceptions to the plea in abatement, prosecuted 'and recovered in the plaintiff’s name on the entire cause of action, and appears for him in this court, and asks that the judgment be affirmed. We think this is equivalent to formal consent that the 'entire cause of action should be litigated in the plaintiff’s name. As a general rule, an attorney is not bound by a judgment rendered for or against his client. But when it is suggested, in the proper manner, that he has an interest in the cause of action, and ought to be made a party, and the attorney, although claiming to act for his client, objects to the course being taken which would result in his becoming a formal party, and urges the court to proceed and try the case as it stands, then, when the court- proceeds as he requests, and litigates the entire cause of action, he ought to be held as individually consenting that the judgment shall determine his rights as well as those of his client.”

See, also, 2 Black on Judg. §§ 539-541; Bomar v. Ft. Worth Bldg. Ass’n, 20 Tex. Civ. App. 603, 49 S. W. 914.

After the trial it was discovered that Ferguson, one of the jurors, had been convicted in the state of Mississippi of a felony, for which reason it is urged that the court, erred in failing to grant appellant’s motion for a new trial based on the incompetency of this juror. No person who has been convicted of a felony is a qualified juror in this state. See Vernon’s Sayles’ Civ. Stat. art. 5115, subd. 6. It appears from the testimony that Ferguson had been pardoned and his citizenship fully restored many years prior to his service as juror. It seems that a conviction of a felony in one state will not bar the right of a witness to testify in the courts of another. Mr. Greenleaf, in this connection, says:

“Accordingly, it has been held, upon great consideration, that a conviction and sentence for a felony in one of the United States did not render the party incompetent as a witness in the courts of another state, though it might be shown in diminution of the credit due to this testimony.” 1 Greenl. (15th Ed.) § 376. Nor will it render a juror incompetent unless the statute so provides.

In 24 Oyc. subd. 6, p. 198, discussing this question, it is said:

“At common law a conviction of a felony was a disqualification to serve as a juror, and under the statute in some jurisdictions a juror is disqualified if he has been convicted of certain crimes, is at the time under indictment, or has within a certain time been indicted of an offense of the same character as that charged against the accused. The disqualification applies, although the conviction was prior to the enactment of the provisions making it a disqualification. But, unless the statute so provides, a conviction in one state does not disqualify a person to serve as a juror in another” — citing Queenan v. Territory, 11 Okl. -261, 71 Pac. 218, 61 L. R. A. 824.

Continuing, it is said:

“An absolute pardon removes the disqualification to act as a juror imposed by the statutes providing that persons convicted of certain crimes shall be disqualified.”

In support of the text, we find cited Easterwood v. State, 34 Tex. Cr. R. 400, 31 S. W. 294; U. S. v. Bassett, 5 Utah, 131, 13 Pac. 237; Puryear v. Commonwealth, 83 Va. 51, 1 S. E. 512.

The exact question here presented was raised and determined adversely to appellant’s contention in the case of Easterwood v. State, supra, wherein it was held that an absolute pardon removes disability and entitles the party to serve as a juror in this, state. Believing that the juror was competent by reason of the pardon which restored his citizenship, we overrule this contention.

We have fully considered the remaining assignments and regard them without merit.

Finding no reversible error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.
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