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notes were filed in the General Land Office January 3, 1854. Corrected field notes were made April 17, 1855, and filed May 10, 1855. A duplicate certificate (the original being then considered lost) was filed with the surveys September 14, 1854. In 1858 some person unknown made two surveys by virtue of the original certificate in the Milam district, and it and the two surveys were returned to the Land Office. After this it and the two surveys were withdrawn by S. Crosby, but by what authority is not shown. The field notes were never returned, but the original certificate in some manner found its way back into the Land Office. There is a survey for 11,180,000 square varas in Wichita County, made November 17, 1860, for M. T. Johnson (who he was the record does not show) by virtue of the Jordan certificate and patented August 7, 1869, to the heirs of Floyd Jordan. This survey and the one described in defendants' answer made in 1901, pending this suit, would complete the 26 labors and constitute all the land now surveyed or claimed under the Jordan.”

It therefore appears that a duplicate of the league and labor certificate had been obtained and was filed with the field notes for that amount of land. This was the condition of that file in 1871, and is so yet. The lost certificate so far as this record goes to show was used by some person in 1858 in the Milam district, but the certificate and these surveys were withdrawn. In 1860 another survey was made for one M. T. Johnson (who was not connected in any manner with appellants so far as appears), and being the survey in Wichita County, and this was patented by patent to the heirs of Floyd Jordan in 1869. How far this proceeding affected the right of appellants to the league in question would, under the circumstances, be a question between appellants and the State. It appears that the Commissioner in 1891 required the survey to be corrected and cut own so as to take off the quantity of land for which patent had been issued, and the appellants are now ready to accede to this. But it seems to us that since 1871 appellants had such equitable or prima facie title by virtue of the duplicate certificate, original location and survey, and the curative act, as would have entltled them to maintain a possessory action against mere trespassers. The motion is overruled.

Overruled. Writ of error refused.

G. V. MILLER, JR., v. Z. W. GRAY.

Decided April 30, 1902.

1.-Landlord and Tenant-Removal of House.

Where plaintiff leased a portion of his homestead to w. in consideration that W. would erect a storehouse thereon which was to belong to plaintiff at the end of the lease, and W. erected the house and sold his lease to defendant with plaintiff's consent, defendant was not entitled, on quitting the property before the end of the lease, to renove the storehouse, and an injunction to prevent him from so doing was properly granted. 2.—Homestead—Lease Joinder of Wife.

A written option for a lease of four years on land that is part of a homestead, given by the husband but not signed by the wife, can not be enforced.

Appeal from Dallas. Tried below before Hon. T. F. Nash.

0. N. Brown, for appellant.

Parks & Crawford, for appellee.

FLY, ASSOCIATE JUSTICE.—Appellee sued to restrain appellant from moving a certain storehouse off the land of appellees. Appellant alleged that he had bought the land from D. T. Whatley. The cause was tried by jury, and upon their verdict the injunction was made perpetual restraining appellant from removing the house from the land.

It appears from the statement of facts that appellee leased a small portion of his rural homestead to D. T. Whatley for a period of five years in consideration that he would erect thereon a storehouse, which at the end of the lease was to become the property of appellee. Whatley built the house, and after occupying it for nearly a year sold his lease, with the consent of appellee, to appellant. About the same time appellant leased two acres of land from appellee including that on which the storehouse stood for the remaining four years of Whatley's lease. Appellant by the written contract got an option on the land for the four years at $40 an acre from appellee, which was not signed by the wife. The land, as above stated, was a part of the homestead of appellee and his wife. When appellant offered to purchase at the price named she refused to sign a deed to the land, and appellant moved the improvements he made off the land, and was about to move the storehouse erected by Whatley, when the injunction was served on him.

It becomes unnecessary to examine and discuss the numerous errors assigned, for the reason that the uncontroverted proof shows that the storehouse was attached to real estate belonging to appellee, and appellant had no right or authority to remove the house from the land as long as it belonged to appellee. It is admitted that the house was attached to the homestead ; that Whatley had built it with the distinct understanding that it should become the property of appellee at the end of the lease, and appellant could not move it off without the consent

of the owner of the land. He had no greater right in the house than had his vendor, Whatley. The option, if any, was not enforcible against the homestead right, and he obtained nothing by the contract except the lease held by Whatley. He had not paid that price, but because a deed was not given him, as he desired, he abandoned the lease and was attempting to remove the house from the land. He was properly restrained from so doing. The judgment is affirmed.

Affirmed. Writ of error refused.

St. Louis SOUTHWESTERN RAILWAY COMPANY V. J. L. JOHNSON.

Decided April 9, 1902.

1.—Railway Company-Assault on Passenger-Liability,

A common carrier undertakes absolutely to protect passengers against the misconduct of its own servants, and hence is liable for an assault wrongfully committed by one of them on a passenger. 2.-Same-Assault Not Justified.

The fact that a passenger had been drinking and was noisy, while it might have warranted his expulsion from the train, afforded no justification for an assault on him by the conductor. 3.-Same-Negligence-Charge.

Since an unwarranted assault by the train conductor upon a passenger was negligence per se, the submission of the question as to whether it constituted negligence was an error in the carrier's favor of which it can not complain. 4.-Same-Charge-Harmless Error.

An erroneous charge that if the conductor tried to get plaintiff to keep quiet, and plaintiff, by any wrongful conduct on his part, brought on the fight between himself and the conductor, he could not recover, was not one of which the defendant carrier could complain.

Appeal from Upsher. Trial below before Hon. J. G. Russell.

E. B. Perkins and Marsh, McIlwaine & Fitzgerald, for appellant.

Briggs & Briggs and A. S. Johnson, for appellee.

NEILL, AssociaTE JUSTICE.—This suit was brought by appellee against appellant to recover damages occasioned by an assault and battery, accompanied by profane and abusive language, committed by the conductor of one of appellant's trains upon him while he was a passenger thereon. The appellee recovered a judgment for $2800, from which the railway company has appealed.

It is uncontroverted that the appellee, while a passenger upon one of appellant's trains standing on the platform of a car, was set upon by the conductor in charge, beaten over the nose and face with his ticket punch, and then over the head with a six shooter,—the conductor using

profane and abusive language towards him in the presence of passengers during the assault. The only question is whether or not the assault and battery was justifiable. Appellant attempted to justify it upon the ground that it was done in self-defense, and upon the further ground that appellee, while standing on the platform, was hallooing in such a manner as to disturb the passengers in the car, and upon being admonished by the conductor to keep quiet, continued the noise, and that the assault was committed in an effort to quiet him and get him into the smoking car. We have carefully examined the statement of facts, and find no evidence that tends to justify the conductor in making the assault and battery. The appellee may have been drinking and a little boisterous, but such conduct, which, if it was reasonably calculated to disturb other passengers would have justified the conductor in expelling him from the train, furnishes no justification whatever for the assault.

It is the duty of a common carrier to safely and securely carry persons who bear to it the relation of passengers, and to use the utmost care and diligence to safely carry the passenger to the end of his route and protect him against assault and other ill treatment by those employed by it and under its control, and to exercise the utmost vigilance and care in guarding the passenger against violence from whatever source arising, which might reasonably be anticipated or naturally expected to occur. Dillingham v. Russell, 73 Texas, 47, 11 S. W. Rep., 119, 15 Am. St. Rep., 753; Railway v. La Prelle, 27 Texas Civ. App., 496; Cooley on Torts, 664.

A common carrier undertakes absolutely to protect its passengers against the misconduct or negligence of its own servants employed in executing the contract of transportation. Its liability rests upon the principle that it had engaged the performance of certain duties, and has selected its own servants for the performance of those duties, and hence an assault by an employe is a breach of the duty of the carrier to its passenger. Either the company or the passengers must take the risk of infirmity of temper, maliciousness, or misconduct of the employe whom the company has placed upon the train, and to whom it has committed the power to discharge its duties, and to look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is therefore but just to make the company rather than the passengers take the risk and to hold it responsible. 4 Elliott on Railroads, sec. 1638; Haver v. Railway, 43 Law Rep. Ann., 84. When prima facie case of assault and battery is sought to be justified, it is incumbent upon one who justified it to show that no more force was used than the exigencies of the case called for. The force used must be suitable in kind and degree to the exigencies of the occasion, otherwise the justification fails. Dillingham v. Russell, supra; Railway v. Jones, 39 Law. Rep., Ann., 786; Railway v. La Prelle, supra; Hanson v. Railway, 62 Md., 84; 16 Am. Rep., 404.

All the elements of an assault and battery were submitted to the jury by the court in its charge, and the jury were in substance instructed

if they found such facts as would constitute an assault and battery, and that they constituted negligence, to find for plaintiff, if they did not find for defendant on the defensive matters submitted. This part of the charge is complained of upon the ground that it submits an issue not made by the evidence,—that the question was one of an assault and not of negligence, and the charge should have confined the jury to the question of assault, and as to whether it was justifiable. If an unjustifiable assault and battery was made by the conductor upon the appellee, the liability of appellant for his injuries in consequence of it attached; for, if negligence, it was negligence per se, and established by the facts constituting the assault and battery, and the submission of the question as to whether the facts constituted negligence was an error in appellant's favor, of which it is in no attitude to complain. Had the verdict been against the appellee, the error would have been one that he might well complain of, for the charge would have authorized the jury to have passed upon the question of negligence arising from facts which in and of themselves constitute liability as a matter of law. It may

be doubted whether the evidence in this case was sufficient to authorize the court in submitting the issue as to whether the battery was committed by the conductor in self-defense. But however this may be, the question of self-defense was fully and fairly submitted to the jury by the court in its charge and in special charges given at appellant's request. When we say "fairly," we mean so far as the appellant is concerned, for we can not subscribe to the doctrine announced in one of the special charges that if “the conductor tried to get plaintiff to keep quiet, and if you further believe that plaintiff by any wrongful conduct on his part brought on a fight or difficulty between himself and the conductor, then it will be your duty to find for defendant.” This is diametrically opposed to the holding of the Supreme Court in Dillingham v. Russell and of the Court of Appeals of the Third District in Railway v. Le Prelle, above cited. The error, however, was one decidedly in appellant's favor, and put the appellee at a disadvantage before the jury.

The charge on the measure of damages is not obnoxious to the objections urged to it by appellant, nor is the verdict, when the nature and extent of the injury and the facts and circumstances attending it are considered, excessive. A brutal and atrocious assault, without anything to justify or palliate it, was committed by appellants servant upon one of its passengers to whom it owed the duty of exercising the highest degree of care and protection, and it is meet that it should be held responsible in damages for it.

We have considered fully and carefully all of the questions presented by the numerous assignments in this case, and find no error which in our opinion would justify us in reversing the judgment in this case. It is therefore affirmed.

Affirmed. Writ of error refused.

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