The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-15

: from Williamson county. Reversed
}. and remanded. Opinion rendered
v Tuesday by Judge Stayton. This wa.
an action against j. l.. Jordan and c
, Z. Bradford as partners, to recover
\ SoO2.O3, alleged to have been advanced
= to them by the appellee. Bradford
denied partnership at the time, or any
debt incurred by him. 1t was alleged
however, that by the terms of the
a dissolution Jordan had authority 10
: settle the debts of the firm. The pre-
sumption was that the checks were
paid out of their deposits, or in salts
faction as far as they went of debt
due to them by the bank. Evidence
, should have been offered to rebuff that
presumption, and in some way show
loan, or some obligation on the part
of the drawers to repay it. No such
evidence was offered, and for this err
Tor, the judgment is reversed and caae
remanded.
In the Burton case the husband of
appellant was in the employ of Mum
roe, who was a contractor engaged in
building the extension of appellee's
railway. There is no testimony tend
ing to show that the company was
operating that part of the road on
which the derailment from which the
death OF the appellants husband oc-
CURED. although it had not received
the road from the contractor; and
there is also evidence tending to show
in general terms that this part of the
railway was under exclusive control
of the contractor, Monroe. The hus-
band of appellant was travelling on
pass from Monroe. The inference
drawn from the record of the case is
that the company agreed to furnish
manned trains to the contractor with
which he might, under mis- own con-
troll, transfer such material and sup
plies as might be needed. Appellant
having filed heterogeneous to take
the deposition of the witness Monroe,
and failed to take it, it was taken
by the company on the same interrog-
atories; and Monroe, hav-
ing been made to exclude
the deposition, this court holds that
either party had the right to take the
| deposition. Touching this ruling
Judge Stayton pe1tinently remarks:
ANY other course might lead to great
wrong. a person desirlring to avoid
| the testimony of witness who he
knew would testify fayorably to his
i az , IL OLlO Ibl1C w 40 c1o OOADS
ed for by the appellant, could file Just
| such heterogeneous as would bring
| out the evidence desired by his adver-
sary, and, upon the same being cross
ed, take out a commission and put it
in his pocket, never intending to take
the deposition, which, but for his APP
parent intention to take, his adversary
would have taken" We do not wish,
adds Judge Stayton, to be understood
as intimating that there is anything
in the record in this case tending to
show that the appellant was not act
ing good faith. What might be done
is referred to merely to show the i'm
propriety of such a rule. Nor does
the fact that the officer who took the
deposition Of the witness had an office
in the same room as the attorneys for
the defendant, or the fact that the Of
ficer who took the dedosition was the
attorney for the defendant in some
other cases give any sufficient ground
for rejecting the deposition, it not APP
pearing in any way, that the officer
was interested in the cause or its de- |
Tense.
It appeared that 1t was usual for the |
company to discharge any of its en-
ployeS on complaint of the contractor;
and that there being no passenger |
train the conductor OH the day of the
derailment received fare of passen-
gers, which was contrary to the rules
of the company. Conductors were
changed as the road advanced in con-
struction. The district judge charged
the jury that if Burton death was
caused by the NEGLIGENCE of the EN-
ployes of the defendant they should |
find for plaintiff. If, however, you |
find from the evidence, that the de- |
fendant had no authority or control |
over the section of the road where the |
said Burton was killed, but that said |
section of the road was under the con- |
troll of the contractor, and the train |
upon which the said Burton was kill |
ed, was supply train, under the said |
Munroe's exclusive control as con-
struction contractor, yon will in that |
event find for the defendant. The |
charge given, at the request of the de- |
PENDANT, was that if the train was a |
construction or supply train, under
the control of the contractor, then the
defendant is not liable; although the
conductor and engineer running the
train were employees of the railroad
company. The Plaintiff requested the
court to instruct the jury: ct Is a
general rule of law that principal
or master is civilly responsible for
wrongs committed by his agent or
servant, while acting about his
business and the
power to discharge is said to be the
| test by which to determine whether
the relation Of master and servant ex-
| lists" The charge, as copied more
7 ELL on6 lifnro1lxr from fnhnn1ra-nn
on Negligence, page S92, was refused.
IF there was negligence in the death
of appellants husband, that negli-
gence, concludes Judge Stayton, was
under the facts in proof the negli-
gence of the engineer or conductor of
| the derailed train; and, the question
of relationship, which they bore to
| the appellee at the time, was one of
the most important in the case. In
this, the charge was not sufficient in
| leaving the jury to draw its own con-
illusions. While the company with
held from the contractor one OF the
essential rights of master, he was
1 made its servant in so far as to give
information of misconduct upon
which, instead Of its own knowledge,
acquired through its own officers. the
employe would be discharged. Nor
is there any doubt, from the evidence,
that the derailed train belonged to the
company, as did the road on which it
was derailt d, even though the road
had not been formally received from
the contractor. Such state of facts,
unexplained, by proof of facts,
which would, Ia legal effect,
make the engineer and the
conductor the employees of the con-
tractor, would entitle the plaintiff to
recover, If the injury Of which sh9
complained was the result Of the
, negligence of either or both of these
, persons. To rebuff this prima facie
case, rested with the defendant, and
the court holds that it was not enough
for this purpose to show that, for Ger
tain purposes the contractor had an
exclusive control over that section of
the road, or to show that the contrac-
tor, for such purposes, had an exclu.
: siye control over the construction
! train. In the view of the case 1t is
! considered unnecessary by this court
to consider the assignments Of error
relative to overriding the motion for
q new trial For the errors indicated
the Judgment of the lower court
:. which was for defendant, is reversed
} and the cause remanded. The decision
is an elaborate one of twenty pages.
!. In Heating vs. Vaughn the assignee
appointed to act by the deed decline:
- g., and ranu0cfod ~