Standard v. Texas Pacific Coal & Oil Co.

On Rehearing.

In our original opinion we incorrectly quoted special issue No. 6. The issue correctly stated was as follows: “Do you find from a preponderance of the evidence that George Powers, at the time he shot and hilled Aaron Waldrip, was acting in pursuance of a previously formed conspiracy between himself and the Texas Pacific Goal & Oil Company?”

One contention of appellee urged in its motion for rehearing is to the effect that we erred in reversing the case upon the ground stated in the opinion because the objection to said charge and the assignment of error presenting the question complained of same only on the ground that it was given in connection with special issue No. 5, saying nothing about special issue No. 6, and since the jury in their answer to special issue No. 6 acquitted appellee of complicity in the alleged conspiracy, the instruction complained of was therefore immaterial and harmless. The gist of the objection and the assignment was not a complaint as to any particular connection with the issues in which the charge was given, but that it was a general charge, improper to be given in the ease submitted, as. it was, upon special issues. It would have been just as objectionable had neither special issue No. 5 nor 6 been mentioned, and for that reason we believe the point not well taken.

It is further contended by appellee that its “General Counter Propositions” were, in substance and effect, “cross-assignments of error,” and that therefore we should have examined the statement of facts to verify its contention that there was no evidence to support the issue of conspiracy from which it would have appeared the general instruction was harmless. Said “General. Counter Propositions” are as follows:

“First General Counter Proposition: The • court should have directed the jury to return a verdict in favor of Texas Pacific Coal <& Oil Company and the judgment of the court in favor of Texas Pacific Coal & Oil Company is correct, because, under the pleadings and evidence, it was not shown that Texas Pacific Coal & Oil Company entered into a conspiracy, as alleged, to kill Aaron Waldrip.

“Second General Counter Proposition: The court should have directed the jury to return a verdict in favor of Texas Pacific Coal & Oil Company, and the judgment of the court in favor of Texas Pacific Coal & Oil Company is correct, because, under the pleadings and the evidence, George Powers, an employee of Texas Pacific Coal & Oil Company, did not kill Aaron Waldrip while in the course of his employment.”

We are of opinion that the counter propositions cannot properly be regarded as assignments of error. ' They do not specify any particular action or ruling of the court as being error. “An assignment of error is a formal complaint of some action of the trial court as distinguished from a proposition which merely sets forth reasons why such action is erroneous.” 3 Tex. Jur. p. 798, § 565, and authorities there cited. “In general, the function of a proposition is to show in what respect and to point out reasons why the action or ruling (italics ours) of the court is erroneous, i. e. to set forth the reason or reasons supporting the assignments.” 3 Tex. Jur. p. 877, § 612. Appellee’s “General Counter Propositionfe” are but reasons, properly denominated “propositions,” which would have supported a cross-assignment of error to the effect that the court erred in overruling its request to peremptorily instruct a verdict in its favor.

In holding, as we did in the original opinion, thal; we were under no duty to read the entire statement of facts to ascertain whether, as contended by appellee, there was no evidence to raise an issue of conspiracy, and, if such was found to be the case, to hold ■that the general instruction was, for that reason, harmless, we reached the conclusion based upon one reason, namely, that the only purpose that any cross-assignment of error could serve would be to show that the errors complained of by the appellant were harmless, or, in other words, that, regardless of the merit of same, the judgment under attack was correct for the reasons appearing by tte propositions supporting the cross-assignments of error. We reasoned that, if we could search the entire record, including the statement of facts, merely to ascertain that an assignment which we would otherwise consider as requiring a 'reversal was in fact h aimless, then there would never be any necessity of presenting cross-assignments of error — a proposition to which we were unwilling to stand committed. Upon further reflection we are convinced that we were in error in concluding. that a cross-assignment of error could in no case serve any other purpose than to show that assignments of error, though meritorious, were harmless. Many cases can no doubt be found where the effect of cross-assignments of error has not 'been merely to show that the judgment under attack was correct upon other grounds. The case of Reclamation Co. v. Simmons, 293 S. W. 194, by this court, will serve as an example. There the court reversed and remanded the case solely upon a cross-assignment of error which, without same, the judgment would have been affirmed. The cross-assignment of error therefore did not present a reason why the assignments of the appellant were immaterial. The reason for our former holding having failed, the conclusion based thereon was not warranted. We have concluded that, if it i§ not a question already foreclosed by the decisions, nevertheless, as a matter of good practice, whenever it may be suggested to us that any part of the record in a case, including the statement of facts, will disclose that an apparently prejudicial error is harmlessi it is our duty to examine the record to ascertain if such be the case in order to prevent a reversal for error which the record shows was harmless.

We have made a careful study of the entire record to ascertain if there was presented an issue of conspiracy for the jury. On the trial Mrs. Standard, the plaintiff, testified that, on a former trial of the case, Frank Kribs, shown by other evidence to have held the position of district superintendent of the, production department, in the employ of appellee, among other things, testified: “That the Texas Pacific Coal & Oil Company furnished the gun and ammunition that my husband was killed with, and said they gave them orders to keep everybody off the lease, and said they told them that if they caught anybody on the lease to kill them and leave them where they killed them, and let somebody else find them.” Aleck Eakins testified 'that George Powers “said he had his wife drive up through the Butler pasture and he sat in the back seat and he intended to shoot the first Adams of that hunch that he caught over there.” We are unable to say that this testimony, in connection with all other testimony which may be regarded as circumstantial evidence, does not raise an issue of fact as to the alleged conspiracy. We think the entire testimony favorable to appellant's contentions was clearly sufficient to raise an issue of fact as to whether appellee conspired with George Powers to protect the Butler lease by the use of unlawful means from trespasses and depredations, of which Adams and members of his family, including the deceased, were under suspicion, One of the ways in which a conspiracy may exist is through a combination by two or more persons to accomplish a lawful purpose by criminal or unlawful •means. 9 Tex. Jur. p. 393. Regardless of the' extent or nature of prior trespasses arid depredations, appellee would have had no right to enter into an agreement to shoot the first one of the persons under suspicion that was found upon the lease. Such an agreement being unlawful, “an offense is deemed to have been committed where an overt act in pursuance of the unlawful combination is performed by anyone of the co-conspirators or by any other person at their instigation.” 9 Tex. Jur. p. 394. “A corporation may be held liable for damages caused by a conspiracy in the same way and to the same extent that a natural person may be.” 12 C. J. p. 610, § 177.

The weakest point in the evidence is that, if any, to show that the killing as it actually transpired was in furtherance of the common design and in accordance with the general plans comprising the unlawful agreement. Id-., §178. Upon this point the rule is: “* * * Whether the act was an ordinary and probable effect of the common design of the conspiracy, or whether it was a fresh and independent product of the mind of one of the conspirators outside of, or foreign to, the common design * * * are questions for the jury to determine.” 12 C. J. p. 646, § 256; Lyons v. State, 30 Tex. App. 642, 18 S. W. 416; Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901; Kirby v. State, 23 Tex. App. 13, 5 S. W. 165. Of course, if there was no evidence that could link the killing to the agreement there would be nothing to submit to the jury, but since “proof, of such an unlawful enterprise must in the very nature of things be made by circumstances” (9 Tex. Jur. p. 400, § 21), we have concluded that we would be unwarranted in holding that there was no evidence showing that the killing of Aaron Waldrip by George Powers was in pursuance of an agreement (of which there was some evidence) to protect the Butler lease by the employment of unlawful means.

It is a little difficult to see how ap-pellee could consistently be acquitted of any liability on the ground of George Powers being its employee, and yet, upon the same facts, be liable as a party to a conspiracy with, bim; but we are not prepared to say that a question of liability upon the one ground would be conclusive upon the other. In Yates v. Garden City Sugar & Land Co., 117 Kan. 405, 231 P. 1034, a demurrer to evidence was sustained in so far as it was claimed to show liability of a principal for its agent, but was overruled in so far as it was claimed to show Lability on the ground of a conspiracy.

We are therefore, for the reasons stated, not prepared to hold that the giving of the general charge was harmless, which leads us to conclude that the motion for rehearing should be overruled, and it is accordingly so .ordered.