fendants Lindsay and wife pleaded that any extensions given to plaintiff by said Evans on the $400 note were without their knowl-edge and consent and not binding on them, and that therefore they should be discharged on their plea of four-year limitation. They pleaded limitation also by exception. They further pleaded payment in full to Wm. M. Evans and his executrix, Mrs. Minnie E. Evans Ivey. From the judgment in favor of plaintiff as against Mrs. Minnie E. Evans Ivey, in her individual capacity and as independent executrix, and against Nelson G. Mebane, with the writ of foreclosure as against lots 2 and 3, owned by Mebane, and in favor of defendants Mrs. Mattie Jackson, H. L. Vaughn, the Lindsays, and the other defendants, plaintiff has appealed. L. 948; 31 Cyc. 819; Tombler v. Palestine Ice Co., 17 Tex. Civ. App. 596, 43 S. W. 896; Gage v. Riverside Trust Co. [C. C.] 86 Fed. 984), where the contract of bailment gives the pledgee the right to sell the pledged article in case the debt is not paid, but not so where the pledgee must call upon the courts to establish and enforce his rights. [2] The question to be determined is whether or not the $400 note dated June 27, 1905, could be successively extended by parol so as to prevent the running of the statute of limitation. Article 5705, V. S. Tex. Civ. Stats., is as follows: In Wells v. Moor, 42 Tex. Civ. App. 47, 93 S. W. 220, it is said: "The new promise pleaded was a forbearance to sue on the part of plaintiff and a promise to pay the account at a later day on the part of defendant. The subject of the transaction was an open account. The promise of forbearance on the part of plaintiff was based on no consideration, and did not suspend his right to sue. after a debt is due must be in writing in order Under the statute any acknowledgment made to extend the bar. To allow plaintiff's contention would amount practically to an annulment 81 Tex. 94, 16 S. W. 790, cited by appellant, is of the statute. The case of Heisch v. Adams, not decisive of the question. The principle decided in that case is that a verbal contract made after the due date and before the bar of a note, which amount to a novation, takes the place of and embodying new elements of consideration the note forming in part the basis of the new contract, and the statute runs from the due date far short of those in the case cited. In Howof the new contract. The facts here alleged fall ard v. Windom, 86 Tex. 560, 26 S. W. 483, it is held that the acknowledgment or new promise is a new cause of action which must be declared on. In Gibson v. Irby, 17 Tex. 174, it was held that a verbal agreement to extend the due date of a note, the debtor agreeing to pay the principal and interest on that date, did not bind the holder of the note not to sue sooner; without consideration passing from the debtor." the reason given being that the contract was "When an action may appear to be barred by justness of the claim made subsequent to the a law of limitation, no acknowledgment of the time it became due shall be admitted in evidence to take the case out of the operation of the law, [1] On April 4, 1907, Poythress executed a unless such acknowledgment be in writing and release to lot 6, sold by Evans to the Lind-signed by the party [sought] to be charged thereby." says on June 27, 1905, but by said instrument the lien existing on the other lots covered by the deed of trust was specifically stated to remain in full effect. The evidence supports the conclusion that the Lindsays had paid in full the amount of the said $765 note given by them to Evans, and hypothecated by Evans to Poythress as additional security for Evans' debt to him, the payments being made to Evans during his lifetime, and after his death, on, to wit, December 22, 1912, such payments were made to the executrix; a receipt of payment in each instance being given. The evidence further shows that the inventory and appraisement filed by the executrix showed a balance due on the Lindsay note of $269.50. Plaintiff's testimony tended to show that prior to the filing of the inventory and appraisement Lindsay was notified by Poythress or his attorney that he held the note against lot 6, and that there was a balance due thereon of about $175. Lindsay denied ever having received such notice from Poythress or his attorney, but we do not think the conflict of testimony is material, since the controlling question is whether or not the original debt of Evans to Poythress evidenced by the $400 note was barred by limitation, for before Poythress could recover on the collateral note, he would have to establish in court the original debt evidenced by the $400 note to secure which the $765 note was given. In order to enforce his security, the plaintiff would be required to go into court, and would thereby necessarily bring himself within the operation of the statute of limitation. Limitation affects the right to enforce a claim through the medium of the courts, and not necessarily the validity or justness of said claim. It closes the doors of the tribunal to the tardy claimant who would seek the portals of the courthouse to enforce a right or to collect a claim in the assertion of which he has been guilty of undue laches. It is true that a pledge may be subjected to the See Neyland v. Neyland, 19 Tex. 423, 430; San Antonio, etc., Loan Ass'n v. Stewart, 94 Tex. 441, 448, 61 S. W. 386, 86 Am. St. Rep. 864; Russ v. Cunningham (Sup.) 16 S. W. 446; Lowe v. Dowbarn, 26 Tex. 507, 510. Appellee cites a number of cases, to wit, Casey-Swasey v. Anderson et al., 37 Tex. Civ. App. 223, 83 S. W. 840, Carter-Battle Co. v. Clarke, 91 S. W. 882, Fambro v. Keith, 57 Tex. Civ. App. 302, 122 S. W. 40, Wright v. Deaver, 52 Tex. Civ. App. 130, 114 S. W. 165, and others, in which a parol agreement by the principal, without the consent of the surety, to extend the payment of a debt was held binding on the principal, and therefore to relieve the surety, but these cases do not deal with the question of limitation, nor dispute the rule that in order for the plaintiff to recover by reason of the parol promise he must SERVANT UNINTENTIONAL CHARACTER - In such action, evidence held sufficient to justify the jury in finding that the shot which injured plaintiff was not fired maliciously or with intent to shoot plaintiff, but merely to induce him to leave the railroad yards; the watchman not knowing and having no ill will against plaintiff. 3. TRIAL 350(6)-SPECIAL ISSUES-TORT OF SERVANT. original instrument in writing. In the in- 2. MASTER AND SERVANT 330(3)-TORT OF stant case plaintiff did not seek to recover on the parol promise, but on the note itself. The last extension of interest, as pleaded, was made on June 27, 1912. The suit was filed August 21, 1914, more than two years thereafter. Hence any action on the oral contract alleged would have been barred by the twoyear statute, even had plaintiff declared thereon. But he did not do so. Hence we conclude that the original note for $400, given on June 27, 1905, was at the time of the suit barred by the four-year statute of limitation, and that the Lindsays could successfully plead the statutes. In this connection it might be noted that there had been no formal assignment or transfer of the $765 note from Evans to Poythress put on record. Evans merely indorsed the note in blank and delivered it to Poythress. So the Lindsays had no constructive notice of the ownership by Poythress of the note in question. The actual notice was denied by A. Lindsay, as before stated. [3] With reference to the defense of Mrs. Mattie Jackson and H. L. Vaughn, no vendor's lien notes from Mrs. Jackson's predecessor in title appear to have been executed to Evans and delivered to Poythress. The record does not disclose, so far as we have been able to determine, whether any vendor's lien was retained by Evans or not. It was agreed that Mrs. Jackson and Vaughn, claiming under G. W. Jackson, deceased, had held possession of lot No. 7, block No. 1, since the 4th day of August, 1908; that they proved actual possession of same by deed from Evans and wife to G. W. Jackson. No pleading of plaintiff suggests any right of foreclosure against the Jackson lot, unless such right be shown by reason of the $400 note and the deed of trust executed by Evans to secure the same. Hence as to this lot, the right of foreclosure would be barred, by reason of the statute which barred the debt from Evans to Poy In an action against a railroad and its watchman for shooting plaintiff in the railroad's yard, the question whether defendant watchman shot plaintiff intentionally presented a pertinent and material issue to be submitted, since if he shot to gratify a private grudge, and not pursuant to his duty to guard the railroad's property, the latter was not liable. 4. MASTER AND SERVANT 304 -- TORT OF If a railroad's yard watchman, within the general scope of his employment to protect the reasonably and negligently in the performance of railroad's property from depredation, acted unhis duties as he saw them, the railroad was liable for any injury suffered by another thereby, whether the watchman acted upon reasonable appearances or not; he having been made the judge as to when it was necessary to shoot. 5. TRIAL 115(2)-ARGUMENT OF COUNSELSPECIAL ISSUES. The statement of plaintiff's counsel in closing argument to the jury that the reason that counsel for defendants wanted the jury to answer the first question "No" was because they "No," it would end the case, was improper, as knew that, if the jury answered the question where special issues are submitted it is the single duty of the jury to find the facts in support of the issues. 6. APPEAL AND ERROR 1060(1)-HARMLESS ERROR-ARGUMENT OF COUNSEL. Impropriety of plaintiff's counsel in arguing that defendant's counsel wanted the jury to answer the first special issue negatively because they knew that if the jury so answered the issue it would end the case was harmless, where the jury must have gathered on trial the legal result of a negative finding on the issue. 7. APPEAL AND ERROR 1033(5)-ERROR FAVORABLE TO APPELLANT-INSTRUCTION. In an action for personal injuries, where all thress. No complaint is made as to the judg-question of permanent injury were such as were damages allowed by a charge submitting the ment against Mrs. Ivey individually and as allowable under the law whether the injury was .executrix and against Mebane. The judg- permanent or not, the charge that plaintiff ment in this respect will be left undisturbed, might recover such damages only on proof of permanent injury was favorable to defendant. and otherwise will be affirmed. All assign8. DAMAGES 130(2)-INJURY TO LEG-EXments are overruled. CESSIVE VERDICT. Affirmed in part, and undisturbed in part. GALVESTON, H. & H. R. CO. et al. v. FLEM- (Court of Civil Appeals of Texas. Galveston. 1. MASTER AND SERVANT 330(3)-TORT OF In an action against a railroad and its watchman for the latter's shooting of plaintiff, evidence held sufficient to support the jury's finding that the watchman was acting within the general scope of his authority. In an action against a railroad and its yard watchman for shooting plaintiff in the calf of the leg, verdict for plaintiff for $2,500 was not excessive. Appeal from District Court, Galveston County; Clay S. Briggs, Judge. Suit by Andrew J. Fleming against the Galveston, Houston & Henderson Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed. Baker, Botts, Parker & Garwood and McMeans, Garrison & Pollard, all of Houston, and Jno. L. Darrouzet, of Galveston, for appellants. Frank S. Anderson, of Galveston, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes LANE, J. This suit was instituted by ap- | salary of $65 per month, and that he was pellee, Andrew J. Fleming, against the Galveston, Houston & Henderson Railroad Company and R. J. Stanley to recover damages for alleged personal injuries. such watchman on the night of February 20, 1917, when appellee was shot, and from the time of his employment to the date of the trial had continuously been in its employment as such watchman and guard. It was further admitted that Stanley was the man who shot the plaintiff. The undisputed evidence shows that while it was a fact that the point or place at which appellee was shot by Stanley was on Postoffice street in the city of Galveston, it was also within the yards of the defendant railroad company, said street being closed at that point by virtue of a city ordinance; and that where said street entered said railroad yards said company had placed a sign which reads: The plaintiff alleged that on the 20th day of February, 1917, said railroad company had laid and was maintaining its railroad tracks in, upon, and along Postoffice street, a public street and highway in the city of Galveston, Tex.; that on said date the said railroad company had in its employ one R. J. Stanley as watchman and guard over its properties; that on said date while he (Fleming) was passing along said public street and highway and along one of the railroad tracks of said company, said Stanley, while acting within the scope of his employment and instructions, carelessly, "This is the property of the G., H. & H. Railnegligently, willfully, and maliciously as-road Company. Persons entering upon or crosssaulted and shot him (Fleming) in the leg, ing are trespassers, and assume all risks." thereby seriously and permanently injuring and damaging him, for which he prayed judgment in the sum of $2,500 actual, and $2,500 exemplary, damages. Defendant answered by general demurrer and general denial. The question of exemplary damages was not sub-many years. mitted to the jury, and we shall, therefore, on the night and at the time he was shot not further refer to this matter. The case was tried before a jury upon special issues submitted to them, to which they made the following answers: (1) That the defendant Stanley, in the shooting of the plaintiff, was performing an act within the scope of his employment, and in furtherance of his duties for which he was employed by the defendant railroad company; (2) that the defendant Stanley shot the plaintiff unintentionally; (3) that in shooting the plaintiff, the defendant Stanley was guilty of negligence, (4) which proximately caused plaintiff to sustain the injury as alleged by him; and (5) that the amount of damages that would be fair and reasonable compensation for plaintiff's injuries was $2,500. Upon the verdict a judgment was rendered in favor of plaintiff against both defendants for $2,500, from which the defendants have appealed. [1] By the first, second, and third assignments it is insisted that the court erred in not instructing a verdict for defendants, as requested by the defendant railroad company, for the reason that there was no evidence to prove that defendant Stanley, at the time he shot plaintiff Fleming, was acting within the general scope of his authority as a watchman and guard for the defendant railroad company, and because the testimony failed to show that Stanley, in shooting plaintiff, was acting in discharge of any duty he owed to the defendant railroad company. We do not think there is any merit in the contention of appellants. It was admitted in evidence that the defendant R. J. Stanley was employed by the defendant Galveston, Houston & Henderson Railroad Company as a watchman and The undisputed evidence also shows that for about three years appellee had passed unmolested over and among appellant's tracks and through its yards, and that many persons had so passed day and night for Appellee Fleming testified that by Stanley he was walking along the track of the defendant railroad company; that he met a man (who later proved to be Stanley) who passed by him, and that after the man had passed him the man said, “Stop there!" that he did not stop, but as he thought it might be a burglar he continued to walk on, and that the man fired on him; that after the man fired he (Fleming) continued to walk on off from him, but looked back to see what the man was doing; that he did not see what the man was doing; that he did not then see the man, but that the man then ran around in front of him and shot him the track He in the calf of the left leg. He also testified The case of Baker, Receiver, v. Ives, reported in 188 S. W. 950, is a case in which were very similar to the nature and facts of the present case, except that one Watts in that case testified that he employed one Grace as watchman and guard in the yards of the International & Great Northern Railway Company at Palestine, Tex., and further testified as follows: The contention of appellant cannot be sustained. We think the holding in the case cited is applicable to this case. While it is true that in the Ives Case the instruction to Grace, the watchman, to watch the property of the railroad company and to arrest persons only when he caught them in "I instructed Mr. Grace at the time of his em- the act of depredating on such property was ployment to watch out for these merchandise expressly given, we think a fair inference cars, never making any arrest of anybody unless is that when Stanley was employed by the he actually caught him in the act. I also in- is that when Stanley was employed by the structed him that the main line, south, west, and appellant railroad company to watch its north, had become a public thoroughfare from property he was impliedly instructed to do long usage and to let travelers pass along there, such things as he might in his discretion but any one he caught meddling and depredating think necessary to protect the property of to put them out. ** He had no authority whatever to stop or question any one passing his employer. Any other conclusion seems along through the yards in the regular way; to us unreasonable and unsound. No one that was against instructions. I employed him could reasonably conclude that the railroad [on] the 11th day of November, 1914, as night watchman, Palestine yard, because so many cars were being broken' open and robbed and burglarized, and goods carried away, and it was necessary on account of depredations. * * * Yes; I have heard of several cases of people asking the railroad employés for matches at night, and trying to get their watches or rob them; that is a favorite way and an old way. Yes, it was left to Mr. Grace's judgment on the instructions I had given him to decide whether a man was out of the way, or a suspicious looking character, or not." company in the present case employed Stanley to go in and upon its yards and simply watch persons who were depredating upon or threatening to depredate upon its properties, but to the contrary, reason would force one to the conclusion that Stanley's duties were not only to watch such property, but that he was to take such necessary action as would protect the same from depredation. We therefore conclude that the court did not err in submitting the question to the jury, as to whether Stanley was acting within the general scope of his authority. We also conclude that there was sufficient evidence to support the finding of the jury that he was so acting. We therefore overrule the first, second, and third assignments. In that case the court said: "Under these authorities, we think it clear that the trial court properly submitted the issue of liability of appellants for the act of Grace in making the assault upon appellee. If, in fact, the appellee had been a thief or depredator upon the property of the appellants, or if his conduct had been such as to lead Grace reasonably to believe that he was such, the latter would certainly have been acting within the scope of The fourth assignment complains of the his employment if he used all reasonable and action of the court in submitting the quesproper means to protect the company's property. tion to the jury as to whether or not Stanley He was undoubtedly charged by appellants with was performing an act within the scope of the authority, and it was his duty to exercise the discrimination necessary to distinguish be- his employment, and in furtherance of his tween burglars, thieves, depredators, and inno- duties for which he was employed when he cent persons, and to make arrests when called shot appellee. What we have said under for by the circumstances, and to determine the the first, second, and third assignments disdegree of force necessary to be exercised. If, through want of proper care or the exercise of poses of this assignment. It is therefore the proper discrimination, he mistook appellee overruled. for a depredator or person who otherwise should be dealt with in the manner in which he did deal with him, he was certainly acting within the apparent scope of his employment, and the appellants must be held liable for any want of proper discrimination or improper conduct of his in that respect." [2, 3] By the fifth assignment appellant insists: That the trial court erred in submitting to the jury the following question, "Did the defendant R. J. Stanley shoot the plaintiff intentionally?' for the reason that there was no evidence to justify the conclusion or finding that defendant Stanley shot the plaintiff unintentionally, and all of the evidence introduced in this case fendant Stanley's act in shooting the plaintiff upon the issue shows without dispute that dewas intentional and not accidental." We cannot agree with the contention of appellant. Appellant was contending that in accosting and shooting plaintiff, defendant Stanley was not acting within the scope of his employment, but that in doing so he had turned aside from the duties imposed upon him and with malicious intent shot plaintiff. There was no evidence, either direct or cir Appellant contends that the opinion in the Ives Case is not applicable to the present case, because in that case there was proof showing what the watchman's duties were under his employment, while in the present case the evidence as to what the watchman's duties were is wholly silent. That in that case it was shown that an innocent man was injured by Grace by reason of the failure of the latter to use ordinary care in using the authority conferred upon him to discriminate between depredators and innocent persons. Here it was not shown cumstantial, that Stanley held any malice or that any authority of discrimination was conferred upon Stanley, or that his act was done in the accomplishment of any object for which he was employed. ill feeling toward the plaintiff, or that he knew the plaintiff, or had ever seen or heard of him before the shooting;, nor was there any attempt to show such facts; nor was there any evidence remotely showing that Stanley and the plaintiff had quarreled at the time of the shooting, but upon the contrary the evidence shows that when Stanley saw the plaintiff in the yards of the defendant railroad company he called to him and told him to stop; asked him to stop before he fired the first shot; that the plaintiff continued to walk off from Stanley along the railroad, and that to impress upon plaintiff that he must leave the yard Stanley fired the shot; that after said shot was fired the plaintiff turned toward Stanley, who said to him, "I am the watchman; you get off the track here," and was shot by Stanley in the calf of the left leg. We think there was We think there was [5, 6] In his closing argument counsel for the plaintiff said to the jury: "The reason that they [counsel for defendants] want you to answer the first question 'No' is because they know that, if you answer that question 'No,' it will end this case." After these remarks were made to the jury counsel for appellant objected thereto, assigning as a reason for such objection that such remarks were improper and prejudicial to the rights of defendants, in that such remarks were in effect advising the jury of the effect and result of the answer they might make to the question as to whether or not Stanley was acting within the scope of his employment in shooting appellee, Flemsufficient evidence to justify the jury in finding. After this objection was made counsel ing that the shot that injured the plaintiff for appellee repeated said remarks. The was not fired either maliciously or with the court did not stop counsel'in such argument, intent to shoot plaintiff, but that the same nor give any instruction to the jury relative was fired for the purpose of inducing plain- thereto; there being no request for such intiff to leave said yard, and not with the struction by appellants. struction by appellants. Appellants make malicious intent to wound and injure a man these remarks of counsel for appellee the* whom he did not know, and against whom grounds of their seventh assignment. he had no ill will. We think the question The argument of counsel complained of submitted, of which complaint is made, pre- was improper, and the court should have sented a pertinent and material issue, that stopped it when attention was called to it. there was evidence calling for its submission, In cases where special issues are submitted, and that the trial court properly submitted it is the sole duty of the jury to find the the same. The fifth assignment is overruled. facts in support of the issue submitted, if [4] By the sixth assignment complaint is made of the refusal of the trial court to sub-effect of their finding on the parties to the any. The jury have nothing to do with the mit to the jury the special issue requested suit. They should not be concerned in the by appellant, as follows: result of such findings. G., H. & S. A. Ry. Co. v. Hodnett, 182 S. W. 7; Fain v. Nelms, 156 S. W. 281. In the case last cited the court said: "Was the plaintiff, Fleming, at and just before the time that he was shot by the defendant Stanley, doing any act that would reasonably appear to defendant Stanley that the said Fleming was about to do or was doing any act or thing that would interfere with the use of said property or railroad yards, or to injure, destroy or depredate the property of the defendant Galveston, Houston & Henderson Railroad Company, or to prevent the railroad company from the free use of the same?" We have already held that the implied duties of Stanley were not only to watch the properties of the railroad company, but contemplated that he would do such acts as reasonably appeared to him to be necessary to protect said properties from depredation of others. He was clothed with the duty of determining when he should act for the protection of said property, and if while he was acting within the general scope of his employment he acted unreasonably and negligently in the performance of his duties as he saw them, his employer was liable for any injury suffered by another by reason of such unreasonable and negligent acts. So then it was an immaterial issue as to whether Stanley acted upon reasonable appearance or not. He was made the judge as to when it was necessary to act by the defendant railroad company, and it is liable for his mistaken judgment when the same results in injury to others. We do not think the court erred in refusing to give to the jury the special charge, the refusal of which is complained "We have no hesitation in saying that the argument was, in the circumstances, improper, and that the court should have stopped it when and that the court should have stopped it when attention was called to it, and should have instructed the jury to disregard it. The jury, as triers of the facts solely, had nothing to do with the legal effect of their findings. This was a matter which could not properly concern them. They were only to find the facts. The argument consider, in finding this fact, what the legal efcame very near a direct invitation to the jury to fect would be. The argument should not have been made, nor should the court have allowed it to be made, and to give tacit approval of it by upon the question, however, as ground for redisregarding appellant's objection. In passing versal, its effect on the jury must be considered, and upon this point it must be assumed that during the course of this trial, amid the strenuous conflict between counsel as to the time appellee's adverse possession began, and the amount of evidence on that issue, it must have been a remarkably stupid juror who would not have gathered what would be the legal result of a finding on this issue. We are inclined to the opinion that counsel only told the jury what they already knew, and we cannot believe that they disregarded the evidence and charge of the These improper remarks, we think, ought not to court, and were influenced by this argument. bring upon appellee the penalty of a reversal." We specially adopt the last portion of the foregoing quotation as a reason why we refuse to reverse the judgment of the trial court in the instant case on account of the |