Biggins v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 23 April 1908
• Parties: BIGGINS v. GULF, C. & S. F. RY. CO.
• Court: Texas Court of Appeals

Page 561

110 S.W. 561

BIGGINS v. GULF, C. & S. F. RY. CO.

Court of Civil Appeals of Texas.

April 23, 1908.

On Rehearing, May 21, 1908.

Error from District Court, Johnson County.

Action by O'Finley Biggins, by his next friend, Joe Biggins, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed on rehearing.

Plummer, Featherston & Myers and Cleveland & Haynes, for plaintiff in error. Terry, Cavin & Mills, Brown & Lomax, and Chas. K. Lee, for defendant in error.

HODGES, J.

This suit is an action instituted by Joe Biggins, as next friend of O'Finley Biggins, a minor, to recover damages from the appellee for personal injuries resulting from a pistol shot wound received on the 6th day of January, 1906, and inflicted by appellee's watchman. The testimony shows that the minor plaintiff is about 16 years of age, and that on the day before the injury he had gone down to Cleburne on a freight train. He spent the night following in Cleburne, and on the next morning went to the appellee's depot for the purpose of catching a freight train on which to return to Ft. Worth, intending to ride without paying any fare. It appears that the appellee's yards at Cleburne extend for a mile or more north of the depot, that a part of its yards are inclosed and have entrances provided with gates and that at these gates are stationed watchmen whose duty it is to guard the company's property. About 10 o'clock on the morning of January 6, 1906, that being Sunday, the appellant had gone through the yards and passed on to the north side of the inclosure, and was within from 50 to 100 yards of the north side of the inclosure. The testimony is conflicting as to the conditions under which the shooting occurred. The appellant testifies that late in the evening he was sitting on a push car on the right of way of the appellee, engaged in talking to a white boy; that he saw one of the appellee's watchmen, a man by the name of Churchwell, approaching him, and, being frightened at his approach, he got up and started to run; that after he had run a short distance Churchwell called to him to stop, and, upon his refusing to do so, Churchwell shot him, and inflicted the wounds from which he suffered, and to recover damages for which this suit was instituted. Churchwell testifies that appellant was coming down the track towards the north inclosure, that he had been requested by a citizen to arrest him, and that, as he approached the appellant, the latter ran, that he pursued him, and as he (Churchwell) was climbing over an embankment while within about 40 yards of the appellant his pistol was discharged and wounded the appellant accidentally. The testimony further shows that Churchwell had been in the employ of the appellee company for some years; that he was appointed a special policeman by the proper authorities of Cleburne, at the special instance and request of the appellee company. The evidence is somewhat conflicting as to the extent of his duties. It was shown that he was appointed at the instance of what is called the "special agent" of the company, who was at the head of their secret service department. Churchwell received no instructions from the city authorities to make any arrests, and was assigned to no duties by the city officials. His services were exclusively for the benefit of the railway company, and it paid him for his entire time. He and other witnesses testify that his duties were to watch the north gate, to arrest parties who were attempting to steal rides upon the trains of the appellee company, and protect the property within the inclosure. There was other testimony tending to show that he performed the service of watching the switches and other portions of the company's property north of the inclosure. The case was tried before a jury, resulting in a verdict in favor of the railway company, from which this appeal is prosecuted.

The appellee has filed a motion in this case to dismiss the appeal on account of what it alleges to be a defective affidavit filed in lieu of an appeal bond. The affidavit was made by the next friend, and is as follows: "Affiant also says upon oath that the said O'Finley Biggins is a minor under the age of 21 years of age, and has no guardian of his estate, and that affiant is the father of the said O'Finley Biggins, and prosecuted this suit against the defendant as the next friend of said O'Finley Biggins, and that affiant desired to prosecute and appeal a writ of error from said judgment, as the next friend of said O'Finley Biggins, to the Court of Civil Appeals for the Fifth Supreme Judicial District, at Dallas, Tex., and that he is unable to pay the costs of said appeal by writ of error, or any part thereof, or to give security therefor." It is claimed that this affidavit is insufficient because it does not show that the minor plaintiff in the suit is not also unable to pay the costs of appeal or to give security therefor. The proposition is urged that, in order for the affidavit to be sufficient, it must not only show that the next friend is unable to comply with the statutory requirements in giving bond in cases of appeal, but that the same inability applies to the minor for whose benefit he sues. We will first discuss the affidavit and the objections made to its sufficiency.

The contention is that the minor plaintiff, Biggins, being the real party in interest, for that reason, the affidavit should have stated further that he was unable to comply with the requirements as to giving bond in cases of appeals and writs of error from the judgment of the trial court. This motion, therefore, involves the question of whether or not article 1401, Rev. St. 1895, in cases where suit is brought for a minor by a next friend, and an appeal or writ of error is prosecuted by such next friend from an adverse judgment in the trial court, the terms "appellant" or "plaintiff in error," who, in case of inability to pay the costs of appeal or to give security therefor, is required to make proof of that fact, include the minor plaintiff, as well as the person who acts as the next friend in bringing the suit. If it does, then this motion should be sustained. If it does not, then it should be overruled, for it is not otherwise objectionable. We know of no instance in which this direct question has been passed upon in this state, and have not been referred to any by either party. Article 1400, Rev. St. 1895, provides that in cases where appeals are taken or writs of error prosecuted, the appellant, or plaintiff in error, as the case may be, shall execute a bond with two or more good and sufficient sureties, etc. Article 1401 in giving the right to prosecute the appeal or writ of error without the execution of the bond before provided for, in cases where the appellant or plaintiff in error is unable to pay the cost of appeal or to give security therefor, evidently refers to the same persons who would under the provisions of the preceding article be required to give a bond. In other words, proof of inablility to give the required bond is only exacted of those...