author: SELLERS, Justice.

text:
    LIGGETT & MYERS TOBACCO CO. v. WALLACE.
    No. 4438.
    Court of Civil Appeals of Texas. Texarkana.
    March 1, 1934.
    Rehearing Denied March 8, 1934.
    Ramey, Calhoun, Marsh & Higgins, of Tyler, for appellant.
    B. P. Whitworth, of Linden, for appellee.
   SELLERS, Justice.

Y. A. Wallace, the appellee, brought this suit in the district court of Cass county to recover damages in the sum of $1,931 against Liggett & Myers Tobacco Company, the .appellant. The appellee alleged that the appellant is engaged in the manufacture, sale, and distribution of various tobacco products, such as cigarettes, smoking tobacco, and chewing tobacco. That its custom' is to take orders through its salesmen from retail dealers for these tobacco products and the retail dealers in turn supply the general public, selling these various tobacco products to any customers who wish to purchase same. That among other tobacco products, the appellant manufactures, sells, and distributes a certain •brand of chewing tobacco known as “Tin-sley’s Natural Leaf Tobacco,” and this particular brand is sold by no other company or individual other than the appellant. The ap-pellee further alleged:

“Plaintiff would show to the Court that on or about January 17th, 1931, he purchased from a retail store in Linden, Texas, to-wit: The M. System Store, a cut of Tinsley’s Natural Leaf Tobacco, commonly known as ‘thick Plug Tinsley’s’ paying therefor the sum of Fifteen Cents; that the defendant sells and distributes this particular brand of tobacco and that the defendant had sold this tobacco to the M. System Store. That plaintiff had taken several chews from this cut of tobacco and did not discern any difference between this particular cut and other cuts of the same brand of tobacco that plaintiff had theretofore used. That on the evening of January 18, 1931, the day after he had purchased this cut of tobacco, plaintiff took a chew from this cut and upon getting it in his mouth he found that there was some foreign substance, other than -the tobacco, in his mouth; whereupon he immediately took the tobacco from his mouth and upon examination found an enormous quantity of small metal particles resembling steel filings or bits of small wire sticking in his tongue and mouth; which caused a burning sensation and severe pain. Plaintiff rinsed his mouth with vinegar and with soda water in an ef,fort to rid his mouth of the metal particles and allay the pain and immediately went to see a physician; that the physician worked for some time extracting these tiny metal particles from the mouth and tongue of plaintiff, it being necessary to scrape plaintiff’s tongue and the inside of his mouth. Plaintiff represents to the Court that there were innumerable pieces of the tiny metal particles in his mouth and tongue and throat and plaintiff verily believes that some of the metal particles were swallowed by him, thereby admitting the metal into the stomach of the plaintiff.
“Plaintiff would further show to the Court, as a direct result of the aforementioned happening, that his mouth, tongue and throat became inflamed, swollen and sore; that he suffered intense and excruciating pain by reason of the condition of his mouth, tongue and throat; that he was thrown into a high fever and that he had frequent and severe spells of vomiting; that by reason of his condition he was unable to rest and that he suffered acutely and was confined to his bed for the period of one week, during which time he was under the treatment of a physician, all of which was the direct result of plaintiff’s getting the metal particles in his mouth as aforesaid.
“Plaintiff would further show to the court that upon examination it was found that the cut of tobacco which plaintiff had bought from the M. System Store on. January 17, 1931, and from which the plaintiff had taken this chew on the 18th day of January, 1931, and which was sold to the M. System Store by the defendant, Liggett and Myers Tobacco' Company, had a great and enormous quantity of the tiny metal particles imbedded in it such as had been taken from the mouth and tongue of plaintiff by the physician as aforesaid. That the presence of these metal particles in the tobacco as aforesaid was due to the negligence and carelessness of the defendant, its agents and employees, in selling and distributing tobacco containing a substance such as this cut of tobacco contained and that this negligence of the defendant, its agents and employees, was the direct and proximate cause of the injuries, illness, suffering and incapacity of plaintiff herein complained of ánd result in the damages of the plaintiff as herein set forth.
“Plaintiff represents to the court that the defendant is guilty of gross negligence in selling and distributing tobacco containing metal particles such as was contained in the piece of tobacco bought by plaintiff as aforesaid on January 17, 1931, at the M. System Store in Linden, Texas, and that such negligence on the part of the defendant was the direct and proximate cause of the sufferings, pains, illness and incapacity experienced by the plaintiff.”

The appellant’s answer contained a general demurrer and general denial.

There is evidence to support appellee’s cause of action as alleged, and in this connection we will say that appellee’s evidence is to the effect that the particles found in the tobacco were there at the time the plug of tobacco involved was in the process of being pressed by the appellant in the manufacture of the same.

Appellant offered as a witness its superintendent of the plant where the brand of tobacco here involved is manufactured, and this witness minutely described the many processes through which the tobacco is carried from the time it arrives at the factory to the time it is packed for delivery to the retail trade. His evidence is to the effect that appellant uses the latest and best machinery it is possible to secure in the manufacture of its tobacco, and tbis witness’ testimony wonld tend to show that appellant was not negligent but used due care in the manufacturing of its products and that appellee’s injury was not the result of any neglect of duty on the part of appellant. At the close of the evidence the court submitted the case to the jury upon a general charge in which the court, among other matters, instructed the jury as follows: “If you believe from a preponderance of the evidence that the defendant, Liggett and Myers Tobacco Company, manufactured, sold and distributed the tobacco in question, and that it then and there contained small particles embedded therein, and that the defendant was negligent in so doing, and that the M. System Store of Linden, in Cass County, Texas, purchased said tobacco from the defendant, and that on or about the 17th day of January, A. D. 1931, the same was purchased by the plaintiff from the said M. System Store, and you further believe from a preponderance of the evidence that said tobacco was so manufactured, sold and distributed by the defendant for the purpose of and to be used as chewing tobacco, and that the plaintiff purchased and used the same as chewing tobacco, and upon his use thereof as such the small particles of metal, if any, therein contained stuck into his mouth, tongue, throat or stomach, and thereby causing plaintiff physical pain and injury to his mouth, tongue, throat or stomach and you further believe from a preponderance of the evidence that such negligence, if any, of the defendant in so manufacturing, selling and distributing said tobacco with such metallic substance embedded therein, if any, was the direct and proximate cause of plaintiff’s injuries, if any, then you will find for the plaintiff, otherwise you will find for the defendant.”

The jury rendered a verdict in favor of appellee and assessed his damage at the sum of $1,000, and in keeping with the verdict the court entered judgment for appellee. From this judgment the appellant has duly prosecuted this appeal.

Appellant in its first proposition of error contends that appellee is not entitled to recover for the reason that there is no privity of contract between appellant and appellee. It may be regarded as a settled general rule that a manufacturer or seller to dealers of a defective article is not liable for injuries to the person or property of an ultimate consumer who has purchased from a middleman unless the article was inherently dangerous to life or property; the theory being that, in the absence of contractual relations between the parties, no liability can be predicated upon the manufacturer’s or seller’s negligence—at least where the Wrongful act or acts are not known at the time, and the article is not immediately dangerous to third persons. This general rule has been followed in this state. Avery Co. v. Barker (Tex. Civ. App.) 243 S. W. 695.

A well-established exception to the general rule of absence of liability in case of lack of privity of contract is where the article or substance sold or packed is imminently,, inherently, or essentially dangerous in its nature or because of the use to which it is to be put by whoever may use the same for the purpose for which it was intended; the rule being that the manufacturer or packer of such an article is not relieved from liability for injuries resulting to an ultimate consumer from its negligence, by the fact that there was no privity of contract between it and the person so injured. Under this general exception our courts have sustained a recovery against the manufacturer of soap. Armstrong Packing Co. v. Clem (Tex. Civ. App.) 151 S. W. 576. Likewise a recovery has been sustained against a distributor of high explosives. Cohn v. Saenz (Tex. Civ. App.) 211 S. W. 492. And also a recovery has been upheld against a wholesale druggist. Texas Drug Co. v. Cadwell (Tex. Civ. App.) 237 S. W. 968. In a very recent ease a manufacturer of candy was 'held liable to the ultimate consumer. Brown Cracker & Candy Co. v. Jensen et al. (Tex. Civ. App.) 32 S.W.(2d) 227.

While no case involving facts similar to the case at bar has ever reached the appellate courts of this state, and while there is authority to the contrary, Liggett & Myers Tobacco Co. v. Cannon, 132 Tenn. 419, 17S S. W. 1009, L. R. A. 1916A, 940, Ann. Cas. 1917A, 179, we have concluded that the great weight of authority sustains a recovery in such cases. The facts in the case at bar are very similar to those in a very recent case decided by the Supreme Court of North Carolina in which a recovery was sustained. Corum v. R. J. Reynolds Tobacco Co., 205 N. C. 213, 171 S. E. 78, 80. In this case the authorities on the liability of' a manufacturer and distributor of tobacco to an ultimate consumer who purchased through a middle man are reviewed, and from which we quote: '

“There are many decisions to the effect that one who prepares in bottles or packages foods, medicine, drugs, or beverages, and puts them on the market, is charged with the duty of exercising due care in the preparation of these commodities, and under certain circumstances may be liable in damages to tlie ultimate consumer. * * *
“In tbis case the plaintiff adduced evidences tending to show that the defendant is the sole manufacturer of ‘Apple Sun-cured Tobacco’; that the tobacco in question was of this brand and had the appearance of having recently come from the store; that it was protected by a wrapper; that all the wrapper had not been removed at the time of the injury ; that when a part of it was torn away the imprint of a fishhook and a string which had been embedded in the plug of tobacco was discovered; that some other foreign substance had been found in the same brand of tobacco within two months preceding the injury; and that the foreman of the machine room had previously had complaints that other foreign substances had been left in the manufactured product. * * * Without the necessity of invoking the maxim res ipsa loquitur, the plaintiff introduced independent evidence which called for a verdict.
“Without antagonizing the stated principle, the defendant takes the position that tobacco is not a food or within the category of any of the articles numerated above, and is hence beyond the scope of the cited cases. The word ‘food’ has been variously defined by lexicographers as nutritive material taken into' the body for the purpose of growth, repair, or maintenance; that which is eaten or drunk for nourishment; whatever supplies nourishment to organic bodies. It may be conceded for the present purpose that tobacco is not a food; but it does not necessarily follow that the defendant is exempt from liability.
“In Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365, 366, the plaintiff sued the defendant for damages resulting from the chewing of a piece of Brown Mule tobacco in which a decomposed human toe was concealed. After referring to the general rule and its exceptions together with the contention that the limit has been reached by the courts and that the facts did not warrant an exception in favor of the plaintiff, the court observed: We know that chewing tobacco is taken into the mouth, that a certain proportion will be absorbed by the mucous membrane of the mouth, and that some, at least, of the juice or pulp will and does find its way into the alimentary canal, there to be digested and ultimately to become a part of the blood. Tobacco may be relatively harmless,-but decaying flesh, we are advised, develops poisonous ptomaines, which are certainly dangerous and often fatal. Anything taken into the mouth there to be masticated should be free of tbose elements which may endanger the life or health of the user. * * * The fact that the courts have at this time made only the exceptions mentioned to the general rule does not prevent a step forward for the health and life of the public. The principle announced in the cases which recognize the exceptions, in our opinion, apply, with equal force, to this case.’
“The principle was maintained and applied in the subsequent case of R. J. Reynolds Tobacco Co. v. Loftin (Miss.) 99 So. 13, in which it appeared that in a plug of chewing tobacco there was embedded the partially decomposed body of a small snake.
“In Liggett & Myers Tobacco Co. v. Rankin, 246 Ky. 65, 54 S.W.(2d) 612, it was shown that a worm ‘about the size of a match with many stingers on it’ had been pressed into a plug of tobacco in the process of manufacture, and that when the plaintiff chewed the tobacco the stingers became embedded in his mouth, the inside of which ‘looked like a man’s face with a week’s growth of beard.’ The plaintiff suffered pain, was unable to work, and brought suit for damages. Remarking that chewing tobacco is made to be chewed and that things dangerous to health when taken into the mouth are no less within the -rule than things that are taken into the stomach, the court said: ‘While tobacco is not a food, it acts upon the nerves and the nerves are no less to be considered than the stomach on which the food acts. The juices from the chewing of tobacco do in fact find their way to the stomach, and poison in chewing tobacco is no less dangerous to health than poison in chewing gum or a liquid taken for its effect on the nerves. Here there was a poisonous worm and the case cannot be distinguished from those where poison was found in other articles manufactured and sold for human consumption. Although chewing tobacco is not a food, it is within the rule which applies to all things manufactured for human consumption which are dangerous to health or life.’
“Substantially the same piünciple was enforced in Foley v. Liggett & Myers Tobacco Co., Inc., 136 Misc. 468, 241 N. N. S. 233, in which the grievance'was personal injury resulting from the use of ‘Velvet’ tobacco which contained the mutilated fragments of a dead mouse. ‘If the nature of a thing is such that it is reasonably certain to place life and limB in peril when negligently made, it is then a thing of danger.’ McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, 1053, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440.
“The defendant has cited Liggett & Myers Tobacco Co. v. J. J. Cannon, 132 Tenn. 419, 178 S. W. 1009, L. R. A. 1916A, 940, Ann. Cas. 1917A, 179, in wbieb it was held that a manufacturer of chewing tobacco was not liable for injury to a consumer because of the incorporation into the product of a poisonous insect if he had no actual or constructive knowledge of its existence; but some of the decisions heretofore mentioned referred to the opinion in that case and concluded that the distinction therein stated cannot be maintained. Upon the merits of the present case we entertain a similar opinion. A fishhook embedded and concealed in a plug of tobacco, though not a poison, is no less capable of inflicting serious physical injury. The trial court was correct in denying the motion for nonsuit.”

The charge of the court is complained of as being erroneous in the particular of authorizing a finding by the jury of negligence on the part of the appellant in the manufacture of the plug of tobacco that was purchased by the appellee from the M. System Store. The point made is that the petition contained no allegation that the metal particles were present or imbedded in the particular cut of tobacco through the negligence of the defendant in the “manufacture” of it. It is concluded that the point may not be sustained. The particular paragraph in view contains an averment, “That the presence of these metal particles in the tobacco aforesaid” were there owing “to the negligence” of the defendant and its employees*1 “in selling and distributing tobacco containing a substance such as this cut of tobacco contained.” The language is inapt and inconsistent and should be construed in the light of the intendment of the petition. The intendment of the petition, considered in its entirety, plainly was to predicate negligence, not simply and alone “in selling and distributing” aside from the manufacture, but in manufacturing and placing on the market for sale, both and together, of tobacco which had injurious particles imbedded in it in the process of manufacture. The defendant was not impleaded in the character of one who was engaged In the business of simply selling and distributing the particular tobacco to dealers. The defendant was impleaded and liability was rested in the character of one who was engaged in the manufacturing and selling, all and together, of tobacco to dealers generally. The essential facts to support that theory are stated. The facts are alleged relative to the character of the defendant that: “The defendant is engaged in the manufacture, .sale and distribution, and manufactures, .sells and distributes a certain brand of tobacco known as Tinsley’s Natural Leaf Tobacco — and' a cut of Tinsley’s Natural Leaf Tobacco that the defendant had sold to the M. System Store — had a great and enormous quantity of tiny metal particles imbedded in it.” The petition was based upon the definite and consistent theory, and the theory may be sustained, that the appellant was engaged in the business of manufacturing and selling to dealers generally a particular brand of chewing tobacco; that a certain plug of tobacco of that particular brand which had been manufactured and sold by appellant to the M. System Store, a dealer in Linden, Tex., contained metal particles imbedded in it. And the general scope and tenor of the pleading is to rest a negligent breach of duty on the part of the appellant in manufacturing and selling to the dealer, M. System Store, at Linden, Tex., for sale and distribution by him to the ultimate user a plug of tobacco containing injurious particles which had become imbedded in its during the process of manufacture. Such construction is appropriate to the action brought and is in harmony and in accord with the facts alleged. It is permissible to determine the theory of the complaint from the leading averments and general scope and ten- or of the pleading. 49 C. J. p. 167.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CRITZ, Judge. OBRETON, Chief Justice.

license: Public Domain

text:
    MAUL v. WILLIAMS et al.
    No. 1748—6214.
    Commission of Appeals of Texas, Section A.
    March 14, 1934.
    Henry E. Vemor and Marcus W. Davis, both of San Antonio, for plaintiff in error.
    A. L. Matlock, Ben H. Kelly, and J. R. Cade, all of San Antonio, for defendants in error.
   CRITZ, Judge.

This is an appeal from a final judgment of the district court of Bexar county, Tex., denying application to probate a certain instrument in writing purporting to be the last will and testament of Margaret Voigt, deceased. The case was tried in the district court with C. F. Maul, plaintiff in error here, as proponent of the alleged will, and Margaret E. Williams et al., defendants in error here, as contestants. Maul appealed from the judgment of the district court to the Court of Civil Appeals at San Antonio. When the case was finally heard in that court, it dismissed the cause, holding .that it had no jurisdiction. 46 S.W.(2d) 467. Maul brings error.

As we understand its opinion, the Court of Civil Appeals held that it had no jurisdiction because the record does not affirmatively show that the district court had jurisdiction.

The record shows that this case was finally tried in the district court on April 13, 1931. In this connection we here quote the following clause contained in the district court judgment: “It is further ordered, adjudged and decreed that this judgment be recorded in the Minutes of this Court, and a certified copy thereof be transmitted to the Honorable County Court of Bexar County, Texas, from which it was appealed, for its guidance, observance and execution in the manner provided by law. ‘ To which said judgment of the Court, and the verdict of the jury the Proponent C. F. Maul in open court excepted, and gave notice of appeal to the Court of Civil Appeals of the Fourth Supreme Judicial District of Texas at San Antonio.”

The statement of facts shows thát, when the case was tried in the district court, the following, instruments were offered in evidence:

(a) Application to probate the above-mentioned instruments as the last will and testament of Margaret Voigt, deceased. This application shows to have been originally filed in the county court of Bexar county, Tex., on December 28, 1926. This application also contained in the transcript and shows to have been filed in the district court on August 25, 1927.

(b) The notice of the above application duly issued by the county clerk of Bexar county, Tex., on January 3, 1927. This notice shows to have been duly served by the sheriff of Bexar county, both by posting and by publication.

Finally the statement of facts contains the following agreement: “It is agreed between Counsel that the Decree of the Court entered aftel hearing had thereon in the County Court is on Record and here referred to and considered in evidence on question of Jurisdiction. This record shows that the Probate Court denied-the probate of the alleged will of Margaret Yoigt, deceased, and that proponent gave notice of appeal to the District Court and filed and had approved his bond for appeal.”

The contestants answered in the district eourt, and raised no issue of jurisdiction.

We think the above record shows jurisdiction in the district court.

The Court of Civil Appeals holds in effect that jurisdiction cannot be conferred by agreement. We agree that, where a court is lacking in potential jurisdiction over the subject-matter of the suit, no action or agreement of the parties can operate to confer jurisdiction. On the other hand, where a court has potential jurisdiction over the subject-matter of the suit, its right or power to exercise it may be shown by an agreed statement entered into by the parties. In this connection we hold that the Court of Civil Appeals erred in not giving effect to the above-quoted agreement. This ruling makes it necessary for us to pass on, the other law questions presented by this appeal.

It appears from this record that Margaret Yoigt, a resident of Bexar county, Tex., died on December 22, 1926. On December 28, 1926, C. E. Maul, plaintiff in error here, made application to the county court of Bexar county, Tex., to probate certain instruments alleged 'by him to be the last will and testament of Margaret Voigt, deceased. The application for probate as filed in the county court contains the following allegation:

“That the instruments herewith filed are wholly in the hand-writing of decedent and comprise the following, all of which together form the testamentary disposition of her es-late, as therein stated:
“1. Instrument dated December 19, 1926;
“2. Instrument dated December 20, 1926;
“3. Instrument bearing no date but made on or about said date;
“4. Instrument in the form of a blank cheek, signed by decedent, made on or about December 7, 1926, being a check on the Frost National Bank, payable to petitioner, the amount thereof being Wank.”

The four instruments mentioned in the application were duly filed with it in the county court. When the case was tried in the district court, such trial was had on the original application for prohate as filed in the county court. When the case was tried in the district court, the statement of facts shows the following proceeding:

“Proponent introduced in evidence: ‘the papers that have been identified here and referred to by the witnesses — Especially these three papers at this time’: (First):

“(1)
“ ‘San Antonio Dec. 19
“ ‘In case I do not come back from the hospital these are my requests — I wish Mrs. Folk to have the dressing table and chair in her room — Mrs. Murray is to have a dresser and dressing table and some cbairs & buffet if she wants it — Mrs. Gillespie is to also divide bed clothes in 409 — have what furniture she needs, Mr. Maul is to have the furniture in 407 also the marble top table & and any other things of Dad’s in 409 — I desire O. F. Maul & Mrs. Murray to go thru my things together — Mrs. Murray is to have her ring back she gave me Mr. Maul is to have the 2 stone ring & and the solitaire in the hank. Ethel is to have the three stone ring & pendent — I desire Mrs. Murray to destroy all worthless papers — letters etc. I desire all my clothes wraps etc” to he given to Ethel Morris if she wants them — Mr. Maul is
“ ‘2
to have the furniture &c — in 407 — Ethel to have piano. Mr. Maul to have Brunswick— Mrs. Murray to have gold fish & Globes- — I am making a check for Mr. Maul which will enable him to pay all my bills. I am making a check for Mrs. Williams which will pay her what I owe her — Mr. Maul is to have Flossie & take care of her until she dies— Mr. Maul is to have the entire balance in Frost Bank & pay all debts out of same — Also the collections that are to come from Milwaukee for Jan. & from lots & what Lucca pays in. Mrs. M. Voigt.’
“Paper dated separate date: (Second):
“ ‘Dec. 20, 1926.
“ ‘This is to certify to all people that Mr. O. F. Maul is hold and dispose of all my personal belongings, Furniture, etc. as directed by me. Mrs. M. Voigt.’
“(Third) — undated:
“ ‘Mr. Maul will attend to all my business pay my debts & et. Mrs. M. Voigt’
“Proponent then introduced in evidence ‘outside of these three papers: One dated Dec. 19 the other Dec. 20, 1926, and one bearing identification marks by Dr. Decker called “the yellow paper”): the following:
“ ‘San Antonio, Texas, Dec.-, 1926.
“ ‘Frost National Bank of San Antonio.
SO — 9
“Pay to the order of O. F. Maul or bearer $-Dollars
“ ‘Mrs. Margaret Voigt.’
“(On the back of this is):
“ ‘Dec. 7 oo 1926.
“ T desire Mrs. Murray to go thru my things & destroy all papers &, letters of no value. Mrs. M. Voigt.’
“Proponent introduced ‘that cheek she referred to in the will; she stated she had already given cheeks — I don’t offer the check as part of the “Wholly” writing comprising, the Will; we offer these three papers as the Will and as having been wholly written by the deceased as a Holographic Will.’ ”

From the above it appears that by his application to probate the proponent alleged the above cheek was a part of Margaret Voigt’s will. Also it appears that he filed same with his application for probate as a part of such will. In this connection the cheek is the instrument described as item 4, supra. When the case was tried in the district court, the check was offered in evidence with the statement that proponent did not offer it as a part of the will. We gather from the above that, when the application for probate was filed proponent had possession of this check as well as the o.ther instruments, and then filed -it as a part of the will, but when the case was tried in the district court he abandoned such contention, and contended that the check was not a part of the will.

It appears that, in response to a question submitting that issue, the jury found that it was the intention of the deceased that the above check should be a part of her last will and testament.

The original check above mentioned is sent up with the record. It is partly printed, partly written, and partly blank. We here reproduce such “check” showing the actual condition in which it was executed:

The statement we have made demonstrates that the above check was not wholly written by Mrs. Voigt. The jury found, as above shown, that she intended it as a part of her will. For the purposes of this opinion we will give effect to this finding without committing ourselves on the question as to whether the record justifies it.

Under the alrove record the contestants contend that the instrument of December 19, offered for probate, was not wholly written by the deceased and therefore cannot be probated. This contention is based on the proposition that the check is a part of it.

Our statute, article 8283, R. C. S. 1925, requires all wills, except as otherwise provided by law, to be in writing and signed by the testator or by some other person under his direction and in his presence. This statute also provides that, if the will is not wholly written by the testator, it must be attested by two or more witnesses. Article 82S4 provides that, where the will is wholly written 'by the testator, the attestation of subscribing witnesses may be dispensed with. The instrument of December 19 is not attested by subscribing witnesses. It is in proof that it was wholly written by the deceased. In this connection, as already shown, the check is in part printed. Under the above record we hold that the instrument of December 19 is entitled to probate as a holographic will unless it should be rejected on account of undue influence, which question we will later discuss.

It is true that the statute will not permit an instrument to be probated as a holographic will unless “wholly written by the testator,” but we think the instrument of December 19 meets this requirement within the meaning of the statute. In this connection we hold that a testamentary instrument intended by the testator as a holographic will should 'be given effect as such, although it contains words not in the handwriting of the testator, if such words are not necessary to complete the instrument In holographic form, and do not affect its meaning. 40 Cyc. p. 1130, § c; 28 R. C. S. p. 162; Baker v. Brown, 83 Miss. 793, 36 So. 539, 1 Ann. Cas. 371, and note page’ 373; McMichael’s Heirs v. Bankston, 24 La. Ann. 451; In re Noyes’ Estate, 40 Mont. 190, 105 P. 1017, 26 L. R. A. 1145, 20 Ann. Cas. 366 and note.

In the McMiehael Case, supra, the Supreme Court of Louisiana had before it the law question here under discussion. The opinion states the case and the court’s conclusions of law. We quote the following from the opinion:

“The plaintiffs, who are heirs of 6. P. Mc-Miehael, deceased, sue to annul the olo-graphic will of their father on the ground that it was not wholly written by him.
“The four plaintiffs as witnesses state that the will was entirely written, dated and signed by the hand of the testator, except the word ‘to’ in the sixth line from the top, and the word ‘acres’ in the eighth line, which are in a different hand. Another witness and two experts express the same opinion. The original will is before us, and it is evident that there is some difference in the appearance of those two words from the balance of the writing.' But it is very manifest that the presence or absence of the two words can have no material effect upon the meaning or contents of the will. Without them the sense is the same as with them — the whole will showing that the testator bequeathed to his wife a certain number of acres of land. In another place there is a connected and rational repetition of this bequest in which the same two words are written by the testator.
“Admitting, therefore, that the two words in question were added by the hand of another, we may safely, under the first clause of article 1589 R. C. C., consider them as not written, and not impair the validity or effect of the will.
“We can not say that the law requires a will to be annulled for so unimportant and trivial cause.”

In the Baker Case, supra, the Supreme Court of Mississippi had before it the same law question here involved. In that opinion the court reviewed the authorities at great length, among them the McMiehael Case, supra, and fully approved the rule we have announced. In the note under the Noyes Case, supra, 20 Ann. Cas. p. 370, the rule is thus announced: “The rule appears to be supported by a number of authorities that a testamentary instrument is valid as a holographic will, although it contains words not in the handwriting of the testator, if such words are not necessary to complete the instrument in the holographic form, and do not affect its . meaning. Thus it has been held that the fact that the names of witnesses were appended to an instrument in their own handwriting did not invalidate it as a holographic will, where such a will was not required to be witnessed. Andrews’ Heirs v. Andrews’ Executors, 12 Mart. [O. S.] (La.) 713; Roth’s Succession, 31 La. Ann. 315.”

The Noyes Case, supra, is cited by the contestants as supporting their contention that this will cannot be probated because not. wholly written by the testator. We think a careful reading of that case will demonstrate that it supports our conclusion. It is true-that the will involved in the Noyes Case was refused probate. This, however, was because of the peculiar wording of the Montana statute involved. The opinion shows that the statute (Rev. Codes Mont. 1907, § 4727) provided “A holographic will is one that is entirely written, dated, and signed by the hand of the testator himself.” The will was not wholly dated by the hand of the testator. The court gave effect to the statute for that reason and refused the will probate.

When we come to examine the instrument: involved in the case at bar, we find that while-it, in one place, states, “I am making check to Mr. Maul which will enable him to pay all of my debts,” it, in another place states, “Mr. Maul is to have the entire balance in Erost Bank & pay all debts out of the same.” It is-manifest that the presence or absence of the above check can have no material effect upon the meaning or contents of the instrument in which it is mentioned. Without the check the sense of the instrument is absolutely the-same as with it.

The record shows that the jury found the instruments here offered for probate are the-product of undue influence exercised by C. E. Maul over the deceased. Maul contends that there is no evidence in the record sustaining such finding. Such contention presents a law question. In view of the fact that this case must be remanded to the Court of Civil Appeals to pass on the sufficiency of the evidence on this question, we will not enter into-any detailed discussion thereof. It is sufficient to say that we hold that there is some evidence in the record sustaining the jury’s finding on this issue.

As already shown, Maul contends that the evidence is not sufficient to sustain the jury’s finding of undue influence. This contention addresses itself to tlie exclusive jurisdiction of the Court of Civil Appeals. That court did not pass on the question because, having dismissed the cause on another question, it did. not reach it. Under such a record the case must be remanded to the Court of Civil Appeals to pass on the issue as to whether or not the evidence is sufficient to sustain the finding of undue influence.

We recommend that the judgment of the Court of Civil Appeals be reversed and the cause remanded to that court for further proceedings in accordance with this opinion.

OBRETON, Chief Justice.

The judgment of the Court of Civil Appeals is reversed, and the cause remanded to the Court of Civil Appeals for further proceedings, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: KRUEGER, Judge.

text:
    TIPTON v. STATE.
    No. 16545.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the 'State.
   KRUEGER, Judge.

The appellant was convicted of the offense of unlawfully possessing intoxicating liquor for the purpose of sale, and his punishment assessed at confinement in the state penitentiary for a term of two years.

The testimony adduced shows that appellant owned a farm situated about nine miles east of Sweetwater in Nolan county, Tex.; that he also owned a farm near Lamesa in Dawson county, where he resided. On the farm near Sweetwater, which he had leased to a man by the name of E. R. Bransford, he had built a filling station, tourist cabins, and a chicken house. On the 6th day of April, 1933, the sheriff of Nolan county with his deputies went to the appellant’s farm located in Nolan county and by virtue of a search warrant searched the premises. They found in a cellar of the chicken house a still, mash, and about eight or nine gallons of whisky. The appellant was on the premises at the time. The officers testified that they arrested him and took him down into the cellar and while in there he (the appellant) broke one bottle of whisky and undertook to hide one. The state also proved by Ted Bransford, a son of E. R. Bransford, that his father and appellant were engaged in the manufacture and sale of whisky on a fifty-fifty basis; that appellant helped make liquor and the witness helped appellant haul it to Lamesa in Dawson county. The appellant denied any connection with the still or the manufacture and sale of any liquor.

By bill of exception No. 1 the appellant complains of the action of the trial court in permitting Mr. Pool, a deputy sheriff, to testify that, after he had appellant under arrest and while he and appellant were in the cellar, the appellant poured out one-half gallon of whisky and he hid one-half gallon of whisky, to which appellant objected because he was under arrest at the time and, the same being in the nature of a confession and not having been warned as required by law, it was not admissible, which objection was by the court overruled, and the appellant excepted. We cannot agree with the appellant’s contention, inasmuch as the testimony objected to comes within the rule of res gestos of the offense, and in support of our views we' refer to the following authorities: Funston v. State, 117 Tex. Cr. R. 185, 38 S.W.(2d) 335; Kelly v. State, 102 Tex. Cr. R. 395, 278 S. W. 449, 450. In the case of Kelly v. State, supra, the accused, while being taken to jail in an automobile, seized a; pair of pliers and broke one of the fruit jars containing whisky. The court in passing on the question said: “It would be a remarkable situation if an accused should be permitted to destroy the evidence against him, and then deny the state the right to prove such destruction by simply showing that appellant was under arrest at the time.” We therefore overrule the appellant’s contention.

By bill of exception No. 2, the appellant complains of the action of the trial court in permitting the district attorney, while cross-examining the appellant, to exhibit in the presence of the jury a number of letters and then propound the following question: “Did you not write Mr. Bransford a letter and say ‘bring me those shoes,’ meaning two cases of liquor? A. I know my own signature when I see it and that signature is not mine. I did not write that.” Again the district attorney exhibited another letter and elicited the following testimony: “This letter here you show me is addressed to Ray Bransford, but I did not address that letter to him. It is postmarked Bamesa and dated April 25, 1933. It is signed J. W. Tipton but I did not sign it.” Again the district attorney exhibited another letter to the witness and propounded the following question: “Did you write a letter to Ray Bransford on January 13, 1933, in which you stated, ‘Dear Ray: IIow are you getting along? I am O. K. T will be down soon and see you about digging the well’?” To which questions and conduct of the district attorney in reading from said letters in the presence and hearing of the jury the appellant objected because the letters had not been identified as having been written by the appellant and the effect of same was to get before the jury the contents of the letters not identified as having been written by the appellant and which were not in themselves admissible in evidence. The court sustained said objections and instructed the district attorney not to read from said letters, but thereafter permitted him to propound to said witness the further question, “Did you not tell him in the letter dated January 13, 1933, that as soon as they get the chicken house up you would be down and stay with him until the whole thing was completed?” to which the appellant again objected for the reason that the letter had not been identified as having been written by the appellant to E. R. Bransford and that the effect of the conduct of the district attorney was to create the impression that the appellant’ had written said letters which were in themselves not admissible until proven up as the appellant’s act and composition, which objections were 'by the court overruled, and to which ruling the appellant excepted. Thereafter the district attorney exhibited some other letters and cross-examined the appellant with reference thereto, but none of said letters were thereafter introduced as evidence.

It is elementary that, before letters can be introduced as evidence against a defendant, proof of his execution of same is imperative, and this well-recognized rule has been consistently adhered to by this court, as will appear from the following authorities: Ex parte Denning, 50 Tex. Cr. R. 629, 100 S. W. 401; Miller v. State, 65 Tex. Cr. R. 302, 144 S W. 239; Patton v. State, 104 Tex. Cr. R. 122, 282 S. W. 240. It is true that in the ease under consideration the letters themselves were not introduced as evidence in the case, but the act of the district attorney in exhibiting the same in the presence of the jury and reading aloud certain sentences and paragraphs thereof and showing that the same boro the name of the appellant was placing before’ the jury a part of the contents of said letters without first having proved up the execution of the same by the appellant. It was an indirect way of getting the contents of said letters before the jury when he was not legally entitled to do so in a direct way-. It is obvious that the act of the district attorney in reading from the unidentified letters purporting to have been written' by 'the appellant was hurtful, and we feel constrained to sustain the appellant’s contention.

For the error above pointed out, the judgment of the trial court 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: HAWKINS, Judge.

text:
    DAVIS v. STATE.
    No. 16573.
    Court of Criminal Appeals of Texas.
    March 28, 1934.
    G. H. Crane, of Dallas, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for theft of .property under the value of «$50, the punishment being thirty days’ imprisonment in the county jail.

The record is here without a statement of facts or bills of exception. Nothing is presented for review.

The judgment is affirmed.


author: DATTIMORE, Judge. HAWKINS, Judge.

text:
    HAWKINS v. STATE.
    No. 16494.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Rehearing Denied April 11, 1934.
    G. B. Fenley, of Uvalde, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, Judge.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

II. B. Smith went in a car with Sheriff Clayton to a point near appellant’s house. It was nighttime and dark. Smith then went to the house. A man came to the door. Smith told him he wanted liquor. The man said all right, he had a pint in Ms pocket, and handed it to Smith, who paid him a dollar for it. Smith turned the whisky over to the sheriff. On the witness stand Smith said he could not identify appellant as the man who sold him the whisky; it was dark. Sheriff Clayton testified that he went with Smith to where appellant lived. He said appellant lived there at that time, and no other man lived there but appellant; also that he let Smith out of his car on said occasion about a block from appellant’s house; that Smith went to appellant’s house, came back with a pint of whisky, and told witness he got it from appellant. Smith was recalled for the defense and said that, when he got back with the whisky, he told Sheriff Clayton he got it at appellant’s, not from him, but he made this rather significant statement in his testimony, “I went down there after a pint of liquor. * * * I had been to that place one time before.” After being recalled by the defense, Smith said he knew there was so-me one living on the little garden farm there, another man; he had seen him working in the field a time or two, “suppose he lived in the house with appellant.” The jury had before them no foundation for crediting such a supposition.

Appellant did not take the stand, nor. introduce his wife, if he had one, or any member of his household, but introduced only one witness, a man who said he heard Smith say on one occasion that he did not buy any liquor from Hawkins; Hawkins being appellant. Cross-examined, witness said he did not know what occasion or transaction was under discussion between Smith and the party he was talking to, at the time he heard this conversation.

By one bill of exceptions appellant complains of the refusal of a peremptory instruction. to acquit, and, by another, of the fact that the court charged on circumstantial evidence. We think the case one of circumstantial evidence, and that the court did not err in refusing to instruct an acquittal. We note that a charge requested by the defense was given telling the jury that before they could convict there must have been produced in their minds by the testimony a reasonable and moral certainty that this appellant and not another person committed the offense charged, and that, if they had a reasonable doubt on this point, they should acquit.

Appellant’s brief presents four propositions, all substantially based on the theory of the insufficiency of the testimony, and the argument in the brief is a summary and discussion of the testimony. In all cases before this court it is our duty to decide as far as the facts are concerned, not what we might have done had we been on the jury in a particular instance, but is there any testimony in the ease at bar upon which a fair and dispassionate mind might find support for a verdict of guilty.

That whisky was sold by a man at the home of this appellant on the occasion in question, to another man who had been to said home on only one former visit, is beyond dispute. That said second man knew what he was going for is clear. That the man who came to the door upon some sort of summons or notice appeared to have been ready and willing to serve customers, and to sell whisky without cavil or query, is also made plain by Smith’s testimony to the fact that, when he told the man who came to the door that he wanted liquor, said man at once said all right, he had a pint in his pocket, which he produced and gave to Smith in exchange for $1. Smith refused to say that the seller was or was not Hawkins. We regard the testimony of the sheriff as weighty wherein he said, “No other man lived there,” and also, “He (Smith) went down to buy whisky; he came back with a pint of whisky; he told me he bought it off of Ilawkins.” We are unable to bring ourselves to the conclusion that the jury was without testimony to support their finding.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

Appellant again urges that the evidence is not sufficient to support the verdict. If there is evidence upon which the jury could predicate the verdict, this court is without authority to disturb it, although a different verdict might not have been the subject of just criticism. .There is no evidence of probative force pointing to any other person than appellant as the seller of the liquor. After again carefully reviewing the statement of facts, we remain of the opinion that it cannot be said there is an absence of evidence to support the verdict, and to disturb it under those circumstances would be substituting our judgment for the jury’s, which we are unauthorized to do.

The motion for rehearing is overruled.


author: FLX, Chief Justice. MURRAY, Justice.

text:
    NOBLE v. FIRST STATE BANK OF BISHOP.
    No. 9235.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1934.
    Rehearing Denied April 4, 1934.

      J. Marvin Ericson and Sidney P. Chandler, both of Corpus Christi, for plaintiff in eiyior.
    Boone, Raymcr & Davis, of Corpus Christi, for defendant in error.
   FLX, Chief Justice.

This suit was instituted by plaintiff in error, hereinafter named plaintiff, for the sum of $132, alleged to be for usurious interest paid by plaintiff to defendant in error, hereinafter called defendant. The cause was submitted to the justice of the peace and judgment rendered against plaintiff in favor of defendant. On appeal to the county court, the cause was submitted to a jury on special issues, and on the responses thereto judgment was rendered that plaintiff take nothing and pay all costs. A writ of error has been prosecuted to this court.

In response to the issues submitted, the jury answered that plaintiff .paid defendant $33 interest on January 6, 1928, and that he did'not pay any interest on August 11, 1928, as claimed by him. It was in evidence that plaintiff borrowed $363 from defendant, and was required to give a note for $363. The sum of $363 was deposited by plaintiff in the bank in January, at the time it was paid over to him by defendant, as was evidenced by a deposit slip in his name. On August 11, 192S, plaintiff gave a check for the amount of the note, $363, being the money which he had received from defendant. No interest was requested or given at that time. There is no evidence that plaintiff paid to defendant any interest except the $33 paid in advance.

The interest in this case, $33, was paid on January 6, 1928, and the suit for the interest was instituted on June 30, 1930, more than two years after the payment of the interest claimed to be usurious. The amount of interest paid was considerably in excess of interest which could have been legally claimed on the amount of the debt on its due date, at the rate of 10 per cent, per annum; however, under the statutes providing for the recovery of the penalty for exacting usurious interest, it is provided that the claim for such usurious interest shall be barred in two years from the time of its receipt or collection. Article 5073, R. S. 1925. The claim for the usurious interest was clearly barred by limitation under the provisions of the statute, and, being pleaded, the court did not err in rendering judgment in favor of defendant in error.

The judgment will be affirmed.

MURRAY, Justice.

I am of the opinion that plaintiff in error’s motion for a rehearing should be granted, and I hereby dissent to the order overruling the same.

I think the original opinion is incorrect wherein it holds that the $33 interest was paid on January 6, 1928, and not on August 11, 1928, and that therefore a suit to recover double the amount of such usurious interest was barred by the two-year statute of limitation.

It is true that there was an exchange of a check, a deposit slip, and a note at the time this loan was made, but, when all matter of form and simulated transactions are brushed aside,- we have the real facts in the ease clearly presented: On January 6, 1930, plaintiff in error, H. B. Noble, borrowed $330 from defendant in error, First State Bank of Bishop, for which Noble signed a note due in eight months for the sum of $363, which included the $330 borrowed and the $33 interest which Noble had agreed to pay for the use of the money. On August 11, 1930, just before maturity, Noble paid this note in full, and for the first time paid to the bank the $33 usurious interest. He brought his suit within the two-year period after August 11,1930, so that same was not barred by the statute of limitation. In my opinion, Noble should recover judgment in the sum of $66, which is twice the amount of the usurious interest actually paid by him on August 11, 1930. Gunter v. Merchant, 213 S. W. 604 (Tex. Com. App.) Simpson v. Grissom, 38 S.W(2d) 1106 (Tex. Civ. App.); Alston v. Greene, 43 S.W.(2d) 478 (Tex. Civ. App.); Southern Industrial Corp. v. Bolton, 22 S.W.(2d) 495 (Tex. Civ. App.).

For the reasons above stated, I respectfully dissent from the majority opinion herein.


author: MURRAY, Justice.

text:
    A. F. PARKER, Appellant, v. ARROYO-COLORADO NAVIGATION DISTRICT OF CAMERON AND WILLACY COUNTIES, TEXAS, et al., Appellees.
    No. 9252.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1934.
    Rehearing Denied March 7, 1934.
    Seabury, George & Taylor, of Brownsville, for appellant.
    Greenwood & Lewis, of Harlingen, Dan Moody, of Austin, Templeton, Brooks, Napier & Brown, of San Antonio, and H. L. Yates, of Brownsville, for appellees.
   MURRAY, Justice.

This suit is a companion case to cause No. 9253, styled A. F. Parker, Appellant, v. State of Texas et al., Appellees, 68 S.W.(2d) 637, this day decided'by this Court.

In this case the Arroyo-Colorado navigation district of Cameron and Willacy counties was the plaintiff below, while in cause No. 9253, the state of Texas and Cameron county were the plaintiffs below.

All the propositions of'law presented ⅛ this appeal are also presented in cause No. 9253. We do not deem it necessary to discuss each one of those propositions as here presented, as same are fully discussed in our opinion in cause No. 9253. For the reasons given in that opinion, all of appellant’s propositions will be overruled.

The judgment is affirmed.


author: MORROW, Presiding Judge.

text:
    Robert AMI v. STATE.
    No. 16759.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    John L. Compton, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft is the offense; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Robert AMI v. STATE.
    No. 16758.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    John L. Compton, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Burglary is the offense; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    C. C. BAKER v. STATE.
    No. 16574.
    Court of Criminal Appeals of Texas.
    March 28, 1934.
    Earl R. Parker, of Dallas, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State:
   MORROW, Presiding Judge.

The conviction is for the violation of the law forbidding the practice of medicine without compliance With the statutory requirements prescribed by the Legislature in title 12, chapter 6, P. C. 1925; penalty assessed at a fine of $50 and confinement in the county jail for one day.

There is before us no statement of the facts heard in the trial court. Apparently the trial was had before the judge without a jury.

We find nothing in the motion for new trial which would warrant this court in interfering with the verdict.

The state of the record precludes any disposition of the case except to order an af-firmance, which is accordingly done.


text:
    Arthur BARKER v. STATE.
    No. 16614.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    Floyd Harry, of Farmersville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The unlawful sale of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Harry FRIEMEL and Ted Friemel v. STATE.
    No. 16823.
    Court of Criminal Appeals of Texas.
    March 28, 1934.
    Lee P. Pierson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

Upon the written request of the appellants, duly verified by their affidavits, the appeal is dismissed.


text:
    D. E. HARRIS v. STATE.
    No. 16789.
    Court of Criminal Appeals of Texas.
    March 28, 1934.
    • Lockhart & Brown, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The conviction is for the unlawful possession of equipment for the manufacture of intoxicating liquor; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    D. A. PARKHURST v. STATE.
    No. 16746.
    Court of Criminal Appeals of Texas.
    March 28, 1934.
    Lockhart & Brown, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is rape; penalty assessed at confinement in the penitentiary for five years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    J. R. READHIMER v. STATE.
    No. 16790.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    See, also, 59 S.W.(2d) 1080; 60 S.W.(2d) 788.
    Bledsoe, Crenshaw & Dupree, of Lubbock, L. G. Mathews, of Ploydada, and Joiner & Cook, of Plainview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for murder; punishment being two years in the penitentiary.

Appellant has filed his affidavit advising this court that he does not desire to further prosecute his appeal, and at his request the appeal is dismissed.

Appeal dismissed.


text:
    L. C. ROBERTS v. STATE.
    No. 16557.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    W. Owen Dailey, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft, a misdemeanor, is the offense; penalty assessed at confinement in the county jail for a period of thirty days.

One milk can of the value of $5.25 and five gallons of milk of the value of 20 cents per gallon were alleged to have been taken by William Middlebrook, O. B. Middlebrook, and L. C. Roberts, the appellant. William Mid-dlebrook was acquitted, and O. B. Middle-brook was convicted on his separate trial.

Appellant was tried before the court without a jury.

Peter Johnson, the owner, testified to-the loss and identity of the property.

Deputy Sheriffs Nevelle and Dinkins made the arrest and recovered the property. It was in an automobile in which the appellant, Roberts, and the two Middlebrooks were riding. The appellant was driving the car. The testimony exculpated William Middlebrook of the offense.

Appellant testified in his own behalf, claiming that he took no part in the theft but allowed the Middlebrooks to put the stolen property in the car which was possessed and driven by him. Appellant said he had no knowledge of the theft of the property.

Testimony was introduced by the state touching tracks tending to show that more than one person took part in the theft. Appellant claimed that newly discovered evidence would have rebutted such testimony. The bill of exception fails to meet the legal requirements touching newly discovered evidence. The evidence is sufficient to support the conviction, and, in overruling the motion for new trial, the court committed no error.

The judgment is affirmed.


text:
    Albert SANCHEZ v. STATE.
    No. 16804.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    Manuel Diaz de Leon, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for assault with intent to murder; punishment assessed being 15 years in the penitentiary.

Appellant has filed his affidavit advising this court that he does not desire to further prosecute his appeal. At his request the appeal is dismissed.


text:
    Will VENN v. STATE.
    No. 16824.
    Court of Criminal Appeals of Texas.
    March 28, 1934.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

The appellant has filed a written motion, duly verified by his affidavit, asking that the appeal be dismissed. The request is granted, and the appeal is ordered dismissed.


author: Mr. Chief Justice Warren Mr. Justice Goldberg,

text:
    SHENKER v. BALTIMORE & OHIO RAILROAD CO.
    No. 414.
    Argued April 17, 1963.
    Decided June 10, 1963.

      Charles Alan Wright argued the cause for petitioner. With him on the brief were 'John Ruffalo and James E. McLaughlin.

      Alexander H. Hadden argued the cause and filed a brief for respondent.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

The petitioner brought an action under the Federal Employers’ Liability Act, 45 U. S; C. §§ 51-60, in the Federal District Court for the Western District of Pennsylvania to recover for injuries caused by the alleged negligence of the respondent Baltimore & Ohio Railroad (B&O) and the Pittsburgh & Lake Erie Railroad (P&LE). At the close of the evidence, the District Court directed a verdict in favor of the P&LE on the ground that the evidence failed to establish that the petitioner was-an employee of that company as required by § 1 of the Act (45 U. S. C. § 51). The case against the B&O, .however, was submitted to the jury which returned a verdict of $40,000 for the petitioner. The District Court denied a motion for judgment n. o. v. and entered judgment as found by the jury. On appeal, the Third Circuit Court of Appeals, one judge dissenting, reversed, holding that the petitioner failed to establish negligence on the part of the B&O. 303 F. 2d 596. A rehearing en banc was denied. We granted certiorari. 371 U. S. 908.

The petitioner was employed by the B&O at its Mahoningtown station in New Castle, Pennsylvania. The railroad complex at Mahoningtown consisted of four sets of tracks, two owned and operated by the B&O and two by the P&LE. On the B&O side, the B&O maintained a station and station facilities. Although, the P&LE maintained a station, it kept no employees, all necessary services for the two stations being provided by B&O employees. The B&O ticket agent issued tickets in the B&O station for the P&LE trains. The petitioner provided janitor work for both stations and assisted the loading and unloading of mail cars for the trains of both railroads. The petitioner was paid by the B&O and was under the sole supervision of the B&O ticket agent.

On the date of the accident, October 15, 1956, the petitioner handled, the mail for the P&LE train scheduled to depart Mahoningtown at 12:25 a. m. The petitioner loaded 20 to 25 bags of mail on a B&O wagon at the B&O station. He crossed the B&O and P&LE tracks to the P&LE platform and, when the P&LE train pulled up, brought the wagon alongside the mail car door. On this occasion, in spite of the efforts of the petitioner and the P&LE baggageman, one Beck, the sliding door on the P&LE car would not open more than 18 or 20 inches. According to the petitioner, Beck commented thai'he had reported the defective door to the P&LE which had yet to fix it and that they would have to. get the mail on and off as best they could. The petitioner, standing on the wagon, had no difficulty throwing the smaller bags in the restricted opening. The larger ones, however, weighing from 80 to 100 pounds, ¿required the petitioner “to twist around,” and “to keep pushing and forcing them” to get them in the opening. In the process of this unusual exertion, the petitioner felt something snap in his back. He- reported the injury immediately to the B&O ticket agent. Treatment of the injury eventually required the removal of a ruptured .intervertebral disc and resulted in the petitioner’s permanent disability. On the basis of this evidence, the jury found for the petitioner.

Before considering the merits of the decision below, the petitioner raises a procedural point,, claiming that he was denied a rehearing en banc in the Third Circuit Court of •Appeals in violation of his rights under 28 U. S. C. § 46 (c). At the time the petitioner filed his motion for rehearing en banc there were eight active judges serving on the Third Circuit. Four judges voted to grant the rehearing, two voted to deny, and two abstained. The rehearing was denied. The petitioner claims that to grant a rehearing en banc, the statute requires only a majority of those present. The Third Circuit requires an absolute majority pf the active members of the court. Section 46 (c) provides:

“Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc'shall consist of all active circuit judges of the circuit.”

The Court had occasion to consider this section at length in Western Pac. R. Corp. v. Western Pac. R. Co., 345 U. S. 247. It there said:

“In our view, § 46 (c) is not addressed to litigants. It is addressed to the Court of Appeals. It is a grant of power. It vests in the court the power to order hearings en banc. It goes no further. It'neither forbids nor requires each active member of a Court of Appeals to entertain each petition for a hearing or rehearing en banc. The court is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.” Id., at 250.

The Court went on to say that the rights of the litigant go no further than the right to know the administrative machinery that will be followed and the right to suggest that the en banc procedure be set in motion in his case. The practice of the Third Circuit has been fully revealed by Judge Maris in Hearing and Rehearing Cases In Banc, 14 F. R. D. 91, which was referred to with approval by this Court in United States v. American-Foreign S. S. Corp., 363 U. S. 685, 688, n. 5. ’’Although every petition for rehearing is submitted to every member of the court, a judge is not required to enter a formal vote on the petition. Such a procedure is clearly within the scope of the court’s discretion as we spoke of it in Western Pacific. For this Court to hold otherwise would involve it unnecessarily in the internal administration of the Courts of Appeals.

Turning to the merits, there can be no question that the petitioner is an employee of the B&O as required by § 1 of the F. E. L. A. Although the B&O suggests that the petitioner may have been the employee of the P&LE within the meaning of the common law loaned-servant doctrine, Standard Oil Co. v. Anderson, 212 U. S. 215; Linstead v. Chesapeake &.Ohio R. Co., 276 U. S. 28, 32-34, there is no evidence in the record to support such a conclusion. In describing the loaned-servant doctrine, the Court in Anderson stated that when the nominal employer furnishes a third party “with men to do the work and places them under his exclusive control in the performance of it, [then] those men become pro hac vice the servants of him to whom they are furnished.” 212 U. S., at 221. The Court concluded that under the common law loaned-servant doctrine immediate control and supervision is critical in determining for whom the servants are performing services. In the present case, the undisputed facts show that the petitioner was at all times paid by the B&O and under the sole supervision of B&O employees. The intimations of the B&O that the petitioner might' have been given directions by the P&LE baggageman is at most an example of the minimum cooperation necessary to carry out a coordinated undertaking, and, as noted- in Anderson, cannot amount to control or supervision. 212 U. S., at 226. The whole tenor of the services the B&O provides for the P&LE speaks of an agreement by the B&O to manage and operate the P&LE station at Mahoningtown. On such evidence, the petitioner is clearly an employee of the B&O even under the common law loaned-servant doctrine, and we therefore need not consider the extent to which that doctrine applies to cases under the F. E. L. A. See Linstead v. Chesapeake Ohio R. Co., supra; compare Sinkler v. Missouri Pac. R. Co., 356 U. S. 326, 329-330.

The only remaining issue is the negligence, if any, of the respondent B&O. The trial judge instructed the jury that

. . a railroad is under a duty to exercise ordinary prudence, caution and care to inspect and to furnish its employees with cars on' which they work equipped with reasonably safe doors, even though the cars are owned by another railroad. A failure of the B&O Railroad to do so is negligence, providing that the railroad can foresee that one of its employees may be injured in performing his work in connection with that car and its equipment which are not reasonably safe.”

No exception was taken to this charge. In his opinion denying the B&O’s motion for judgment n. o. v., the trial judge relied on a series of court.of appeals decisions standing for the more broad proposition that a railroad has the nondelegable duty to provide its employees with a safe place to work even when they are required to go onto the premises of a third party over which the railroad has no control. See Kooker v. Pittsburgh & Lake Erie R. Co., 258 F. 2d 876; Chicago Great Western R. Co. v. Casura, 234 F. 2d 441; Beattie v. Elgin, J. & E. R. Co., 217 F. 2d 863. These decisions are in accord with the opinions of this Court in Bailey v. Central Vermont R. Co., 319 U. S. 350; Ellis v. Union Pac. R. Co., 329 U. S. 649; Harris v. Pennsylvania R. Co., 361 U. S. 15, reversing 168 Ohio St. 582, 156 N. E. 2d 822. The present case has been argued to us on the basis of these same decisions and the safe-plaee-to-work doctrine. The respondent admits the general statements of the doctrine in these cases. It bases its defense solely on the proposition that because the P&LE train had just pulled into the station, the B&O did not have sufficient opportunity to obtain actual or constructive notice of the defective mail ear door. The respondent relies on two lower court cases holding that where the defect in the premises of the third party arose within minutes or hours of the accident, there was insufficient time as a matter of .law for the railroad to be held to have notice. Kaminski v. Chicago R. & I. R. Co., 200 F. 2d 1; Wetherbee v. Elgin, J. & E. R. Co., 191 F. 2d 302, subsequent appeal reported in 204 F. 2d 755, cert. denied, 346 U. S. 867.

Whatever the validity of these last two cases, they do not have relevance here. We hold that the B&O had a duty to inspect P&LE cars before permitting its employees to work with them. The standard of care applicable to the use of cars belonging to a. foreign railroad was settled long before the accident in this case. In Baltimore & Potomac R. Co. v. Mackey, 157 U. S. 72, an employee of the -Baltimore & Potomac was killed when a defective brake did not hold on a freight car hauled by the Baltimore & Potomac, but belonging to another railroad. Relying on the language of an earlier New York decision, Gottlieb v. New York & Lake Erie R. Co., 100 N. Y. 462, 467, 3 N. E. 344, 345, the Court concluded that a railroad

“. . . is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master .... When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars; so much at least is due from it to its employés.” 157 U. S., at p. 90.

The Court did not have to look far for the “sound-reason and public policy” behind this principle. Relying on'the language of the lower court, the Court said:

“It would be most unreasonable and cruel to declare, that, while the faithful workman may obtain compensation from a company for defective arrangement of its own cars, he would be without redress against the same company if the damaged ear that occasioned the injury happened to belong to another company.” 157 U. S., at p. 89.

This decision was reaffirmed and extended a short time later in Texas & Pac. R. Co. v. Archibald, 170 U. S. 665. In that case, the Texas & Pacific accepted a car of the Cotton Belt Railway for loading at a cottonseed oil mill on a spur off the Texas & Pacific track. In the process of switching, an employee of the Texas & Pacific was seriously injured due to a defective coupling on the foreign car; The Texas & Pacific attempted to distinguish the Baltimore & Potomac case on the ground that the duty to inspect did not apply when a railroad accepted a foreign car only for loading rather than for hauling over its line in one of its trains. The Court dismissed the argument, summarily:

“The argument wants foundation in reason and is unsupported by any authority. In reason, because, as the. duty of the company to use reasonable diligence to furnish safe appliances is ever present, and applies to its entire business, it is beyond reason to attempt by a purely arbitrary distinction to take a particular part of the business of the company out of the operation of the general rule, and thereby to exempt it, as- to the business so separated, from any obligation to observe reasonable precautions to furnish appliances which are in good condition.” 170. U. S., at p. 670.

See generally, Annotation, 41 L. R. A. 101. The rules adopted in these two cases are unavoidably applicable to the present case. The B&O required the petitioner to work with cars belonging to the P&LE, taking no precautions whatsoever to protect him from possible defects in these cars, defects for which it would be liable should they appear in its own cars. As Texas & Pacific makes abundantly clear, there is no de minimis rule called into play on account of the brevity of the sojourn of the P&LE train in Mahoningtown station, since the length of the sojourn is irrelevant to the duty owed to the employee working with the car. Nor is it an answer to claim that the B&O lacked control or supervision over the P&LE car. Such arguments have never supported an exception to the employer’s duty to provide a safe place to work, Chicago Great Western R. Co. v. Casura, supra, p. 447; Beattie v. Elgin, J. & E. R. Co., supra, p. 865; Terminal R. Assn, of St. Louis v. Fitzjohn, 165 F. 2d 473, 476-477, and have no greater relevance here with respect to the duty to provide reasonably safe cars, see Annotation, 41 L. R. A. 101. The B&O may adequately protect itself by refusing to permit its employees to service the car. Since the instructions to the jury adequately reflect the holdings in these cases and since the B&O’s failure to inspect is uncontested, the jury verdict should have been affirmed.

Although recovery in this case is supported by the common law, it is also required by any reasonable construction of the Federal Employers’ Liability Act itself. As we stated in Sinkler v. Missouri Pac. R. Co., 356 U. S. 326, 330: “it was the conception of this legislation that the railroad was a- unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any-other member engaged in the common endeavor.” . If recovery were denied in this case, the railroads, by the simple expedient of doing each other’s work, could tie their employees up in legal technicalities over the proper railroad'to sue for injuries and perhaps remove from coverage of the Act a significant area of railroad activity. It would subject the employee once more to the stricter negligence standards of the common law. and such debilitating doctrines as assumption of risk. Cf. Texas & Pac. R. Co. v. Archibald, 170 U. S. 665, 673.

In our opinion the case was submitted to the jury under proper instructions, and there was a reasonable basis in the evidence for the verdict which the jury returned.

Reversed.

Mr. Justice Goldberg,

with whom Mr. Justice Harlan and Mr. Justice Stewart join,

dissenting.

With all deference, I must respectfully dissent. We are not here dealing with a' situation in which a lower court has so disregarded applicable law as to require correction here. This is simply a case in which the evidence is insufficient to sustain liability of the respondent B&O and in which a perhaps more substantial claim against the P&LE was abandoned by the petitioner below. Any hiatus in protection of the petitioner exists not because of inadequacies in the law, but solely because of inadequacies in the evidence.

Normally, in a case such as this in which the defendant’s own negligence did not create the hazardous condition, actual or constructive notice to the defendant of the injury-producing, defect is a' prerequisite to negligence and, therefore, to liability. See, e. g., Sano v. Pennsylvania R. Co., 282 F. 2d 936, 938; Dobson v. Grand Trunk W. R. Co., 248 F. 2d 545, 548; Atlantic C. L. R. Co. v. Collins, 235 F. 2d 805, 808, cert. denied 352 U. S. 942; Kaminski v. Chicago R. & I. R. Co., 200 F. 2d 1, 4. See also Ringhiser v. Chesapeake & O. R. Co., 354 U. S. 901; Wetherbee v. Elgin, J. & E. R. Co., 191 F. 2d 302, subsequent appeal reported in 204 F. 2d 755, cert. denied, 346 U. S. 867. Thus, given the failure of the petitioner to introduce evidence-tending to show that the respondent B&O knew, or in the exercise of reasonable care should have known, of the defective door, the judgment entered below in favor of the B&O should be sustained.

The Court seeks to avoid the application of these ordinarily controlling principles by invoking several cases, decided prior to enactment of the F. E. L. A., which, it holds, require that, in order to discharge-its'duty “to use reasonable care in furnishing [the petitioner] . . . with a safe place to . . . work,” Bailey v. Central Vermont R. Co., 319 U. S. 350, 352, the B&O must inspect the P&LE cars' before B&O employees are allowed or directed to work on them. Even accepting, arguendo, the general applicability here of the principle imposing on the B&O the duty to inspect the cars which it services for the P&LE; the result reached by the Court does not follow. Such a duty may exist, to be sure, but the obligation can be no more than to conduct' reasonable, nonnegligent inspections, and the liability which would accrue from breach of such a duty would be responsibility for damages occurring as a result of the negligent performance or the nonperformance of that duty. In a meaningful sense, then, imposition of a duty to inspect is no more than a specific application of the concept of constructive knowledge, since it is implicit in the principle that one is chargeable with knowledge of that which in the exercise of reasonable care he should have known. Here, that would.mean that in the exercise of reasonable care the B&O should have inspected the P&LE cars and is .chargeable with knowledge of that which a reasonable inspection would have shown.

The Court, however, says merely that the B&O had a duty to inspect and that, having failed to inspect, it is liable to the petitioner for the defect which apparently caused his injury. T find this reasoning unconvincing.

While the Court declares that it is undisputed that the B&O did not inspect, there is simply no evidence in the record with regard to inspection. Moreover, even if an inference of failure to inspect were supportable, there is no basis for assuming, as the Court does and must do to sustain its result, that a reasonable, nonnegligent inspection procedure would, in fact, have disclosed the defect which is the basis of the .petitioner’s claim. Even when there does exist a duty of inspection, the mere existence of a defect does not itself create liability; it must also be shown that reasonable, nonnegligent inspection procedures would have disclosed the defect. Evidence of this liability-producing factor was not introduced by the petitioner. The record is devoid of evidence as to the length of time the defect existed prior to the petitioner’s injury, and as to whether, even under an extremely carefúl and nonnegligent inspection procedure, the defect would have been discovered prior to the time of petitioner’s injury.

Under the rationale and result of this case, a railroad would be liable for a defect which .first appeared immediately prior to the injury for-which recovery is sought and which even the most scrupulous kind of inspection procedure could neither have avoided nor detected. What the Court appears to have done is to create not simply a duty of inspection, but an absolute duty of discovery of all defects; in short, it has made the B&O the insurer of the condition, of all premises and equipment, whether its own or others, upon which its employees may work. This is the wholly salutary principle of compensation for industrial injury incorporated by workmen’s compensation statutes, but it is not the one created by the F. E. L: A., which premises liability upon negligence of the employing railroad. It is my view that, as a matter of policy, employee» such as the petitioner, who are injured in the course of their employment, should be entitled to prompt and adequate compensation regardless of the employer’s negligence and free from traditional common-law rules limiting recovery. But Congress has elected a different test of liability which, until changed, courts are obligated to apply.

       The testimony of" the B&O ticket agent on duty at the time of the petitioner’s injury stands undisputed in the record:
      “Q. [By the Court] Did the P&LE have any boss there that night?
      "A. No, sir, the P&LE didn’t have any employees whatsoever connected with that operation there.
      “Q. Under whose supervision was Mr. Shenker?
      “A. He was under the ticket' agent, Mr. Boyd.
      “Q. On that turn when he got hurt?
      “A. On that turn he was under my supervision.
      “Q. During the four months you say he worked there, did any P&LE employee give directions or orders to" the plaintiff?
      “A. No, sir.
      “Q. From whom did he receive-direction' and orders, instructions?
      “A. From me or Mr. Boyd would let me know what he wanted done and I would tell Mr. Shenker.
      "Q. And you and Mr. Boyd were exclusively Baltimore & Ohio Railroad employees?
      “A. Yes, sir.”

       The Court in Texas & Pacific went on to hold that the railroad will not be held to its duty to inspect where the employee himself becomes aware of the defect yet continues to work with the car with knowledge of its defect. This exception to the rule was based on the belief that the employee assumes the risk of handling appliances which are known to be defective. * 170 U. S., at pp. 672-673. This exception, of course, is no longer relevant under the F..E. L. A., since § 4 of the Act expressly eliminates assumption of risk as a defense to negligence on the part of the employer. In its place, the railroad may raise contributory negligence on the part of the employee in mitigation of damages, a defense that was raised in this case and on which the jury was properly charged.

       The petitioner does not here argue that .notice of the defect to the P&LE was also sufficient notice to respondent B&O.

       Although language in its opinion suggests the contrary, see pp. 7, 10, ante, I do not understand the Court today to be directly declaring an absolute duty to provide a safe place to work without regard to -negligence, since the very cases cited by the Court indicate that the duty is to exercise reasonable care with respect thereto. Instead, the Court ignores the statutory concept of negligence in setting out the duty of inspection it imposes, a result which, for the reasons stated infra, is erroneous and violates' the clear language of the governing, statute.

       This, in fact, is the apparent rule of the very eases relied upon by the Court to subject the B&O to liability here. In Baltimore & Potomac R. Co. v. Mackey, 157 U. S. 72, cited by the majority at p. 8, ante, the Court based liability on the operative “principle that a railroad company is under a legal duty not to expose its employes to dangers arising from such defects in foreign cars as may be dis

        covered by reasonable inspection before such cars are admitted into its train.” 157 U. S., at 91 (emphasis supplied). The second case upon which the majority bases its result here, see pp. 8-9, ante, simply applies this same principle to a somewhat different set of facts, again declaring liability for. injury-producing defects “discoverable by proper inspection.” Texas & Pac. R. Co. v. Archibald, 170 U. S. 665, 672 (emphasis supplied). The natute and timing of the required inspection — but probably not, as the Court here declares, the duty of inspection itself — presumably depend, as a function of its reasonableness, on a number of factors, including the duration of the time the car is available to the defendant for inspection and the manner in which it is received. In both of the cited cases, the “foreign” car was in the possession and on the tracks of the named defendant upon which liability was imposed.

       The statement attributed to the P&LE baggageman by the petitioner that the defective door had been reported to the P&LE does not, of course, shed any light on the length of time the defect had continued to exist. The report may well have been made only shortly before the petitioner was injured.