Volume 134 — South Western Reporter

C. Buford, Judge. Action by Bettie Chadwick and others who were substituted for her as plaintiffs on her death against S. M. Houston, M. J.' Booth, .and the Craven Lumber Company. From a judgment for plaintiffs against the last-named defendant, it appeals.

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by Pietrina Guisti and others against the Galveston Tribune. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Waller County ; Wells Thompson, Judge.</p> <p>Action by W. E. Ellis ¿gainst the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant'’ appeals.</p>

<p>1. Trial (§ 260*) — Instructions—Request.</p> <p>Requested instructions which are covered by the charge as given are properly refused.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 651; Dec. Dig.' § 260.*]</p> <p>2. Frauds, Statute ox (§ 160*) — Instruction —Evidence.</p> <p>Where, in an action to recover for medical services alleged to have been rendered for another at defendant’s request, the evidence tended strongly to prove that defendant’s promise was an original and not a collateral one, a requested instruction that under the statute of frauds plaintiff could not recover unless defendant’s promise was in writing, but which contained no reference to the evidence showing an original promise, was properly refused.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 379; Dec. Dig. § 160.*]</p> <p>3. Physicians and Surgeons (§ 24*) — Ac-' tion for Services — Question for Jury.</p> <p>In an action by a physician to recover for services rendered to another at the request of defendant, evidence held sufficient to present a question to the jury as to whether defendant contracted to pay for the services rendered.</p> <p>[Ed. Note. — For other cases, see Physicians and Surgeons, Dec. Dig. § 24.*]</p> <p>4. Trial (§ 252*) — Instruction—Conformity to Evidence.</p> <p>An instruction presenting a theory not supported by the ’evidence is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 596; Dec. Dig. § 252.*]</p>

<p>Appeal from District Court, Marion County ; R. D. Hart, Special Judge.</p> <p>Action by Mrs. Eddie Proctor Dodd and others against the Woodmen of the World. Judgment for plaintiffs, and defendant appeals.</p> <p>The suit is by the beneficiary on; a policy of life insurance issued, by appellant, a fraternal benevolent association,' to C. H. Proctor. Tbe appellant claimed that tbe policy, according to its terms, was avoided because tbe insured bad been convicted of a felony, and because tbe insured when be met bis death was violating tbe criminal laws by resisting and assaulting tbe officer wbo came to arrest bim. Appellees’ replication to tbe plea of avoidance was that tbe judgment of conviction for manslaughter in tbe district court was pending on appeal to tbe Court of Criminal Appeals, and was not finally disposed of at tbe time of the death, and that as to tbe second ground of avoidance be was insane and irresponsible in law for bis acts and conduct. Tbe policy provides that it shall be null and void, and all rights shall be absolutely forfeited without notice, “if tbe member bolding this .certificate shall be convicted of a felony, or should •die from an act or acts in consequence of tbe violation or attempted violation of tbe laws of tbe state.” Tbe facts are that tbe insured was indicted for murder. On tbe first trial tbe jury disagreed, and the second trial resulted in a conviction for manslaughter. Tbe case was appealed to tbe Court of Criminal Appeals, and on June 24, 1908, the judgment of tbe trial court was affirmed. A motion for rehearing was made and filed, and was pending at tbe death of tbe insured on October 2, 1908. On proper motion of suggestion of his death tbe Court of Criminal Appeals on October 14, 1908, entered an order dismissing tbe motion for rehearing on account of tbe death of appellant. Pending the appeal tbe insured was granted bail; and bíter tbe affirmance of tbe judgment, and before there was any ruling on tbe motion for rehearing, some of bis bondsmen filed an application with tbe clerk of tbe district court to be further relieved as sureties on tbe bond. This application, it is admitted, required tbe clerk to issue a warrant for tbe arrest of Proctor, which warrant was placed in tbe bands of tbe sheriff of tbe county for execution. It appears from tbe evidence that, when tbe sheriff undertook to execute the warrant, tbe acts and conduct of the insured towards him became so violent and dangerous as to require tbe sheriff in bis own necessary self-defense to shoot and kill tbe insured. The appellees offered evidence going to show that tbe insured was insane and legally irresponsible, for bis acts and conduct toward tbe sheriff. Tbe trial was to a jury, and verdict for appellees.</p>

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by F. G. Courtney against T. J. Freeman, receiver of the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Carriers (§ 110*) — Freight — Notice — Character of Goods.</p> <p>If the packages in which freight is presented to the carrier, or the marks thereon, mislead it to believe that the freight is ordinary freight instead of goods of exceptional value, and the shipper does not notify the carrier of the character of the goods, the carrier is not liable for their exceptional value if lost.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 498; Dec. Dig. § 110.*]</p> <p>2. Carriers (§ 134*) — Freight — Actions — Sufficiency of Evidence — Character of Goods — Carrier’s Knowledge.</p> <p>In an action for loss of silverware and china en route which were shipped, packed in a box and barrel, evidence 7ield to sustain a finding that the railroad company’s agent was not misled as to the character or value of the goods by any statement of the shipper, or by the nature of the packages or the markings thereon.</p> <p>[Ed. Note. — For other cases, see Carriers, Dee. Dig. § 134.*]</p> <p>3. Carriers (§ 110*) — Freight — Notice of Contents — Necessity.</p> <p>The shipment of silverware and expensive china in a box and barrel is not so unusual nor is their value so extraordinary as to require the shipper as a matter of law to give notice to the carrier of their nature and value in absence of a request for such information, in order to recover for their loss en route. .</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. 'Dig. § 498; Dec. Dig. § 110.*]</p>

<p>1. Railroads (§ 390*) — Injury to Pedestrian —Contributory Negligence — Discovered Peril.</p> <p>That a pedestrian was guilty of contributory negligence in being on a. railway track, does not prevent recovery for his death if the employés on tie train which struck Mm discovered Ms peril in time to have stopped the train before striking him by using the means at hand.</p> <p>[Ed. Note. — For other cases, see Eailroads, Cent Dig. §§ 1324, 1325; Dec. Dig. § 390.*]</p> <p>2. Eailroads (§ 376*) — Injury to Pedestrian — Discovery of Peril —Duty of Employes.</p> <p>Train employés, discovering the peril of one on the track, must use every means at hand, consistent with the safety of the train, to avoid striking him; use of ordinary care being insufficient.</p> <p>[Ed. Note. — For other cases, see Eailroads, Cent. Dig. §§ 1275-1279; Dec. Dig. § 376.*]</p> <p>3. Death (§ 104*) — Damages—Instructions.</p> <p>An instruction that in determining the damages caused by negligent death, the jury could consider the support of the widow and her minor children, and the children’s ages, was erroneous, being unlimited as to time.</p> <p>[Ed. Note. — For other cases, see Death, Dec. Dig. § 104.*]</p> <p>4. Trial (§ 194*) — Instructions—Weight oe Evidence.</p> <p>An instruction to ascertain the amount of damages for negligent death in dollars and cents, and make that good, was erroneous as upon the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 439-460; Dec. Dig. § 194.*]</p> <p>5. Death (§ 104*) — Damages—Unsupported Instructions.</p> <p>An instruction permitting the jury to determine the value of decedent’s services in superintending and educating his children, was erroneous, in the absence of evidence of such services.</p> <p>[Ed. Note. — For other cases, see Death, Dec. Dig. § 104.*]</p> <p>6. Death (§ 104*) — Damages—Unsupported Instructions.</p> <p>An instruction in an action for negligent death permitting consideration of decedent’s health, energy, etc., was erroneous, in the absence of supporting evidence.</p> <p>[Ed. Note. — For other cases, see Death, Dec. Dig. § 104.*]</p>

<p>Appeal from District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by George Edwards against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Counties (§ 74*) — Tkeasueees—Compen-sation.</p> <p>Under Const, art. 16, § 44, giving county treasurers such compensation as may be provided by law, and under Rev. St. 1895, art. 2467, providing that they shall receive commissions not exceeding a stated percentage to be fixed by the commissioners’ court, the amount of commission is discretionary with that court; but it cannot validly provide that he shall receive no commission, and, on such order being made, the treasurer is entitled to the commission fixed by a previous order.</p> <p>[Ed. Note. — For other cases, see Counties, Dee. Dig. § 74.*]</p> <p>2. Counties (§ 74*) — Teeasueees — Compensation.</p> <p>Under Rev. St. 1895, art. 2467, providing that county treasurers shall receive commissions. on moneys received and disbursed not exceeding a certain percentage to be fixed by the commissioners’ court, the treasurer who served more than one year was entitled to commissions as money was received and paid out, and not a proportionate amount of the commissions for the time he served.</p> <p>[Ed. Note. — Eor other cases, see Counties, Dec. Dig. § 74.*]</p> <p>3. Counties (§ 74*) — TeeasueeRS — Compensation.</p> <p>Under Rev. St. 1895, art. 2467, providing that county treasurers shall receive commissions not exceeding 2y2 per cent, on receipts and disbursements, to be fixed by the commissioners’ court, courts cannot interfere with an order fixing the commission at 1 y2 mills on the dollar.</p> <p>[Ed. Note. — Por other cases, see Counties, Dec. Dig. § 74.*]</p>

<p>Appeal from Grayson County Court; J. Q. Adamson, Judge.</p> <p>Action by August Michalek against Frank J. Cernock. Judgment for defendant, and plaintiff appeals.</p>

<p>Error from District Court, Smith County ; R. W. Simpson, Judge.</p> <p>Action by W. H. Cousins against John A. Lott and others. Judgment for plaintiff against certain defendants, and defendant Lott brings error.</p>

<p>Appeal from Rockwall County Court; H. M. Wade, Judge.</p> <p>Action by Viola Haynes against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

Perkins, Judge. Action by Delilah A, Powdrill against J. O. Powdrill. From an order refusing to dissolve a temporary injunction, and modifying and continuing the same in force, defendant appeals.

<p>Appeal from District Court, Harris County; W. P. Hamblen, Judge.</p> <p>. Suit by B. A. Iieisner and others against E. F. Simms. From an order granting a temporary injunction, defendant appeals.</p>

<p>1. Agriculture (§ 8*) —Johnson Grass — ■ Penalties.</p> <p>One suing a railroad company for penalties- and damages under the statute making it unlawful for a railroad company to permit Johnson grass to mature on its right of way need not allege or prove negligence, and the allegation of negligence may be treated as surplusage.</p> <p>[Ed. Note. — For other cases, see Agriculture,. Dec. Dig. § 8.*]</p> <p>2. Waters and Water Courses (§ 119*)— Surface Water — Drainage—Railroads.</p> <p>One seeking to recover under the common-law and the statutes governing the construction of railroads with reference to the natural drainage of land must allege and prove negligence-in diverting the water from its natural course, and along its right of way, and emptying it on the land of another, causing damage by the-water carrying with it Johnson grass seed and. roots.</p> <p>[Ed. Note. — For other cases, see Waters and’ Water Courses, Cent. Dig. §§ 131-134; Dec. Dig. § 119.*]</p> <p>3. Trial (§ 191*) — Instructions — Assumption of Facts.</p> <p>In an action against a railroad company for penalties and damages under the statute making it unlawful for a railroad company to-permit Johnson grass to mature on its right of' way, the court may, in its charge, assume that the act of the company in permitting the grass, to mature was negligent.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 420-431; Dec. Dig. § 191.*]</p> <p>4. Agriculture (§ 8*) —Johnson Grass — Penalties.</p> <p>Under the statute making it unlawful fora railroad company to permit Johnson grass to mature on its right of way, a company is liable for the penalty each time Johnson grass is. permitted to mature on its right of way.</p> <p>[Ed. Note. — For other cases, see Agriculture,. Dec. Dig. § 8.*]</p> <p>5. Agriculture (§ 8*) — Johnson Grass-Penalties — Contributory Negligence.</p> <p>An action against a railroad company for-permitting Johnson grass to mature on its right of way in violation of the statute may be defeated by the company proving that plaintiff' had permitted the grass to mature on his land during the time complained of.</p> <p>[Ed. Note — For other cases, see Agriculture, Dec. Dig. § 8.*]</p> <p>6. Agriculture (§ 8*) — Surface Water — Drainage — Contributory Negligence.</p> <p>Where a cause of action against a railtfoad company for injuries to land from the growth and spread of Johnson grass is based on the negligence of defendant in respect to the drainage of surface water by which the seed of such grass was carried to plaintiff’s land, that plaintiff permitted Johnson grass to grow on his land would not defeat recovery, though such act would have prevented recovery of the statutory penalty.</p> <p>[Ed. Note. — For other cases, see Agriculture, Dec. Dig. § 8.*]</p> <p>7. Agriculture (§ 8*) — Surface Waters — Drainage — Railroads—Damages.</p> <p>Where land has been damaged by the spread of Johnson grass thereon in consequence of the act of a railroad company in diverting surface water from its natural course so as to flow along its right of way and onto plaintiff’s land so as to carry the grass seed and roots to the land, the owner may recover the difference in the value of the land with the grass as situated thereon and the value of the land without the grass.</p> <p>[Ed. Note. — For other cases, see Agriculture, Dec. Dig. § 8.*]</p>

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Action by Malcolm Cameron against the Consumers’ Lignite Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Falls County Court; W. E. Hunnieutt, Judge.</p> <p>Action by D. C. Clark against Sbon As-bury. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Street Railroads (§ 118*) — Injuries to Teavelees — Discovered Peril.</p> <p>Decedent was run down by a street car approaching him from the rear as he was walking either on- the track or between the two tracks of defendant street car company. There was evidence that, while the car was at least a block and a half distant, deceased’s proximity to the track was such as to excite in the minds of witnesses an apprehension that he would be struck, and that it was apparent that he did not hear the gong. The car did not slacken speed, but ran at least two cars lengths after striking him. Held; that an instruction on discovered peril relieving defendant from liability unless the operatives of the car realized that deceased could not or would not save himself, but would “certainly” be injured unless they could prevent it, was erroneous, since, if it was apparent to the motorman that decedent was unconscious of danger, he was bound to take steps to prevent any injury.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Gent. Dig. §§ 258-269; Dec. Dig. § 118. *</p> <p>2. Negligence (§ 83*) — Discovered Peril-Requisites.</p> <p>It is sufficient to justify a recovery for negligence on the ground of discovered peril if the peril is discovered in such time that, by the proper use of the agencies at hand by defendant or its employes, the injury may be avoided.</p> <p>[Ed. Note. — Eor other cases, see Negligence, Cent. Dig. § 115; Dee. Dig. § 83.*]</p>

M. Milam, Judge. Action by the A. B. Spencer Lumber Company and others against the Read Land & Lumber. Company, in which the Board of Trustees of School District No. 1 of Zavala County was garnished, and in which William Buchanan filed an intervening petition claiming the fund. From an order striking out the intervening petition, petitioner appeals.

<p>Appeal from Tyler County Court; A. G. Reid, Judge.</p> <p>Action by J. A. Best against I. C. Ricket-son. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Railroads (§ 274*) — Approaches—Negligence.</p> <p>Where the defendant railroad company owned a portion of land on which a town built a sidewalk in front of a depot, partly under certain easement rights from the railroad company, and partly on one of the town streets, the railroad is not liable for injuries to one falling into a hole in the sidewalk through defect or lack of repair.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 274.*]</p> <p>2. Railroads (§ 274*) — Approaches—Negligence .</p> <p>While the law imposes a duty on railroads to keep in repair the approaches and platforms to and around their depots, no such duty is imposed upon them to keep in repair the streets and sidewalks in a town or city.</p> <p>[Ed. Note. — For other cases, see Railroads, Dee. Dig. § 274.*]</p> <p>3. Railroads (§ 274*) — Approaches—Negligence.</p> <p>Where plaintiff was injured on a sidewalk at a depot between two streets, and one of the streets was between the point where he was. injured and the defendant’s depot, the town having control of the streets, the railroad’s responsibility related only to the approach from said street to its depot, and it did not undertake to build or keep in repair the crossing to such street.</p> <p>[Ed. Note — For other cases, see Railroads, Dee. Dig. § 274.*]</p> <p>4. Railroads (§ 274*) — Approaches—Negli- .</p> <p>GENCE.</p> <p>That a railroad permitted the town to use part of its right of way on which to construct a walk for use of its citizens is not sufficient to impose liability on the railroad.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 274.*]</p> <p>5. Carriers (§ 286*) — Injuries to Passengers — Approaches—Negligence.</p> <p>A railroad company must provide means of access to and from its stations, and where said way is faulty in construction and repair, and a passenger is injured by reason thereof, he is entitled to recover.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1142-1152; Dec. Dig. § 286.*]</p>

<p>1. Railroads (§ 282*) — Injuries to Persons Working About Cars — Jury Questions— Contributory Negligence.</p> <p>Plaintiff was employed as car inspector for a railroad company which used the same yards that defendant company used, and had inspected one of defendant’s cars,' which was to be moved by his road and found it defective, and had advised defendant of the defects, so that it could be repaired by defendant before it was moved. Both the rules of plaintiff company and of defendant required that a blue flag be placed upon cars which were being repaired, and kept there until the repairs were made. Shortly before the accident, plaintiff saw defendant’s employe working on the car with a flag placed in front thereof, and shortly thereafter plaintiff approached the ' ear from the opposite direction from the end where the flag was posted, and, seeing the tools used 'by defendant’s employes around the car and supposing the flag was still on the car, plaintiff went under it, and an engine backed against it, injuring him, the flag in the meantime having been removed by defendant’s, employés. Beld that, at most, the question of whether plaintiff was negligent in going under the car under the circumstances was for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Gent. Dig. §§ 910-923; Dec. Dig. § 282.*]</p> <p>2. Railroads (§ 275*) — Injuries to Person Working About Oars — Negligence.</p> <p>The flag protecting the repaired car having been removed before the repairs were completed, without plaintiff’s knowledge, it was defendant’s duty to inform plaintiff of that fact, or to use care in operating its engine on that track, so as to not injure one, such as plaintiff, who might be expected to be about the car while it was being repaired.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 873-S77; Dec. Dig. § 275.*]</p> <p>3. Railroads (§ 278*) — Injuries to Persons Working About Cars — Contributory Negligence.</p> <p>• If plaintiff knew that there was no blue flag up on the repaired car when he went under it, he was negligent in going under it so as to prevent recovery.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 891-900; Dec. Dig. § 278.*]</p> <p>4. Railroads (§ 278*) — Injuries to Persons Working About Cars — Assumption of Risk.</p> <p>If plaintiff went under the repaired ear to inspect it, knowing that the blue flag had been removed therefrom, he assumed the risk of it being struck by other of defendant’s cars coming in on the same track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 891-900; • Dec. Dig. § 278.*]</p> <p>5. Railroads (§ 278*) —Injury to Person Working About Cars — Assumption of Risk.</p> <p>A car inspector of another railroad company who had requested defendant company to repair one of its cars, so that it could be received by his own company, did not assume the risks of injury from the negligence of defendant’s servants in repairing the car, which he was required to reinspect after repaired, unless he knew of such negligence, or should have known thereof in the ordinary discharge of his duties.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ S91-000; Dec. Dig. § 278.*]</p> <p>6. Appeal and Error (§ 1033*) — Harmless Error — Instructions—Favorable to Complaining Party.</p> <p>In an action by a car inspector of another road for injuries sustained while under one of defendant company’s ears, which he had requested it to repair, to enable his road to receive it,' by defendant’s engine coming in on the repair track after the repair flag had been removed, and striking the car, the court instructed that if plaintiff knew that there was danger of the car he was under being struck by others of defendant’s cars by reason of the absence of a blue flag, or from any other reason, at the time he went under the car to inspect it, and appreciated or should have appreciated the danger therefrom, he assumed the risk, and cannot recover. There was no evidence that plaintiff knew that the flag was not up when he went under the car, so as to make his knowledge on that question an issue. Held that, even if the charge was erroneous, defendant could not claim a reversal on that ground, since it was favorable to defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; -Dec. Dig. § 1033.*]</p> <p>7. Release (§ 29*) — Personal Injuries — Effect.</p> <p>After plaintiff, who was car inspector of another railroad company, was injured while inspecting a car being repaired by defendant’s employés by one of its engines backing against the ear, plaintiff signed an instrument releasing certain named corporations, including his own company, but not defendant company, from liability by reason of his injury; the release reciting that the payment should not 'be construed as an acknowledgment of liability by any of the named corporations. The release was signed at the instance of the claim agent of plaintiff’s company under an understanding with him that it should not prevent plaintiff from suing defendant for damages, and that the amount paid plaintiff by his claim agent was a gratuity given because of plaintiff’s long service, and not as compensation for his injuries. Held, that the release did not bar a suit against defendant for the injuries sustained, but his recovery against defendant should be reduced by the amount paid him under the release.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 64-70; Dec. Dig. § 29.*]</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by W. E. McCracken against tjje Lantry-Sharpe Contracting Company. Judgment 'for plaintiff, and defendant appeals.</p>

<p>‘ Appeal from District Court, Johnson County ; O. L. Lockett, Judge.</p> <p>Action by E. A. Barnes against the Farmers’ Cotton Oil Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Collin County; J. M. Pearson, Judge.</p> <p>Action by J. C. Coe and wife against J. T. Stark and another. From a judgment for plaintiffs, defendant J. T. Stark appeals.</p>

<p>Brokers (§ 53*) — Sale of Land — Performance of Engagement — Right to Commissions — Procuring Cause.</p> <p>In an action by a broker for commissions, plaintiff never having found a purchaser who was either willing or able to buy, and the sale having been made, not to the person to whom plaintiff attempted to sell, but to him and to two others, plaintiff was not the procuring cause of the sale, and was not entitled to commissions.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p>

<p>Appeal from District Court, Waller County; Wells Thompson, Judge.</p> <p>Action by J. T. Rankin, executor, against L. A. Rankin and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Tyler County; W. B. Powell, Judge.</p> <p>Action by Andy Goolsbee against the Wm. M. Rice Institute. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harrison County; W. O. Buford, Judge.</p> <p>Action by J. M. Petty against the Marshall & East Texas Railway Company. From a judgment for plaintiff, defendant appeals.</p> <p>Near Harleton a public county road goes under a trestle in appellant’s railway track. The trestle was constructed in the first instance by appellant over the dirt road. A ravine also runs under the bridge. The dirt road proceeds to the southwest from the bridge up a long slope of a hill. Sand and dirt had so washed in under the trestle that there remained a clearance of only about six feet from the ground to the timbers of the trestle supporting the railroad track, and this condition had existed for some time. The evidence shows that a man could not ride erect on horseback in the road under the trestle without striking the bridge timbers. Appellee passed along the road on horseback, and as he approached the trestle he looked at it in a general way; and, seeing horse and wagon tracks under the bridge, he proceeded to ride under it, and was injured by striking his head on the trestle and by being pressed down against the saddle on the horse. Appellee, who was an old man, testified that he had not been over the road for a long time, and that his eyesight was not good. Appellee predicated negligence in failing to make and maintain a proper crossing for the use of the public. Appellant pleaded contributory negligence. The jury returned a verdict for appellee.</p>

<p>Error from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by Mary Hardin and others against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant and plaintiffs bring error.</p>

<p>1. Trial (§ 68*) — Reopening Case por Further Testimony — Discretion.</p> <p>It was not an abuse of the sound discretion of the court, under Rev. St. 1895, art. 129S, as to admission of evidence, to refuse admission of testimony, not in rebuttal, offered after the evidence bad been closed, and as to an immaterial matter.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 158-163; Dec. Dig. § 68.*]</p> <p>2. Action (§ 65*) — Matters Arising After Commencement of Action.</p> <p>Evidence that after the commencement of the action for rent, in which a distress warrant was levied on crops of the tenant, such tenant made a fictitious transfer of his steam plow is immaterial.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 735, 736; Dec.'Dig. § 65.*]</p> <p>3. Telil (§ 253*) — Instructions—Ignoring Issue.</p> <p>A requested instruction, having the effect of ignoring an issue raised by the evidence, is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>4. Landlord and Tenant (§ 254*) —Landlord’s Lien — Waiver.</p> <p>Where a landlord agrees with her tenant, as an essential part of the rent contract, that he shall have right and authority to sell the crops and pay her her part thereof, and recognizes the agreement by permitting him to sell parts of the crop and toy accepting her share from him, there is a waiver of the landlord’s lien, which question of waiver is not affected by there being no one before the court claiming the crop.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1034-1044; Dec. Dig. § 254.*]</p> <p>5. Justices of the Peace (§ 191*) — Appeal-Liability of Sureties on Bond.</p> <p>Under Rev. St. 1895, art. 1670, requiring the amount of the bond on appeal from a justice to the county court to be in double the amount of the judgment, which means in double the amount of the judgment exclusive of costs, the sureties, on affirmance of the judgment, are liable not only therefor, but for the costs of the justice court, only, however, to the amount of the bond, with which limitation the agreement of the bond, that the sureties shall pay off and satisfy any judgment rendered against their principal, is to be construed.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 735-750; Dec. Dig. § 191.*)</p>

<p>On motions for rehearing, and to enlarge certificate to Supreme Court</p>

<p>1. Evidence (§ 450*) — Parol Evidence — Written Contract — Explanation—Notes —Interest - Clause.</p> <p>Defendant executed a note payable one day after date, containing a clause, “to bear interest at the rate of - per cent, per annum from -.” Defendant before signing tlie note caused the blank after the words “rate of” to’be marked through with a pen. Held, that there was a sufficient ambiguity to warrant parol proof of an agreement between the parties that the note was not to bear interest.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. ¶§ 2066-2084; Dec. Dig. § 450.*]</p> <p>2.Bills and Notes (§ 125*) — Construction —Patent Ambiguity.</p> <p>Where a note containing a clause “to bear interest at the rate of -per cent, per an-num from -” was filled by drawing a line through the blank after the words “rate of” with a pen, if the note be regarded by reason thereof as containing a patent ambiguity, it should be construed as indicating an essential erasure of the entire interest clause and to show that no interest was to be paid.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 274-281; Dec. Dig. 125.*]</p> <p>3.Set-Off and Counterclaim (§ 58*) — Ex-tinguishment oe Plaintiff’s Demand— Inteeesí and Attorney’s Fees.</p> <p>Where, in an action on a note bearing no interest, defendant pleaded a counterclaim greater than the amount of the note, due at the time of suit brought, plaintiff could not recover either interest from the date of suit, or attorney’s fees.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. § 129; Dec. Dig. § 58.*]</p> <p>4. Master and Servant (§ 24*) — Contract of Employment — Termination.</p> <p>Defendant having been employed by bankrupts for the season beginning September 1, 1907, and ending August 31, 1908, at a specified salary, bankruptcy proceedings, intervening on April 14, 1908, were a breach of the contract of employment, entitling defendant to recover the full amount of the balance of his salary for the remainder of the year, on his being unable to obtain employment elsewhere during such period.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 25; Dec. Dig. § 24.*]</p> <p>5. Set-Off and Counterclaim (§ 35*) — Nature of Claim — Breach—Set-Off.</p> <p>Where defendant’s employment contract had been breached by his employers, and the contract term had expired before suit brought to recover on a note executed by defendant to them, the amount due defendant for breach of his employment contract was capable of exact ascertainment and was properly allowed as a counterclaim against the note.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 58-64; Dec. Dig. § 35.*]</p> <p>6. Factors (§ 45*) — Advances—Interest.</p> <p>Where a factor, employed at a stated salary, purchased cotton for his principals, and paid for it out of his own funds, receiving reimbursement by draft, attached to bills of lading for cotton shipped out or on cotton held on open account, he was entitled to interest on the amount advanced.</p> <p>[Ed. Note. — For other cases, see Factors, Cent. Dig. § 60; Dec. Dig. § 45.*]</p> <p>7. Interest (§ 57*) — “Open Account” — Advances of Money.</p> <p>Money advanced under a contract or at the instance and request of another is not an open account within Rev. St. 1895, art. 3102, providing that on all open accounts, when no interest is agreed on by the parties, interest shall be allowed from the first day of January after the same are made.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. § 130; Dec. Dig. § 57.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 4984, 4985.]</p> <p>8. Bankruptcy (§ 214*) — Effect on Rights of Factors — Sale of Goods.</p> <p>Where defendant was employed to purchase cotton for bankrupts as a factor, and the cotton so purchased was not shipped and sold1 under the bankrupts’ instructions because of their bankruptcy, defendant was entitled to sell the cotton for the best price obtainable and charge the bankrupts with the loss in satisfaction of his lien.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 320; Dec. Dig. § 214.*]</p> <p>9. Factors (§ 47*) — Liens—Possession.</p> <p>A factor’s possession of goods on which he has made advances as between himself and his principal, is his own and not that of the principal, for the purpose of sustaining a lien.</p> <p>[Ed. Note. — For other cases, see Factors» Cent. Dig. §§ 65-71; Dec. Dig. § 47.*]</p> <p>10. Factors (§§ 1, 47*) — Who are Factors— Liens — Advances.</p> <p>Where defendant was employed at a stated salary to purchase cotton with his own funds as the principals’ agent, defendant was not a mere salaried employé, but was a factor entitled to a common-law lien on all the principals’ goods in his possession, and on the proceeds of such as were lawfully sold by him, not only to secure advances, but also for the general balance of his account. .</p> <p>[Ed. Note. — For other cases, see Factors, Cent. Dig. §§ 1, 65-71; Dec. Dig. §§ 1, 47.*]</p> <p>11. Depositions (§ 90*) — Reading Deposition-Discretion.</p> <p>Where plaintiff read in evidence the greater portion of a deposition, the court in its discretion properly overruled his objection to the answers to certain ex parte interrogatories propounded to defendant, though he was present in court, and plaintiff had a full opportunity to> cross-examine him.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 248-255, 258-260; Dec. Dig. § 90.*]</p> <p>12. Appeal and Error (§ 1054*) — Prejudice-—Reception of Evidence.</p> <p>Where there was sufficient evidence aliunde to sustain the judgment, plaintiff was not prejudiced by the admission of improper evidence,-on a trial before the court without a jury.</p> <p>[Ed. Note. — For other cases, see Appeal and-Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. §• 1054.*]</p> <p>13. Evidence (§ 139*) — Similar Matters — Custom or Course of Business.</p> <p>In a suit on a note given by a factor to his. principals, in which the factor pleaded a counterclaim on an account, held, that plaintiff, having been permitted to go fully into their dealings with defendant, was properly refused permission to go into said principals’ customs in dealing with their agents in other states.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 415; Dec. Dig. § 139.*]</p> <p>14. Appeal and Error' (§ 1041*) — Amendment of Pleading — Prejudice.</p> <p>Plaintiff was not prejudiced by permission, granted to defendant, to amend so as to obviate-an objection to testimony offered, where the amendment did not change the general tenor of defendant’s counterclaim or operate as a surprise.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. § 1041.*]</p> <p>15. Appeal and Ebeob (§ 1073*) — Ebeob Without Prejudice.</p> <p>Plaintiff as trustee of bankrupts sued defendant on a note, and defendant filed a counterclaim on which judgment was rendered for defendant for $224.55, the balance found in his favor after deducting the amount of the note. This by reason of an error in one of the items was $36.20 too high. No personal judgment was rendered against plaintiff, however, defendant’s sole recourse being the proceeds of certain bagging of the value of $283 on which his lien was foreclosed. Held, that it appearing that the interest on the amount due defendant as found would exceed the amount of the error it was harmless.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4245; Dec. Dig. § 1073.*]</p>

<p>1. Master and Servant (§ 291*) — Injuries— Instructions — Request—Cause oe Accident.</p> <p>Where, in a stationary engineer’s action against his employer for injuries claimed to have been caused by slipping on oil, which had been negligently permitted to run down onto the floor from the engine, there was evidence that plaintiff was injured by catching his clothes in the machinery, and not by slipping on the floor, it was error to refuse a requested charge by defendant that, unless the jury believed that plaintiff slipped and fell, causing the injuries as alleged, they should find for defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 291.*]</p> <p>2. Master and Servant (§ 154*) — Master’s Duty — Warning of Danger.</p> <p>Where an employer promised his stationary engineer at the close of the workday on Saturday to remedy a defective condition in the engine room made by the dripping of oil onto the floor, the employer was not bound to warn the engineer when he went to work on the next Monday morning of. the dangerous condition created by the oil on the floor, in addition to the fact that the oil was still there; the engineer being familiar with the danger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 308, 309; Dec. Dig. § 154.*]</p> <p>3. Master and Servant (§ 270*) — Injuries— Actions — Admission of Evidence.</p> <p>In an action for personal injuries to an employe, by falling into machinery because of the slippery condition of the floor, evidence that, after plaintiff was injured, his superintendent directed a platform to be built, to prevent others from falling where plaintiff fell and was injured, was not admissible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 918; Dec. Dig. § 270.*]</p> <p>4. Damages (§ 143*) — Personal Injuries— Pleading and Proof.</p> <p>The petition in an action for personal injuries must allege the particular consequences of the injuries, in order to admit evidence thereof, if such consequences do not naturally and necessarily result from the injuries alleged.</p> <p>TEd. Note. — For other cases, see Damages, Cent. Dig. § 410; Dec. Dig. § 143.*]</p>

<p>Evidence (§ 558*) — Expert Witnesses — Examination — Bias—Rebuttal.</p> <p>One suing a street railway company for personal injury, having shown on the company’s medical expert’s cross-examination that he testified for the company in many cases, the company, to rebut any inference of witness favoring the company, could, on redirect examination, show that it frequently settled claims on his report, and that 75 per cent, of the cases examined by him for the company were settled on his recommendation, etc.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 558.*]</p> <p>Rainey, J., dissenting.</p>

Error from District Court, Bexar County; J. L. Camp, Judge. Action by D. Sullivan & Co. against H. O. Skinner and wife. Judgment for plaintiffs for part of tbe relief demanded. Defendants bring error, and plaintiffs file cross-assignments of error.

M. Walthall, Judge. Action hy the Standard Underground Cable Company against the Southern Independent Telephone Company and against officers of defendant company in their individual capacity. Judgment for defendants, and plaintiff appeals.

<p>1. Criminal Law (§ 1111*) — Appeal—Record — Conflict in Record.</p> <p>Where an application for continuance states that it is the first application, but the judge, in approving the bill of exceptions to its refusal, states that it is the second application, the appellant, by accepting the bill of exceptions as allowed, is bound thereby.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894 — 2896; Dec. Dig, § 1111.*]</p> <p>2. Criminal Law (§ 614*) — Continuance-Successive Applications.</p> <p>Where a second application for continuance neither states that testimony can be procured from, any other source known to the defendant nor that defendant has reasonable expectation of procuring it at the next term of the court, as required by Code-Cr. Proc. § 598, and the testimony of the absent witness is cumulative only, there is no error in overruling the applicatibn.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.*]</p> <p>3. Larceny (§ 77*) — Instructions—Applicability to Evidence.</p> <p>In a prosecution for theft, declarations of the defendant, introduced in evidence in explanation of his possession of the stolen property, were sufficient to authorize a charge on the law of explanation of the possession of recently stolen property.</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 199-204; Dec. Dig. § 77.*]</p> <p>4. Criminal Law (§ 761*) — Instructions— Weight oe Evidence.</p> <p>in a prosecution for theft, a charge that if the property had been stolen, and recently thereafter defendant was found in possession of it, and his explanation is reasonable, and probably true, and accounts for his possession in a manner consistent with his innocence, the jury should consider the explanation as true, and acquit the defendant, but that if the explanation was unreasonable, and did not account for defendant's possession in a manner consistent with his innocence, or if it was reasonable, and probably true, and did account for defendant’s possession, but the state has shown the falsity thereof, the jury should take the possession of the defendant, together with his explanation, in connection with all the other facts and circumstances, if any, in evidence, and, if they believe the defendant guilty beyond a reasonable doubt, they should so find, otherwise they should acquit the defendant, -was not on the weight of evidence, in assuming that the property delivered by defendant to the injured party was stolen.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1754-1764; Dec. Dig. 761.*]</p> <p>5.Larceny (§ 58*) — Evidence—Sufficiency.</p> <p>In a prosecution for theft, evidence held to sustain the charge of the indictment that the property taken was lawful current money of the United States of America.</p> <p>[Ed. Note. — For other cases, see Larceny, Dec. Dig. § 58.*]</p> <p>6.Okiiiinal Law (§ 957*) — New Trial — , Proceedings to Procure — Affidavits of Jurors.</p> <p>Code Cr. Proc. art. 817, naming as a ground for new trial in felony cases the misconduct of the jury, such that the court is of opinion that defendant has not received a fair trial, and providing that it shall be competent to prove such misconduct by the voluntary affidavit of a juror, does not authorize the filing or consideration of an affidavit of a juror that his consent to the verdict was procured by representation that the jury would be confined an unreasonable length of time in case of further disagreement.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2892-2395; Dec. Dig. § 957.*]</p> <p>7.Criminal Law (§ 925*) — New Trial — Conduct of Jury — Coercion.</p> <p>An affidavit of a juror that, after the jury had been out from Thursday evening till Saturday afternoon, the jury were informed that the presiding judge was going home, and would not return till the following Tuesday, and would leave instructions that the jury should not be discharged till his return, unless they arrived at a verdict, whereupon the affiant gave his consent to the verdict, was not sufficient to authorize a new trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 925.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Jim Wells was convicted of first degree murder, and he appeals.</p>

<p>Criminad Law (§ 1097*) — Statement ox Facts — -Review ox Evidence.</p> <p>The sufficiency of evidence to sustain a conviction cannot be reviewed, in the absence of a statement of facts.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2938; Dec. Dig. § 1097.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.</p> <p>Amos Burls was convicted of robbery, and he appeals.</p>

<p>1. Seduction (§ 45*) — Evidence — Sufficiency.</p> <p>The evidence to support a conviction of seduction must be measured and governed by the rules governing the sufficiency of evidence to justify a conviction of any other crime, and any fact essential to the offense may be established by circumstantial evidence as well as by direct proof.</p> <p>[Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-82; Dee. Dig. § 45.*]</p> <p>2. Seduction (§ 46*) — Evidence—Cobkobokation — '“Tending-.”</p> <p>Under Code Cr. Proe. 1895, art. 781, providing that a conviction cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect accused with the offense, and article 769, declaring that, in a prosecution for seduction, no conviction can be had unless the testimony of prosecutrix is corroborated by other evidence tending to connect accused with the offense, a prosecutrix is sufficiently corroborated when there are any facts that tend to show that accused committed the offense, and it is error to attempt to lay down a rule as to what particular issues of the case shall be corroborated; the word “tending,” meaning to be directed as to any end, object, or purpose.</p> <p>[Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 6909, 6911, 7814.]</p> <p>3. Seduction (§ 46*) — Evidence—Corroboration.</p> <p>Evidence held to sufficiently corroborate the testimony of prosecutrix to support a conviction of seduction.</p> <p>[Ed. Note. — Por other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.*]</p> <p>4. Criminal Law (§ 741*) — Weight oe ¿Evidence-Question eor Jury.</p> <p>The jury are the judges of the credibility of the witnesses and the weight of their testimony.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1713; Dec. Dig. § 741.*]</p> <p>Davidson, P. X, dissenting.</p>

<p>Appeal from District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by W. M. Groseclose, revived after his death by Susie O. Groseclose and others, against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.</p>

J. Eylar, Judge. Action by H. W. Broaddus and another against Charles R. Loomis and another. From a judgment for plaintiffs against defendant named, he appeals.

<p>Appeal from District Court, Travis County ; George Calhoun, Judge.</p> <p>Action by Sidon Harris against C. T. Rather. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Judgment (§ 495*) — Pbobate Courts — Presumption — Collateral Attack.</p> <p>A county court being a court of record and of general jurisdiction as to the estates of deceased persons, having assumed jurisdiction in partition of decedent’s estate, all presumptions should be indulged in favor of the validity of its judgment, which could not be collaterally attacked for want of proof that it had jurisdiction to partition the particular estate.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig'. § 933; Dec. Dig. § 495.*]</p> <p>2. Judgment (§ 504*) — Collateral Attack-Partition Decree — Validity.</p> <p>A decree partitioning the land in controversy, though invalid for failure to sufficiently describe the land, was nevertheless admissible in trespass to try title to show that both plaintiff and defendant claimed from a common source.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 940; Dec. Dig. § 504.*]</p> <p>3. Trespass to Tta Title (§ 18*) — Title prom Common Source — Title in Third Person.</p> <p>Defendant in trespass to try title, where the parties claimed from a common source, may defeat the action by showing a superior outstanding title in a third person on proof of such title anterior to that of the common source, and that such prior title never vested in the common source.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 21; Dec. Dig. § 18.*]</p> <p>4. Trespass to Try Title (§ 41*) — Evidence —Common Source — Outstanding Title.</p> <p>Where, in trespass to try title, there is proof that both parties claimed under a common source, it will be presumed that such common grantor had the title when he undertook to convey the title which defendant claimed, involving the assumption that he had acquired the title of all previous owners, so that proof that prior to that time a third person had the title was not sufficient to defeat the action.</p> <p>[Ed. Note. — For other eases, see Trespass to Try Title, Dec. Dig. § 41.*]</p> <p>5. Evidence (§ 274*) — Declarations of Pri- or Owner of Land — Removal of Boundary Line.</p> <p>Where, in trespass to try title, both parties claimed under a common source, declarations of such common owner that the west boundary lino of the survey had been moved east, and the division line in dispute also moved east from where it was originally established in order to give purchasers the amount of land Sold to them by the declarant, was admissible on an issue as to the establishment and location of such division line.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1133; Dec. Dig. § 274.*]</p> <p>6. Frauds, Statute of (§ 70*) — Boundary Line — Establishment and Recognition.</p> <p>The removal of an established boundary line by landowners and subsequent recognition of the boundary line established is not obnoxious to the statute of frauds, though not in writing, or within the statutes regulating conveyances of real estate.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 112; Dec.'Dig. § 70.*]</p> <p>7. Appeal and Error (§ 742*) — Record — Statement.</p> <p>Where error was assigned to the refusal of a request to charge, 'but the statement under the assignment did not set out the testimony bearing on the question, and did not point out the page of the record where such testimony could be found, such assignment will not be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>8. Boundaries (§ 41*) — Establishment—Instructions.</p> <p>In trespass to try title involving a disputed boundary line, the court charged that, if the east and west lines of the H. tract which had been conveyed by S. the common source of title in 1884 were moved further east by S., and that the parties who then owned the I-I. tract consented to the' change, and at that time S. owned all the land that was east of and adjacent to the II. tract and to the original east line of the survey, then all persons agreeing to the change and all parties who afterwards bought land from the common source of title which was adjacent to and east of the I-I. tract with notice that the east line of the H. tract had been moved east would be bound by the change. In another paragraph the court stated that if S. did not so extend the H. tract further east, or if, when defendant purchased his land, he had no notice of the fact, but bought to the west line of the strip in controversy, or if the I-I. lines were extended by the common source, but as extended no part of the same was within the inclosure of the defendant, the jury should find for him. Held, that such instructions constituted a correct application of the law to the facts, and covered a request to charge that, if in the subdivision of the survey when it was deeded to S. the division line between the two tracts on the west of defendant’s land was recognized and acquiesced in and agreed upon by the parties as tie true division line between the land owned by the defendant and the II. or G. tract, and at and just before defendant purchased the land S. pointed out the line to him as the true west division, and defendant on the faith of the acts of the parties thereafter purchased up to that line, then the jury should find for the defendant.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 205-207; Dec. Dig. § 41.*]</p> <p>9. Appeal and Error (§ 742*) — Record — Brief — Statement.</p> <p>Where the only statement of facts attached to assignments of error to the court’s refusal of certain charges in question was “the special instruction No. ‘7’ (Tr. pp. 13-14) and special instruction No. ‘8’ (Tr. pp. 11-13), are correctly copied in the assignment,” the assignments will not be reviewed.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

P. Hamlen, Judge. Action by Joseph Bayle and others against W. H. Norris, receiver, and others. From a judgment for insufficient relief plaintiffs appealed, and defendants assigned cross-errors.

<p>Appeal from District Court, Jefferson County; D. B. Hightower, Jr., Judge.</p> <p>Action by J. W. Saunders against E. F. Montgomery and others. There was a directed verdict for defendants, and plaintiff appeals.</p>

<p>Appeal from Nacogdoches County Court; P. P. Marshall, Judge.</p> <p>Action by W. J. Vawters & Son against Cariker & Wintz and another. Prom a judgment for plaintiffs, defendants named appeal.</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by R. W. Prosser against the First National Bank of Del Rio. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Pleading (§ 433*) — Sufficiency after Verdict — Presumptions.</p> <p>Where the petition was not demurred to, the court after verdict must indulge in its favor all reasonable intendments.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. § 433.*]</p> <p>2. Pleading (§ 237*) — Amendments—To Conform -to Proof.</p> <p>Where the petition, in an action for depreciation in the value of plaintiff’s land by the use by a city of adjacent land for a dumping-ground, alleged that the dumping ground adjoined plaintiff’s land, used as a place of residence until on or about the- day of February, 1908, when he sold the land, that previously, on or about the —-day of February, 1908, defendant acquired control of the adjacent land, and plaintiff, without objection, testified that he occupied the premises until March, 1909, when he sold the land, the refusal to allow an amendment of the petition, so as to state the correct date of the sale of the land, was erroneous, because the variance in the date of the sale alleged and testified to was not misleading.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 603-619; Dec. Dig. § 237.*]</p> <p>3. Trial (§ 169*) — Motion for Directed Verdict — Demurrer.</p> <p>A motion after plaintiff’s evidence for a directed verdict, in an action for depreciation in value of plaintiff’s land by the use by a city of adjacent land for a dumping ground, on the ground that the petition alleged that no time intervened between the city’s acquisition and use of the land and the sale by plaintiff of his land, was but a demurrer to the petition, so that, if it had been presented and ruled on at the proper time, plaintiff could have amended so as to show that he sold his land more than a year after the acquisition and use by the city of its land.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 381; Dec. Dig. § 169.*]</p>

<p>Error from District Court, Wichita County; A. H. Oarrigan, Judge.</p> <p>Action by R. H. Suter against the Ft. Worth & Denver City Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Llano County; Clarence Martin, Judge.</p> <p>Action by the State against R. H. Down-man to recover taxes. Judgment for defendant, and the State appeals.</p>

<p>1. RAir.KOA.DS (§ 360*) — Frightening Animals — Cake Required .</p> <p>Wrhere a part of a railroad right of way had been used for a public street without objec-' tion for 20 years, the railroad company was liable for injuries to a traveler thereon, in consequence of her horse becoming frightened by unnecessary noises of an engine moving parallel with her.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1241-1244; Dec. Dig. § 360.*]</p> <p>2. Railroads (§ 360*) — Licensees— Cake Required.</p> <p>Operators of an engine on a track, parallel to a part of the right of way used by the traveling public without objection, must not unnecessarily permit the engine to become so enveloped by smoke and steam as to present an unusual appearance so as to frighten a horse driven by a traveler on the right of way.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1241-1244; Dec. Dig. § 360.*]</p> <p>3. Railroads (§ 358*) — Licensees—Care Required.</p> <p>An engineer who discovers the peril of á traveler on a part of the right of way commonly used by the public without objection must use the reasonable means at hand' to avoid threatened injury.</p> <p>[Ed. Note. — For other cases, see Railroads,. Cent. Dig. § 1236; Dec. Dig. § 358.*]</p> <p>4. Railroads (§ 401*) — Licensees—Instructions — Care Required.</p> <p>Where traveling on a part of a railroad’ right of way, commonly used by the public without objection, was not dangerous except as made so by the operation of engines and cars on the track, a charge that if an engineer saw. a traveler’s dangerous position in time to avoid injury by the use of the means at his. command, and he failed to do so, and to avoid an accident to the traveler caused by her horse becoming frightened, the company was liable, was not erroneous as leading the jury to believe that the engineer must do more than use the means at hand.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]</p> <p>5. Railroads (§ 358*) — Licensees—Care Required.</p> <p>A railroad company must exercise due care not to injure licensees whom it knows to be on its right of way and keep a lookout to discover and avoid injury to all who may be expected to be there.</p> <p>TEd. Note. — For other cases, see Railroads, Cent. Dig. § 1236; Dec. Dig. § 358.*]</p> <p>6. Railroads (§ 400*) — Licensees—Contributory Negligence — Question for Jury.</p> <p>Whether a traveler on a part of a railroad right of way, used without objection by the traveling, public, was guilty of contributory negligence in using the right, of way while there were other ways as near, if not as good, held for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1377; Dec. Dig. § 400.*]</p> <p>7. Trial (§ 253*) — Instructions—Ignoring Issues.</p> <p>Where, in an action for injuries to a traveler on a part of a railroad right of way used by the traveling public, in consequence of her horse becoming frightened, the refusal to charge that if the way along which plaintiff was traveling was dangerous because of its proximity to the track and was known so to be by the plaintiff, and was chosen by her when she might have chosen another way, there could be no recovery, was properly refused because requiring a verdict against plaintiff, without reference to the issue of discovered peril raised by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>8. Trial (§ 260*) — Instructions—Refusal to Give Instructions Covered by the Charge Given.</p> <p>It is not error to refuse instructions cov--ered by the court’s charge so far as they state the law and are warranted by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]</p> <p>9. Appeal and Error (§ 1002*) — Verdict— Conclusiveness.</p> <p>In determining the issues on conflicting evidence, the jury may look alone to the portion of it favorable to the successful party, and the court on appeal cannot say that such a verdict is not supported by the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3935; Dec. Dig. § 1002.*]</p>

L. Hardison, Judge. Action by J. S. Williams against the Gribble-Carter Grain Company, in which Keel & Son were impleaded. From a judgment in favor of plaintiff against the Gribble-Carter Grain Company, and a further judgment in favor of the latter against Keel & Son, they appeal.

Error’ from District Court, Dallas County; E. B. Muse, Judge. Action by G. W. Grimes against the Northern Texas Traction Company. There was a judgment for plaintiff, and from a judgment overruling a motion by defendant to re-tax costs, it brings error.

<p>1. Courts (§ 163*) — Jurisdiction—Jurisdiction of County Court.</p> <p>Notes presented to an administratrix for allowance having been rejected by her, an action was brought in the county court, and the petition alleged, after the usual allegations employed in suits on notes, that they were given for the purchase money of certain land, that a lien was reserved in the deed for the.payment of the notes, and that the vendor’s lien remained in full force and effect, and the prayer for relief was that plaintiff have judgment establishing his debt against the estate of deceased, and for general relief. Held, that the action was within the jurisdiction of the county court.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 163.*] .</p> <p>2. Judgment (§ 252*) — Pleading.</p> <p>Under a prayer for general relief, plaintiff may recover whatever the facts alleged and proved will justify.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 441, 442; Dee. Dig. § 252.*]</p> <p>3. Pleading (§ 72*) — Prayer for General Relief.</p> <p>A prayer for general relief is a demand for such relief as the tribunal under the facts alleged has the power to grant, and will not be considered as asking the court to transcend its power, unless it clearly appears from the language used.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 143, 144; Dec. Dig. § 72.*]</p> <p>4. Pleading (§ 72*) — Prayer for General Relief.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1191, requiring a petition to state the nature of the relief requested, a prayer for relief is an essential part of plaintiff’s petition and determines the character of the order or decree which the court is called upon to render.</p> <p>[Ed. Note. — For other cases, see. Pleading, Cent. Dig. §§ 143, 144; Dec. Dig. § 72.*]</p> <p>5. Action (§ 53*) — Splitting Cause of Ac- . tion.</p> <p>The right to recover a personal judgment for a debt secured by a lien on, real estate and the right to have a foreclosure of the lien are severable, and may be made the subject-matter of two distinct causes of action.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 549-623; Doc. Dig. § 53.*]</p> <p>é. Witnesses (§ 159*) — Transactions with Deceased Person.</p> <p>In an action against an administratrix on notes given by her intestate, it was error to permit plaintiff to testify that he did not owe a note which was pleaded in offset but had paid it, the testimony concerning a transaction with a decedent.</p> <p>[Ed. Note. — For other' cases, see Witnesses, Cent. Dig. §§ 666-669; Dec. Dig. § 159.*]</p> <p>7. Trial (§ 121*) — Conduct of Counsel-Examination of Witnesses.</p> <p>In an action on notes, wherein a note was pleaded in off-set, there was a question whether the testimony of plaintiff concerning the payment of the note urged as an off-set was the same as on a former trial in which the jury had failed to agree, and counsel for plaintiff asked sevetal witnesses, who had acted as jurors on the former-trial; if the jury had not stood five to one in favor of plaintiff on the issue of payment of the note in question. Held, that such action of the attorney was reversible error, even though the court sustained objections to the questions and affirmative answers.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294-300; Dec. Dig. § 121.*] .</p>

<p>Appeal from District Court, Tarrant County; Jas. W. S wayne, Judge.</p> <p>Action by the Texas Seating Company against the Farmers’ & Mechanics’ National Bank. From a judgment for defendant, plaintiff appeals.</p>

H. McHaney, Judge. Action by M. F. Capps and wife against the Citizens’ National Bank of Longview, garnishee, and others. Judgment in favor of the garnishee, and plaintiffs appeal.

<p>Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by W. W. Garrett against the Texas Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§ 279*) — Evidence— Sufficiency.</p> <p>Evidence held not to show that the foreman of a bridge crew was negligent in directing the crew to remove a hand car on the track in front of an approaching train.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-980; Dec. Dig. § 279.*]</p> <p>2. Master and Servant (§ 206*) — Assumption of Risk — Incidental Dangers.</p> <p>A servant assumes the risks ordinarily incident to the particular service, and assumes that he has capacity to understand the nature and extent of the service and the requisite ability to perform it. '</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 550; Dec. Dig. § 206.*]</p> <p>3. Master and Servant (§ 149*) — Injuries to ServantsAssumption of Risk.</p> <p>The foreman of a bridge crew in directing the crew to remove a hand car from the track in front, of an approaching train had a right to assume that a member of the crew knew and appreciated the ordinarily incident dangers and that in performing his duties he would conduct himself as an ordinarily prudent person would.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 291-295; Dec. Dig. § 149.*] ' '</p> <p>4. Master and Servant (§ 286*) — Injuries to Servant — Evidence—Sufficiency.</p> <p>In an action for the death of a member of a bridge crew who was struck by a locomotive while attempting to remove a hand car from the track in front of an approaching train, held a question for the jury whether those in charge of the train were negligent.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 286.*]</p>

<p>Appeal from District Court, Dallas County ; Kenneth Foree, Judge.</p> <p>Action by George F. Osborne against the Texas Traction Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Master and Servant (§ 90*) — Injuries to Servant — Negligence—Care Required in General.</p> <p>To authorize a recovery by a servant for personal injuries, it is not necessary that the very occurrence complained of could' have been foreseen by ordinary care, but only that a reasonably prudent man, in view of the facts, would have anticipated some like injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § ÍS9; Dec. Dig. § 90.*]</p> <p>2. Trial (§ 260*) — Instructions—Requests —Instructions Covered by Charge Given.</p> <p>Where, in an action for injuries to a servant, the court submitted to the jury whether the master was negligent in inspecting the appliances causing the accident, and whether the defect therein was dangerous, and whether it was.the proximate cause of the injury, a charge that, if the accident could not reasonably have been anticipated as a result of the defect, the verdict should be for the master, was properly refused, because covered by the instructions given, so far as correct.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]</p> <p>3. Constitutional Law (§ 208*) — Class Legislation.</p> <p>A statute which embraces all of a specified class in a particular character of business is not class legislation, inhibited by the federal or state Constitutions.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 208.*]</p> <p>4. Constitutional Law (§ 208*) — Class Legislation — Act tor Protection oe Eai-PLOYÉS.</p> <p>Acts 31st Leg. c. 10, providing that, in actions against railroads for injuries to employes, the fact that the employé was guilty of eontrib-, utory negligence shall not bar a recovery, but' the damages shall be diminished in proportion to negligence of the employé, applies only to railroad employes, making a class of them; and it is not class legislation, within the state and federal Constitutions.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent Dig. §§ 654, 661; Dec. Dig. § 208.*]</p> <p>5. Damages (§ 95*) — Personal Injuries — Measure oe Damages.</p> <p>The jury in allowing damages for personal injuries may award such sum as will, as a present cash payment, fairly compensate for the time lost on account of the injuries, for the diminished capacity on account thereof, for physical pain and suffering sustained by reason of the injuries, or which it is reasonably probable will be suffered in the future on account thereof.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 222; Dec. Dig. § 95.*]</p> <p>6. Master and Servant (§ 205*) — Assumption oe Risk — Inspection oe Appliances.</p> <p>A servant may assume that the master has furnished reasonably safe appliances for him to use, and he need not inspect them before using them.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 547; Dec. Dig. § 205.*]</p> <p>7. Appeal and Error (§ 1056*) — Review-Harmless Error — Exclusion oe Evidence.</p> <p>The error, if any, in excluding testimony of a witness on cross-examination offered to show bias in favor of the successful party is harmless, where the successful party did not depend alone on the testimony of the witness, especially where the evidence, if admitted, would have rebutted any inference of bias.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4187; Dee. Dig. § 1056.*]</p> <p>8. Damages (§ 173*) — Personal Injuries— Evidence — Admissibility.</p> <p>Where, in an action for injuries to a switchman, plaintiff testified that for 13 years he had been working in various kinds of construction works, for industrial plants, and the last two years in railroading, earning from $70 to $100 a month, and that while working for a telephone company he made less than $70 a month, the exclusion of evidence, as bearing on the question of damages, that railroad service paid better than ordinary jobs of a similar character, because of the dangers involved in railroad work, was not erroneous.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 490-492; Dec. Dig. § 173.*]</p> <p>9. Evidence (§ 364*) — Documentary Evidence — Personal Injuries — Mortality Tables.</p> <p>A mortality table used by insurance companies in this country as a basis for life expectancy is properly admitted, as bearing on the life expectancy of one suing for a personal injury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1520; Dec. Dig. § 364.*]</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by Phillip Lopp, by next friend, against the City of Ft. Worth. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Josephine Schroeter against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by W. J. Doyle against Winfield Scott and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Intoxicating Liquors (§ 261*) — Injunction— Grounds.</p> <p>The court at the suit of a private citizen and taxpayer will not enjoin one from maintaining a saloon without first applying for a license in the manner required by Acts 31st Leg. c. 17, §§ 7, 9, where he has a license which is duly posted as required by law.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 401; Dec. Dig. § 261.*]</p> <p>2. Appeal and Error (§ 1009*) — Evidence-Review.</p> <p>The court on appeal from an order refusing an injunction must accept as true the testimony of a party in whose favor the trial court found.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*]</p> <p>3. Intoxicating Liquors (§ 64*) — Licenses— “Interested in Business.”'</p> <p>An owner of property who leases it for a saloon for a specified sum per month, and a part of the profits of the business, is not interested in the business within Acts 31st Leg. c. 17, § 9, requiring each person desiring a liquor license to state his name in the application, and to swear that no other person is interested in the business; the word “interested” meaning an interest m the business itself.</p> <p>TEd. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 64; Dec. Dig. § 64.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3710; vol. 8, pp. 7691, 7692.]</p> <p>4. Intoxicating Liquors (§ 115*) — Saloons —“Open House.”</p> <p>Under Acts 31st Leg. c. 17, § 15, defining an “open house” as one in which no screens obstructing the view through the place of entrance into such house are used, a saloon conducted in a wing of the entrance lobby of a hotel in plain view of the entrance thereto is conducted in an “open house.”</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 125; Dec. Dig. § 115.*</p> <p>For other definitions, see Words and Thrases, vol. 6, p. 4987.]</p>

<p>1. Municipal Corporations (§ 755*) — Torts —Control of Sidewalks.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 381, authorizes the incorporation of any city containing 1,000 inhabitants or over, and article 419 declares that such a city shall have exclusive control over its streets. Article 579 relates to towns or villages containing more than 500 and less than .10,000 inhabitants, and article 594 provides that the board of aldermen of such towns shall have exclusive control over the streets, within the corporate limits. Held that, whether a city was incorporated under article 381 or article 579 it would have control over sidewalks within its limits, and would be liable 'for negligence with respect thereto.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. |§ 1587-1590; Dec. Dig. § 755.*]</p> <p>2. Municipal Corporations (§ 822*) — Torts —Notice op Defects in Sidewalk.</p> <p>In an action against a city for injuries from a defective sidewalk, the court instructed that what facts would be sufficient to constitute notice to the city is a question for the jury, and unless the city through some one of its officers had notice, either actual or constructive, of the defective sidewalk, then the city was entitled to a verdict. Held, that the instruction was erroneous, as it stated in effect that notice to an officer of the city who has no authority over the streets and sidewalks would be notice to the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. § 822.*]</p>

C. Wear, Judge. Action by J. R. Tinsley and others, in their own behalf and as deacons of the Missionary Baptist Church of Abbott, Tex., against C. Bottom and others. From a judgment for plaintiffs, defendants appeal.

<p>1. Master and Servant (§ 118*) — Injuries to Servant.</p> <p>Where the timber crew in a mine had commenced to brace the roof of one of the rooms, and while at work there a member of the track crew, whose duty it was to lay track and clear away obstructions, was killed by the caving in of the roof and deceased had nothing to do with the work of timbering or propping, the master was not absolved from liability under the rule as to the liability to servants who are engaged in the business of making safe an unsafe place.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 209; Dec. Dig. § 118.*]</p> <p>2. Master and Servant (§ 288*) — Injuries to Servant — Assumption of Risk.</p> <p>Where a servant employed in a mine knew that the roof of a certain room was considered probably dangerous, but he had been assured by his superior, who was an expert, that the roof was safe, and he was directed to proceed with his work, in an action for his death, owing to the fall of the roof, the question of assumption of risk was one for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 28S.*]</p> <p>8. Master and Servant (§ 289*) — Injuries to Servant — Contributory Negligence. The question of contributory negligence was one for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]</p> <p>4. Master and Servant (§ 217*) — Injuries to Servant — Assumption of Risk.</p> <p>A servant, in order to be charged with an assumption of risk on the ground that he knows</p> <p>of the existence of the defect, must not only know of the situation, but also of the danger that is likely to result from it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. §. 217.*]</p> <p>5. Master and Servant (§ 270*) — Injuries to Servant — Action—Evidence—Admissibility.</p> <p>In an action for the death of a miner owing to the caving in of the roof of one of the rooms in the mine, the negligence relied on was failure to exercise care in propping the roof of the mine so as to prevent caving in, and defendant interposed a general denial. A witness testified that in his opinion the caving could have been prevented had the timbering been done in time, and that in his opinion the timber crew was about six weeks or two months behind the miners with the timbering work, and he then testified, over the objection of defendant, that the space where the accident occurred could have been timbered in two or three days. Held, that the evidence was not inadmissible as against an objection that there were no allegations charging that defendant was behind with the timbering work, or that such negligence was the proximate cause of the injury, and that the testimony was irrelevant and immaterial.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 270.*]</p> <p>6. Witnesses (§ 379*) — Impeachment.</p> <p>In an action for the death of a miner owing to the caving in of the roof of a room in the mine, a witness was asked if defendant’s mine boss did not state that, if the owner of the mine had let the boss have had his way, the mine would have been sufficiently provided, and that deceased would not have been killed, to which he was permitted to reply in the affirmative over objection. Held, that the mine boss having testified on cross-examination that he had not made such statements, and having testified as an expert that the accident was the result of a general “squeeze” or movement of the earth, which could not have been prevented, the evidence was admissible for the purpose of impeaching the boss.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.*]</p> <p>On Motion for Rehearing.</p> <p>7. Master and Servant (§ 27S*) — Injuries to Servant — Evidence.</p> <p>In an action for the death of a miner owing to the caving in of the roof of a room in the mine, evidence held to warrant a finding that deceased was killed because of the unsafe condition of the place where he was at work, due to defendant’s negligent failure to prop the roof.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 278.*]</p>

B. Hightower, Judge. Action by Henry Mack and wife against the Houston East & West Tesas Railway Company. From a judgment sustaining a general demurrer and dismissing the action, plaintiffs appeal.

<p>1. Appeal and Error (§ 1097*) — Law op Case —Subsequent Appeal.</p> <p>Where the Court of Civil Appeals -reversed a judgment upon a stated theory, and its judgment was reversed by the Supreme Court, that theory must be deemed to have been repudiated and the law of the case established to the contrary, though the opinion of the Supreme Court did not discuss it, and hence that point cannot be again considered by the Court of Civil Appeals on a subsequent appeal.</p> <p>[Ed. 'Note. — For other cases, see Appeal and Error, Cent. Dig. § 4364; Dec. Dig. § 1097.*]</p> <p>2. Telegraphs and Telephones (§ 67*) — Failure to Transmit Message — Damages.</p> <p>Where a telegraph company failed to transmit a inessage sent by a daughter to her father, which message was: “Gus very low. Send some one to me” — the company had notice that some one in close relationship to the sender of the message was expected and that her father might be one of them.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. § 67.*]</p> <p>3. Appeal and -Error (§ 1053*) — Review — Harmless Error — Admission op Evidence.</p> <p>In an action against a telegraph company for failure to transmit a message which stated: “Gus very low. Send some one to me” — if it was error to permit plaintiff to testify that she wanted some of her kinfolks, brothers, sisters, or some of the family, in that such testimony placed too broad a construction on the notice imputed to defendant as to the object of the message, such ruling was harmless error where it appeared that only her father and two brothers might have come, and the court charged the jury that recovery depended on whether any one of them would and could have come.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.*]</p> <p>4. Appeal and Error (§ 274*) — Presentation of Grounds of Review in Lower Court — Exceptions.</p> <p>Where a witness testified in a deposition to certain facts, and no exception was taken, an exception to a later statement whereby he affirmed the truth of his former testimony, is insufficient to allow the former testimony to be questioned on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 1031; Dec. Dig. § 274;* Trial, Cent. Dig. § 258.]</p> <p>5. Appeal and Error (§ 1051*) — Review — Harmless Error — Question of Evidence.</p> <p>Where a telegraph company delayed the transmission of a message for more than three hours, and the following day transmitted a message between the same points in less than an hour, the admission of testimony that it only took eight minutes to receive a response- from messages sent between two other points which were on the same line and nearly as far apart, was harmless where this fact was uncontrovert-ed, and the delay of the first message was not explained.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>6. Telegraphs and Telephones (§ 66*) — Actions — Evidence—Admissibility.</p> <p>In an action against a telegraph company for delay in transmitting a message, which had to be relayed to a distributing station, and from thence sent to another distributing station where it was again relayed to its destination, the distance between the distributing stations being greater than the distance from either of the receiving stations to its respective distributing station, evidence of the time it took . to transmit a message between the two distributing stations was admissible.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 62; Dec. Dig. § 66.*]</p> <p>7. Trial (§ 295*) — Instructions—Construction as a Whole.</p> <p>In an action against a telegraph company for delay in the transmission of a message, it appeared that there was an unwarrantable delay, although the message was promptly delivered after being received. The jury was charged to find for plaintiff if defendant was negligent in failing to transmit and deliver the message, and also charged to find for defendant if defendant properly transmitted the message. Held that, though the prompt delivery was admitted, it is impossible, when considering the whole charge, to believe that the jury understood that it submitted to them the issue of prompt delivery, and hence delay being clearly shown this instruction was not misleading.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p>

<p>1. Teial (§ 403*) — Conclusions of Fact and Law.</p> <p>Rev. St. 1895, art. 1333, provides that on a trial by the court the judge shall, at the request of either of the parties, state in writing the conclusions of facts found by him separately from the conclusions of law. which conclusions of fact and law shall be filed by the clerk and constitute a part of the record, and by Acts EX. Sess. 1907, c. 7, the time for filing such conclusions was extended to 10 days after adjournment. Held, that there is no authority for filing such conclusions after the time allowed, except possibly in case it be shown that the same could not have been filed sooner.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 954r-956; Dec. Dig. § 403.*]</p> <p>2. Tbtal (§ 403*) — Conclusions of Law and Pact.</p> <p>It is the plain right of any party upon seasonable application to have proper conclusions filed and within the time required by law, and parties are not required to accept conclusions filed after such time and run the hazard of having them stricken.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 954-956; Dec. Dig. § 403.*]</p> <p>3. Appeal and Error (§ 549*) — Review-Bill of Exceptions.</p> <p>Rev. St. 1895, art. 1333, and Acts EX. Sess. 1907, c. 7, require in a cause tried by the court conclusions of law and fact to be filed within 10 days after the term on request of either party. Held, that a bill of exceptions, complaining of the failui’e of the judge to file the conclusions “during the term” where 18 days had elapsed at the time the bill was taken, would not be ignored.</p> <p>[K3. Note. — Eor other cases, see Appeal and Error, Dec. Dig. § 549.*]</p> <p>4. Appeal and Error (§ 1105*) — Record-Review.</p> <p>Where the trial court failed to file conclusions of law and fact within 10 days after the term, as required by Rev. St. 1895, art. 1333, and Acts Ex. Sess. 1907, c. 7, appellant _ on bringing the cause to the appellate court without any statement of facts would be entitled to a reversal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4522; Dee. Dig. § 1165.*]</p> <p>5. Appeal and Error (§ 1165*) — Review.</p> <p>Where the trial court failed to file conclusions of law and fact on request of appellant within the time specified under Rev. St. 1895, art. 1333, and Acts Ex. Sess. 1907, c. 7, but there was in the record a statement of facts prepared by appellant sufficient to warrant an examination of the assignments of error, the cause would not be reversed for want of conclusions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1165.*]</p> <p>6. Covenants (§ 130*) — Warranty—Breach.</p> <p>Where, in trespass to try title, the judgment gave a vendee the land called for by his deed, and as much as he purchased, he was not entitled to recover against his grantor on his cross-action against him for breach of warranty on the ground that he bought with reference to a line which had been established by agreement between his grantor and adjoining owners in contemplation of his purchase, and that he did not receive a portion of the land that he supposed he would receive, where it did not appear that the land he claimed to have lost was of aqy greater proportionate value than that which he received in place thereof under the judgment.</p> <p>[Ed. Note. — For other cases, see Covenants, Dec. Dig. § 130.*]</p> <p>7. Trespass to Try Title (§ 56*) — Improvements.</p> <p>Where a judgment in trespass to try title recited that the parties had agreed that any improvements on the land adjudged to any party might be removed by the owner within 30 days, and it was ordered that no writ of possession should issue for 30 days, it was proper not to allow a party the value of that portion of his barn located on a strip of land which he was not awarded by the judgment, and proper not to allow him what it would cost him to remove it.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Dee. Dig. § 56.*]</p> <p>8. Costs (§ 32*) — Apportionment.</p> <p>Where, in trespass to try title, it appeared that one defendant had been responsible for the entire litigation, and his contentions were not sustained, it was proper to adjudge plaintiff all costs against such defendant, and that the other defendants recover all costs against him.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. § 32.*]</p>

<p>1. Partnership (§ 325*) — Receivers — Grounds eor Appointment — Loss oe Property-Affidavits.</p> <p>On an application for appointment of a receiver between partners in transactions concerning land and other deals, the showing of applicant in view of the counter affidavits held insufficient to show that the property or funds were in danger of being lost, removed, or materially injured, as required by Rev. St. 1895, art. 1465.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 757-767 ; Dec. Dig. § 325.*]</p> <p>On Motion for Rehearing.</p> <p>2. Partnership (§ 325*) — Receivers — Appointment — Order — Partial Validity— Effect.</p> <p>Where, under Rev. 'St. 1895, art. 1465, authorizing the appointment of receivers between partners and others jointly interested in property or funds, an order is made appointing a receiver, that an inconsiderable portion of the property is personal property to which applicant had a right to a receiver would not sustain the order, the showing as to the real estate comprising the greater portion of the property involved being insufficient to sustain the order.</p> <p>[Ed. Note. — For other cases, see Partnership, Gent. Dig. §§ 757-767; Dec. Dig. § 325.*]</p>

<p>On motion for rehearing.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Habeas corpus by Austin Tyler for his discharge on bail. From a judgment fixing bail, he appeals.</p>

<p>Appeal from District Court, Reeves County; S. J. Isaaclis, Judge.</p> <p>Action by the Citizens’ State Bank of Toyah against J. F. O’Neal and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Pleading (§ 205*) — Demurrer — General and Special Demurrer.</p> <p>A demurrer slating that “specially demurring defendant says that such petition is insufficient in law because it does not set out the facts constituting the cause of action with sufficient certainty” is a general demurrer; anti labeling it a special demurrer does not change its character.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent Dig. § 491; Dec. Dig'. § 205.*]</p> <p>2. Venue (§ 32*) — 'Waiver of Objections— Privilege. »</p> <p>Where an action was filed March 31, 190S, and a plea of privilege followed exceptions and a general denial in an answer filed on January 26. 1910, the plea of privilege was waived by defendant.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.*J</p> <p>3. Pleading (§ 290*) — Fraud on Jurisdiction-Verified Pleadings.</p> <p>A plea of fraud on the jurisdiction not verified is a nullity.</p> <p>[Ed. Note. — For other cases, see Pleading. Cent. Dig. § 861; Dec. Dig. § 290.*]</p> <p>4. Brokers (§ 82*) — Commission—Issues and Proof.</p> <p>Where the basis of an action was a promise to pay commissions for the sale of land, it was immaterial whether the land belonged to defendant or his wife, or whether it was a separate tract or an undivided interest in a tract, and hence evidence showing such facts did not establish a variance.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 103; Dec. Dig. § 82.*]</p> <p>5. Trial (§ 55*) — Absence of Defendant-Explanation.</p> <p>Where defendant was not called upon to account for his absence at the trial, the fact that he was paralyzed in his limb was properly •excluded, as it could have no other purpose than to excite sympathy.</p> <p>I Ed. Note. — For other cases, see Trial, Cent. Dig. § 130; Dec. Dig. § 55.*]</p> <p>■0. Brokers (§ 55*) — COMMISSIONS — Procuring Purchaser.</p> <p>In an action for commissions, where the ■evidence showed that brokers procured a purchaser who was willing, able, and ready to buy the land, and who did buy the land, they ■were entitled to commissions, although the deal was closed by the agent for the purchaser.</p> <p>[Ed. Note. — For other cases, see Brokers, ■Cent. Dig. §§ 82-84; Dec. Dig. § 55.*]</p>