of animals delivered, and could get none until after the property had been removed. Scott further states that about four or five days after the writing was signed he had cause to suspect, and told T. J. Moore, that Middlebrooks was about to carry away some of the mortgaged cattle, and thus states what occurred between them: "Moore said: 'You stay here and let me go see Middlebrooks, and I will see that he don't take anything but what he has a right to take, and, if he had any of the cattle you shan't lose anything by it.' I [Scott] asked him if he had let Middlebrooks have any of the cattle, and he said, No; that he had let his family milk 10 head while they were here, but that all the cattle were to go in on the sale. When he said he would go and see about Middlebrooks shipping some of the cattle away to the territory, he told me to let him see to that, and he would see that everything come up all right, and he went away, and never said anything further to me about the matter." On the same subject T. J. Moore testified: "I knew he [Middlebrooks] took other 7X cattle which he said was not covered by the mortgages. I don't know how many he took away. I told A. K. Scott that I would see that J. B. Middlebrooks did not take away any of the cattle which were covered by the mortgages without same being accounted for. I don't know what he took away. He told me he was going to take some of the 7X cattle away, and, so far as I know, he did. He did not claim anything in the 4 and 7 brands, but claimed some of the 7X cattle were not covered by the mortgage.

* I was afraid of trouble between Middlebrooks and Scott-they both seemed to have their stingers out-and I thought when they met the trouble would come off. Everything covered by the American National Bank and Scott mortgages was to be counted in the sale made from Middlebrooks to me. * • I remember Scott coming to me and saying that he understood that Middlebrooks was fixing to ship some of the cattle, and I then told him to stay there and I would see to it that he did not take anything away that he did not have a right to take away, and I went off, but never reported back to him what I learned about the matter. I told him to let me tend to it, and for him just to leave it to me. I told Scott that I had not let Middlebrooks have any of the cattle, and I did not, until Middlebrooks told me how it was. I knew he cut out the 7X on the hip cattle to ship off. He claimed they were not in the mortgages, and I just took his word for it. I let him take everything he claimed, and did not try to keep him from taking the cattle."

It is unnecessary that we should consider what would have been the duties and responsibilities of the plaintiffs, had the evidence shown no more than the consent of Scott to the proposed sale, as evidenced by the writing signed by him. That was only a part of the transaction. Consistently with

it, the assumption by either party of the duty of collecting and applying the cattle may be shown, and the evidence from both sides is that this duty was undertaken by plaintiffs. It cannot be doubted, if this testimony states the facts truly, that plaintiffs became charged with a duty to Scott, and that duty was to ascertain the cattle subject to the mortgages, and to at least use due diligence to obtain possession of and apply them to the secured debts. Plaintiffs owned the principal mortgage, and had as good opportunity as Scott had to know the property covered by it and, when they assumed the management of the transaction and made the promises stated, their duty was, not only to account for the value of property actually delivered to them, but to use reasonable diligence to secure all that was called for by the mortgages; and, for any loss sustained by Scott which such diligence on their part would have prevented, they were liable to him. We speak of this as a duty and liability of plaintiffs, because there is no contention that T. J. Moore was not, throughout the entire transaction, acting in the interest of the partnership. The charge of the trial court excluded from the consideration of the jury this element of liability by instructing that plaintiffs were bound only to account for the value of the cattle actually received by them, unless the jury should find, on other issues made by the pleadings and evidence, that there was collusion between plaintiffs and Middlebrooks to allow the latter to deprive Scott of a part of his security, or to apply it to other debts of his to plaintiffs. These latter facts were not essential to the completeness of the defense which we have discussed. It is true that the court in the latter part of the charge instructed, in substance, that, if plaintiffs exercised ordinary prudence in allowing Middlebrooks to carry off some of the cattle, they would not be liable, but gave no instruction under which Scott could recover anything for a failure to perform the duty which we have defined; and previous instructions restricted Scott's right to a credit for such cattle as were received, unless other defenses were sustained. We are of the opinion, also, that the question which Scott's counsel asked T. J. Moore, intended to elicit the statement that Middlebrooks, at the time of the sale, said to Moore that there would be full 908 head of the cattle, should have been permitted. The proposed evidence might have some weight in determining the question of plaintiffs' diligence, when it appeared that there was a considerable shortage.

The statement of Middlebrooks to Slator, not made in the presence of plaintiffs, that the cattle branded 7X on the hip were counted in and included in the mortgage to the American National Bank, was not admissible against plaintiffs. It does not appear that any predicate had been laid for the use of the statement to contradict the testimony of Middlebrooks.

Many complaints are made of the charge of the court in a general way, without pointing out the particular parts referred to, and these cannot be considered. What we have said will be sufficient for the submission of the cause at another trial. The Court of Civil Appeals (85 S. W. 301) properly disposed of the assignment to the overruling of the general demurrer to the petition. For the error in the charge of the court, the judgment must be reversed.

Reversed and remanded.

SAN ANTONIO & A. P. RY. CO. v.
LESTER.

(Supreme Court of Texas. Oct. 23, 1905.) 1. JURY QUALIFICATION OF JURORS - POLL

TAX-NONPAYMENT.

Rev. St. 1895, art. 3139, provides that no person shall be qualified to serve as a juror unless he is a citizen and a qualified voter of the county, but that, whenever it shall be "made to appear" to the court that the requisite number of jurors who have paid their poll tax cannot be found within the county, the court may dispense with such requirement as a qualification. Held, that such section did not authorize the court, in its discretion, to dispense with the tax requirement on the mere belief that facts existed which would make it improbable that qualified jurors could be found in the county to run all the courts of the county for a year, but only authorized such suspension in a particular case, when it was "made to appear" by evidence that sufficient qualified jurors could not be found to try such case.

2. APPEAL-BILL OF EXCEPTIONS-PREJUDICE. Where a bill of exceptions disclosed that the court had erroneously overruled certain of defendant's challenges to jurors for disqualification, and that the defendant had an absolute right to have disqualified jurors excluded, it contained a sufficient showing of prejudice. 3. SAME-REVERSIBLE Error.

Where the court improperly disallowed certain of defendant's challenges to jurors for disqualification, and defendant was compelled by the error to submit its case to jurors obnoxious to it, the injury could be corrected by a new trial at which defendant would be allowed all the challenges allowed by law, and hence the error was ground for reversal.

4. MASTER AND SERVANT-INJURIES TO SERVANT CONTRIBUTORY NEGLIGENCE IN

STRUCTIONS.

In an action for injuries to a railroad engineer in jumping from his engine to escape collision, an instruction that if plaintiff failed to keep a reasonable lookout for the standing train or to have his train under full control, and his failure so to do was negligence contributing to or causing the collision and plaintiff's injuries, he could not recover, and authorizing the jury in determining the issue of plaintiff's contributory negligence to look to all the surrounding facts to determine whether plaintiff used ordinary care, and if he failed to do so, and the failure contributed to or caused his injuries, he could not recover, though negative, was not objectionable as misleading.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Joseph L. Lester against the San Antonio & Aransas Pass Railway Company. A judgment in favor of plaintiff was affirmed by the Court of Civil Appeals (84

S. W. 401), and defendant brings error. Reversed.

Houston Bros. and R. J. Boyle, for plaintiff in error. H. C. Carter and P. J. Lewis, for defendant in error.

BROWN, J. We copy the conclusions of fact filed by the Court of Civil Appeals, as follows: "Appellee was injured, in the sum found by the jury, by jumping from the locomotive of which he was in charge, as engineer, which was about to crash into the rear of a freight train standing on the track. The danger was imminent and appellee jumped from the locomotive to save his life. The collision took place between the engine on which appellee was riding and the caboose of the standing train through the negligence of appellant in not having a light burning in the cupola of the caboose, and in failing to send a flagman back to warn appellee of the danger of a collision with the standing train. The train into which the locomotive ran had been standing on the track where it was struck for 35 minutes before the collision, and no effort had been made to prevent the train that was following it from running into it. The rules required that a flagman should be sent back under such circumstances to warn approaching trains. Appellee had his train under control as required by the rules, and could have stopped it in time to have prevented the collision, if the light had been in the cupola of the caboose or the flagman had been sent out to notify him of the presence of the train."

At the trial, when the jury were being examined as to their qualifications to serve as jurors, the defendant objected to four of the jurors, because they had answered that neither of them had paid the poll tax due by him to the state of Texas prior to the 1st day of February, 1904. The court overruled the objection, and the defendant took and filed the following bill of exceptions: "Be it remembered that upon the trial of the above styled and numbered cause the following proceedings were had: While the jurors upon the panel, to wit, 24 men, were being tested as to their general qualifications on the 8th day of February, 1904, counsel for defendant asked whether all the jurors had paid their poll tax, due and payable before February 1, 1904, and the jurors Sidney Sheppard, Fred Fischer W. Schultze, and one Elam all answered that they had not paid said tax. Thereupon counsel for defendant asks that said jurors, Sheppard, Fischer, Schultze, and Elam, be excused and dismissed, because they were not qualified jurors under the laws of the state of Texas. It was shown to the court by the records of the county collector of Bexar county, Texas, that 7,402 persons in Bexar county had paid their poll tax, which was due and payable before February 1, 1904, before said 1st day of February, 1904, and that 1,350 persons in Bexar county had proved their

exemption from the payment of such poll tax and obtained their exemption certificates before February 1, 1904. The court overruled said objection, and refused to excuse and dismiss said jurors from the panel, to which action and ruling of the court the defendant then and there in open court excepted. Thereupon the jury list, with said jurors upon it, was tendered to this defendant, and this defendant was required to accept same as the panel of qualified jurors, and, defendant having exhausted the 6 peremptory challenges accorded it by law, the following jury was selected to try the case: S. B. Johnson, Gus Hahn, P. C. Langford, W. G. Linartz, Sidney Sheppard, Fred Fischer, Otto Wehmeyer, Albert Fey, Louis Wetz, W. S. Sessor, W. Schultze, and Janes Stayers; the juror Sheppard being subsequently excused on account of sickness, and the jurors Fred Fischer and W. Schultze being permitted by the court, over defendant's objections as above set out, to sit upon the jury trying this case. To which actions and ruling of the court defendant then and there in open court excepted as aforesaid, and tenders this its bill of exception No. 1, and asks that the same be signed, filed, and made a part of the record herein. This bill is signed with the qualifications that I knew in Bexar county there were three district courts, each having five terms, or a total of 39 weeks to each court per year, and each court having 34 jury weeks during each year, and the jury commissioners for each court selected on an average of 40 or 45 men for each jury week. In addition to the district courts, the county court of Bexar county has six terms each year, with an average of 24 jury weeks each year, and the jury commissioners for the county court selected on an average of 20 men for each jury week. I know that in the city of San Antonio and Bexar county there were many nationalities, viz., Germans, Italians, Mexicans, negroes, Polanders, and others, who are qualified voters, but are not eligible for jury service because of their inability to read and write English, and many others who are exempt from jury service on account of other statutory grounds. I was of the opinion that, when the large number of jurors which are required to serve in the various courts in Bexar county are considered, to excuse persons who had not paid their poll tax would interfere with the proper conduct of the courts, and, further, if jurors who have not paid their poll tax were excused, it is doubtful if the requisite number of persons could be found, taking into consideration the legal exemptions, sickness, absence, and just excuses of the other eligible jurors, within Bexar county, to perform the jury service of the various courts. In view of the foregoing, I exercised my discretion and held the jurors qualified. A. W. Seeligson, Judge Fifty-Seventh District." The jury returned a verdict in favor of the plaintiff below, and the court entered judgment for $10,000 damages, which 89 S.W.-48

judgment the Court of Civil Appeals affirmed. The challenge of the four jurors by the defendant, as shown in the bill of exceptions, was made at the proper time under article 3220, Revised Statutes, and presented a good ground if those jurors were not exempted and had failed to pay the poll tax prior to the 1st day of February, 1904. The qualifications of jurors were then prescribed by article 3139, subd. 1, Rev. St. 1895, as amended in 1903, which reads as follows: "Art. 3139. No person shall be qualified to serve as a juror who does not possess the following qualifications: (1) He must be a citizen of the state and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county, but whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes cannot be found within the county, the court may dispense with the requirement of the payment of poll taxes as a qualification for service as a juror." The answers of the four jurors will be better understood by stating the question and answer as if addressed to each separately, thus: "Have you paid your poll tax, due and payable before February 1, 1904?" To which each answered: "I have not paid said tax." The question and answer thus stated fairly present the matter as it was at the time applied to each juror. We think that each juror must have understood that he was being interrogated about the poll tax he owed, and that each answered with reference to a tax that he was liable to pay. In no other sense would the answer be responsive to the question. The trial judge evidently understood that the jurors by their answers had disqualified themselves under the statute, for he states in the bill of exceptions that he signed it "with this qualification," and then proceeds to state certain facts known to himself upon which he based this ruling: "In view of the foregoing, I exercise my discretion and hold the jurors qualified." If there were a doubt as to the meaning of the jurors' answers, that doubt would certainly be dispelled by the statement of the judge, for it is inconceivable that he should enter into an explanation of why he overruled the objection, if, in fact, it did not appear to his satisfaction that the jurors were liable for the tax. It would have been so much easier to have qualified the bill by saying it did not appear that the jurors were liable to the tax than to enter into the extended explanation. We conclude that he stated the only reason there was in his mind. Considering the answers of the jurors and the explanation of the judge, we think there can be no reasonable doubt that upon the trial it appeared to the satisfaction of the judge, as it does from the bill of exceptions to us, that the jurors were disqualified to sit.

It is claimed by the defendant in error that the court had power under the proof made, shown in the bill of exceptions and facts stated of his own knowledge, to dis

pense with the qualification prescribed by the statute and thus to qualify the jurors for service. The judge who tried this case in the district court seems to have acted upon the idea that it was a matter of discretion in the trial judge to dispense with the statutory requirement, if he believed the facts existed which would make it improbable that qualified jurors could be found in Bexar county to run all of the courts of that county for one year. If the statute did authorize such action by a judge, it would amount to a suspension of the law in Bexar county and would be void under article 1, § 28, of the Constitution, which provides: "No power of suspending laws in this state shall be exercised except by the Legislature." But the statute does not bear the construction placed upon it. The article copied provides for organizing a jury to try a particular case, and its terms do not embrace anything more. The parties were engaged in a trial of that particular case, and the jurors were being tested as to their qualifications to try that case. If in the examination of the jurors it had been "made to appear" to the judge-that is, shown by evidence furnished by either party-that the requisite number of jurors who had paid their poll tax could not be found to try that case, the judge would have been authorized to dispense with the requirement of the payment of poll tax as a qualification for the jurors to be impaneled in that case, and that alone. The reasons assigned by the district judge would have appealed strongly to the Legislature to exempt Bexar county from the operation of the law, but they do not make it appear that a sufficient number of jurors could not be found to try that case. Under the facts shown by the bill of exceptions the trial court had no authority to dispense with the statutory requirement as to the qualifications of jurors for the trial of that case, and it was error to overrule the challenges of the defendant and to permit the four jurors to remain upon the panel.

It is also contended that the bill of exceptions does not show that the defendant suffered injury by the ruling complained of. It is true that this court has said the bill of exceptions must show injury to the complaining party in order to authorize an appellate court to revise the action of the trial court in overruling objections to jurors, and, if no injury is shown in this case, the error is harmless. The statute prescribes certain qualifications for a juror, and gives to either party the right to have him excluded, if he does not possess all of the qualifications. This positive statutory right conferred upon the defendant was denied to it in the trial of this case. If it was not important for jurors to possess the qualifications prescribed, the legislators wasted their time in so enacting. The question of the importance of the right to the defendant is not a matter for judicial determination--that has already been decided

The

by the Legislature and the defendant, having been denied a positive legal right, suffered an injury which entitles it to a reversal of this judgment. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706; State v. Fourchy, 51 La. Ann. 228, 25 South. 109. In the first case above cited (which consisted of four cases consolidated) the defendants were entitled to 12 challenges, but the trial court restricted them to 3. Supreme Court of the United States said: "The denial of the right to challenge, secured to the defendants, entitles them to a new trial." In the second case the trial court overruled a challenge for cause and the juror was sworn and served, the defendant did not challenge that juror peremptorily, but subsequently exhausted his peremptory challenges on others, and the Supreme Court of Louisiana said: "When the trial court in a criminal case by overruling a challenge for cause to a juror forces the prisoner at the bar to exercise one of his peremptory challenges and when subsequently before the jury is sworn the accused has been obliged to exhaust all of his peremptory challenges, we think the accused on appeal has disclosed good ground for the reversal of the verdict against him by showing error in the ruling of the court, without the necessity of his affirmatively showing resulting injury from the court's action by the forcing upon the jury of a juror obnoxious to the accused." The authorities are in point and convincing. Comment would not elucidate the proposition.

Counsel for the defendant in error submit the proposition that "error will not be ground for reversal unless the injustice to the complaining party will be corrected on a new trial"; citing G. H. & S. A. Ry. Co. v. Jackson, 93 Tex. 262, 54 S. W. 1023. The case before the court is very different from the Jackson Case, for in this case the defendant was compelled by the error of the trial court to submit its case to jurors obnoxious to it. The injury can be corrected on another trial by allowing the defendant all of the challenges which the law allows for its protection. The injury did not consist in being required to take jurors who had not paid their poll tax. but in the fact that the court refused to allow the defendant to protect itself against objectionable jurors by using a challenge for cause which the law allowed.

We have examined each of the assignments presented by the plaintiff in error in its application, and find no other error. We deem it unnecessary to discuss any of the assignments, except the ninth, which presents an objection to the charge of the court submitting to the jury the question of cor tributory negligence of the plaintiff. The charge objected to reads as follows: "If you find from the evidence that the plaintiff failed to keep a reasonable lookout for the said standing train, or that he failed to have his train under full control when approaching.

the Colorado river tank, and that his failure, if any, to do either of these things was negligence, and that such negligence, if any, contributed to or caused the collision and plaintiff's injuries, if any, then the plaintiff cannot recover." "In determining the issue of plaintiff's contributory negligence, you may look to all the surrounding facts and circumstances in evidence before you, and determine therefrom whether or not the plaintiff used such care as a person of ordinary prudence would have used under the same or similar circumstances. If you believe from the evidence that, in the operation and running of his train, the plaintiff failed to use such care as a person of ordinary prudence would have used under the same or similar circumstances, and that such failure, if there was such failure, contributed to or caused the collision and plaintiff's injuries, if any, then plaintiff cannot recover." It will be seen that this charge is negative and directs the jury to find for the defendant. It is correct in the conclusion stated, for, if the jury found that the act done by the plaintiff was negligent, and that it contributed to his injury, they should have found for the defendant as directed by the court.

This question has been presented to this court so frequently of late that it suggests the propriety of calling the attention of the bar to the following cases upon which the objection is based: Railway Company v. McCoy, 90 Tex. 264, 38 S. W. 36; Railway Company v. Rowland, 90 Tex. 365, 38 S. W. 756; and Culpepper v. I. & G. N. Ry. Co., 90 Tex. 627, 40 S. W. 386. Chief Justice Gaines wrote the opinion in each of those cases, and carefully distinguished the charges being then examined from charges like this. The charges in those cases were held to be erroneous because they submitted the question as to whether the negligent act contributed to the injury in such form as to mislead the jury and to impress upon their minds that, although the plaintiff was guilty of negligence in doing an act which necessarily caused his injury, they might yet find for the plaintiff, if they found it did not contribute to his injury.

For the error indicated, the judgments of the district court and the Court of Civil Appeals are reversed, and the cause remanded.

ST. LOUIS SOUTHWESTERN. RY. CO. v. MCKNIGHT.

(Supreme Court of Texas. Nov. 13, 1905.) 1. CARRIERS-CARRIAGE OF LIVE STOCK-DAMAGES-ACTION-JURISDICTION.

Laws 1899, p. 214, c. 125, provides that, when any freight has been transported over two or more railroads operating any part of their roads in Texas and having an agent there, suit may be brought in any county in which either of the roads extends or is operated. A foreign railway company refused to receive, as connecting carrier, a shipment of live stock delivered to a domestic company as initial carrier

under a contract for through shipment. Held,›, in a suit against the domestic and foreign companies for damages to the shipment, brought in a county in which the domestic company operated a line of road, that the court did not have jurisdiction over the foreign company, though it operated a part of its road in Texas, within the statute, by operating its passenger trains into Texas to the passenger depot of a domestic company; the jurisdiction of the court being not alone dependent on the fact that it operated a part of its road in Texas, but also on the fact that the shipment had been transported by the foreign company.

2. SAME.

Jurisdiction over a foreign railway company operating a part of its road in Texas, in an action against it and a domestic company for damages to live stock delivered to the domestic corporation for through transportation over it and the lines of the foreign company, cannot be sustained under Rev. St. 1895, art. 1194, subd. 4, providing that no person who is an inhabitant of the state shall be sued out of the county of his domicile, except that, where there are two defendants residing in different counties, the suit may be brought in any county where any of the defendants reside, where the suit was not brought in the county of the domicile of the domestic company within article 4378, declaring that the public office of a railroad corporation shall be considered its domicile.

3. PARTIES BRINGING IN NEW PARTIES STATUTES.

Rev. St. 1895, art. 1208, providing that before a case is called for trial additional parties may. when necessary or proper to the suit. be brought in, does not refer to the subject of venue, but authorizes the making of parties after the suit has been brought of such persons as are liable to be sued on that cause of action in that county, independently of the pending suit.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by A. McKnight against the St. Louis Southwestern Railway Company and others. Judgment for plaintiff, and the defendant above named appeals. On certified question from the Court of Civil Appeals. Question answered and judgment reversed.

E. B. Perkins and Turner & Boyce, for appellant. Browning, Madden & Trulove, for appellee.

BROWN, J. This is a certified question from the Court of Civil Appeals of the Second Supreme Judicial District, as follows:

"Amending the certificate heretofore made to your honors in this case, and in lieu thereof, we respectfully certify to your honors for decision the question whether appellant was suable in Potter county; that is, whether or not the court erred in overruling the following sworn plea, the proof establishing the facts as therein alleged, and the court refusing to instruct the jury to find in favor of appellant on said plea: 'Now comes the defendant the St. Louis Southwestern Railway Company, for the purpose of this plea only, and shows to the court that the only service had or attempted to be had upon it in this cause was the service of citation upon R. H. Bowron, who, at the time of the institution of this suit and service of citation upon him in this case, was a resi