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fendants Lindsay and wife pleaded that any

extensions given to plaintiff by said Evans on the $400 note were Without their knoWledge and consent and not binding on them, and that therefore they should be discharged on their plea of four-year limitation. They pleaded limitation also by exception. They further pleaded payment in full to Wm. M. Evans and his executrix, Mrs. Minnie E. Evans Ivey. From the judgment in favor of plaintiff as against Mrs. Minnie E. Evans Ivey, in her individual capacity and as independent executrix, and against Nelson G. Mebane, with the writ of foreclosure as against lots 2 and 3, owned by Mebane, and in favor of defendants Mrs. Mattie JackSOn, H. L. Vaughn, the Lindsays, and the other defendants, plaintiff has appealed. [1] On April 4, 1907, Poythress executed a release to lot 6, sold by Evans to the Lindsays on June 27, 1905, but by Said instrument the lien existing on the other lots covered by the deed of trust was specifically stated to remain in full effect. The evidence Supports the conclusion that the Lindsays had paid in full the amount of the said $765 note given by them to Evans, and hypothecated by Evans to Poythress as additional security for Evans' debt to him, the payments being made to Evans during his lifetime, and after his death, on, to wit, December 22, 1912, Such payments were made to the executrix; a receipt of payment in each instance being given. The evidence further shows that the inventory and appraisement filed by the executrix showed a balance due On the Lindsay note of $269.50. Plaintiff’s testimony tended to Show that prior to the filing of the inventory and appraisement Lindsay was notified by Poythress or his attorney that he held the note against lot 6, and that there was a balance due thereon of about $175. Lindsay denied ever having received such notice from Poythress or his attorney, but we do not think the conflict of testimony is material, since the controlling question is Whether or not the original debt of Evans to Poythress evidenced by the $400 note was barred by limitation, for before Poythress COuld recover on the collateral note, he would have to establish in court the original debt evidenced by the $400 note to secure which the $765 note was given. In order to enforce his security, the plaintiff would be required to go into court, and would thereby necessarily bring himself within the Operation of the statute of limitation. Limitation affects the right to enforce a claim through the medium of the Courts, and not necessarily the validity or justness of said claim. It closes the dOOrS Of the tribunal to the tardy claimant who would seek the portals of the courthouse to enforce a right or to Collect a claim in the aSSertion Of Which he has been guilty of undue laches. It is true that a pledge may be subjected to the

L. 948; 31 Cyc. 819; Tombler v. Palestine Ice Co., 17 Tex. Civ. App. 596,43 S. W. 896; Gage v. Riverside Trust Co. [C. C.] 86 Fed. 984), where the contract of bailment gives the pledgee the right to sell the pledged article in case the debt is not paid, but not so Where the pledgee must call upon the courts to establish and enforce his rights. [2] The question to be determined is whether or not the $400 note dated June 27, 1905, could be successively extended by parol so as to prevent the running of the statute Of limitation. Article 5705, V. S. Tex. Civ. Stats., is as follows: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and #" by the party [sought] to be charged therey.” In Wells v. Moor, 42 Tex. Civ. App. 47, 93 S. W. 220, it is said: “The new promise pleaded was a forbearance to sue on the part of plaintiff and a promise to pay the account at a later day on the part of defendant. The subject of the transaction was an open account. The promise of forbearance on the part of plaintiff was based on no consideration, and did not suspend his right to sue. Under the statute any acknowledgment made after a debt is due must be in writing in order to extend the bar. To allow plaintiff's contention Would amount practically to an annulment of the statute. The case of Heisch v. Adams, 81 Tex. 94, 16 S. W. 790, cited by appellant, is not decisive of the question. The principle decided in that case is that a verbal contract made after the due date and before the bar of a note, and embodying new elements of consideration which amount to a novation, takes the place of the note forming in part the basis of the new contract, and the statute runs from the due date of the new contract. The facts here alleged fall far short of those in the case cited. In Howard v. Windom, 86 Tex. 560, 26 S. W. 483, it is held that the acknowledgment or new promise is a new cause of action which must be declared on. In Gibson v. Irby, 17 Tex. 174, it was held that a verbal agreement to extend the due date of a note, the debtor agreeing to pay the principal and interest on that date, did not bind the holder of the note not to sue sooner; the reason given being that the contract was without consideration passing from the debtor.” See Neyland V. Neyland, 19 Tex. 423, 430; San Antonio, etc., Loan Ass’n V. Stewart, 94 Tex. 441, 448, 61 S. W. 386, 86 Am. St. Rep. 864; Russ v. Cunningham (Sup.) 16 S. W. 446; LOWe W. DOWbarn, 26 TeX. 507, 510. Appellee cites a number of cases, to Wit, Casey-Swasey v. Anderson et al., 37 Tex. Civ. App. 223, 83 S. W. 840, Carter-Battle Co. v. Clarke, 91 S. W. 882, Fambro v. Keith, 57 Tex. Civ. App. 302, 122 S. W. 40, Wright v. Deaver, 52 Tex. Civ. App. 130, 114 S. W. 165, and others, in which a parol agreement by the principal, without the consent of the Surety, to extend the payment of a debt was held binding on the principal, and therefore to relieve the Surety, but these cases do not deal With the question of limitation, nor dispute the rule that in order for the plaintiff to recover by reason Of the parol promise he must original instrument in Writing. In the instant case plaintiff did not seek to recover On the parol promise, but on the note itself. The last extension of interest, aS pleaded, WaS made on June 27, 1912. The Suit was filed August 21, 1914, more than two years thereafter. Hence any action on the Oral contract alleged would have been barred by the twoyear statute, even had plaintiff declared thereOn. But he did not do so. Hence We conclude that the original note for $400, given On June 27, 1905, was at the time of the suit barred by the four-year statute of limitation, and that the Lindsays could Successfully plead the Statutes. In this connection it might be noted that there had been no formal assignment or transfer of the $765 note from Evans to Poythress put on record. Evans merely indorsed the note in blank and delivered it to Poy thress. So the Lindsays had no constructive notice Of the OWnership by Poythress of the note in question. The actual notice was denied by A. Lindsay, as before Stated. [3] With reference to the defense of Mrs. Mattie Jackson and H. L. Vaughn, no Vendor's lien notes from Mrs. Jackson's predecessor in title appear to have been executed to Evans and delivered to POythreSS. The record does not disclose, so far as we have been able to determine, Whether any Vendor's lien was retained by Evans or not. It was agreed that Mrs. Jackson and Vaughn, claiming under G. W. Jackson, deceased, had held possession of lot No. 7, block No. 1, since the 4th day of August, 1908; that they proved actual possession of same by deed from Evans and Wife to G. W. Jackson. No pleading of plaintiff suggests any right of foreclosure against the Jackson lot, unless such right be shown by reason of the $400 note and the deed of trust executed by Evans to secure the Same. Hence as to this lot, the right of foreclosure Would be barred, by reason Of the Statute Which barred the debt from Evans to Poythress. No complaint is made as to the judgment against Mrs. Ivey individually and as executrix and against Mebane. The judgment in this respect Will be left undisturbed, and otherwise Will be affirmed. All assignments are OVerruled. Affirmed in part, and undisturbed in part.

GALVESTON, H. & H. R. CO. et al. v. FLEMING... (No. 7552.)

(Court of Civil Appeals of Texas. Galveston.
March 27, 1918. Rehearing Denied
April 25, 1918.)

1. MASTER AND SERVANT ©->330(3)—TORT OF SERVANT—SCOPE OF AUTHORITY-SUFFICIENCY OF EVIDENCE. In an action against a railroad and its watchman for the latter’s shooting of plaintiff, evidence held sufficient to support the jury's finding that the watchman was acting within the general scope of his authority.

2. MASTER AND SERVANT ©->330(3)-TORT OF SERVANT – UNINTENTIONAL CHARACTER SUFFICIENCY OF EVIDENCE. In such action, evidence held sufficient to justify the jury in finding that the shot which injured plaintiff was not fired maliciously or with intent to shoot plaintiff, but merely to induce him to leave the railroad yards; the watchman not knowing and having no ill will against plaintiff. 3. "TRIAL C+350(6)–SPECIAL IssuEs—TorT of SERVANT. In an action against a railroad and its watchman for shooting plaintiff in the railroad's yard, the question whether defendant watchman shot plaintiff intentionally presented a pertiIlent and material issue to be Submitted. Since if he shot to gratify a private grudge, and not pursuant to his duty to guard the railroad's property, the latter was not liable.

4. MASTER AND SERVANT 3:304 – TORT OF SERVANT—LIABILITY. If a railroad's yard watchman, within the general scope of his employment to protect the railroad's property from depredation, acted unreasonably and negligently in the performance of his duties as he saw them, the railroad was liable for any injury suffered by another thereby, whether the watchman acted upon reasonable appearances or not; he having been made the judge as to when it was necessary to shoot.


The statement of plaintiff’s counsel in closing argument to the jury that the reason that counsel for defendants wanted the jury to answer the first question “No” was because they knew that, if the jury answered the question “No,” it would end the case, was improper, as where special issues are submitted it is, the single duty of the jury to find the facts in support of the issues.

6. APPEAL AND ERROR 3:1060(1)—HARMLESS ERROR-ARGUMENT OF COUNSEL. Impropriety of plaintiff’s counsel in arguing that defendant's counsel wanted the jury to answer the first special issue negatively because they knew that if the jury so answered the issue it would end the case was harmless, where the jury must have gathered on trial the legal result of a negative finding on the issue. 7. APPEAL AND ERROR 3:1033(5)—ERROR FAVORABLE TO APPELLANT-INSTRUCTION. In an action for personal injuries, where all damages allowed by a charge submitting the question of permanent injury were such as were allowable under the law whether the injury was permanent or not, the charge that plaintiff might recover such damages only on proof of permanent injury was favorable to defendant. 8. DAMAGEs &=130(2)—INJURY. To LEG—ExCESSIVE VERDICT. In an action against a railroad and its yard watchman for shooting plaintiff in the calf of the leg, verdict for plaintiff for $2,500 was not excessive.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge. Suit by Andrew J. Fleming against the Galveston, Houston & Henderson Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Baker, Botts, Parker & Garwood and McMeans, Garrison & Pollard, all of Houston, and Jno. L. Darrouzet, Of Galveston, for appellants. Frank S. AnderSOn, Of Galveston. LANE, J. This suit was instituted by appellee, Andrew J. Fleming, against the GalVeston, Houston & HenderSOn Railroad Company and R. J. Stanley to recover damages for alleged personal injuries. The plaintiff alleged that on the 20th day of February, 1917, said railroad company had laid and was maintaining its railroad tracks in, upon, and along Postoffice stréet, a public street and highway in the city of Galveston, Tex.; that on said date the said railroad Company had in its employ one R. J. Stanley as watchman and guard over its properties; that on said date While he (Fleming) WaS paSSing along Said public Street and highway and along one of the railroad tracks of said company, said Stanley, While acting within the scope of his employment and instructions, carelessly, negligently, willfully, and maliciously assaulted and shot him (Fleming) in the leg, thereby seriously and permanently injuring and damaging him, for which he prayed judgment in the sum of $2,500 actual, and $2,500 exemplary, damageS. Defendant anSWered by general demurrer and general denial. The question of exemplary damages was not submitted to the jury, and We shall, therefore, not further refer to this matter. The case was tried before a jury upon Special issues submitted to them, to which they made the following answers: (1) That the defendant Stanley, in the shooting of the plaintiff, was performing an act within the SC0pe Of his employment, and in furtherance Of his duties for which he was employed by the defendant railroad Company; (2) that the defendant Stanley shot the plaintiff unintentionally; (3) that in Shooting the plaintiff, the defendant Stanley was guilty of negligence, (4) which proximately caused plaintiff to Sustain the injury as alleged by him; and (5) that the amount of damages that would be fair and reasonable compensation for plaintiff’s injuries WaS $2,500. Upon the verdict a judgment was rendered in favor of plaintiff against both defendants for $2,500, from Which the defendants have appealed. [1] By the first, second, and third assignments it is insisted that the court erred in not instructing a verdict for defendants, as requested by the defendant railroad Company, for the reason that there was no evidence to prove that defendant Stanley, at the time he Shot plaintiff Fleming, Was acting within the general scope of his authority as a watchman and guard for the defendant railroad company, and because the testimony failed to ShoW that Stanley, in Shooting plaintiff, was acting in discharge of any duty he OWed to the defendant railroad company. We do not think there is any merit in the contention of appellants. lt was admitted in evidence that the defendant R. J. Stanley was employed by the defendant Galveston, Houston & HenderSOn Railroad Company as a Watchman and

| for appellee.

G->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

salary of $65 per month, and that he was such watchman on the night of February 20, 1917, When appellee Was shot, and from the time Of his employment to the date of the trial had continuously been in its employment as Such Watchman and guard. It was further admitted that Stanley Was the man who shot the plaintiff. The undisputed evidence shows that while it Was a fact that the point or place at which appellee was shot by Stanley was on Postoffice street in the city of Galveston, it was also Within the yards of the defendant railroad company, said street being closed at that point by virtue of a city ordinance; and that where said street entered said railroad yards Said COmpany had placed a Sign Which reads: “This is the property of the G., H. & H. Rail

road Company. Persons entering upon or crossing are trespassers, and assume all risks.”

The undisputed evidence also ShoWS that for about three years appellee had passed unmolested over and among appellant’s tracks and through its yards, and that many persons had so passed day and night for many years. Appellee Fleming testified that On the night and at the time he was shot by Stanley he was walking along the track of the defendant railroad company; that he met a man (who later proved to be Stanley) Who passed by him, and that after the man had passed him the man said, “Stop there!” that he did not stop, but as he thought it might be a burglar he COntinued to Walk On, and that the man fired On him; that after the man fired he (Fleming) continued to walk on off from him, but looked back to see what the man was doing; that he did not then see the man, but that the man then ran around in front Of him and Shot him in the calf of the left leg. He also testified that when he was shot the man said, “I am the Watchman; you get off the track here;” that he could not remember whether he (Fleming) said anything or not; that he did not knoW What became Of the man after he was shot; that he left him immediately; and that he (Fleming) lay on the track about half an hour after being shot. He further testified that the first shot fired by the man was after he told him to stop; that this shot passed close to his head, but did not hit him; that he then turned around to see where the man was, and as he turned back the man Shot him in the left leg; that at the time he Was Shot he had turned around to face the man, and then the man shot him; that the shot that struck him was fired down Ward; that he never knew that the railroad company kept a Watchman in the yards. Neither of the defendants introduced any evidence, but closed When the plaintiff closed his evidence.

The case of Baker, Receiver, V. Ives, reported in 188 S. W. 950, is a case in which

were very similar to the nature and facts of the present case, except that one Watts in that case testified that he employed one Grace as watchman and guard in the yards Of the International & Great Northern RailWay Company at Palestine, Tex., and further testified as follows:

“I instructed Mr. Grace at the time of his employment to watch out for these merchandise cars, never making any arrest of anybody unless "he actually caught him in the act. I also instructed him that the main line, south, West, and north, had become a public thoroughfare from long usage and to let travelers pass along there, but any one he caught meddling and depredating to put them out. * * * He had no authority whatever to stop or question any one passing along through the yards in the regular way; that was against instructions. I employed him [on] the 11th day of November, 1914, as night watchman, Palestine yard, because so many cars were being broken open and robbed and burglarized, and goods carried away, and it was necessary on account of depredations. * * * Yes; I have heard of several cases of people asking the railroad employés for matches at night, and trying to get their watches or rob them; that is a favorite way and an old way. Yes, it was left to Mr. Grace’s judgment on the instructions I had given him to decide whether a man was out of the way, or a suspicious looking character, or not.”

In that case the court said:

“Under these authorities, We think it clear that the trial court properly submitted the issue of liability of appellants for the act of Grace in making the assault upon appellee. If, in fact, the appellee had been a thief or depredator upon the property of the appellants, or if his conduct had been such as to lead Grace reasonably to believe that, he was such, the latter would certainly have been acting within the scope of his employment if he used all reasonable and proper means to protect the company's property. He was undoubtedly charged by appellants with the authority, and it was his duty to exercise the discrimination necessary to distinguish between burglars, thieves, depredators, and innocent persons, and to make arrests when called for by the circumstances, and to determine the degree of force necessary to be exercised. . If, through want of proper care or the exercise of the proper discrimination, he mistook appellee for a depredator or person who otherwise should be dealt with in the manner in which he did deal with him, he was certainly acting within the apparent scope of his employment, and the appellants must be held liable for any want of proper discrimination or improper conduct of his in that respect.”

Appellant contends that the opinion in the Ives Case is not applicable to the present case, because in that case there was proof showing what the watchman’s duties Were under his employment, While in the present case the evidence as to what the watchman’s duties were is wholly silent. That in that Case it Was ShOWn that an innocent man Was injured by Grace by reason Of the failure of the latter to use Ordinary care in using the authority conferred upon him to discriminate between depredators and innocent persons. Here it was not shown that any authority of discrimination was conferred upon Stanley, Or that his act was done in the accomplishment of any object for Which he WaS employed.

The contention of appellant cannot be sustained. We think the holding in the case cited is applicable to this case. While it is true that in the Ives Case the instruction to Grace, the watchman, to watch the property of the railroad company and to arrest persons only when he caught them in the act of depredating on such property Was expressly given, we think a fair inference is that when Stanley was employed by the appellant railroad company to watch its property he was impliedly instructed to do such things as he might in his discretion think necessary to protect the property of his employer. Any other conclusion Seems to us unreasonable and unsound. No one could reasonably conclude that the railroad company in the present case employed Stanley to go in and upon its yards and Simply watch persons who were depredating upon or threatening to depredate upon its properties, but to the contrary, reason would force one to the conclusion that Stanley's duties were not only to Watch Such property, but that he was to take such necessary action as would protect the same from depredation. We therefore conclude that the court did not err in submitting the question to the jury, as to whether Stanley was act

ing within the general scope of his authority.

We also conclude that there was sufficient evidence to support the finding of the jury that he was SO acting. We therefore Overrule the first, second, and third assignments. The fourth assignment complains of the action. Of the court in Submitting the question to the jury as to whether or not Stanley was performing an act within the scope of his employment, and in furtherance Of his duties for which he was employed when he shot appellee. What we have said under the first, Second, and third aSSignmentS disposes of this assignment. It is therefore Overruled. [2, 3] By the fifth assignment appellant insists: That the trial court erred in submitting to the jury the following question, “‘Did the defendant R. J. Stanley shoot the plaintiff intentionally?’ for the reason that there was no evidence to justify the conclusion or finding that defendant Stanley shot the plaintiff unintentionally, and all of the evidence introduced in this case upon the issue shows without dispute that defendant Stanley's act in shooting the plaintiff was intentional and not accidental.” We cannot agree with the contention of appellant. Appellant was contending that in accosting and Shooting plaintiff, defendant Stanley was not acting within the scope of his employment, but that in doing so he had turned aside from the duties imposed upon him and With malicious intent shot plaintiff. There was no evidence, either direct or circumstantial, that Stanley held any malice or ill feeling toward the plaintiff, or that he knew the plaintiff, or had ever seen or heard of him before the shooting; nor was there any attempt to ShOW Such facts; nor Was

there any evidence remotely showing that Stanley and the plaintiff had quarreled at the time of the shooting, but upon the contrary the evidence shows that When Stanley saw the plaintiff in the yards of the defendant railroad company he called to him and told him to Stop; asked him to Stop before he fired the first shot; that the plaintiff continued to walk off from Stanley along the railroad, and that to impress upon plaintiff that he must leave the yard Stanley fired the shot; that after said shot Was fired the plaintiff turned toward Stanley, who said to him, “I am the Watchman; you get Off the track here,” and was shot by Stanley in the calf of the left leg. We think there was sufficient evidence to justify the jury in finding that the shot that injured the plaintiff was not fired either maliciously or with the intent to Shoot plaintiff, but that the Same was fired for the purpose of inducing plaintiff to leave said yard, and not with the malicious intent to wound and injure a man whom he did not know, and against whom he had no ill will. We think the question Submitted, of which complaint is made, presented a pertinent and material issue, that there was evidence calling for its submission, and that the trial court properly submitted the same. The fifth assignment is Overruled. [4] By the sixth assignment complaint is made of the refusal of the trial court to submit to the jury the special issue requested by appellant, as follows:

“Was the plaintiff, Fleming, at and just before the time that he was shot by the defendant Stanley, doing any act that would reasonably appear

to defendant Stanley that the said Fleming was about to do or was doing any act or thing that would interfere with the use of said property or railroad yards, or to injure, destroy or depredate the property of the defendant Galveston, Houston & Henderson Railroad Company, or to prevent the railroad company from the free use of the same?” We have already held that the implied duties of Stanley were not only to watch the properties of the railroad company, but contemplated that he would do such acts as reasonably appeared to him to be necessary to protect Said properties from depredation of others. He was clothed with the duty of determining when he should act for the protection of said property, and if while he was acting Within the general Scope of his employment he acted unreasonably and negligently in the performance of his duties as he saw them, his employer was liable for any injury suffered by another by reaSOn Of Such unreasonable and negligent acts. So then it was an immaterial issue as to whether Stanley acted upon reasonable appearance or not. He was made the judge as to when it was necessary to act by the defendant railroad company, and it is liable for his mistaken judgment when the same results in injury to others. We do not think the court erred in refusing to give to the jury the special charge, the refusal of which is complained of by the sixth assignment.

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[5, 6] In his closing argument counsel for the plaintiff Said to the jury:

“The reason that they [counsel for defendants] want you to answer the first question ‘No’ is because they know that, if you answer that question ‘No, it will end this case.”

After these remarks were made to the jury counsel for appellant objected thereto, asSigning as a reaSOn for Such objection that such remarks were improper and prejudicials to the rights of defendants, in that such remarks were in effect advising the jury of the effect and result of the answer they might make to the question as to Whether Or not Stanley was acting within the scope of his employment in Shooting appellee, Fleming. After this objection was made Counsel for appellee repeated said remarks. The court did not Stop counsel'in such argument, nor give any instruction to the jury relative thereto; there being no request for such inStruction by appellants. Appellants make these remarks of counsel for appellee the grounds of their seventh assignment.

The argument of counsel complained of Was improper, and the Court Should have stopped it When attention Was called to it. In cases Where Special issues are submitted, it is the sole duty of the jury to find the facts in support of the issue Submitted, if any. The jury have nothing to do with the effect of their finding on the parties to the Suit. They should not be concerned in the result of such findings. G., H. & S. A. Ry. Co. v. Hodnett, 182 S. W. 7; Fain v. Nelms, 156 S. W. 281. In the Case last cited the court said: * “We have no hesitation in saying that the argument was, in the circumstances, improper, and that the court should have stopped it when attention was called to it, and should have instructed the jury to disregard it. The jury, as triers of the facts solely, had nothing to do with the legal effect of their findings. This was a matter which could not properly concern them. They were only to find the facts. The argument came very near a direct invitation to the jury to consider, in finding this fact, what the legal effect would be. The argument should not have been made, nor should the court have allowed it to be made, and to give tacit approval of it by disregarding appellant's objection. In passing upon the question, however, as ground for reversal, its effect on the jury must be considered, and upon this point it must be assumed that during the course of this trial, amid, the strenuous conflict between counsel as to the time appellee's adverse possession began, and the amount of evidence on that issue, it must have been a remarkably stupid juror who would not have gathered what would be the legal result of a finding on this issue. We are inclined to the opinion that counsel only told the jury what they already knew, and we cannot believe that they disregarded the evidence and charge of the court, and were influenced by this argument. These improper remarks, we think, ought not to bring upon appellee the penalty of a reversal.”

We Specially adopt the last portion of the foregoing quotation as a reason Why We refuse to reverse the judgment of the trial court in the instant case On account of the argument of counsel, as the language there

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