
    HUDSON et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (No. 757-7620.)
    Commission of Appeals of Texas, Section B.
    June 4, 1927.
    1. Appeal and error <&wkey;832(l) — Rehearing will not be granted because opinion of Commission of Appeals was written by judge not present at oral argument.
    Rehearing will not be granted because opinion of Commission of Appeals was written by judge who was not present, and did not sit with commission, when case was submitted on oral argument, since law contemplates, in all cases referred to Commission of Appeals, that Supreme Court will decide case without hearing oral arguments.
    2. Appeal and error <§=>1114 — Supreme Court need not remand case to appellate court' for failure to pass on assignments of error, but may remand cause to trial court.
    Where Court of Civil Appeals, rendering judgment for appellant therein, failed to pass on -certain assignments of error, Supreme Court was not required to remand ease to Court of Civil Appeals, with direction to pass on such assignments, but may remand case to trial court.
    3. Trial <&wkey;»194(l), 240 — Requested special Instructions, which were argumentative and on weight of evidence, held properly refused.
    Refusal of requested special instructions, which were argumentative and on weight of evidence, held not error.
    4. Trial &wkey;>I94(l9) — Requested instruction to find strike guard was not employee if not under employer’s control held properly refused as on weight of evidence.
    In action for death of picket killed by state ranger furnished railway during strike, requested instruction that mere fact that railway paid ranger would not render him employee of railway, and to find ranger not an employee if railway had no authority to control him in discharge of his duties, held properly refused as on weight of evidence; question whether he was employee of railway being for jury under all circumstances.
    5. Trial <&wkey;253(4) — Instruction to find that ■ strike guard was not acting within scope of employment If he shot picket who was on public street held properly refused as ignoring issue of whether acting in scope of employment.
    In action for death of picket killed by state ranger furnished railway during strike, requested instruction to find ranger was not acting within scope of employment if he shot picket, who was acting peacefully on public street, held properly refused as ignoring issue whether ranger was acting within scope of employment.
    Error 'to Court of Civil Appeals of Sixth Supreme Judicial District.
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 293 S. W. 811, modifying 286 S. W. 766, which superseded 282 S. W. 257.
    Cone Johnson and Edwards & Hughes, all of Tyler, for plaintiffs in' error.
    E. B. Perkins, of Dallas, and Marsh & Mcllwaine, of Tyler, for defendant in error.
   SPEER, J.

We are asked to grant a rehearing herein because the opinion of the Commission was written by a judge who was not present and did not sit with the commission when the case was submitted on oral argument, the contention being that, while there is no rule to that effect, nevertheless, the opinion of a court should not be written by a judge who was not present at the submission upon oral arguments. This complaint involves a mild indictment of our system, inasmuch as the law contemplates, in all cases referred to the Commission of Appeals, the Supreme Court will decide the case without having heard the oral arguments. The criticism of counsel may be a just one, but it evidently is not a ground for rehearing. It is wholly a matter for legislative consideration. The question at last is whether or not the court has erred in its holding.

It is next complained that, since the Court of Civil Appeals, having rendered the judgment for the appellant, failed to pass upon certain assignments of ei;ror, the Supreme Court should not remand the cause to the trial court, but rather should remand it to the Court of Civil Appeals, with directions for that court to pass upon such assignments. The.rule is not as contended by defendant in error. In Southern Pacific Co. v. Walters, 110 Tex. 496, 221 S. W. 264, Chief Justice Phillips, speaking to this very question of practice, said:

“While the assignment was entitled to consideration [by the Court of Civil Appeals] the case should not be remanded for that purpose if the assignment is clearly without merit, and the question is one not exclusively within the jurisdiction of the Court of Civil Appeals.”

And in Harris County v. Charlton, 112 Tex. 26, 243 S. W. 463, Justice Pierson said:

“Under our holding in the case of Holland v. Nimitz et al., 111 Tex. 419, 239 S. W. 185, * * * it is within, our jurisdiction and becomes oqr duty to pass upon ‘all questions of law assigned in his petition by the losing party in the Court of Civil Appeals,’ and upon ‘all assignments of the prevailing party in the Court of Civil Appeals presenting questions of law, to ascertain what judgment ought to have been rendered in that court.’ ‘The Supreme Court will not refer assignments presenting questions of law within its jurisdiction back to the Court of Civil Appeals simply because such court failed to determine same; but, in the interest of speedier termination to litigation, the Supreme Court will itself determine the assignments.’ ”

The assignments referred to in the motion raise questions of law over which the Supreme Court has jurisdiction, but to our minds they are so plainly without merit that a remanding to the Court of Civil Appeals would in no event be justifiable. Each assignment complains of the refusal to give a special instruction, and each of them is subject to the objection that it is argumentative, and on the weight of the evidence. Question 1 submitted by the court is: “Was L. W. Pearce an employee of the defendant company on the occasion and at the time Hudson was killed?” .while question 2 is: “Was L. W. Pearce, on the occasion and at the time he killed Clayton Hudson, acting within the scope of his employment by defendant company?” The following requested instruction is typical of the others requested, to wit:

“You are charged in connection with question No. 1 that the evidence in this ease shows that Pearce was a ranger at and prior to the’time he killed Hudson; and the mere fact that the defendant.paid him for his services as such would not render him an agent or employee of defendant; and, if you believe from the evidence that Pearce was subject alone to the orders or directions of Captain Brady, and that defendant company had no authority to direct or control him in the discharge of his duties, you will answer said question ‘No.’ ”

The. fact, which is undisputed, that Pearce was a ranger at the time he killed Hudson, and which fact we have held to be of no controlling importance in the case, is here stressed as of special importance, and it is declared that the fact that defendant paid him for his services did not render him an agent or employee of defendant, while clearly the jury might find under all the circumstances that such fact would render him an employee of the defendant. The instruction clearly is on the weight of the evidence, and it and the other similar instructions were therefore properly refused.

The requested instruction bearing upon question No. 2 was as follows:

“You are instructed in connection with question No. 2, submitted to you by the court, that, if you' believe from the evidence that at the time Pearce shot Hudson, the said Hudson was in a public street, and was making no effort to trespass on the property of defendant, and was not interfering, or attempting to interfere, with any of defendant’s employees, and was sitting in a peaceful and quiet manner off the property of défendant, then it will be your duty to answer said question ‘No.’ ”

This obviously could not have been given, as it affords no real instruction upon the issue of whether or not Pearce, on the occasion of the killing, was acting within the scope of his employment by defendant company. The facts recited in the instruction did not show that he was not. It is merely another way of stating the oft-repeated proposition of defendant in error that before it would be liable Pearce must be shown to have killed Hudson under the authority of defendant in error. It wholly ignores the issue actually submitted in question No. 2; that is, whether or not he was acting within the scope of his employment. It is tantamount to a summary instruction upon this issue. Assignments of error Nos. 8, 9, 10, and 11 present no error, and no useful purpose could be subserved in remanding the cause to the Court of Civil Appeals to have that court consider them. In fact, such course would be misleading, as indicating to that court that it might, on considering, sustain them.

The motion for rehearing should be overruled. 
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