Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-08-02

deemed the vice-priucipal of the company
otherwise he was a fellow-servant. But
the court held that an emplOye in charge of
q special department, with power 70 employ
and discharge, is q representative OF the
master. and not fellow-servant. And the
doctriae so laid own has been especially re-
affirmed in later case, e., H. ~ ,. a. by.
Co. Us. Smith.
A careful reading of the first section,
however, will disclose that it appears to
extend the rule TO point beyond that to
which either the courts of this state or OF
other states have gone, for nothing IS said
therein about the power of such employe
to employ and discharge other employees as
affecting his status towards other employees
but the fact that he is vested with the au-
thority of superintendent, control Or COM
mand OF other persons in the employ or
service of such corporation. or with the au-
thority to direct any other emplOye in the
performance of any duty of such employe,
makes him u vice principal.
Section defines fellOw-ServantS TO be
persons who are engaged in the common
service of railway corporations, and who,
while so engaged, are working together at
the same time and place 10 a common pur-
pose. Of same grade. neither of such per-
sons being intrusted by such corporation
with any superintendent or control over
their fellow employees.
Thus far this section seems to conform
to the decisions of our supreme court, which
are to the effect that servants employed by
the same master, laboring under the same
control deriving their authority and re
ceiviug their compensation from common
source, and engaged in the same bust
ness. are fellow-Servants.
Section :, however, further proceeds as
follows: Provided nothing herein con-
tained shall be 50 construed as TO make en-
pIoyes Of such corporation in the service of
such corporation, fellOw-servantS with
other employees OF such corporation engaged
in any other department or service of such
corporation. Our supreme court has held
that the fact that employees labor in differ
ent departments of the common service aid
not change the rule, but they We're still fell
low-scryants, and following Cooley on
forts and other authorities refused to adopt
the different department doctrine. Dallas
VS.. Gulf Colorado and Santa Ee Railroad
company, I'll Texas, I36: Texas and Pacific
Railroad company VS.. Harrington, 62 Tex
as, 5y1
1t appears. therefore, that both the first
and second sections of the act enlarge and
change the rule of law as laid down by our
court. The statute seems to have been
based on the principle laid down in Chicago,
Minneapolis and St Paul Railway Company
VS.. Ross, decided in 1854 by the supreme
court of the United States, which for the
first inc modified greatly the general rule,
the holding in that case being that the con-
duCtur of train havin" the right to control
and direct the engineer and traiumen was
not 4 fcilOW-ScrVant with the engineer.
The act in question it would seem cannot
affect the established rule that whore 4
corporation charges one emplOye with the
performances Of duty which, by its i'm
piled contract the corporation owes all its
employees, such rs 10 provide suitable ma
chiucry and keep the same III good repair,
that such emplOye so charged with such
duty whatever may be his grade, IS not
fellow servant servant with any other en-
plOy who may be injured by his negligence.
The act Is directed against and refers only
to railroad corporations, and for this reason,
perhaps, the first question which suggests
itself TO the professional mind IS that OF It's
cOnStitutiOnality.
Similar acts are in force in other states,
and while perhaps none OF them are in eX-
ac " the same terms as the one under con-
siCeraton, yet the difference is rather in
phrdscology and form than in substance
ana principle. and their consttutionality
has been sustained. Missouri Pac. Il. r.
CO. vs.. Mackey, Ia l. :, POS: Herrick vs..
NJ II c. L. K Co. 81 MINI: Dittemar VS..
{. q c. Il. L. Co, Il Wisconsin, l3S.
ATTACHMENT.
An important change has been made IN
the law relative 10 attachments.
Article rs Of the Revised Civil Statutes
provides that when an attachment is
quaShed or vacated the property shall be
returned To the defendant, or The claim or
rppleyy bond be discharged. This act is so
amended as to provide for . repIcvy Of the
properly or its proceeds if the property has
been sold pending appeal, or for its re-
naming in the hands OF the officer TO await
the final disposition of the case. And any
replcvy bond given whether before or after
such attachment is Quashed or vacated is
made valid and binding.
The reason set forth in the emergency
clause of the act as creating an imperative
public necessity, viz: that there Is no
law authorizing courts of last resort to re-
wise rulings of trial courts" i'll such cases
appears 10 be based upon false premise.
The supreme court has never heSItated to
pass upon the question whether an attach
mcnt was properly or improperly quashed,
but it has held that when the attachment is
quaShed the property must be restored to
the owner of the claim. or replevy bond dis
charged. and hat there was no law author
ling i rapevy pending appeal. This defect
in the law in many cases operated great IN
justice for though the supreme court on ap-
peal might reverse the action Of the lower
court in quashing the attachment, yet ere
the cause could again be tried the property
was placed, in most instances, beyond the
reach OF legal process. and thus the dill
gcuce of the attaching creditor prove of no
avail. This defect, the amendment uuder
discussion wisely cures.
EVIDENCE IT>SEDUCTION CASES.
Exception =, article 80, &. &. p. is re-
pcalcd and the injured female in seduction
cases can testify i'll like manner as the de-
PENDANT. but her testimony is logically
placed on the same ground as that of an az
cUmpicc, in that it must be corroborated.
Chapter 81 page 81.
CHATTEL MORTGAGES.
The act Of April %. 1919. concerning chat
tel mortgages is SO amended as to section ,.
as to provide that such mortgages shall be
kept IN the clerks Office until satisfied, and
that copy can be filed only when the orig
inal has been witnessed by two subscribing
Witnesses. or acknowledged. or proved for
record and certified is required for record.
The principal change IS in the Stricter re-
qurement as TO the authorization Of the
instrument.
Section is so amended as to increase the
probativc force of the copy so filed, and
section > provides that when the debt is
satisfied the mortgage may be withdrawn
from the clerk Office. Chap. 81, page IS.
TAXATION AND ASSESSMENT.
The purpose sought TO be attained by the
legislature by the enactment of chapter 81
OF the last acts IS highly important. As ii is
in the interest OF uniformity in taxation,
and is intended 10 prevent frauds on the
revenue Of fictitious sales, exchange or
transfer of property in the form of money
subject TO taxation for non-taxable bonds or
funds, so as TO evade payment of justly due
taxes. Chap. 81. page 40.
THE SEPARATE COACH ACT.
BY the terms of this act all persons are
declared to be negroes who are OF African
descent, as defined by the statutes of this