author: CRITZ, J. CURETON, C. J.

text:
    LEONARD v. SPEER et al.
    No. 1622-6187
    Commission of Appeals of Texas, Section A.
    Feb. 1, 1933.
    J. S. Braeewell, of Houston, for plaintiff in error.
    A. T. McKinney, M. E. Gates, and McKinney & Henson, all of Huntsville, for defendants in error.
   CRITZ, J.

N. L. Speer, the then sheriff of Walker county, Tex., was tried and convicted of a felony in the district court of Travis county, Tex. The judgment of conviction was entered on February 12, 1932. This judgment, among other things, provided that in obedience to article 5968, R. C. S. of Texas, 1925, the said N. L. Speer was removed from officei as such sheriff.

Immediately after the entry of the above judgment and on the same day N. L. Speer filed and presented his motion for a new trial, which was then considered by the court and overruled. N. L. Speer duly excepted to the action of the court in overruling his motion for a new trial, and gave notice of appeal to the Court of Criminal Appeals of Texas.

The order of the district court of Travis county overruling N. L. Speer’s motion for a new trial recites that it was duly excepted to and notice of appeal given. This last mentioned order, after reciting the above facts, also orders that N. L. Speer is suspended from ofiiee pending his appeal. As we understand the record all of these events-occurred on the same day, February 12, 1932.

On the next day, February 13, 1932, after the above events had transpired in the district court of Travis county, Tex., and after N. L. Speer had been suspended from office by the judgment above mentioned, and while such judgment was in full force and effect, N. L. Speer tendered to the commissioners’ court of Walker county, Tex., his resignation in writing. On the' same day such commissioners’ court entered an order on its minutes accepting the resignation, and thereafter immediately entered an order appointing Mrs. Lela May Speer, wife of N. L. Speer, as sheriff of Walker county to fill out the unexpired term of her husband.

Immediately after her appointment Mrs. Speer attempted to qualify by giving the bond and taking the oath required by law. Also Mrs. Speer has applied to the secretary of state for a certificate-of election or appointment which has not been issued to her.

After the happening of the above events, and on the 17th day of February, 1932, the district court of Travis county, Tex., the court in which the conviction of N. L. Speer had theretofore been had on February 12, 1932, entered an order in which it is recited that N. L. Speer had been suspended as sheriff of Walker county, Tex., on February 12, 1932. This order then proceeds to appoint L. L. Leonard to perform the duties of sheriff of Walker county, Tex., pending the appeal of N. L. Speer.

After his appointment by the district court of Travis county, Leonard did what was necessary to comply with the law and claim the office of sheriff. In this connection we presume from the record that he asserted his rights in such a way as to interfere with Mrs. Speer.

On February 26, 1932, after a hearing, .the district court of Walker county, Tex., entered an order which we construe as a temporary injunction restraining Leonard from performing or attempting to perform any of the duties of sheriff of Walker county, Tex., and from molesting or attempting to molest Mrs. Speer in the discharge of such duties until the further orders of that court.

On appeal by Leonard the above judgment was affirmed by the Court of Civil Appeals. 48 S.W.(2d) 474. Leonard prosecuted writ of error to the Supreme Court, which was granted.

The statement we have made demonstrates that the term of the office in dispute here expired on January 1, 1933. Article 17, R. C. S. of Texas, 1925. It follows that the subject-matter of this litigation has ceased to exist. The case is therefore now moot. Robinson v. State, 87 Tex. 562, 29 S. W. 649. An appeal will not be entertained merely to adjudicate the costs. Id. It follows that the writ of error heretofore'granted in this cause should be dismissed. Id.

We recommend that the writ of error be dismissed.

CURETON, C. J.

Writ of error dismissed, as recommended by the commission.


source: Caselaw Access Project

author: SHORT, P. J. CURETON, C. J.

license: Public Domain

text:
    WOOD et al. v. CONTINENTAL SAV. & BLDG. ASS’N.
    No. 1350-5904.
    Commission of Appeals of Texas, Section B.
    Feb. 1, 1933.
    Edward J. Hamner and P. Edward Ponder, both of Sweetwater, for plaintiffs in error.
    W. H. Elippen and John T. Gano, both of Dallas, and Douthit, Mays & Perkins, of Sweetwater, for defendant in error.
   SHORT, P. J.

The plaintiffs in error in this case were the original plaintiffs in the district court. They brought an action of debt against the defendant in error under article 5073, R. S. 1925, to recover double the amount of interest paid to defendant in error by plaintiffs in error on a loan, because the contract, as alleged, was usurious. Judgment was rendered in the district court of Nolan county declaring the contract to be usurious, and the amount of this judgment was in accordance with this declaration. On appeal to the Court of Civil Appeals of the Eleventh district, that court reversed the judgment of the district court, and rendered judgment in favor of the defendant in error. An application for a writ of error was duly filed in the Supreme Court, which was granted because of the conflicts alleged therein. 33 S.W.(2d) 770, 772. The following statement of the case is taken from the application:

“Plaintiffs in error applied to R. W. Thompson to procure a loan to pay for erecting a brick building on a lot owned by plaintiffs in error, giving the property as security for the loan. R. W. Thompson was the agent of defendant in error. On examination of title and desirability of the loan, defendant, through its vice-president, notified plaintiffs in error, giving the number of the loan, and that payments on their real estate loan were due and payable on the 5th of the month of $94.S0 each, and directions would be made in the pass book issued to remit to the association direct or to Kendrick-Thompson Agency, its regular appointed collector. The plaintiff in error, who consummated the loan, signed the application, notes and deed of trust, etc., without reading same, depending -on the reliability of Mr. Thompson, and believing that he was simply borrowing $6,000.00, payable in monthly interest installments of $94.80, each, and did not intend to subscribe to any stock, or purchase any stock, and did not know he had done so, and no stock' was ever issued to him, and he was never notified of any stockholder’s meeting, nor never paid any dividends on his stock, though small amounts were credited on his account, of which he knew nothing. After twenty-two months, plaintiffs in error gave the required notice and paid up said loan. The court found that plaintiffs in error paid as interest on this loan of $6,000.00, from July 1926, to February 19, 1928, twenty payments of $94.S0 each, a total of $1,896.00; that on April 9, 1928, they paid additional amount of $135.38, and additional $6.00 on the draft drawn as interest, for delay in not paying same promptly — a total interest payment of $2,037.38. The draft drawn from the balance' due was $5,512.70, which credited as the interest payments $487.30 on the $6,000.00 loan. Deducting this credit of the interest payments from the loan, left a balance due of the amount of the draft and made a payment of $1,550.08 as interest paid on the $6,000.00 loan for twenty-two months. Whereas, full ten per cent interest from June 5, 1926, to April 9, 1928, on the entire loan, was only $1,106.66, which was $443.42, in excess of legal interest. The defendant in error applied $135.00 on this amount to the payment of the commission to their agent Thompson and $135.00 to the President for the expense of handling the loan, which they denominated membership dues. ...
“The District Judge held that the transaction was a device and scheme to cover up usury and that the entire transaction was one transaction.
“The contract provided that if the payments were not made monthly, additional interest at ten per cent wonld be charged on them for the time deferred and it also provided that if the taxes were not paid and the property was not kept insured that the loan company could pay same and plaintiffs in error would have to pay a fine of one per cent per month on these amounts, which amounts shall become a part of the debt secured and which additional debt would bear interest at ten per cent per annum until paid. Plaintiff in error Wood was told by Thompson that there would be no brokerage on the. loan, but the defendant in' error would pay him his fees. Nothing was ever said to plaintiffs in error about deducting these fees ox-membership dues from, his interest payments.”

The plaintiffs in error, among other things, claim that the judgment of the Court of Civil Appeals in this case is in conflict with the decision of the Supreme Court in the case of Shropshire v. Commerce Credit Co., 120 Tex. 400, 30 S.W.(2d) 282, 283, 39 S.W.(2d) 11; Dealing Investment Co. v. Giddens, 120 Tex. 9, 30 S.W.(2d) 287; Galveston & H. Investment Company v. Grymes, 94 Tex. 613, 63 S. W. 860, 64 S. W. 778; International Bldg. & Doan Association v. Beiring, 86 Tex. 476, 25 S. W. 622, 26 S. W. 39; Abbott v. Loan Association, 86 Tex. 467, 25 S. W. 620; Jackson v. Cassidy, 68 Tex. 287,4 S. W. 541; El Paso Building & Loan Association v. Lane, 81 Tex. 369, 17 S. W. 77, and Bexar Bldg. & Loan Association v. Robinson, 78 Tex. 163, 14 S. W. 227, 9 L. R. A. 292, 22 Am. St. Rep. 36, and from the opinion of the Commission of Appeals, adopted by the Supreme Court, in the case of McDaniel v. Orr, 30 S.W.(2d) 489.

The theory of the plaintiffs in error, upon which they base their right to recover the amount they did in the district court, is to the effect that they merely borrowed from the defendant in error $6,000, and that the defendant in error charged them more than 10 per cent, per annum interest from the time they received the money until they paid it back, in consequence of which the defendant in error became liable to pay .them double the amount of the interest collected. R. S. 1925, arts. 5069-5073, The findings of fact by the trial judge tend to support this theory. The Court of Civil Appeals did not controvert the findings of fact by the trial judge, but construed article 5069, R. S. 1925, in such a way that under the contract made between the parties, and the undisputed facts, the amounts chai-ged by the defendant in error did not exceed 10 per cent, interest per annum. In that article “interest” is defined as “the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.”

An inspection of the statement of facts in this case demonstrates the fact to be that, while the plaintiffs in error paid $94.80 each month to the defendant in error, only $49.80 of said amount was collected as interest, the remaining $45 collected being credited as part payment on 90 shares of stock which the plaintiffs in error agreed to buy at the time they agreed to accept the loan of the money, except thé first six payments were applied as hereafter stated. The Court of Civil Appeals, among other things, said: “It is undisputed that no part of the first six monthly payments was applied as dues upon the stock subscription; $49.80 of each installment was applied as interest, leaving a balance on each of $45. This amount of $45 was by the association deducted from each of the first three 'payments, and was paid by it through its general manager to Ivendrick-Thompson Agency as a commission or brokerage fee for negotiating the loan, making the amount paid said agency for its services $135. A like amount was paid from the next three monthly installments as membership fees.” After making this statement of fact, the Court of Civil Appeals, in its opinion, then proceeds to state the following: “Only two questions of law are thus presented: First, shall the sum - of $135 paid to Kendrick-Thompson Agency be excluded in determining the amount of interest paid? And, second, shall the amount of $135 paid as membership fees be likewise. excluded?” The Court of Civil Appeals then proceeds to demonstrate that under the definition of interest, as defined in article 5069, according to the undisputed facts, neither of these sums could be included as interest, and that under the undisputed facts the defendant in error did not collect from the plaintiffs in error, as interest, an amount in excess of 10 per cent, per annum. We have carefully examined the opinions in the cases cited in the application, wherein it is alleged that the opinion of the Court of Civil Appeals i in this case is in conflict, and we have reached the conclusion that no such conflict exists. Furthermore, we have reached the conclusion that the opinion of the Court of Civil Appeals in this case is correct, and that the plaintiffs in error were not entitled to recover from the defendant in error any sum of money paid by them to the defendant in error, as interest, because of the claim that the demand was usurious. We accordingly think all the assignments of error should be overruled.

An inspection of the second amended petition of the plaintiffs in error shows that they do not assail the integrity of the written instrument executed by the plaintiffs in error, by the terms of which the defendant in error loaned the plaintiffs in error $6,000, and the latter purchased from the former 90 shares of stock in the association, and agreed to pay certain membership fees, as well as to make certain payments of stock monthly, and also to make certain payments monthly on the loan. The contract was signed voluntarily by one of the plaintiffs in error, acting for both, and he gave no excuse for not reading it. Neither does he say he executed it by mistake or accident, or that he was led to execute it by some false representations made by some one upon whom he had a right to rely. In other words, there is no allegation in the plaintiffs’ petition that the contract was executed through fraud, accident, or mistake. An inspection of the statement of facts shows that the contract was the usual one contemplated to be made by virtue of the provisions of title 24, articles 852-881, R. S. 1925, authorizing the organization and operation of building and loan associations. It may be that in fact this particular transaction was usurious, but the record in this case shows that it was not. It is true that the testimony of the plaintiffs in error, considered alone and assumed to be true, demonstrates beyond the peradventure of a doubt that they did not intend to purchase any stock in this association, and that they did not intend to pay any commission fees, and that they did not intend to become obligated to pay any membership fees in the association, and also that they did not agree to pay any broker’s fee, but, when we examine their pleadings, we find’no basis upon which to rest this testimony. They merely allege that the scheme by which the defendant in error was enabled to collect the amount of money it did collect from them was a device to charge usurious interest. But the testimony shows that this scheme was one expressly authorized by the statutes of the state, and therefore could not legally have been a usurious one, in the absence of allegations and proof to the effect that by some fraudulent act on the part of defendant in error, or its authorized agent, or some accident or mistake on the part of the plaintiffs in error, who executed the instrument, the execution of the same was procured to the detriment of the person executing it, so as to render the act, apparently legal, an illegal one.

According to the undisputed facts of this case, the plaintiffs in error occupied the dual relation to the defendant in error, of a shareholder, and a borrower, and, according to the law governing building and loan associations, a person could be either one or both, that is to say, a person could be merely an owner of shares in the association, or he could be an owner of shares and also a borrower of money. In the latter event, the person so owning the shares, and so borrowing the money, occupied two positions: One, the position of an owner of shares of stock in the association, and the other a borrower of funds from the association, which belonged to it. It appears from the record in this case that according to the by-laws of the as-. sociation, which the plaintiffs in error agreed to be bound by, no person borrowing money from the association could do so without becoming the owner of shares of stock to be paid for in the future, and also by becoming liable to pay certain membership fees. Where a person contracts to borrow money from a building and loan association, and at the same time agrees to purchase certain shares of stock, at certain prices, to be handled by the lender, until the money borrowed has been repaid, it cannot be said that the building and loan association, in agreeing to loan the money, and to sell the shares of stock, violates any law, and especially the law relating to usurious interest. The two items, that is to say, the monthly installment of interest, and the monthly payment upon the amount due for the shares of stock, are separate and distinct ones, and the transaction is one directly authorized by the law governing building and loan associations. Articles 852-881, R. S. 192a, and amendments thereto (Vernon’s Ann. Civ. St. art. 881a— 1 et seq.).

In Prudential Building & Loan Association v. Shaw, 119 Tex. 228, 26 S.W.(2d) 168, 27 S.W.(2d) 157, which was a mandamus case, wherein the opinion of Section A of the Commission of Appeals was adopted and the mandamus awarded by the Supreme Court, Judge Oritz, speaking for that section of the Commission, in paragraph 10, pages 172 and 173 of 26 S.W.(2d), 119 Tex. 228, discusses the application of the law x'elating to building and loan associations to borrowing and nonborrowing shareholders, and in speaking of the latter he said in that case: “The general rule is that a borrowing shareholder occupies a dual relationship to the association. ‘As a stockholder he is a member of, and, in theory at least, participates in the management of the corporation. In that capacity he shares in the expenses of the business, the losses, and profits, just as would a stockholder of any other corporation.’ ”

In supporting this declaration, Judge Oritz cites the following authorities:

“Groover v. Pacific Coast Savings Soc., 164 Cal. 67, 127 P. 495, Ann. Cas. 1914B, 1261, 43 L. R. A. (N. S.) 874, and notes; Smith v. Bath Loan & Building Association, 126 Me. 59, 136 A. 284, 50 A. L. R. 526, and annotations 533 et seq. * * *
“Price v. Kendall, 14 Tex. Civ. App. 26, 36 S. W. 810, 811 (Writ Ref.); Leary v. People’s Building, Loan & Savings Ass’n, 93 Tex. 1, 49 S. W. 632, 51 S. W. 836; Interstate, etc., v. Goforth, 94 Tex. 259, 59 S. W. 871, 874; Building & Loan Ass’n v. Logan, 33 S. W. 1088, 1090 (Tex. Civ. App. Writ Ref.); Sweeney v. El Paso, etc., 26 S. W. 290 (Tex. Civ. App. Writ Ref.); Blakeley v. El Paso, etc., 26 S. W. 292 (Tex. Civ. App. Writ Ref.); Pioneer Building, etc., v. Everheart, 18 Tex. Civ. App. 192, 44 S. W. 885 (Tex. Civ. App. Writ Ref.); Building & Loan Association v. Griffin, 90 Tex. 480, 39 S. W. 656.
“In the Price Case, supra, it is shown that the stockholder borrowed money from the association. In the same transaction .he also bought stock, paying therefor in installments. It was contemplated that when the stock by payments and dividends reached its par value it- would be applied to the payment and liquidation of the loan. Payments were regularly made and applied first to the interest on the loan and the balance on the purchase price of the stock. Before maturity the association became insolvent and its affairs were placed in the hands of a receiver. The borrowing shareholder then demanded that the amount of his payment theretofore applied to dues upon his stock be credited on the principal of his loan. We quote the following from the opinion of Judge Garrett from the Court of Civil Appeals in passing upon the case: ‘Should the payments of dues or assessments made upon the shares of stock be regarded as payments in extinguishment of the debt? Some time before payments of dues upon the shares belonging to Sawyers ceased, it was discovered that the stock of the association, by reason of losses, was not worth the amount of dues that had been paid thereon, and in a sense the association had become insolvent, since it was not able to redeem its shares at the cancellation price, or by a return of all dues paid thereon. In winding up the affairs of the association the nonborrowing shareholders must perforce accept a pro rata distribution of the assets of the corporation upon their ■shares, whether they are sufficient to return all dues or not; and, unless the dues of borrowing shareholders are to be treated as payments upon their obligations, there can be no reason why they should not share the losses of the association equally with the other shareholders. By the plan of the association, the borrowing member receives the pax-value of his stock in advance, and obligates himself to mature it by the payment of assessments, and when it becomes mature, if his obligation has not been sooner discharged, his stock is then canceled and his obligation discharged; but the stock never becomes matured until it is worth par value. Thus it will be seen that there is a plain distinction between the stock and the debt. The language of Judge Henry in the case of Association v. Abbott, 85 Tex. 224, 20 S. W. 118, regarding the payment of dues, although in discussion of the question of usury, is appropriate here: “Such payments are not for the use of borrowed money, but through them the shareholder acquires an interest in the property of the corporation. The shareholder is not necessarily also a. borrower. If he is not one, he pays for his stock on the same terms that the borrowing 'Stockholder does. There is no inconsistency in the double relation. If not also a borrower, the retiring stockholder withdraws the value of his stock. If he is also a borrower, he uses it to pay his debt with.” There' is no reason why the borrowing stockholder should be placed in any better attitude than those who are not, when the association has failed to carry out its undertaking, and ceased efforts to mature the stock. The default of the association is the default of all of the shareholders, whether they be borrowers or nonborrowers, and all losses that impair the value of the stock should be applied equally to every share. McGrath v. Association, 44 Pa. 3S3; Strohen v. Association, 115 Pa. 273, 8 A. 843; Towle v. Society (C. C.) 61 E. 446; Rogers v. Hargo, 92 Tenn. 35, 20 S. W. 430. There is authority for the opposite doeti-ine, but the weight of authority as well as of reason is with the cases above cited and others in line therewith. Authority contra: Buist v. Bryan, 44 S. C. 121, 21 S. E. 537 (29 L. R. A. 127, 51 Am. St. Rep. 7S7).’
“In the Leary Case, supra, the Supreme Court, speaking through Judge Brown, held that the association was entitled to collect its debts from a borrowing stockholder, less the actual value (italics ours) of the stock at the time of sale under a deed of trust. These words are very significant, as Judge Brown clearly intended thereby to say that a borrowing shai'ebolder was only entitled, under the facts of that case, to credit on the loan to the extent of the actual value of the stock. Thei-e are other questions decided in the Leary Case which are not pertinent here.
“The Goforth Case, supra, is not directly in point, but we cite it for the reason that we think the opinion recognizes the dual relation of a bori-owing shareholder. This is shown by the statement in the opinion that, ‘The payments monthly of premiums upon the shares of stock, amounting to $5.04 on each share per month, did not, under the terms of the contract, constitute a present payment on the debt,’ etc.
“The Logan Case also is not dii-ectly in point. We cite it also to show that it recognizes the dual relation of a borrowing shareholder. In this opinion it is stated: ‘That he wanted a loan, and took the stock in order to get the loan, would make no difference in the fact that he became a stockholder, and assumed the obligations of such.’
“We think that the Sweeney, Blakeley, Evei--heart, and Griffin Cases, supra, all show that our courts have recognized the dual relationship of a boiTowing shareholder in a building and loan association.”

To the same effect is the opinion in the case of Cocke and wife v. Wright, 39 S.W.(2d) 590, wherein the writer, as a member of Section B of the Commission of Appeals, lays down the same doctrine, that a borrowing member of a building and loan association occupies the dual relation thereto, but that the teiuns of the contract by which a person becomes a borrower is wholly distinct and separate from the terms of the contract by which a borrower aiso becomes a purchaser of shares of stock of the association. The doctrine, which is known as the Pennsylvania doctrine, discussed in Prudential Building & Loan Association v. Shaw, supra, is announced in Strohen v. Eranklin Savings Fund & Loan Association, 115 Pa. 273, 8 A. 843, 844, wherein the dual relationship of a borrowing- member of an association is recognized by the use of the following language: “The insolvency of the company, as before observed, puts an end to its operation as a building association. To a certain extent it also ends the contract between it and its members respectively, and nothing remains but to wind it up in such a manner as to do equity to creditors and between the members themselves. As regards the latter, care should be taken to adjust the burdens equally, and not to throw upon either borrower or non-borrowers more than their respective share. That result may be reached by requiring the borrower to repay what he actually received, with interest. He would then be entitled, after the debts * * * áre paid, to a pro rata dividend with the non-borrower for what he had paid upon his stock [or contracts]. He will thus be obligad to bear his proper share of the losses. To allow him to credit upon his mortgage his payments on his stock would enable him to escape responsibility for his share of the losses, and throw them wholly upon the non-borrowers. In other words, the borrower would escape without loss. It will not do to administer the affairs of an insolvent corporation in this manner.”

It is true that this langüage is not directly applicable to the facts of this case, but we quote it for the purpose of showing that a contract to borrow from a building and loan ■ association is one thing and the contract to purchase shares of stock from the association is another. The opinion of the Court of Civil Appeals in this case is based, in part, upon the construction of the word “contract” as used in article 5069, R. S. 1925, and its findings of fact, which are uncontroverted, to the effect that under the terms of the contract, as made by the parties, there was no agreement on the part of the plaintiffs in error to pay more than 10 per cent, “for the use or forbearance or detention of money,” and, as the suit of the plaintiffs in error was exclusively based upon a claim that this contract obligated the plaintiffs in error to pay more than 10 per cent, per annum as interest upon the money borrowed, it could not be sustained. Though the Court of Civil Appeals held correctly that the judgment rendered in the lower court, in favor of the plaintiffs in error, should be reversed, and as the testimony under the pleadings was un-contradicted, that no more than 10 per cent, was charged as interest, it also correctly held that judgment should be rendered for the defendant in error.

We therefore recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.


author: LATTIMORE, J.

text:
    PIPPINS v. STATE.
    No. 15518.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    De Witt Bowmer, of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for arson; punishment, two years in the penitentiary.

Neither statement of facts nor bills of exception are to be found in this record. An effort was made to obtain a new trial based on misconduct of the jury, and on the claim that they were permitted to separate during the trial. We note in tne order overruling the motion for new trial that it is recited that evidence was heard on the motion, and that the court, after having heard the evidence, overruled the motion. In the absence of any statement of facts, or bill of exception presenting the testimony heard by the court in connection with the motion for new trial, we must give effect to the presumption that the action of the court was supported and sustained by the evidence heard. Moore v. State (Tex. Cr. App.) 51 S.W.(2d) 583; 584; Aston v. State (Tex. Cr. App.) 48 S.W.(2d) 292, 295.

Finding no error in the record, the judgment will be affirmed.


author: CHRISTIAN, J.

text:
    WRIGHT v. STATE.
    No. 15504.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    C. P. Chastain, of Hamlin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary of a private residence; the punishment, confinement in the penitentiary for five years.

The caption fails to show the date of adjournment of the trial court. Under the decisions the appeal must he dismissed. Howie v. State, 119 Tex. Cr. R. 17, 43 S.W.(2d) 594.

Appellant is granted fifteen days from this date in ■ which to perfect' the record.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: HAWKINS, J.

text:
    BYERS v. STATE.
    No. 15840.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    Herbert I. Eruhman, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol, punishment being thirty days’ confinement in the county jail.

The record is before this court without bills of exception and unaccompanied by a statement of facts. In such condition nothing is presented for review.

The judgment is affirmed.


author: ' CHRISTIAN, J.

text:
    TAYLOR v. STATE.
    No. 15460.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.

      See, also, 56 S.W.(2d) 648.
    Sam W. Davis, of Houston, for appellant.
    O’Brien Stevens, Dist. Atty., of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for ten years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed A. L. Woodring by cutting him with a knife. Supporting the charge, the testimony of the state was, in substance, as follows:. Appellant and his family had been visiting in the home of B. H. Wood-ring, a brother of deceased. On the day of the homicide, appellant had been drinking. Returning to the home of B. H. Woodring, he began to curse and abuse his (appellant’s) wife. B. H. Woodring objected to the language appellant used and insisted that he should not use profanity in the presence of his family. Appellant became offended, and, advising Woodring that he would leave his premises, he began to pack his. belongings. Appellant’s wife was unwilling to go with him. This enraged appellant to the extent that he cursed his wife, and threatened to kill her; Forcing an entrance into the house, he was in the act of assaulting his wife and their two children with a knife when deceased •intervened and attempted to dissuade him. Although deceased made no attack on appellant, but merely begged him not to kill his wife, appellant attacked deceased with a knife, and fatally stabbed him. Observing that his brother had been wounded, B. H. Woodring attacked appellant with his fists, and knocked him down several times and kicked him. During this difficulty appellant cut and stabbed B. H. Woodring. Wood-ring finally succeeded in overpowering appellant. He held appellant down until peace officers arrived.

Appellant did not testify in his own behalf, but introduced his wife who testified in substance that deceased and his brother were mad at appellant because they thought he (appellant) had told one Fowler, whose car B. H. Woodring had repaired, that he (Woodring) had appropriated some of the new parts Fowler had bought for his ear, and, in making the repairs, had substituted old and worn parts; that shortly prior to the homicide she and her husband had decided to return to their home in Louisiana; that on the occasion of the homicide her husband, after having removed some of their clothing to the truck in which they were moving, called to her that he was ready to go and came into the house; that deceased told her husband he had decided he could not leave the house that night; that her husband replied that he must go; that deceased said: “I have decided you are not going” and struck her husband with his fist, knocking him down; that after her husband fell to the floor B. H. Woodring began beating him with his fists and kicking him; that both deceased and B. H. Woodring jumped on appellant and began beating him unmercifully; that she saw they were going to kill him and called for help; that B. H. Woodring kicked her husband on the head and in the face; that finally Mrs. Homer Woodring, wife of B. H. Woodring, ran to her husband and began kicking him; that she begged them not to kill him; that her husband drew his knife and began cutting at his assailants; that he cut B. H. Wood-ring across the head at a time when he was coming toward her husband with his head down; that her husband was on his knees at the time; that the parties continued the attack, striking and kicking her husband; that her husband again cut B. H. Woodring on the shoulder; that both deceased and his brother were beating her husband and knocking him to the floor every time he got up; that finally appellant stabbed deceased.

Testifying for appellant, the jailer said that when appellant was brought to the jail his forehead was skinned up to his hair, he had a big bruised place on his right arm and left leg, and his ears were “mashed down by the side of his head.” He expressed the opinion that some of the injuries could not have been inflicted with a man’s fist. He said: “Defendant wasn’t able to be up at all when I saw him when he was injured.” Further, he testified that the doctor said that several of appellant’s ribs had been.broken.

It is observed that appellant’s assailants used only their fists and feet in making the attack. The court predicated appellant’s right of self-defense upon an apprehension or fear of death or serious bodily injury. Also the jury were instructed to find against the plea of self-defense if they believed it did not reasonably appear to appellant that he was in danger of losing his life or suffering serious bodily injury at the hands of his assailants, or either of them. Appellant timely and properly excepted to the charge because of its failure to embody an instruction covering his right to defend against any unlawful and violent attack.

The opinion is expressed that the exception was well taken, and that in addition to the charge given by the court, an instruction covering the right to defend against any unlawful and violent attack should have been submitted. Article 1224, P. C., provides that homicide is justifiable “in the protection of the person or property against any other unlawful and violent attack besides those mentioned.” Further it is provided that “in such cases all other means must he resorted to' for the prevention of the injury.” .The jury might have reached the conclusion that the assault on appellant was unlawful and violent, but not of the nature to create in appel- ■ Iant’s mind an apprehension of death or serious bodily injury. Assuming that such conclusion was reached, the court’s charge on self-defense was calculated to prevent the jury from making application of their finding in a manner beneficial to appellant. The charge in part was to the effect that the plea of self-defense should be rejected unless the jury believed that it reasonably appeared to appellant that he was in danger of losing his life or suffering serious bodily injury. The jury-found the presence of malice aforethought as evidenced by the fact that a penalty of ten years was assessed. The interpretation this court has placed on article 1224, supra, is illustrated in Andrews v. State, 101 Tex. Cr. R. 261, 275 S. W. 1024, 1026, from which we quote: “If the assault made by the deceased was not of a nature to create in the mind of the appellant, as viewed from his standpoint, an apprehension of death or serious bodily injury and did not create such apprehension, and in resisting such assault, appellant intentionally used a weapon which, in the manner of its use, was deadly, and killed the deceased without first resorting to other reasonable and available means of protection save retreat, the jury might have been warranted in taking into account the assault made, by the deceased to mitigate the offense or reduce its grade, but not to justify the homicide.”

See, also, Stroud v. State, 113 Tex. Cr. R. 621, 24 S.W.(2d) 52; Hathcock v. State, 103 Tex. Cr. R. 518, 281 S. W. 859; Holcomb v. State, 98 Tex. Cr. R. 456, 265 S. W. 1039.

Appellant timely requested that the inquiry touching the admissibility of the dying declaration of deceased be had in the absence of the jury. The request should have been granted. Edmondson v. State, 106 Tex. Cr. R. 321, 292 S. W. 231. However, we deem it unnecessary to determine whether the matter presents reversible error.

B. H. Woodring was the state’s principal witness. It was largely upon his testimony that reliance was had for conviction. Bill of exception No. 4 shows that upon cross-examination by appellant the witness Wood-ring was asked if he had not been charged in Seminole, Okl., in two informations with the offense of robbery with firearms. He answered in the negative. He was then asked if he. (the witness), Edward Mason, and a man by the name of Polis had not been charged jointly in Oklahoma in informations with such offense., The witness answered that he knew Edward Mason; that Mason got thirty years oh a charge of robbery with firearms; that the officers came and got him and Mason and three other parties in Seminole, Okl., but that he was released and no charge or information preferred against him. Upon objection by the state that the witness had not been identified as the same B. H. Woodring charged in the informations, the court declined to permit appellant to introduce in evidence certified copies of said informations. One of the informations shows that B. H. Woodring, Albert Polis, and Edward Mason were charged with highway robbery in Oklahoma, in May, 1928. However, a line appears to have been drawn through the,names Polis and B. H. Wood-ring, leaving only Edward Mason as the party charged. The other information shows that B. H. Woodring, Edward Mason, and Albert Polis were charged with robbery in Seminole, Okl., on the 10th of May, 1928. We think the' identification of the witness was sufficient and that the state’s objection was not tenable. However, the copies of the informations were not' sufficiently authenticated to warrant their reception in evidence. In view of the fact that the judgment must be reversed on another ground, we deem it unne'cesary to determine whether, in the absence of proper objection by the state, the trial court was warranted in rejecting the copies of the informations.

The judgment is reversed and the cause remanded.

PER OURIAM.

The - foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    TAYLOR v. STATE.
    No. 15459.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.

      Sam W. Davis, of Houston, for appellant.
    O’Brien Stevens, Hist. Atty., of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for seven years.

The testimony is substantially the same as that set forth in Taylor v. State of Texas (Tex. Cr. App.) 50 S.W.(2d) 646, this day delivered. In the present case appellant was charged with assaulting B. H. Woodring with intent to murder him. In Taylor v. State, supra, appellant was convicted of the murder of A. L. Woodring. It was appellant’s theory, given support in the testimony, that at the time he fatally stabbed A. L. Woodring, and severely cut B. II. Woodring, he was being unlawfully and violently assaulted by said parties. Reference is made to the opinion in Taylor v. State, supra, for a more detailed statement of the testimony.

Bill of exception No. 2 presents the following occurrence: The testimony was substantially the same as that heard by the jury when appellant was tried for the murder of A. L. Woodring. In the present case and in the ease last mentioned the testimony of appellant raised the issue of self-defense against a joint attack by A. L. Woodring and B. H. Woodring. In the present case the jury were aware of the fact that appellant had been formerly tried for the murder of A. L. Wood-ring. However, they did not know that a conviction had resulted. The assistant district attorney prosecuting the present ease also prosecuted appellant on the charge of murder, and the jury were aware of such fact. The knife with which appellant killed A. L. Woodring and wounded B. H. Woodring was introduced in evidence. The assistant district attorney asked a witness for appellant, on cross-examination, if the knife he was exhibiting to her was not the knife appellant used to kill A. L. Woodring. The witness answered in the affirmative. On redirect examination, without objection on the part of the state, appellant’s counsel asked the witness if it was not a fact that appellant had already been tried for the murder of A. L. Woodring. The witness answered in the affirmative. The assistant district attorney then propounded to the witness the following .question: “You know that this defendant has 'been tried and convicted for the murder of A. L. Woodring, don’t you?” Appellant’s objection was sustained. Whereupon, the assistant district attorney withdrew the question with reference to the fact that appellant had been convicted. Appellant’s counsel then stated to the court that he desired to reserve a bill of exception to the action of state’s counsel in asking the question and stated to the court that the question in effect got before the jury the opinion of another jury that appellant was guilty. In reply the court stated to appellant’s counsel that, inasmuch as he was not satisfied with the court’s ruling, he would permit the question to be answered, and instructed the witness to answer the question. The assistant district attorney also insisted that the question be answered. The witness answered that she did not know whether appellant had been convicted in the murder case.

The opinion is expressed that the bill of exception manifests reversible error. The fact that a jury in the former trial of appellant for murder had heard the same testimony and decided the issue of veracity as between appellant’s witnesses and those for the state in favor of the state was calculated to influence the jury in the present case to decide such issue against appellant. Davis v. State, 116 Tex. Cr. R. 558, 28 S.W.(2d) 168, and authorities cited. The question necessarily put before the jury a fact hurtful to appellant. If in sustaining the objection to the question in the first instance, the court saved appellant from injury (and this is not conceded), the action of the court thereafter in requiring the witness to answer the question was calculated to impress the jury with the view that the court was of the opinion that the question was proper. In Johnson v. State, 119 Tex. Cr. R. 433, 44 S.W.(2d) 712, the district attorney asked a witness for the state if the attorney representing the appellant' was not county attorney at the time the appellant was convicted and sentenced to the penitentiary for ten years for rape. It does not appear that the question was answered. The •court promptly sustained the objection and instructed the jury not to consider the question. In reaching the conclusion that reversible error was presented, Judge Lattimore, speaking for the court, used language as follows: “We are constrained to believe that this question of.-the prosecuting attorney necessarily put before the jury a fact hurtful to appellant not otherwise shown-to -be, known to the "jurors, and that it would be impossible for an instruction of .the court,, such as-was promptly given, that they should not consider the question, to withdraw from the consideration of the jury the statement thus made, or to .neutralize its hurtful effect. Appellant was not given the lowest penalty, and eóri-tended that he was not guilty.”

Under the circumstances, the fact that appellant’s counsel asked the witness if appellant had not already been tried for the murder of A. L. Woodring did not warrant the state in putting before the jury the fact that appellant had been convicted. See Leon Howard v. State of Texas (Tex. Cr. App.) 55 S.W.(2d) 1048, opinion on motion for rehearing delivered January 4, 1933.

Bill of exception No. 3, as qualified by the trial judge, presents no error.

For the error discussed, the judgment is reversed and the cause remanded.

PER OURIAM.

The foregoing opinion of the Commission of 'Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Ex parte YARBROUGH.
    No. 15832.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    Wm. A. Shofner and De Witt Bowmer, both of Temple, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was indicted for the ¡murder of Doris Yarbrough. By habeas corpus proceeding bail was sought. From an order of the district judge denying bail, this appeal is prosecuted.

About 4:30 o’clock in the afternoon of September 7,1932, deceased was so severely burned that she died soon thereafter. Deceased was an adopted daughter of appellant. It was the state’s theory that appellant had purposely caused the burning of deceased. In resisting bail, the state relied on proven statements made by appellant and deceased regarding the origin of the fire. All of the evidence was put in the record by the state. The explanation made by appellant to witnesses was substantially as follows; He was working in the garage cleaning off-a car preparatory to painting it. Deceased was helping him. He had been using a blowtorch to burn the grease off of the wheels and other places where it had collected. He set the torch on the funning board of.the car, and placed a; board from one fender to a drum or barrel, and was on this board preparing to wash the top of the car with gasoline which was in a bucket. When he tried to move the bucket, which was on top of the car, the hail came out and the bucket turned over, spilling the gasoline over deceased and on the floor. The gasoline ignited from the torch and set fire to deceased. The latter’s version of the matter given to the sheriff at the hospital was that she was helping her “daddy” with the ear, and that they had some gasoline and a blow-. torch, and that the gasoline exploded. One witness who reached the scene shortly after the fire started, and after the clothing of deceased were burning, said that just as witness reached the garage appellant threw the contents of a bucket of gasoline on deceased, which flashed or exploded as it struck her, and that appellant said, “My 'God, I threw the wrong bucket on her,” and immediately picked up another bucket containing water and dashed it on her, and got some more water from a hydrant and poured it bn her head. Deceased was taken into a neighbor’s house. Some one asked her how she got burned and she replied that “the gas turned over on her (she called for appellant, and said, “Oh, Daddy, what made you do it?” The significance of this statement as an indirect charge against appellant is lessened by his immediate explanation that he had thrown the contents of the wrong bucket on deceased. The state showed that appellant carried considerable insurance in his favor on the life of deceased. It was further shown that deceased had been whipped by appellant and that he complained that she was not obedient and said he would have to get rid of her on account of his wife, and at one time began proceedings to try to have her placed in the training school for girls.

The imme.diate facts throwing any light on the beginning of the fire raise an issue of accidental death. The effort of the state to break down the evidence to that, effect, which evidence the state had itself put in the record, does not in our opinion warrant a denial of bail in view of the constitutional guaranty of the right to bail except in capital cases where the “proof is evident.” See Const, art. 1, § 11. Ex parte Adams, 119 Tex. Cr. R. 135, 44 S.W. (2d) 713, and authorities therein cited.

The judgment denying bail is reversed, and bail granted in the sum of $5,000.


author: CHRISTIAN, J. CHRISTIAN, J.

text:
    BOYD v. STATE.
    No. 15384.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Appeal Reinstated Jan. 25, 1933.
    Guinn & Devereux, of Jacksonville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

It appears that appellant entered into recognizance on appeal. A copy of the recognizance has not been brought forward in the transcript. Hence we are unable to determine whether the recognizance under which appellant is enlarged meets the requirements of the statute. Where the appellant is enlarged, this court is without jurisdiction in the absence of a proper recognizance or appeal bond. Russell v. State, 119 Tex. Cr. R. 469, 45 S.W.(2d) 622.

Appellant is granted fifteen days from this date in which to perfect the record.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Reinstatement of Appeal.

CHRISTIAN, J.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

The sheriff of Cherokee county received a call to come to the town of Alto. Accompanied by his deputy, S. B. Swann, he reached town between 9 and 10 o’clock at night. At that time appellant was riding his horse around the public square. He was not racing, nor was he disturbing the peace in any manner. The officers testified that appellant was violating no' law.. Carlton, a deputy sheriff, was insisting that appellant go to his home. Appellant continued to ride around the square. Carlton and Swann attempted to stop appellant, but he avoided them, and rode away toward his home. As he left he cursed the deputy sheriffs, saying that he would go home and get a gun and “come back and run over both of them.” Carlton fired several shots at appellant as he rode away. The state’s testimony was to the effect that the officers had no right to prevent appellant from riding his horse around the public square. Further, the state’s testimony was to the effect that Carlton had no right to shoot at appellant as he rode away. The sheriff and Swann immediately got in their automobile and rode up the road in the direction appellant had gone. They testified that they would not permit Carlton to go, saying that it was their purpose t6 see appellant and keep him from coming back to town with a gun. Their testimony was, in sub- . stance, as follows: They were driving down ‘ the street slowly when they met appellant. They stopped their car and appellant jumped off of his horse. Appellant had a shotgun. When appellant got off of his horse he fired at them. They got behind their car and returned the fire. Appellant came back of the car and fell to the ground, requesting them to cease shooting, stating that he would give up. Appellant suddenly got up, saying “Now, G-d-you, I have got you.” Because they had used all of their ammunition, the officers fled. As they left, appellant fired at 'the sheriff, who was struck in the arm and side with No. 7 shot. He was not seriously injured.

Appellant testified, in substance, that after he had been fired upon by Carlton he went home, secured his shotgun, and started to his farm. He said he was carrying the gun to prevent any attack Carlton might make. He declared that he had no intention of going back to town. He denied that he had done anything to authorize Carlton to arrest him-.Further, he denied that he had returned.to get his gun and come back to town. He said he had made no threats- against anybody.He testified that when he started away from his home he saw a car parked; that it did not occur to him that the officers were in the car; that he rod$ within ten feet of the car, with his gun through his arm; that without provocation, the officers began firing upon him; that he fell off of his horse and the officers kept shooting; that he crawled behind the automobile; that he was hit by one of the first shots fired; that after he got behind the automobile he loaded his gun and shot at the men who were firing at him; that while he was down on the ground he was shot in the hand; that he believed the parties were trying to kill him; that he would not have shot at the officers if they • had made themselves known; that when the parties began firing at him somebody hollered, “G-d-you, we have got you.”

Under the evidence, the jury might have concluded that the officers were attempting to arrest appellant. The officers had no warrant of arrest. Nowhere in the charge was the subject of arrest mentioned. The court merely gave an instruction covering the law of self-defense. If the officers were trying to arrest appellant without lawful authority, he was entitled to use such force as was reasonably necessary to prevent the arrest. Branch’s Annotated Penal Code, § 1980; Louder v. State, 119 Tex. Cr. R. 438, 44 S.W.(2d) 719. See, also, Allen v. State (Tex. Cr. App.) 66 S. W. 671. The charge was .timely and properly excepted to.

The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission • of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: ALEXANDEE, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. MOORE.
    No. 1186.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1932.
    Rehearing Denied Feb. 9, 1933.

      Witt, Terrell & Witt, of Waco, and Jas. P. Swift, of Dallas, for appellant.
    Bryan & Maxwell, of Waco, for appellee.
   ALEXANDEE, J.

This suit was brought in the district court of McLennan county under the Workmen’s Compensation Act of this state (Vernon’s Ann. Civ. St. art. S306 et seq.) to recover the benefits allowed by such act for the death of Eobert Moore, an employee who was accidentally killed at Greenville, Miss., while in the discharge of his duties at that place as a laborer for Pittsburgh-Des Moines Steel Company. Our Workmen’s Compensation Act provides, in part, as follows: “If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas. * * * ”• Eevised Statutes, art. 8306, § 19, as amended in 1931 (Vernon’s Ann. Civ. St. art. 8306, § 19).

The sole- question to be determined is whether or not the action can be maintained in Texas, and this depends on whether or not the contract of hire was made in Texas. The jury, in answer to special issues, found that the contract was entered into in Texas, and judgment was entered for the plaintiff. The insurance company appealed.

The Pittsburgh-Des Moines Steel Company is a copartnership, with its home office at Des Moines, Iowa. At the time in question, it was engaged in the business of manufacturing and erecting elevated steel tanks and towers throughout the United States. Eobert Moore, the employee, was about 18 years of age and lived in Waco, Tex. During December, 1928, and the early part of 1929, he worked for said employer at 50 cents per hour on several jobs at various places in Texas. He had no definite contract of employment. When the company received an order to erect a tank in Texas, one of its foremen would be given instructions to do the work. Such forenlan had the authority and it was his duty to employ the necessary help to do the work. He would usually take with him the experienced help that had been used by him on the previous job. Sometimes an experienced employee would be sent from one foreman to another. In this way Eobert Moore worked for the company fairly regularly until May 15, 1929, at which time he became ill and had to quit work. Thereafter on june 14,1929, he wrote the company at Des Moines, Iowa, as follows:

“Waco, Texas, June 14,1929.
“Pittsburgh-Des Moines Steel Co. Ninth & Tuttle Streets, Des Moines, Iowa.
“Dear Mr. Allen, Your letter of May the 16th received.
“I have been unable to work since the company was at Hamlin, Texas. I was forced to leave my job because of illness, but, think I am well and strong now.
“Would like to start back to work again with the company, nearest to Waco, if there is an opening for me.
“I enjoyed working under Mr. Eedd Arnold. I also understand that the boys I was with at Hamlin have gone to Arkansas, and I would not mind going to Arkansas, if I could get a place with them.
“Kindly let me hear from you, and anything you can do for me will surely be appreciated.
“Yours truly,
' “Eobert Moore.”
On June 17, 1929, the company replied as follows:
“Des Moines, Iowa, June 17, 1929.
“Mr. Eobert Moore, Et, 3, Box 141, Waco, Texas.
“Dear Sir: — We have your letter of the 14th asking to return to work.
“We will keep your letter on file and as soon as we can find an opening for you we will try .to place you. • • ,
“Yours very truly,
“Pittsburgh-Des Moines Steel Company,
“H. L. Allen.”

On August 9,1929, Eobert Moore wrote the company as follows:

“Waco, Texas, Aug. 9,1929.
“Mr. H. L. Allen, Ninth & Tuttle Sts., Des Moines, Iowa.
“Dear Mr. Allen, Your letter of June 17th, 1929, received.
“Appreciate your kindness in keeping my letter on your file, but am in need of work and would be glad to get work as soon as possible.
“Will surely thank you for any consideration or influence you may do for me.
“Thanking you for your kindness.
“Yours truly,
“Eoberi; Moore.”

On August 19,1929, the company wrote Robert Moore, as follows:

“Des Moines, Iowa, Aug. 19, 1929.
“Mr. Robert Moore, Rt. 3, Box 141, Waco, Texas.
“Dear Sir: We now have work to offpr you providing you can report at once to Foreman J. O. Hardcastle at Greenville, Miss, at the plant of the Greenville Compress Company. If you are at liberty please report to him immediately as everything is ready to proceed with the work.
“If you cannot go immediately, please let us know so we will not depend upon you.
“Tours very truly,
“Pittsburgh-Des Moines Steel Company,
“H. B. Allen.”

Immediately upon receipt of this letter, Robert Moore’s mother sent the following telegram:

“Mr. J. C. Hardcastle, Greenville, Mississippi.
“Reporting to you at once for work under Mr. H. L. Allen’s orders. Leaving Waco Friday.
“[Signed] Robert Moore.”

On the next day Robert Moore at his own expense proceeded to Greenville, Miss., and went to work for the company. It does not appear that he was on the pay roll of the company while en route to Mississippi. J. C. Hardcastle, foreman on the job at Greenville, Miss., testified that he had authority to hire and discharge the men working under him; that men were sent to him on approval; that he made the arrangements with such employees as to the number of hours they were to work and the amount to be paid them; and •that he made such arrangements with Robert Moore. He agreed to pay Robert Moore 60 cents per hour.

It is appellant’s contention that there was no evidence to support the finding of the jury that the contract of hire was made in Texas and that the court should have given an instructed verdict for the appellant.

The evidence in this case is undisputed, and it was therefore a question of law for the court and not a question of fact for the jury to determine whether or not the contract of hire was made in Texas. The evidence shows conclusively that Robert Moore did not have any definite continuous contract of employment with the company while he was working for it in Texas, and his letter of June 14th establishes conclusively that whatever arrangements he had terminated when he became ill on May 15, 1929. If a new contract of em-' ployment was made with him in Texas after he recovered from his illness, it was by virtue of the letter of date August 19, 1929, and the telegram above set out, and the fact that he started to Greenville, Miss., immediately upon receipt of said letter.

We do not believe that the letter of date August 19th contained such an offer as could have been accepted and a contract oí hire between the company and the employee thereby created. The letter did not offer to employ Robert Moore provided he would go to Greenville or agree to go to Greenville, nor if he would wire the foreman there, but merely represented that the company had work to offer the employee if he could report to the foreman at Greenville, Miss. It in effect represented or offered that, if the employee would report or present himself at the Greenville Compress in Greenville, Miss., the company would then offer him work. Whether or not the parties would be able to agree on the terms of such employment when the employee did so present himself, was left open for future negotiations. The proposition as presented by the company stipulated neither the character of the services to be performed nor the compensation to be paid therefor. In order to constitute the basis of a contract, an. offer must be so definite in its terms or require such definite terms in the acceptance that'the promises or performances to be rendered by eaph party are reasonably certain. Restatement of the Law of Contracts, § 32; 10 Tex. Jur. 175, § 101; 13 C. J. 289, §. 100. From the testimony of Mr. Hardcastle, the foreman, it appears that he had the authority to determine the terms of the employment, including the price to be paid, and it was evidently contemplated that, upon the employee’s presenting himself for work, he and the foreman would undertake to agree on the class of work to be performed and the price to be paid therefor. It appears that the foreman did actually enter into an agreement with Robert Moore when he presented himself for work, and that the foreman agreed to pay him 10 cents per hour more than he had previously received in Texas. The company’s letter of August 19th and Robert Moore’s telegram and the other correspondence constituted mere preliminary negotiations by which it was intended to bring Robert Moore and the company’s foreman together in order that they might thereafter make a contract. Restatement of the Law of Contracts, § 25; 10 Tex. Jur. 31. If this theory be accepted, then clearly no contract of hire was made in Texas.

However, if it be conceded that the parties, from previous experience, understood the terms and conditions under which the employee was to work and that the letter contained such an offer as, when accepted, became a binding contract of hire, we do not believe that such offer was capable of being accepted in Texas. A party in making an offer has a right to stipulate the time, place, and the mode of its acceptance, and, when the offer does so stipulate, it cannot be accepted at any other place or in any other manner. Restatement of the Law of Contracts, §§ 59 and 61; 13 C. J. 279. Where the offer is one ■which is tó he accepted by an act, there must be a performance or a tender of performance at least in part of what is requested. Restatement of the Law of Contracts, § 52; Page on Contracts (2d Ed.) § 191. A contract is made at the time when the last act necessary for its formation is done, and at the place where that final act is done. Restatement of the Law of Contracts, § 74; 13 C. J. 580, § 581; 10 Tex. Jur. 338; Fidelity Mutual Life Ass’n v. Harris, 94 Tex. 25, 57 S. W. 635, at bottom page 638, 86 Am. St. Rep. 813. How and where was the offer, if any, as contained in the company’s letter, to be accepted? It was not an offer which was to become binding as a contract upon the giving of a promise for a promise. It was an offer which called for an acceptance by an overt act on the part of tha employee. The employee was to accept the offer by reporting to the foreman at Green-ville, Miss., at the plant of the Greenville Compress Company. The fact that the letter mentioned the specifid location in Green-ville at which the employee was to report, and referred to his going immediately, makes it clear that the employee was to appear in person at that location and not merely report by wire. This was the place where the work was to be performed, and the acceptance of the offer was not completed until the employee presented himself in person to the foreman at the compress in Greenville. Since the act necessary to constitute an acceptance was required to be .performed or tendered in the state of Mississippi, the contract of employment was necessarily made in that state. The contract of hire, therefore, was not made in Texas, but was made in Greenville, Miss., at the. place where the final act necessary to an acceptance took place, and the action cannot be maintained under the Workmen’s Compensation Law of this state.

The judgment of the trial court is reversed, and judgment here rendered that the plaintiff take nothing.


author: BAÜGH, J.

text:
    GULF, C. & S. F. R. CO. v. SPIVEY.
    No. 7785.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1932.
    Rehearing Denied Jan. 18, 1933.

      Terry, Cavin & Mills, of Galveston, Jno. B. Daniel, of Temple, and Lee, Lomax & Wren, of Fort Worth, for appellant.
    De Witt Bowmer and Winbourn Pearce, both of Temple, for appellee.
   BAÜGH, J.

Spivey sued the railroad company for damages arising from a double hernia suffered by him in the * course of his employment as “car man” in its shops at Temple, Tex. From a judgment in his favor for $4,500, based upon jury answers to special issues, the railroad company has appealed.

Briefly stated, the appellee’s duties required him, when a car with injured wheels came in, to jack up the end of the box car, remove the wheels needing repair, roll them out from under the ear, then across one or more tracks onto what was termed the “bad order” tracks, and replace them with good wheels. A set of such wheels with housing ordinarily weighed about 2,200 pounds. They were moved across such tracks by laying boards and planks along between the rails and rolling the wheels over them to the other tracks where they were repaired. In doing so, Spivey was assisted by one other employee, who used what was known as a “wheel stick” or lever which was applied to one of such wheels, while Spivey pushed with his hands in moving them to the repair tracks. Spivey was working at the time of the injury under the general orders of his foreman, but the foreman was not immediately supervising the work. At the time of the injury, these two workmen were engaged in their usual and customary work in the usual and customary manner.

The negligence alleged was (a) in adopting the method of having said work done with the assistance of only one additional man, when such work was very heavy and required additional help; (b) because speh work required the help and assistance of at least 'two' men ; (c) failure to furnish at the time sufficient help to do the work; and (d) because the foreman ordered the work done without sufficient help, and failed and refused to warn Spivey of the danger confronting him.

The railroad company, in addition to á general demurrer ánd general denial, alleged that all the matters pleaded by Spivey as negligence were at all times during his em: ployment fully known to him, or in the exercise of ordinary care should have been known to him, and that he therefore assumed the risk of injury resulting from the discharge of his duties.

The jury found the appellant guilty of negligence in the manner it required the work to be done; that such negligence was the proximate cause of the injury; that ap-pellee did not assume the risk in question; that Spivey was not guilty of negligence; and that the injury was not the result of unavoidable accident. Other findings made by them are not necessary to a discussion of the issues raised.

It is admitted that the car being repaired at the time was being used in interstate commerce. The case comes therefore • under the Federal Employers’ Liability Act (45 USCA §§ 51-59), and the decisions of the federal courts control. Texas & N. O. R. Co. v. Webster (Tex. Civ. App.) 53 S.W.(2d) 656. The defense of assumed risk was available to the appellant. The general rule in 'such cases is that the employee assumes the ’ risks of danger ordinarily incident to the discharge of his duties in the particular employment. There is no contention that appellant was at the time guilty of any violation of the federal act which would deprive •it of the defense made. Ordinarily the defense of assumed risk is not available to the employer against injuries proximately caus- • ed by his own negligence. 39 C. J. 692, and numerous eases cited ; 18 R. C. L. 677. Risks against his negligence are not ordinary risks. There are, however, certain -well-established exceptions wherein the master is not liable for injuries to his servant, even though the master be guilty of negligence, and the instant case -comes, we think, clearly within one of those exceptions.

The sole ground of negligence relied upon in this ease is that the appellant failed to furnish sufficient help to do the work required of appellee, and that this failure caused him to strain himself, with the resultant injury named. While the evidence to show negligence of appellant as found by the jury was very meager, if it be sufficient to. sustain that finding, still we think that under the undisputed facts and the decisions. of various courts the appellant was not liable.

Spivey had been working for appellant for about nine years. For about three years he . had been in the car repairing work; and 'for nine or ten months next prior to his injury had been engaged in the work in which he was injured. During the preceding three years, only two men had been doing this particular work. When for any reason a set of wheels, were too heavy for two men to handle, they called in additional help to move them. Spivey had been so called in for that purpose before he went into this particular employment; and during his employment as ear man on occasion had himself called in additional help when needed to move a set of wheels onto the repair track. The usual and customary manner of doing this work both in the shops and on the road for several years past was by two men, and the rules of the company specified that number for the work. He knew that this was the usual and customary manner of doing such work. There is no contention that his fellow servant was in any manner negligent, that the place of work, or the tools, were unsafe or defective. No emergency existed requiring any sudden or immediate overtaxing of his strength. The injury came from his steady and deliberate application of his physical strength in pushing the wheels across the tracks in the usual, and customary manner in which he had been doing it during the past nine or ten months without complaint to his foreman or to the safety council. He testified on cross-examination that at the time he was injured he thought the work was too heavy, but he did not call for help, that he did not expect the foreman to remain there on that work and watch it, but that after his nine or ten months’ experience on that work he knew as much about it as anybody.

Under these circumstances, we think the conclusion is inescapable that Spivey, admitting his charge of appellant’s negligence to be true, knew the dangers of injury involved, or at least such risk was so patent and obvious that he should have known of its existence. See 39 C. J. 726, and numerous cases there cited, including many from Texas.

Both parties cite the rule, deduced from numerous decisions, laid down in 39 C. J. 739, 740, as follows: “Nor is it sufficient that the servant should merely know that there is ‘some danger’ attending the service, but it is further essential that there should be actual understanding and appreciation of its nature and extent, unless it is so obvious that ’the servant should know of and appreciate it. But where the servant is injured by a known risk of the employment assumed by him, it is immaterial that he did not know the precise extent or character of the injury liable to be sustained, or that he did not appreciate every particular of the risk or all the possible consequences thereof, if as a reasonably prudent man he should have anticipated that some injury might result from the defect. And if he has a general knowledge of defects sufficient to charge him with knowledge of danger, he assumes the risk, although he may not know of the particular defects which cause the injury.”

Appellee contends that the first portion of the above-quoted text applies here, in that Spivey did not understand and appreciate that the danger of the particular injury received might result from his overstraining himself; that such consequence was a matter of expert and not of common knowledge, two physicians testifying that hernia .would not ordinarily result from 'overtaxing one’s strength while two others testified that such was the cause of appellee’s injury. There is nothing to show that the knowledge of the foreman as to the danger of’ the particular injury received was superior to that of the employee, which is the test applied in the decisions. 18 R. C. L. 685. Ruptures from overstrain appear to be a commonly known resulting injury. If appellant were not liable for an injury, which the employee did understand and appreciate, and which might ordinarily result, it would .not be liable for some other particular injury which might ordinarily occur, even though the employee might not understand and appreciate it; if in the exercise of ordinary care he should have anticipated its probable occurrence.

The rule seems to be generally sustained that, “in the absence of any emergency, where a servant knows or ought to know that the master has furnished too few servants for the reasonably safe prosecution of the work, he assumes the risks incident to working with insufficient assistance.’.’ 39 C. J. 744; Missouri, O. & G. R. Co. v. Black (Tex. Civ. App.) 176 S. W. 755. The duty of the servant in such ease is to quit the service. And in cases where injuries result, in the absence of any emergency, .from overtaxing his strength or overstraining his muscles, the uniform rule seems to be that the servant, who is the best judge of his own strength, assumes the risk of the consequences. 39 C. J. 766; 18 R. C. L. 705; Thompson on Negligence, vol. IV, § 4834; International & G. N. R. Co. v. Figures (Tex. Civ. App.) 89 S. W. 780; Hines v. Ross (Tex. Civ. App.) 230 S. W. 1066; Louisiana Ry. & Nav. Co. v. Disheroon (Tex. Civ. App.) 295 S. W. 250; Ferguson v. Phoenix Cotton Mills, 106 Tenn. 236, 61 S. W. 53; Williams v. Ky. River Power Co., 179 Ky. 577, 200 S. W. 946, 10 A. L. R. 1396; Ehrenberger v. Chicago, R. I. & P. R. Co., 182 Iowa 1339, 166 N. W. 735, 10 A. L. R. 1388; Kempe v. Illinois Cent. R. Co., 211 Iowa 812, 232 N. W. 657, 74 A. L. R. 148; Rook v. Davenport, R. I. & N. W. R. Co., 182 Iowa 227, 165 N.W. 419; Petrilli v. Swift & Co., 216 Mo. App. 626, 260 S. W. 516; Lutgen v. Mo. Pac. R. Co. (Mo. App.) 294 S. W. 444. See, also, annotations in 10 A. L. R. 1399, and 74 A. L. R. 148-160, where numerous cases on this' particular point are discussed.

In many of the foregoing cases, negligence of the employer having been established, and rupture or hernia from overexertion or overtaxing the strength of the employee having resulted, the courts have uniformly held that the risk was assumed by the employee. In some of these cases the employee had protested that the work was too heavy, and was acting under a direct order of his superior to do' the work. After a rather exhaustive search, we have been unable to find any case, where injury resulted from the act of the employee in overtaxing his strength, and where the common-law defense of assumed risk was not denied to the employer, which does not hold that the employee, being the best if not the sole judge of his own strength, assumes the risk of resultant injury, whether external or internal. •

While the question of whether or not, where the employer is negligent, the employee appreciates and understands the dangers involved and assumes the risk, is one of fact for the jury, where the evidence is such, as in this case we think it is, that the danger was patent and the employee knew, or should have known of it, the defense is established as a matter of law. We are forced to the conclusion, therefore, that under the undisputed facts in this case, in the light of the decisions, the trial court should have instructed a verdict for the appellant.

This conclusion renders unnecessary a discussion of the other issues raised on the appeal.

For the reasons stated, the judgment of the trial court is reversed, and judgment is here rendered for the appellant.

Reversed and rendered.

On Motion for Rehearing.

In an able motion for rehearing, ap-pellee earnestly insists that, inasmuch as two eminent physicians, employees of the railway company, testified positively that her.nia cannot be produced by overstraining one’s strength, and that appellee’s injury was not so produced, we Were clearly in error in holding that “ruptures from overstrain appear to be a commonly known resulting injury”; that the only risk assumed by the employee was such dangers as were known to him or ought to have been known to him; that he testified that he knew nothing about hernia or how it. might be caused; and that, because physicians themselves were at variance as to how same may be caused, the court could not as a matter of law say that he could be chargeable as a layman with knowledge that his overstraining himself might produce hernia.

.It may be that in this respect appellee is correct. Certainly such a contention appears reasonable. But the decisions, as we understand them, in cases involving over-straining one’s strength, are not based upon the hypothesis that the employee must anticipate a particular injury resulting from overtaxing his strength, or- that he must be cognizant of the particular injury caused thereby. But rather that he is cognizant of, and the sole judge of, his own strength, and, if any injury results directly from his act in overtaxing it, whether it be a hernia, strain of a muscle, rupture of a blood vessel, or otherwise, he assumes the risk of such injury whether he knew that that particular injury might result or not. Such is our understanding of the decisions on this matter. And, if we are correct in this, appel-lee’s contention, admitting same to be correct, does not alter the conclusion reached by us. For this reason, the motion is overruled.

Overruled,