139 S.W.

Volume 139 — South Western Reporter

92 opinions

139 S.W. 1First State Bank of Teague v. Cox (1911)Reversed and rendered
B. Daviss, Judge. Suit by the First National Bank of Teague against E. A. Cox. From a judgment for defendant, both in the suit in question and upon his cross-action, plaintiff appeals.
139 S.W. 3St. Louis, S. F. & T. Ry. Co. v. Birge-Forbes Co. (1911)Affirmed
1. Commerce (§ 34*)—Regulation—Foreign Commerce. A contract by a railway company for through shipment to foreign seaports by way of domestic seaports for a through rate is not controlled by the interstate commerce law (Act Peb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), even though the rate paid by the railroad for the ocean transportation reduced the inland rate to less than the tariff rate to the domestic seaport. [Ed. Note.—For other cases, see Commerce, Dec. Dig. § 34.*] 2. Carriers (§ 69*)—Shipment Contracts— Invalidity—Burden of Proof. Where the petition on a shipment contract discloses a legal contract, the burden to establish its illegality as violating the interstate commerce law (Act Peb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) is on defendants. [Ed. Note.—Por other cases, see Carriers, Dee. Dig. § 69.*] 3. Appeal and Error (§ 742*)—Assignments of Error—Accompanying Statement. An assignment of error is not entitled to consideration under Court of Civil Appeals rules, where reference is made to all the testimony copied in a statement under another assignment of error, and such testimony includes much matter not hearing on the particular assignment of error. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig'. § 3000; Dec. Dig. 1 742.*] 4. Limitation of Actions (§ 199*) — Evidence —Question foe Juey. In a suit against railroad companies on a contract for shipment of cotton to foreign ports, evidence held to raise an issue as to whether maturity of plaintiff’s claim was postponed, as affecting the running of limitations, by a custom preventing such claims from becoming due until expiration of a reasonable time after presentation. [Ed. Note. — Por other cases, see Limitation of Actions, Dec. Dig. § 199.*] 5. Limitation of Actions (§ 24*) — Weitten Freight Contkacts. An action against railroads on a written contract to carry freight to a foreign port is governed by the four, and not the two, years statute of limitations. [Ed. Note. — Por other eases, see Limitation of Actions, Dec. Dig. § 24.*] 6. Trial (§ 200*) — Instructions—Legal Effect of Writings. In an action against railroads on a freight contract, the court properly instructed as to the legal effect of telegrams which disclosed the making of the contract sued on. [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 471; Dec. Dig. § 200.*]
139 S.W. 7Lewis v. Blount (1911)Reversed and remanded
Appeal’ from District Court, Nacogdoches County; James I. Perkins, Judge. Action by Frank Lewis and others against B. A. Blount and others. From a judgment sustaining a demurrer to the petition, plaintiffs appeal.
139 S.W. 11Southern Kansas Ry. Co. of Texas v. Logue (1911)Reversed and rendered
Appeal from District Court, Armstrong County; S. P. Huff, Judge. Action by James Logue against the Southern Kansas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
139 S.W. 16Gulf, C. & S. F. Ry. Co. v. Coulter (1911)Reversed
Error from District Court, Tarrant County; Jas. W. Swayne, Judge. Action by H. W. Coulter against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error.
139 S.W. 22Surghenor v. Ducey (1911)Affirmed
B. Hightower, Judge. Trespass to try title by John AV. Surghen- or and others against' Patrick A. Ducey and others. Judgment for defendants, and plaintiffs appeal.
139 S.W. 28Surghenor v. Ayers (1911)Affirmed
1. Trespass to Try Title (§ 41*) — Evidence —Sufficiency. Evidence in trespass to try title held to sustain findings that plaintiffs did not assert title until they sued, and that a certain conveyance was made. [Ed. Note. — For other cases, see Trespass to Try Title, Dec. Dig. § 41.*] 2. Appeal and Error (§ 742*) — Review. A point presented by a proposition under an assignment of error, but not presented by the assignment, cannot be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 3. Taxation (§ 529*) — Payment—Evidence. The fact that one in possession of land under claim of ownership, under registered deeds, rendered it for taxation from 1847 to 1859, warrants the presumption of payment of the taxes, in .the absence of a contrary showing; he being dead and the tax records destroyed. [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 982-984; Dec. Dig. § 529.*] 4. Limitation of Actions (§ 148*) — Admission— Scope. An agreement for partition of land, reciting an unsettled claim by the heirs of a third person, and providing that one of the partners would settle with the heirs, so that the other would receive his allotment clear, was not such acknowledgment of the heirs’ title as to prevent running of limitations against them. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 597-603; Dec. Dig. § 148.*] 5. Appeal and Error (§ 1071*) — Harmless Error. In trespass to try title, any error in finding that plaintiffs’ claim was barred by limitation was harmless, when the judgment for defendants is authorized under doctrine of presumptive conveyance. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*]
139 S.W. 33Singleton v. Spear (1911)Reversed and rendered
L. I-láwkins, Judge. Action by J. W. Singleton against A. H. Spear, in which B. F. Kenner, receiver of the Mountain Peak Gin Company, intervenes. From a judgment for defendant, plaintiff and intervener appeal.
139 S.W. 36Winfree v. Winfree (1911)Affirmed
Appeal from District Court, Polk County; L. B. Hightower, Judge. Trespass to try title by Z. T. Winfree against E. H. Winfree and others. From a judgment for plaintiff, defendants appeal.
139 S.W. 41McAllen v. Crafts (1911)Reversed and remanded on rehearing
1. Adverse Possession (§ 114*) — Nature— In General. To acquire a prescriptive title to land under the 10-year statute of limitations (Rev. St. 1895, art. 3343), each of the several and statutory requirements must be proved by a preponderance of evidence. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682-690; Dec. Dig. § 114.*] 2. Adverse Possession (§ 60*) — Nature and Requisites in General. Where plaintiff in a suit for land secured possession of the same under a writ of sequestration, and held the same for 10 years until plaintiff’s suit was dismissed for want of prosecution, that holding did not ripen into a prescriptive right as the land was in custodia legis. [Ed. Note. — For other cases, see Adverse Possession, Dec. Dig. § 60.*] 3. Appeal and Error (§§ 1050, 1056*) — Review — Harmless Error. In trespass to try title, where plaintiff’s only claim to the land was possessory, the exclusion of a deed offered by plaintiff, and the admission of documentary evidence of defendant’s title did not prejudice plaintiff. [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. §§ 1050, 1056.*] 4. Trespass to Try Title (§ 47*) — Proceedings — Judgment—Effect. A judgment in trespass to try title that plaintiff take nothing by his suit is as effective in defendant’s favor as though the land had been expressly adjudged to him. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.*]
139 S.W. 44Southern Kansas Ry. Co. of Texas v. Emmett (1911)
139 S.W. 51Manhattan Life Ins. Co. v. Cohen (1911)Affirmed
Appeal from District Court, Harris County; Chas. E. Ashe, Judge. Action by David Cohen, as executor, against the Manhattan Life Insurance Company. Judgment for plaintiff, and defendant appeals.
139 S.W. 59A. Cohen & Co. v. Rittimann (1911)Reversed on rehearing, and remanded
Appeal from District Court, Bexar County; J. L. Camp, Judge. Action by Louis Rittimann against A. Cohen & Co. Judgment for plaintiff, and defendant appeals.
139 S.W. 64Geiser Mfg. Co. v. Lunsford (1911)Reversed and rendered
Error from District Court, Hale County; L. S. Kinder, Judge. Action by J. W. Lunsford and others against the Geiser Manufacturing Company and others. Judgment for plaintiffs, and defendants bring error.
139 S.W. 69Jones v. Harris (1911)Affirmed
1. Husband and Wife (§ 273*) — Community Property — Sale by Surviving Spouse-Validity. A surviving husband may in good faith sell community real estate to pay community debts without administration of the estate, though the property is' sold for more than enough to pay the debts. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1019-1021; Dec. Dig. § 273.*] 2. I-Iusband and Wife (§ 273*) — Sale of Community Real Estate — Rights of Surviving Spouse. That a surviving husband conveyed community real estate to pay community debts is shown by the fact that the proceeds were used to pay debts, notwithstanding his sworn statement that he did not sell to pay community debts. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1019-1021; Dec. Dig. § 273.*] 3. Husband and Wife (§ 273*) — Community Property — Sale by Sueviving Spouse-Title of Pubchaseb. . A surviving husband sold community real estate to pay debts. He received full value for the premises. The deed recited that he conveyed all his “right, title, and interest” in the land. He used the proceeds to pay debts. Held, that the purchaser acquired the entire community interest of the husband and the deceased wife. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1019-1021; Dee. Dig. § 273.*] 4. Husband and Wife (§ 267*)— Community Pkopebty— Sale by Husband. A grantee of a purchaser of state lands who agrees to pay the state a specified sum per acre, and who moves on the land with his wife and family, may, during the life of his wife, convey without her consent, in order to relieve himself of his burden to the state, or he may forfeit the land to the- state. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 930; Dec. Dig. § 267.*] 5. Homestead (§ 146*) — Sale by Surviving Husband. A surviving husband may sell the homestead to pay debts against the community estate, though there are minor children and the estate is insolvent. [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 257; Dec. Dig. § 146.*] 6. Evidence (§ 165*) — Best Evidence — Written Instruments. A deed is the best evidence of what is thereby conveyed, and the testimony of the grantor as to what he conveyed is properly rejected. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 548-555; Dec. Dig. § 165.*] On Motion for Rehearing. 7. Husband and Wife (§ 273*) — Sale of Community Peopebty— Condition Precedent. The power of a surviving husband to sell community real estate is dependent on the existence of community debts, and a purchaser who has knowledge of the existence of such debts need not see that the purchase money is appropriated to the payment thereof. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1019-1021; Dec. Dig. § 273.*] Neill, J., dissenting.
139 S.W. 79Long v. Riley (1911)Affirmed
Appeal from District Court, Collin County; J. M. Pearson, Judge. Action by J. H. Riley against R. A. Long. From the judgment, defendant appeals.
139 S.W. 81Gulf, C. & S. F. Ry. Co. v. Nelson (1911)Affirmed
„ Appeal from District Court, Bexar County; J. L. Camp, Judge. Action by J. P. Nelson against the Gulf, Colorado & Santa Fé Railway Company and another. Judgment for plaintiff, and defendants appeal.
139 S.W. 93Naylor v. Parker (1911)Reversed and remanded
Appeal from District Court, Hardeman County; S. P. Huff, Judge. Action by G. A. F. Parker and another against S. A. Naylor and another. Judgment for plaintiffs, and defendants appeal.
139 S.W. 529McElroy v. Sparkman (1911)Affirmed
1. Evidence (§ 333*) — Records—Admissibility. In an action on a dramshop keeper’s bond, the original bond and the judgment of the county court authorizing him to engage in the business of a retail liquor dealer are properly received in evidence, though they have not been on file among the papers of the case for three days, as provided by Rev. St. 1895, art. 2312, relating to the introduction of certified copies of recorded conveyances. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.*] 2. Evidence (§ 333*) — Recobds—Admissibility. In an action on a dramshop keeper’s bond, the original application of the keeper for permission to pursue the business of a liquor dealer, and the stub book showing the issuance of a license to him, are properly received in evidence as against the objection that the instruments were required by law to be kept in the office of the county clerk, and that no certified copy had been filed with the papers three days before trial. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.*] 3. Intoxicating Liquors (§ 86*) — Liquor Dealers’ Bonds — Liability. Where the petition, in an action on a dramshop keeper’s bond, alleged the execution of a bond by the keeper, authorizing him to retail liquor on a designated lot in a town, and that he engaged in the saloon business at the place under the bond in an iron-clad house, that during the life of the bond and before the breaches complained of he removed the building, and erected another in its stead on the same lot, and continued to do business there as a retail liquor dealer under the bond, and the evidence showed the erection of a new building on the same lot for the conduct of the business, and that no new bond was executed, the court properly decided that the keeper was liable under the original bond for acts committed in the new building. [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 86.*] 4. Trial (§ 133*) — Improper Remarks ox Counsel — Instruction s. Where the court directed the jury, at the request of defendant, not to consider improper remarks of plaintiff’s counsel, it was not error to refuse a new trial; no injury resulting to defendant from the remarks. [Ed. Note. — For other cases, see Trial, Dec. Dig. § 133.*] 5. Intoxicating Liquors (§ 310*) —Dram-shop Keeper’s Bond — Violation — Evidence. In an action on a dramshop keeper’s bond, based on the keeper permitting plaintiff’s son to enter and remain in the saloon, evidence held to justify a finding that the keeper permitted the minor to enter and remain in the saloon. [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 310.*] 6. Trial (§ 192*) — Instructions — Assumption ox Facts. An instruction assuming a fact conclusively established by the evidence is not erroneous. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*] 7. Trial (§ 191*) — Violation of Dramshop Keeper’s Bond — Issues—Instructions. An instruction, in an action on a dram-shop keeper’s bond, for permitting plaintiff’s minor son to enter and remain in the saloon, that if plaintiff showed that the keeper permitted the minor to enter and remain in the saloon the jury should render a verdict for plaintiff, while if plaintiff failed to so prove the verdict must be for defendant, was not erroneous as assuming that the minor entered and remained in the saloon, but left that question to the jury. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.*] 8. Intoxicating Liquors (§ 308*) — Dram-shop Keeper’s Bond — Violation — Aggrieved Party. The court may assume that a mother, who is the only surviving parent of a minor child, is the person aggrieved by a dramshop keeper permitting the minor to enter and remain in the saloon, so as to permit her to sue on his bond. [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 308.*]
139 S.W. 598Fleming v. State (1911)Reversed and remanded
Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Fred Fleming was convicted of crime, and he appeals.
139 S.W. 608Atchison, T. & S. F. Ry. Co. v. Moore (1911)Reversed and remanded
Appeal and Error (§ 512*) — Record — Contents — Jurisdiction oe Lower Court. Where the transcript on appeal from the county court contains no statement of plaintiff’s demand or the nature of the action, as required by Sayles’ Ann. Civ. St. 1897, art. 1579, but only shows judgment in plaintiff’s favor for a certain sum, and shows no written pleadings filed by the parties in the justice’s court and transmitted to the county court, as required by Sayles’ Ann. Civ. St. 1897, art. 1673, nor that it was submitted in the justice’s court on an agreed statement of facts, signed by the parties, as provided by Sayles’ Ann. Civ. St. 1897, art. 1293, there is no affirmative showing that the county court had jurisdiction to render the judgment appealed from and it will be reversed. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2326; Dee. Dig. § 512.*]
139 S.W. 609Webster v. Frazier (1911)Affirmed
Appeal from District Court, Deaf Smith County; D. B. Hill, Judge. Action by Joseph Frazier and another against Ira Webster and others. Judgment for plaintiffs, and defendants appeal.
139 S.W. 611Texas & P. Ry. Co. v. Maughon (1911)Reversed and remanded
1. Carriers (§ 280*)—Injuries to Passengers — Uncomfortable Equipment — Care Required. An instruction imposing on the carrier the absolute duty of furnishing a passenger a reasonably safe place in which to ride was improper, the carrier being only required to exercise that high degree of care to do so which a very cautious and prudent person under similar circumstances would exercise. [Ed. Note.—Eor other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1106; Dec. Dig. § 280.*] 2. -Trial (§ 252*) — Injuries to Passengers —Damages—Elements. Where, in an action for injuries to a passenger by his being compelled to ride in a cold, dark and uncomfortable passenger coach, there was no proof that he suffered any “embarrassment,” in the sense of an unpleasant emotion, an instruction authorizing the jury, in case they found for plaintiff, to award compensation for physical and mental pain, anguish or inconvenience, embarrassment or anxiety, proximately resulting from defendant’s negligence, if any, was improper. [Ed. Note.—For other cases, see Trial, Dec. • Dig. § 252.*]
139 S.W. 612Bledsoe v. Haney (1911)Reversed and rendered
Appeal from District Court, Lubbock County; L. S. Kinder, Judge. Action by Jasper N. Haney against W. E. Bledsoe. Judgment for plaintiff, and defendant appeals.
139 S.W. 613Harrison v. McGehee (1911)
139 S.W. 615Martin v. Kansas City, M. & O. Ry. Co. (1911)Affirmed
1. Carriers (§ 228*) — Carriage of Live Stock — Injury to Stock — Burden oe Proof. A shipper of live stock who sues the initial carrier for injury to the stock has the burden of showing that the initial carrier’s negligence caused the injury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 958; Dec. Dig. § 228.*] 2. Carriers (§ 185*) — Injury to Freight-Liability — Presumptions. Where freight has been transported by successive carriers, and it is damaged en route, and the evidence does not show on what line the injury occurred, it is presumed that it occurred on the line of the terminal carrier. [Ed. Note. — For other cases, see Carriers, Cent. Dig. ■§§ 835, 836; Dec. Dig. § 185.*] 3. Carriers (§ 219*) — Carriage oe Hive Stock — Liability for Injury — Evidence. Where, in an action against the initial carrier of live stock for injury to the stock, the undisputed evidence showed that the stock was in the charge of a stockyards company for over 36 hours, at the place of destination, but did not show that the employes of the company fed and watered the cattle as it was their duty to do, or that the cattle were not otherwise subjected to conditions causing the injury complained of, the initial carrier was not liable, though the connecting carrier was a partner in the shipment. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 959; Dec. Dig. § 219.*]
139 S.W. 615Beaumont v. Newsome (1911)Dismissed
Appeal from District Court, Potter County; J. N. Browning, Judge. Action .by E. Newsome against M. P. Beaumont and others. Judgment for plaintiff, and defendants appeal.
139 S.W. 617Hudson v. Ft. Worth & D. C. Ry. Co. (1911)Affirmed
Carkieks (§ 318*) — Passen&ers — Injuries — Sufficiency of Evidence — Cause of Accident — “Sun Kink.” Evidence, in a railroad passenger’s action for personal injuries sustained in a derailment, held to sustain a finding that the proximate cause of the accident was a “sun kink,” a creeping together of the rails, which defendant couid not have discovered by the exercise of reasonable care. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307-1314; Dee. Dig. § 318.*]
139 S.W. 618W. C. Bowman Lumber Co. v. Pierson (1911)Reversed and rendered
1. CORPORATIONS (§ 484*) — GUARANTY CONTRACTS — ULTEA Vires.' ' A corporation chartered for the purpose of buying and selling lumber and other building-materials has no power to bind itself as guarantor for the performance by a contractor of a building contract, and such a guaranty is ultra vires. _[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1815; Dec. Dig. § 484.*] 2. Corporations (§ 388*) — Ultra Vires Contracts — Estoppel. A corporation chartered for the purpose of buying and selling lumber and other building materials is not estopped from pleading the invalidity of its act in guaranteeing performance by a contractor of a building contract, where the building materials had been sold by it prior to its undertaking, which was a pure gratuity. [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1557-1567; Dec. Dig. § 388.*]
139 S.W. 618Hudson v. Ft. Worth & D. C. Ry. Co. (1911)Affirmed
Appeal from District Court, Clay County; A. H. Carrigan; Judge. Action by Fred Hudson, by his next friend, against the Fort Worth & Denver City Railway Company. From a judgment for defendant, plaintiff appeals.
139 S.W. 619Smith v. Van Slyke (1911)Modified in part and otherwise affirmed
W. Patterson, Judge. Action by Edgar Van Slyke and others against B'. F. Smith and others. From a judgment for plaintiff and certain defendants ■as stated, defendant B. F. Smith and others appeal. Reversed and remanded in part, with directions. The suit was instituted by Edgar Van Slyke against W. R. Hunt and wife, Mary J. Hunt, B. F. Smith, 6.
139 S.W. 622Guitar v. McGee (1911)Reversed and remanded
1. PRINCIPAL AND AGENT (§ 122*) — DECLARATIONS or Admissions op Agent. Where the authority of plaintiff’s superintendent to employ defendant as manager of a gin during the months of the year when the gin was not in operation was denied, an instruction that, if the jury believed that the superintendent represented himself to be plaintiff's agent, and holding himself out as such, made the contract with defendant, it would be binding on plaintiff was erroneous, as authorizing a finding on mere proof of the superintendent’s representations as to his own agency and authority. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 416^-419; Dec. Dig. § 122.*] 2. PRINCIPAD AND AGENT _(§ 22*) — ACTS OF Agent — REPRESENTATIONS. Declarations or admissions of one wbo assumes to be an agent of another are not of themselves competent to prove agency, and are only admissible to bind the principal if within the scope of the agent’s authority after the agency has been proved. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*] 3. Frauds, Statute of (§ 44*) — Employment Contract. During the year 1906, plaintiff’s superintendent orally employed defendant at a salary of $75 per month while a gin was in operation, and $65 per month while the gin was idle. Defendant continued to manage the gin under such contract until the latter part of February, 1909. Held, that the contract was violative of the statute of frauds, in-so far as it covered the months the gin was not in operation during the season of 1908-1909. [E'd. Note. — For other eases, see Frauds, Statute of, Dec. Dig. § 44.*] 4. Triad (§ 194*) — Instructions—Weight op Evidence. Where defendant claimed that, after the death of plaintiff’s superintendent, by whom he had been employed to operate a gin, another agent, with authority from plaintiff, approved and ratified the old contract of employment for the year 1908-1909, a charge ignoring the necessary requirement that the evidence should show that the ratification and renewal, if any, was such as to substantially amount to a new contract for that year on the terms of the old contract was objectionable as on the weight of the evidence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 439-441, 446-454; Dec. Dig. § 194.*] 5. Principad and Agent (§ 120*) — Evidence —Redevanct. On the issue of an alleged agent’s authority to employ defendant, the fact that such agent had directed another to continue the work under a former contract, and hail instructed him that if he would go to another place and prevent the erection of a gin there he would give him $100, was irrelevant, [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 402-412; Dec. Dig. § 120.*] 6. Evidence (§ 242*) — Agency—Declaration. On the issue of defendant’s employment as manager of a cotton gin during the off season of 1908-1909, evidence by defendant’s wife that on her complaint to plaintiff’s repair foreman that the house needed repairs he stated that defendant was in charge of the work and could make the repairs, as he had to be paid anyway, and that another agent of plaintiff stated in response to witness’ complaint that her husband was in charge of the business and ought to go ahead and fix up the house and charge the same to plaintiff, were inadmissible. [Ed. Note. — For other cases, see Evidence, Dec. Dig. § 242.*] 7. Master and Servant (§ 6*) —Evidence —Redevanct. On the issue of defendant’s employment as plaintiff’s gin manager during the off season of 1908-1909, evidence of a quarrel between plaintiff’s superintendent, by whom defendant claimed he had been employed, and another employs concerning the pay he was to receive during 1908-1909 was irrelevant. [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 6.*]
139 S.W. 625Daugherty v. Powell (1911)Reversed and remanded
Appeal from District Court, Lubbock County ; L. S. Kinder, Judge. Action by James K. Powell against B. E. Daugherty. Judgment for plaintiff, and defendant appeals.
139 S.W. 657Robertson v. Brothers (1911)Affirmed
1. Evidence (§ 159*) — Introductory Evidence. Evidence of the chief clerk of the General Land Office stating the substance of certain documents, copies of which were attached to his answers as exhibits, was merely introductory by way of explanation and identification of the exhibits, and was properly admitted. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 471, 474; Dec. Dig. § 159.*] 2. Evidence (§ 372*) — Ancient Documents— Execution. A letter written by another for defendant to the State Land Commissioner protesting against the floating of a part of the land certificate which had been located on land alloted to defendant, which letter was more than 30 years old at the date of trial, was admissible, without proof of the authority of the person by whom defendant’s name was actually signed. [Ed. Note. — For other cases, see Evidence, Dec. Dig. § 372.*] 3. Evidence (§ 342*) — Record—State Land Office — Letters—“Archive. ” Sayles’ Ann. Civ. S't. 1897, art. 4124, required the Land Commissioner to issue an unlo-cated balance certificate when the location of the original certificate is found to be in conflict with previous claims on the application and affidavit of the rightful claimant of the certificate so located. Held, that a letter written by a claimant of land located on the certificate, protesting against the floating of the certificate on other land so far as it affected the land located and awarded to him, but not objecting to the floating of the balance of the certificate, constituted an “archive” of the Land Commissioner’s Office so that a certified copy of the same was admissible as provided by article 2308. [Ed. Note. — For other cases, see Evidence, Dec. Dig. § 342.* For other definitions, see Words and Phrases, vol. 1, p. 491.] 4. Appeal and Error (§ 1050*) — Admission of Evidence — Prejudice. Error, if any, in the admission of certified copies of certain documents attached to a letter written in defendant’s interest, was not prejudicial to him where he failed to deny the truth of any of the statements contained therein. [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1050.*] 5. Ejectment (§ 90*) — Evidence. Certain land having been located under a certificate from the state, a portion thereof was awarded to defendant in partition proceedings. The other heirs floated the balance of the certificate, and located it on land in another county, defendant, however, refusing to join therein, and electing to retain the land originally awarded to him. Defendant conveyed two tracts of the land so awarded to him, one deed being executed prior to the floating of the certificate and the other subsequent to that date. Held, that such deeds were admissible to show an election on defendant’s part to claim the lands allotted to him, and to disclaim any interest in the portion of the certificate floated by the other heirs. [Ed.- Note. — For other cases, see Ejectment, Dec. Dig. § 90.*] 6. Public Lands (§ 175*) — Location. A land certificate having been located, a portion of the land was allotted to defendant, and he subsequently sold parts thereof to others. The other heirs having applied to the State Land Commissioner to float the certificate, defendant objected so far as it affected the land so awarded to him and a balance certificate was issued to the other heirs which they floated on other land. Held, that such facts established partition of the certificate between defendant and the other heirs, and that he was estopped to claim any part of the land located by them. [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 175.*]
139 S.W. 659Lucas v. Harrison (1911)Reversed and remanded
Action by C. P. Harrison and others against Charles Lucas and others. Defendants removed the ease from justice court to the county court, where it was dismissed, and defendants appeal.
139 S.W. 660Taylor v. Trussell (1911)Affirmed
Appeal from District Court, Childress County; S. P. Huff, Judge. Action by J. J. Taylor against E. E. Trus-sell and others. From a judgment for defendants, plaintiff appeals.
139 S.W. 661Lester v. First State Bank of Bovina (1911)Affirmed
Error from District Court, Randall County; J. W. Browning, Judge. Action by the First State Rank of Bovina and others against D. T. Lester and others. Judgment for plaintiffs, and defendants bring error.
139 S.W. 662Slaughter v. Hardeman County (1911)Affirmed
1. Public Lands (§ 173*) — School Lands and Proceeds — School Purposes. All lands granted to counties for educational purposes and- the proceeds thereof are held, under the express provision of Const, art. 7, § 6, by the county in trust for the free public schools therein, and a county commissioners’ court, which can exercise only such powers as are expressly or by necessary implication conferred upon it by the Constitution or statutes, cannot make a settlement and compromise with a purchaser from a grantee of the county’s school lands who has paid no part of the agreed consideration, and its compromise deed of a part of such lands without other consideration is invalid. [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 173.*] 2. Public Lands (§ 173*) — School Lands— Purchase — Consideration. Where defendant, in trespass to try title, claims under a conveyance of school lands, invalid for want of consideration, and does not plead any equity arising out of the good faith of such conveyance, or offer to pay the consideration formerly agreed upon, he cannot take any benefit from the fact that the conveyance has never been set aside. [Ed. Note. — For other cases, see Public Lands, Dee. Dig. § 173.*]
139 S.W. 665Third Nat. Bank of Springfield v. National Bank of Commerce (1911)Affirmed
P. Greever, Judge. Action by the National Bails of Commerce, doing business in Kansas City, Mo., against the Third National Bank of Springfield, Mass., and others. From a judgment for plaintiff, defendant named appeals.
139 S.W. 674Gulf, C. & S. F. Ry. Co. v. Davis (1911)Reversed and remanded
1. Damages (§ 216*) — Measure for Personal Injuries — Instructions. The instruction in a personal injury action that in case the jury find for plaintiff they will allow such sum in damages as will no-w in cash compensate her for any physical or mental pain suffered by her, or any loss of time, and if they further believe her injuries are permanent they will allow her an additional sum for physical pain and mental anguish in the future, and also for loss of time in the past or in the future, is erroneous ¿s authorizing and directing allowance twice for loss of time in the past. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*] 2. Appeal and Ereos (§ 1068*) — Harmless Error — Instructions. A reversal is necessary where an instruction authorized assessment of damages twice for the same item, and the verdict was general, so that it cannot be said what, if anything, was allowed thereon. " [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4228; Dec. Dig. § 1068.*] 3. Evidence (§ 471*) — Conclusions—Admissibility. Witnesses, who saw one fall, may give their opinion as to whether it was accidental or voluntary ; it being impossible to reproduce the appearances. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471.*]
139 S.W. 676Southwestern Telegraph & Telephone Co. v. Givens (1911)Reversed and remanded
1. Appeal and Error (§§ 285, 289*) — Review —Necessity of Motion for New Trial. Motion for new trial is not necessary that errors of law appearing on the record in overruling demurrers and admitting evidence, may be assigned. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1681^-1696; Dec. Dig. §§ 2S5, 289.*] 2. Telegraphs and Telephones (§ 65*)— Failure to Give Notice of Call — Actio'/ —Petition—Notice of Nature of Message. The petition in an action for mental suffering from failure of a telephone company to notify plaintiff of a call put in for him, must allege, as essential to a cause of action, that the company had notice of the nature of the message desired to be sent to plaintiff. [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-60; Dec. Dig. § 65.*] 3. TELEGRAPHS AND TELEPHONES (§ 65*) — ' Failure to Give Notice ott Gall — Action —Petition. The petition in an action for mental suffering from, failure of a telephone company to promptly notify plaintiff of a call put in for him should allege that, had the message been ■promptly completed, he would have taken a certain train, it having alleged that this would have been necessary in order for him to reach his father’s house in time to see his mother’s remains and attend her funeral. [Ed. Note. — For other eases, see Telegraphs and Telephones, Gent. Dig. §§ 54M30; Dec. Dig. § 65.*] 4. Telegraphs and Telephones' (§ 65*)— Proof — Evidence of Matters Not Pleaded. The petition in an action for mental suffering from failure of a telephone company to promptly notify plaintiff of a call put in for him, not having alleged that the company had notice of the nature of the message desired to bp sent to him, a matter essential to its .liability, it is error to admit, over objection, "evidence that its agents were informed of the nature and purpose of the message; the allegata and probata 'being required to agree. [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 65.*] 5. Telegraphs and Telephones (§ 38*) — Delay in Delivering Message — Contributory Negligence. It is no defense to an action for failure of a telephone company to promptly notify plaintiff of a call put in for him, whereby he was prevented from arriving at his father’s house in time for his mother’s funeral, that he sent his father a telegram stating when he would arrive, and that had the funeral been delayed a few hours he would have arrived in time therefor, but his father directed it to proceed at the time previously set; as his father was not his, agent in the direction of the funeral, but had the right to direct it without consulting him. [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. 38.*] 6. Telegraphs and Telephones (§ 66*)— Delay in Delivering Message — Action-Evidence. The evidence showing only inferentially, at most, when it might show with certainty, that had defendant telephone company delivered to plaintiff his message without unreasonable delay, he would have taken the next train from 0., where he then was, and would have arrived at Iv., sooner than he did, and in time for his mother’s funeral, it showing only when the next train from G. for T. left, but not showing when it arrived at T., the distance from O. to T., the distance from T. to K., the fact that there was any railroad communication between T. and K., or the schedules of the trains, if any, is insufficient to sustain a judgment for plaintiff for mental suffering in not arriving in time for the funeral. [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 66.*]
139 S.W. 721Gurley v. Hanrick's Heirs (1911)Affirmed in part, and in part reversed, with instructions
Munroe, Judge. Action by Nicholas Hanriek and others against E. G. Hanriek and others for partition. From a judgment executing the judgment for partition, E. J. Gurley, one of the defendants, appeals; the heirs of E. G. Han-riek being the appellees.
139 S.W. 883Moorhouse v. King County Land & Cattle Co. (1911)Affirmed
A. P. Dickson, Judge. Action by P. E. Moorhouse against the King County Land & Cattle Company and others. Prom a judgment of dismissal, plaintiff appeals.
139 S.W. 884Ft. Worth & D. C. Ry. Co. v. Morrison (1911)Affirmed
1. Damages (§ 216*) — Personal Injuries— Instructions. An instruction that, if the jury found for plaintiff, they should award him such damages as would compensate him for the injury which they found was the direct and natural result of the negligence complained of and no other, and that in estimating his damages the jury should assess such sum as would reasonably compensate plaintiff for physical pain and mental suffering',’ if any, loss of earnings to the time of the trial, if any, and any such reasonable and necessary expenditures, if any, in and about the cure of his injuries, if any, as the evidence showed he was compelled to incur, etc., and, if the injuries wore permanent, then such additional sums as, if paid in advance, would reasonably compensate him for such incapacity to earn a livelihood in the future in the event that his capacity was diminished by reason of permanent injuries, held not objectionable as authorizing a double recovery for diminished capacity as to future earnings. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*] 2. Damages (§ 216*) — Personal Injuries— Aggravated Disease. An instruction declared that if plaintiff was afflicted with bladder trouble before the accident, and that such affliction was aggravated by the injury, and defendant was liable oil account thereof, then the jury should consider the same in estimating plaintiff’s damages, if any. Held, that it should be construed as authorizing the jury to include in the damages only compensation for the aggravation of the old affliction, and to consider it only for that purpose, and it was therefore unobjectionable. [Ed. Note. — For other cases, see Damages, Cent.- Dig. §•§ 548-553; Dee. Dig. § 216.*]
139 S.W. 885Eastern Ry. Co. of New Mexico v. Montgomery (1911)Judgment reversed as to tbe Eastern Railway Company, and…
Appeal from District Court, Parmer County; D. B. Hill, Judge. Action by J. C. Montgomery against tbe Eastern Railway Company of New Mexico and others. Judgment for plaintiff, anil defendants appeal.
139 S.W. 887Cowan v. Dupree (1911)Injunction dissolved
Counties (§ 1Q5*) — Courthouses—Power to Construct— Statutes. The power of county commissioners to provide for construction of a courthouse otherwise than from a sale of bonds was not abrogated by Acts 26th Leg. c. 149, nor by Acts 28th Leg. (1st Ex. Sess.) e. 4, authorizing issuance of county bonds. [Ed. Note. — For other cases, see Counties, Dec. Dig. § 105.*]
139 S.W. 888Hampton v. Woolsey (1911)Reversed and rendered
1. Master and Servant (§ ISO*) — Injuries to -Servant — “Fellow Servant” — “Operating Railroad.” A contractor to furnish logs to a sawmill over a logging railroad, to which spurs were connected and on which a log skidder was operated solely to haul logs to a point where they could be loaded on cars and transported) to the mill, was a person “operating a railroad” within Sayles’ Ann. Civ. St. 1897, art. 4560k, providing that all persons engaged in the common service of a person operating a railroad in the same grade of employment and together doing the same character of work at the same time and place are “fellow servants,” and that employes who do not come within such provisions are not fellow servants. [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 180.* For other definitions, see Words and Phrases, vol. 3, pp. 2716-2730; vol. 8, p. 7662; vol. 6, pp. 4989-4992.] 2. Master and Servant (§ 181*) — Injuries to Servant — “Fellow Servant” — Railroads. Defendant operated a steam log skidder, consisting of a flat car, on each end of which were disconnected engines operating separate skidding cables. Plaintiff, who was employed as a decker in the crew attached to one of the cables, was injured by being struck 'by a log negligently moved by the order of the decker connected with the other cable. Held, that plaintiff and such other decker were not engaged at the same piece of work at the time of the injury and, were therefore not “fellow servants” within Sayles’ Ann. Civ. St. 1897, art. 4560k. [Ed. Note. — For other cases, see Master and Servant, Cent.Dig. §§ 369, S70; Dec.Dig. § 181.*] 3. Master and Servant (§ 180*) — Injuries to Servant — “Fellow Servant” — Railroads. Defendant, pursuant to a contract to furnish logs for a mill, used a logging railroad and certain extra spur tracks to which the logs were hauled by means of a steam skidder. Plaintiff and B., by whose negligence plaintiff was injured, were employed to take logs as they were hauled by two disconnected engines and skid cables to the edge of the spur track. Neither plaintiff nor B. had anything to do with the movement of the skidder. Plaintiff was injured by being struck by a log negligently moved by the orders of B. Held that, since the employment of both plaintiff and B. had nothing to do ■with the operation of the railroad, they were “fellow servants,” and were not within Sayles’ Ann. Giv. St. 1897, art. 4560h, defining fellow servants in the employ of person operating a railroad. [Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 180.*]
139 S.W. 894London Guarantee & Accident Co. v. City of Beaumont (1911)Affirmed
Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge. Action by the London Guarantee & Accident Company, Limited, against' the City of Beaumont. From a judgment for defendant, plaintiff appeals.
139 S.W. 897Ripley v. Wenzel (1911)Affirmed
Appeal from District Court, Harris County; J. C. Hutcheson, Jr., Special Judge. Action by C. C. Wenzel against Daniel Ripley. Judgment for plaintiff, and defendant appeals.
139 S.W. 900Odom v. Odom (1911)Reversed and rendered
Error from District Court, Tyler County; W. B. Powell, Judge. Action by Pleasant Odom against Ocia Odom to set aside a conveyance of realty for fraud. From a decree for complainant, defendant brings error.
139 S.W. 902Houston, E. & W. T. Ry. Co. v. Eddings (1911)Affirmed
Appeal from District Court, Angelina County; James I. Perkins, Judge. Action by J. P. Eddings against the Houston, East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals.
139 S.W. 904Davidson v. Lee (1911)Affirmed
1. Damages (§ 49*)— Mental Suffering — Willful Injury. The rule that damages are not recoverable for mental suffering unaccompanied by physical injury is inapplicable, where the wrong complained of is a willful one, intended by the wrongdoer to produce mental anguish, or from which such result should be reasonably, anticipated. [Ed. Note.—For other cases, see Damages, Cent. Dig. § 100; Dec. Dig. § 49.*] 2. Assault and Battery (§ 38*)—Damages— Mental Suffering—Willful Injury. A creditor, who unlawfully restrained in his rooms the person of the debtor, and who, by the use of a deadly weapon in a threatening manner, coupled with abusive language and a verbal threat to kill him, caused the debtor to suffer humiliation and fear for his personal safety, isi liable for the mental suffering caused thereby, though no battery was committed. [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig, § 53; Dec. Dig. § 38.*] 3. Evidence (§ 123*)—Res Gestas. Statements by a debtor, who had been unlawfully restrained and threatened by his creditor, made to his wife immediately after the occurrence and to a third person about 10 minutes later while he was laboring under excitement and mental distress, are admissible as a part of the res gestse in an action against the creditor for false imprisonment and assault. [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.*]
139 S.W. 908Taylor v. Lee (1911)Reversed
1. Justices of the Peace (§ 174*) — Appeal— Jurisdiction. Under Const, art. 5, § 19. fixing the jurisdiction of justices in civil matters at not to exceed $200, exclusive of interest, and providing for appeals in cases where the judgment is for more than $20, exclusive of costs, and Rev. St. 1895, art. 1294, providing that all eases brought to the district and county courts from inferior courts by appeal shall be tried de novo, an appeal from a justice of the peace cannot confer on thei appellate court a jurisdiction which the justice did not possess, and hence it was error on an appeal by plaintiff to permit him to amend so as to state a cause of action for an amount beyond the jurisdiction of the justice. [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*] 2. Justices oe the Peace (§ 190*) — Appeal— Jurisdiction. Where, on appeal from a justice, plaintiff erroneously amended so as to state a cause of action for an amount beyond the justice’s jurisdiction, and for this reason a judgment in his favor was reversed, he was entitled on remand to reduce his claim to the amount within the justice’s jurisdiction. [Ed. Note. — For other cases, see Justices of the Peace, Dec. Dig. § 19Ó.*] 3. Fixtures (§ 29*) — 'Sale — Constructive Severance. ■ Where the owner of a house,. on leasing it to another, sold to him certain mirrors in place on the walls, chandeliers, etc., capable of being removed without material injury to the realty, such sale of itself operated as a constructive severance, making the property personalty, if it ever had been so attached as to be part of the realty. [Ed. Note. — For other cases, see Fixtures, Dec. Dig. § 29.*] 4. Fixtures (§ 7*) — Mirrors—Chandeliers. Mirrorá attached to the wall by hooks and chandeliers merely screwed in place and susceptible of removal without injury to the realty were removable fixtures. [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 7-13; Dec. Dig. § 7.*] 5. Fixtures (§ 9*) — Right to Remove— Bona' Fide Purchaser. Where, prior to plaintiff’s purchase of a house containing certain mirrors, chandeliers, etc., in place, which had been sold to the tenant, plaintiff.was shown over the house by the tenant and his wife, who made no claim to the fixtures, which from their character and the manner in which they were attached, and from correspondence with the general design of the house, indicated that they were a part of it, so that plaintiff was led to believe he was buying them as a part of the house and had no knowledge of their sale to the tenant, plaintiff1 I would be entitled to hold them as against the tenant as an innocent purchaser. .[Ed. Note. — For other cases, see Fixtures, Dec. Dig. § 9.*]
139 S.W. 911Dillingham v. Kerr (1911)Reversed and rendered
1. Vendor and Purchaser (§§ 93, 97*) — Contracts — Forfeiture—Waiver. A bond for title, executed by the vendor before acquisition of patent, recited that the title should be made when the purchase money was paid and patent issued. The purchaser paid a part of the price in cash, and executed notes for the balance, payable at a future date. Meld, that the vendor could demand payment of the notes at maturity, and on the purchaser’s failure to pay he could elect to rescind the contract; but, where he waived payment by failure to demand at maturity, the right to rescind could not be exercised without first tendering a proper deed, and demanding payment. [Ed. Note. — Por other cases, see Vendor and Purchaser, Dec. Dig. §§ 93, 97.*] 2. Vendor and Purchaser (§ 101*) — Contracts — Foroteiture—Waiver. When a vendor taking notes of the purchaser for the price suffered default in payment without complaint, and subsequently treated the contract as continuing, he could thereafter revive his right to rescind only on notice of his purpose, giving the purchaser a reasonable time m which to comply. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. §§ 170-174; Dec. Dig. § 101.*] 3. Vendor and Purchaser (§ 95*) — Contra cts — Forfeiture—W ai ver. Where a vendor waived payment of the price at maturity, and thereafter treated the contract as continuing, and his heirs sued for the land in possession of the purchaser without tendering performance, the purchaser could tender the money due, with interest from maturity, and thereby prevent a forfeiture, no matter how long he had been in default. [Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 95.*]
139 S.W. 913South Texas Lumber Co. v. Concrete Const. Co. (1911)Reversed and remanded
P. Hamblen, Judge. Action by the Concrete Construction Company and others against the South Texas Lumber Company and others. Judgment for plaintiffs, and defendant lumber company and B. W. Armstrong appeal.
139 S.W. 917Southern Pine Lumber Co. v. Arnold (1911)Affirmed
Perkins, Judge. Action by R. P. Arnold and others against the Southern Pine Lumber Company inter-pleading J. E. Stephenson and others. From a judgment for plaintiffs, defendant and certain of the interpleaders appeal.
139 S.W. 924Denson v. Taylor (1911)Dismissed
Appeal from Anderson County Court; O. C. Funderburk, Judge. Action by W. F. Denson and others against J. D. Taylor. Judgment for defendant, and plaintiffs appeal.
139 S.W. 924Brown v. Tucker (1911)Dismissed
Appeal and Error (§ 387*) — Filing Bond-Time. Where a judgment was rendered during a term which ended March 5, 1910, and the appeal bond was not filed until April 22d following, the appellate court did not acquire jurisdiction, and the appeal will be dismissed, under Sayles’ Ann. Civ. St. 1897, art. 13S7, requiring such bond to be filed within 20 days after the expiration of the term. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 206A-2070; Dec. Dig. § 387.*]
139 S.W. 924Clay County Oil & Pipe Line Co. v. Markowitz (1911)Affirmed
Appeal from District Court, Clay County; A. H. Carrigan, Judge. Action by Julius Markowitz against the Clay County Oil & Pipe Line Company and another. From a judgment for plaintiff, defendant company appeals.
139 S.W. 925Ikland v. Ikland (1911)Affirmed
1. Trial (§ 262*) — Instructions—Applicability to Evidence. The court should not charge on a question raised by the petition, unless there is evidence tending to prove the allegations. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 696; Dec. Dig. ■§ 252.*] 2. Evidence (§ 317*) — Hearsay. A question as to what reason a third person, who directed witness to notify a tenant to vacate, assigned for his action called for hearsay evidence, and was properly excluded. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 117A-1192; Dee. Dig. § 317.*] 3. Appeal and Eeeoe (§ 1002*) — Verdict— Con clusi veness. A verdict on conflicting evidence is conclusive on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig: §§ 3935-3937; Dec. Dig. § 1002.*] 4. NEiy Trial (§ 102*) — Newly Discovered Evidence — Diligence. A new trial for newly discovered evidence was properly refused, where the application did not show any diligence to discover it, or why it was not known to applicant in time to be available at trial. [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 210-214; Dec. Dig. § 102.*]
139 S.W. 926Wells Fargo & Co. Express v. Mitchell (1911)Reversed and remanded
1. Carriers (§ 133*) — Loss During Transportation — Evidence—Admissibility. In an action against a carrier for the death of chickens smothered while carried in an ordinary express car, the admission of evidence that, after the shipper had complained of the loss, the carrier began to use another kind of a car for like shipments, was error, though the trial occurred more than 2% years after the loss, and though it did not appear that the change was not made until long after the loss. [Ed. Note — For other cases, see Carriers, Dec. Dig. § 133.*] 2. Appeal and Error (§ 1050*) — Harmless Error — Erroneous Admission of Evidence. Unless the appellate court can say that testimony improperly admitted did not prejudice the rights of the complaining, party, the judgment must be reversed. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-1160; Dec. Dig. §• 1050.*]
139 S.W. 927Ft. Worth & D. C. Ry. Co. v. Worsham (1911)Affirmed
Appeal from District Court, Clay County; A. H. Carrigan, Judge. Action by W. B. Worsham against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
139 S.W. 984Perrett v. Wegner (1911)Affirmed in part, and reversed and rendered in part
G. Street, Judge. Suit by W. H. Perrett against Ernst Weg-ner to try title to the office of chief of police of the city of Galveston. Judgment for defendant, and plaintiff! appeals.
139 S.W. 989Pettithory v. Clarke Courts (1911)Reversed and remanded
1. Trial (§ 233*) — Instructions—Requests. A party is entitled to a special charge supplementing the general charge stating in general terms the law applicable to the issue by applying the general principles to the particular facts relied on, but it is improper to give special charges merely restating in different language the propositions of the general charge. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.*] 2. Trial' (§ 229*) — Instructions—Undue Emphasis op Issues. The giving of special charges presenting in different language the law of the general charge is ground for reversal only when it appears that by the repetition the court gave undue prominence to particular features of the case, thereby invading the province of the jury. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.*] 3. Trial (§ 229*) — Instructions—Undue Emphasis of Issues. The giving of special charges on the issue of contributory negligence, and thereby merely repeating the general charge denying a recovery on the ground of contributory negligence, is ground for reversal 'because giving undue prominence to such issue. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.*] 4. Trial (§ 296*) — Erroneous Instructions —Curing by Other Instructions. The error in a special charge on assumed risk of a servant who had complained of defects of a machine at which he worked and had been told that the defects were remedied, that if the defects were open to common observation and known to the servant, or in the exercise of his knowledge should have been known, and he continued to work until injured, he assumed the risk, because authorizing the jury to deny a recovery on the mere fact of knowledge of the defects, was not cured by a correct charge qualifying the defense' by giving due recognition to the proof of his complaint of defects and of the fact that he had been informed that they had been remedied. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716; Dec. Dig. § 296.*]
139 S.W. 991McFaddin v. State (1911)Affirmed
Action (§ 55*) — Consolidation—Discretion of Trial Court. Refusal to consolidate actions under Sayles’ Ann. Civ. St. 1897, arts. 5232a-5282q, for tbe collection of delinquent taxes on separate tracts assessed in separate assessments either to third persons as owners or to unknown owners, brought in the same court on the same day, against one claiming to own all the tracts at the time of the commencement of the actions, is not an abuse, of discretion conferred by article 1454, authorizing the court, in its discretion, to consolidate actions. [Ed. Note. — For other cases, see Action, Dec. Dig. § 55.*]
139 S.W. 992Houston Ice & Brewing Co. v. Tiemer (1911)Reversed and rendered
Error from District Court, Harris County; Norman G. Kittrell, Judge. Action by Paul Tiemer against the Houston Ice & Brewing Company. There was judgment for plaintiff, and defendant brings error.
139 S.W. 996W. T. Wilson Grain Co. v. Central Nat. Bank (1911)Reversed and remanded
1. Depositions (§ 107*) — Objections to Evidence — Manner oe Taking. Where the receiving teller of a bank testifying by deposition stated that he had credited on the bank’s books an amount in favor of a customer on a certain date and attached the customer’s bank book to his deposition as an exhibit which showed the credit, an objection to the admission in evidence by the opposite party of the condition of the account on a subsequent date was an objection to the form and manner of taking the deposition, and under Sayles’ Ann. Civ. St. 1897, art. 2289, it could only be made in writing on notice before trial. [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 309-319; Dec. Dig. § 107.*] 2. Evidence (§ 354*) — Documentary Evidence — Admissibility — Bank Deposit Book. Where defendant bank introduced in evidence the original bank deposit book of its depositor, and showed that it contained a correct statement of the account between the bank and its depositor, plaintiff was entitled to introduce the entries in the book in evidence to show that, at the time payment of a draft was refused by defendant bank, which draft had been drawn on a consignment by plaintiff to the depositor and discounted by the bank,_ the amount of such deposit stood to the credit of the depositor. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. § 354.*] 3. Carriers (§ 58*) — Bill oe Lading — Transfer with Draft foe Price — Title Acquired. A transfer by a consignor to a bank of a bill of lading of goods consigned to a purchaser of the consignor and a draft on the purchaser, followed by payment by the bank of the draft to the consignor by crediting the amount thereof to the depositor, placed the legal right to possession of the property in the bank subject to the duty to deliver to the purchaser on his payment of the draft, but the bank could not use the legal title to enable the consignor to defeat the collection by the purchaser of a debt due him from the consignor. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 58.*]
139 S.W. 1000Wichita Cotton Oil Co. v. Hanna (1911)Affirmed
1. Master and Servant (§ 289*) — -Injuries-Jury Question. In an employé’s action for personal injuries. by having his hand caught in the saws while cleaning cotton from a gin stand, whether plaintiff knew of the danger to which he ’was exposed held a jury question. [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 289.*] 2. Master and Servant (§ 287*) — Fellow Servant — Existence of Relation. When plaintiff was employed as a “packer” to assist in operating a cotton gin stand, he was told that he was to help at the gins when they were choked up, and the employé in charge of the gin stands was directed to call on other employés to help him when the stands were choked; but he had no power to employ and discharge any employés. Held, in an action for personal injuries to plaintiff’s hand in cleaning a gin stand, that it was a question for the jury whether the employé in charge of the gin stands was plaintiff’s vice principal. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1062-1067; Dec. Dig. § 287.*] 3. Master and Servant (§ 189*) — Vice Principal. It is not essential that one have the power to employ and discharge employés, in order to be a vice principal. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427 — 148; Dec. Dig. § 189.*] 4. Damages (§ 216*) — Personal Injuries— Instructions. In an employe's action for personal injuries, the court instructed that, in estimating plaintiff’s damages, the jury might consider such sum, if now paid, as would compensate him for any loss of time sustained by his diminished earning capacity, and such sum as would compensate him for physical or mental pain, and reasonable compensation for necessary medical expenses. Plaintiff’s hand was cut off in the accident, rendering him incapable of following his regular trade, from which he usually earned $80 to $85 a month, and he testified that since his injuries-he had been able to find but little employment. The evidence sustains a finding that he will suffer mental a,nd physical pain because of his injuries. Held, that the instruction did not affirmatively impose any burden upon defendant for which it was not responsible under the evidence. [Ed. Note. — For other cases, see Damages, Cent. Dig. §| 548-555; Dec. Dig. § 216.*]
139 S.W. 1002Granger v. Kishi (1911)Reversed and remanded
Appeal from District Court, Orange County; W. B1. Powell, Judge. - Action by Tresimore Granger against IC. Kishi. From a judgment dismissing the action, plaintiff appeals.
139 S.W. 1004Sanders v. Thompson Bros. Lumber Co. (1911)Affirmed
B. Powell, Judge. Action by S. A. ganders and wife against the Thompson Bros. Lumber Company, in which defendant filed a cross-complaint. From a judgment for plaintiffs upon one issue and otherwise for defendant, plaintiffs appeal.
139 S.W. 1007Hunt v. Wright (1911)Affirmed
Appeal from District Court, Anderson County; B. H. Gardner, Judge. ' Action by George A. Wright against Joe Hunt and wife. From a judgment for plaintiff, defendants appeal. •
139 S.W. 1009Gulf, C. & S. F. Ry. Co. v. Kennedy (1911)Affirmed
1. Master and Servant (§ 289*) — Injuries to Servant — Actions — Evidence — Jukt Question. In an action against a railroad company for the death of a servant, killed under a car, held, that whether a sensible or experienced man would have worked under the car under the same circumstances was, under the evidence, a question for the jury. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*] 2. Teial (§ 194*) — Injuries to Servant — Actions — Instructions. Where a servant of a railroad company was killed by the falling of a car which was raised upon jacks, because of the breaking of a timber upon which one of the jacks rested, and it was an issuable fact whether the servant was negligent in using that timber, a charge that, if the falling of the car was caused by the breaking of the timber, there could be no recovery, was properly refused, being in effect a peremptory instruction. [Ed. Note. — For other cases, see Trial, Cent. Dig. §| 439-441, 446-454; Dec. Dig. § 194.*] 3. Master anb Servant (§ 233*) — Injuries to Servant — Appliances. Where it was customary in a railroad repair yard to raise cars by jacks, and though timbers were needed for rests the railroad company supplied no particular ones, but allowed its servants to use anything in the yard apparently sound and suitable, the use of any apparently sound timber by a servant was not negligence; the company having supplied such timber for that purpose. [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 233.*] 4. Master and Servant (§ 294*) — Injury to Servant — Actions — Instructions — Applicability to Evidence. One of two car repairers, who together raised a car and were repairing a defect underneath, was injured. The two worked together in all matters, save that the uninjured repairer selected a timber upon which to rest the jack used for raising the car. Though this timber broke, it was apparently sound in all respects. Held, that a charge as to the rule of fellow servant’s negligence was inapplicable to the evidence. [Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 294.*] 5. Master and Servant (§ 295*) — Injuries to Servant — Assumption oe Risk. Under the direct provisions of the act of 1905 (Acts 29th Leg. c. 163), an employs of a railroad company does not assume the risk of a known danger, where a person of ordinary care would have continued in the service with knowledge of the defect and danger, and hence, where an employs was killed as the result of an apparent risk, and the evidence was conflicting whether an ordinarily prudent man would have continued at work, knowing the risk, that qualification was properly submitted in the charge upon assumption of risk. [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 295.*] 6. Trial (§ 260*) — Instructions — Instructions Covered by Others. A requested charge covered by the charge as given is properly refused. [Ed. Note. — For other cases, see Trial, Cent. Dig. §•§ 651-659; Dec. Dig. § 260.*] 7. Pleading (§ 244*) — Amendment of Pleadings — Necessity. Where special exceptions are sustained to a petition, those parts affected are eliminated; but plaintiff need not amend if the remainder of the petition states a cause of action. [Ed. Note. — For other cases, see Pleading, Dec. Dig. § 244.*] 8. Appeal and Error (§ 236*) — Presentation of Grounds of Review in Court Below — Necessity. Where special exceptions to a petition were sustained, and the plaintiff failed to amend, defendant cannot, on appeal, object to such failure, not having moved below to require plaintiff to amend his petition so as to conform to the court’s ruling. [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 1384, 1385; Dec. Dig. §■ 236.*] 9. Master and Servant (§ 270*) — Injury TO' Servant — Customary Equipment — Evidence. In an action against a railroad company for the death of a servant, killed while repairing a car which had been raised on jacks, evidence as to the appliances used by other railroads in supporting cars set up for repairs is admissible. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 921; Dec. Dig. $ 270.*] 10. Appeal and Error (§ 1058*) — Review-Harmless Error. The exclusion of evidence afterwards admitted is harmless error. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4200-4206; Dec. Dig. § 1058.*]
139 S.W. 1015Montgomery County Development Co. v. Miller-Vidor Lumber Co. (1911)Affirmed
B. Hightower, Judge. Trespass to try title, with an application for a temporary injunction by the Montgomery County Development Company against the Miller-Vidor Lumber Company. From an order denying an injunction, plaintiff appeals.
139 S.W. 1020Western Union Telegraph Co. v. Moore (1911)Reversed and rendered
1. TELEGRAPHS AND TELEPHONES (§ 66*) — Actions — Sueeiciency op Evidence — Foreign Law. Evidence, in an action against a telegraph company for nondelivery of a message, held to show that under the laws of California, where the contract was made, plaintiff is not entitled to recover damages for mental anguish caused by nondelivery. [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 66.*] 2. Courts (§ 95*) — What Law Governs. The decisions of the courts of a state where a contract was made, construing its statutes and deciding what its law is on a given subject, are binding when the same questions are raised in other states on an attempt to enforce the contract. [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 322, 323; Dec. Dig. § 95.*] 3. Telegraphs and Telephones (§ 27*) — Actions — What Law Governs — Place oe Contract. The rule that the rights and liabilities of parties to a contract are determined by the lex loci contractus applies to contracts for transmitting telegrams. [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 27.*] 4. Telegraphs and Telephones (§ 27*)— Contracts — Construction. P. telegraphed plaintiff from California, stating that their mother had died that day, and that plaintiff’s sister would 'bring her to the town of C., and that he would wire plaintiff when arrangements were completed, and two days thereafter plaintiff in Texas telegraphed P. to wire him when his sister started, her route, and the arrangements in C., and in answer to that telegram P. on the same day delivered a message addressed to plaintiff stating that his sister and mother left “tonight,” giving the route, etc., which latter message was never delivered. Held, that the several telegrams constituted separate contracts, so that it could not be claimed that they constituted an entire contract made in Texas and gave the right to recover under the laws of Texas for failure to deliver the last telegram referred to, which was delivered for transmission in California. [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 27.*]
139 S.W. 1024Hess v. Schaffner (1911)Reversed and remanded
G. Krueger, Judge. Action by F. C. Schaffner against Henry Hess and others. Judgment for plaintiff, except as to defendant Damek, and the other defendants appeal.
139 S.W. 1027Grigsby v. Reib (1911)Affirmed
1. Marriage (§ 50*) — Common-Law Marriage— SUFFICIENCY OP EVIDENCE. Evidence, in an action to recover personalty belonging to a decedent on- the ground that plaintiff was his common-law wife, Jichi to sustain a finding that she made no agreement to become decedent’s wife, or that any agreement made was not made in good faith with intention to cohabit thereunder. [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. § 50.*] 2. Trial (§ 203*) — Instructions—Duty to Instruct. It is the court’s duty to submit an issue raised by the evidence to the jury. [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 477-479; Dec. Dig. § 203.*] 3. Marriage (§ 20*) — Common-Law Marriage — Elements . A mere agreement to become husband and wife without a present intention to assume that relation does not constitute • a marriage; it being essential that the parties in good faith bind themselves to live apart from all others during their joint lives. [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 12-14; Dec. Dig. § 20.*] 4. Marriage (§ 11*) — Validity—Existence op Former Marriage. An agreement to live together as husband and wife, made during the lifetime of tlie wife of one of the parties, was void, and could not constitute a marriage. [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 30; Dec. Dig. § 11.*] 5. Marriage (§ 20*) — Common-Law Marriage — Definition . A valid marriage may be entered into by a mutual agreement between two competent parties, whereby they presently contract to become husband and wife and mutually promise to continue that relation during their joint lives, and cohabit, and assume the other duties of husband and wife; but a mere agreement between- a man and a woman to be husband and wife without presently assuming that relation is insufficient. [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 12-14; Dec. Dig. §, 20.*] 6. Appeal and. Error (§ 1066*) — Harmless Error — Instructions. Any error in a charge, requiring the contracting parties to have lived together pursuant to their agreement in order to constitute a common-law marriage, was not prejudicial to one claiming the property of a decedent under a marriage by private agreement with him, where her evidence was that they cohabited as husband and wife under their agreement to assume that relation, especially where the jury found against the existence of the marriage. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §-4220; Dec. Dig. § 1086.*] 7. Trial (§§ 261, 267*) — Instructions — Request. The court must give a requested charge without modification-, and where the charge requested, consisting of separate subdivisions defining distinct conditions -of fact essential to be found, contains a subdivision which is erroneous as applied to the facts, the court may refuse the whole charge, though it may modify it by eliminating the erroneous subdivision. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 660, 668-672; Dec. Dig. §§ 261, 267.*] 8. Marriage (§ 11*) — By Agreement op Parties — Evidence—Competency. Since an agreement to live together as husband and wife, made while one of the contracting parties had a wife living, was void, neither such agreement nor the conduct of the parties pursuant thereto before the death of the wife of such contracting party could be considered in determining whether the contracting parties made a valid contract of marriage after the death of the wife of such contracting party. [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 30; Dec. Dig. § 11.*] 9. Marriage (§ 42*) — Marriage by Mutual Agreement — Evidence.— Character op Agreement. The general reputation of a woman for chastity and the reputation, as a house of assignation, of the house in which she and her alleged husband are claimed to have resided, are admissible in evidence on her claim of a marriage by mutual agreement on which she based a claim to property of the alleged husband. [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 70, 78; Dec. Dig. § 42.*] 10. Evidence (§ 474*) — 'Opinion Evidence-Conclusions. The conclusions of a nonexpert witness are not admissible, and a witness who had merely had a talk with another at a certain house was not entitled to testify that such house was the home of such other. [Ed." Note. — For other cases, see Evidence, Dec. Dig. § 474.*] 11. Wills (§ 384*) — Probate—Appeal. Where plaintiff’s application to annul an order probating a will, and her applications to withdraw the estate from administration and for an allowance as widow in lieu of exempt property, were separate proceedings taken _ at different times, her appeal from orders denying the applications to withdraw the estate from administration and for an allowance did not raise for review the order refusing to annul probate. [Ed. Note. — For other cases, see Wills, Dec. Dig. § 384.*] 12. Wills (§ 371%*) — PeobatevVacation. Even if appeal from orders denying applications to withdraw an estate from administration and for an allowance to plaintiff as widow, in lieu of exempt property, which applications were made at different times from an application to annul probate, would raise for review an order refusing to annul probate, the order of probate was not vacated by dismissal of the appeal from the orders denying the applications to withdraw from administration and for an allowance. [Ed. Note. — For other cases, see Wills, Dec. Dig. § 371%.*]
139 S.W. 1033Mitchell v. Stanton (1911)Affirmed
Appeal from District Court, Victoria County; Jno. M. Green, Judge. Action by William E. Stanton against O. Mitchell and another. From a judgment for plaintiff, defendants appeal.
139 S.W. 1040Pickens v. Major (1911)Reversed and remanded
Appeal from District Court, Ellis County; S. P. Skinner, Special Judge. Action by B. D. Pickens against W. W. Major and others. Judgment for defendants, and plaintiff appeals.
139 S.W. 1042Texas Traction Co. v. Bogue (1911)Reversed and rendered
1. Steeet Railroads ('§ 88*) — Operation by Different Companies — Collision — Contributory Negligence. Where a street railway motorman operated his car at night at a high rate of speed in violation of the rules of his company, when he knew that a car operated by another company on the same track had turned out of a cross-street onto the track ahead of him, and came into collision with such car as it had slowed down to pass another car going in the opposite direction, plaintiff was negligent as a matter of law, which precluded a recovery for his injuries sustained, against the owner of the car with which plaintiff collided. [Ed. Note. — Por other cases, see Street Railroads, Dec. Dig. § 88.*] 2. Street Railroads (§ 98*) — Collision—Injuries — Rules—Application. Where a street railway motorman was injured by operating his own car in violation of the rules of his employer causing a collision with a car of another company operated in the same direction in front of plaintiff’s car at night, the other company could plead plaintiff’s contributory negligence in violating the rules of his own company as constituting contributory negligence; the observance of such rules being essential to the safe operation of the cars of both companies over the same line. [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 204% ; Dec. Dig. § 98.*]
139 S.W. 1046Southwestern Ry. Co. v. Bradford (1911)Affirmed
Appeal from District Court, Clay County; A. H. Carrigan, Judge. Action by C. E. Bradford against the Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. The owners of the land had laid out and platted the present town of Halsell into lots and streets and dedicated the streets to public use. A roadway used by the public for several years prior to the dedication crosses a part of one of the streets, and such part of the street is still so used by the public. The platted street extends up to and on each side of appellant’s railway track. The road crosses the right of way and track of appellant, and the appellant has recognized it as a crossing for the public and maintained it as such since the construction of its railway about two years before the trial. Appellee lived about 250 yards from the crossing. At the time of the injury appellee was returning from his ranch, driving a wagon and team. The wagon had some fence posts in it. The crossing was reached a little after dark. At the crossing the rails and part of the ties were above the surface of the ground, and the roadbed between the rails had worn away. On account of the condition of the crossing, the appellee, who was standing in the wagon while driving across it, was, while driving across the track, thrown suddenly and violently out of the wagon, -and sustained severe injury. Claiming that he had received his injury because of the defective and negligent manner in which appellant had maintained a public crossing, the appellee sued for damages. Appellant answered by denial and plea of contributory negligence. All issues of fact were decided by the jury against the contention of appellant, and the evidence warrants the finding that appellant was guilty of negligence as pleaded proximately causing the injury, and that appellee was not guilty of contributory negligence, and for the amount awarded.
139 S.W. 1049Pecos & N. T. Ry. Co. v. Crews (1911)Affirmed
1. Appeal and Error (§ 681*) — Record. It cannot be said there was error in overruling the exception to the amended petition that it claimed damages to cattle not mentioned in the original petition, and for which no damages were there claimed, the amended petition not showing such fact, and the original petition not appearing in the record, as the evidence introduced at the trial may not be looked to on that question. [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 681.*] 2. Pleading- (§ 380*) — Evidence Admissible under Pleadings — Amendment of Petition. The petition on which trial is had¡ and not one in lieu of which, by amendment, it stands, is determinative of whether evidence is admissible. [Ed. Note. — For other cases, see Pleading, Dec. Dig. § 380.*] 3. Limitation of Actions (§ 182*) — Pleading Statute. That the statute of limitations may be availed of, it must be pleaded. [Ed. Note. — For other cases, see Limitation of Actions, Dec. Dig. ■§ 182.*] 4. Carriers (§ 180*) — Interstate Commerce —Limiting Liability of Initial Carrier. The clause in a contract of interstate shipment, limiting the liability of the initial carrier to its own lines of railway, contravenes Act Cong. June 29, 1906, c. 3591. § 7, 34 Stat. 593 (U. S. Comp.. St. Supp. 1909, p. 1167). [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 180.*] 5. Carriers (§ 218*) — Contract of Shipment —Provision as to Notice of Damages. The clause in a contract of shipment, requiring the shipper to give notice to the carrier of any claim of damages within 91 days after the claim accrues, not only does not apply to damages accruing before execution of the contract, through delay in furnishing cars, but is not binding as to. subsequent damages, if the shipper was not given opportunity to ascertain that it was embodied in the writing, and knew nothing of it prior to his stock being loaded and started en route. [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 218.*] On Motion for Rehearing. 6. Appeal and Error (§ 1053*) — Harmless Error — Admission of Evidence. The court, in an action for damages to a shipment of cattle, having expressly excluded from the jury any damage that may have accrued after their delivery at destination, any error in admission of evidence as to their condition after being subsequently taken to another place was harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.*] 7.Carriers (§ 229*) — Delay in Transportation — Damages. It being proved, in an action for delay in transporting cattle, that there was no market of the cattle at their destination; and there being evidence of their real or intrinsic value there, the jury are properly charged to find as damages the difference between their intrinsic value when, but for the carrier’s negligence, they would have arrived there, and such value when they were actually delivered. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]
139 S.W. 1052Texas N. O. R. Co. v. Wallace (1911)Reversed and remanded
Appeal from District Court, Henderson County; B. EL Gardner, Judge. Action by B. C. Wallace against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.
139 S.W. 1053Morris v. Shuttles Bros. & Lewis (1911)Reversed and remanded
Appeal from Dallas County Court; W. M.' Holland, Judge. Action by R. A. Morris against Shuttles Brothers & Lewis. Judgment for defendant, and plaintiff appeals.
139 S.W. 1054McLennan County v. Boggess (1911)Reversed and rendered
Justices oe tiie Peace (§ 16*) — Commissions on Fines — Statutes. Code Cr. Proc. 1895, art. 1144, allowing an officer collecting money for the state or county 5 per cent., does not authorize more than one commission for fines collected in justices’ courts, and a justice retaining 5 per cent, of the fines collected cannot pay the constable 5 per cent., but he must pay the district or county attorney 10 per cent, as required by article 1143, and pay 85 per cent, to the county. [Ed. Note. — For other cases, see Justices of the Peace, Dec. Dig. § 16.*]
139 S.W. 1055Brooks v. Wynn (1911)Affirmed
1. Landlord and Tenant (§ 228*) — Action for Rent — Parties. In an action for rent, the tenant’s wife and _ stepchildren, who had a remainder interest in the title after the death of plaintiff, who was entitled to possession of the property for life, were neither necessary nor proper parties. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 894-903; Dec. Dig. 228.*] 2. Landlord and Tenant (§ 223*) — Action for Rent — Set-Off—Evidence—Improvements. In an action for the rental value of certain property for a year during which defendant held over as tenant without the consent of plaintiff, evidence as to improvements made on the property by defendant and as to his purchase of a tenant, house with a view of placing it on the property was inadmissible, not being a proper subject of set-off in the absence of agreement. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 885-893; Dee. Dig. § 223.*] 3. Life Estates (§ 25*) — Lease—Action for Rent — Defenses. Where plaintiff as life tenant was entitled to the possession and proceeds of the property in question, the fact that defendant had married the widow of the remainderman, and thereby became the stepfather of two of his minor children, was not material in an action by the plaintiff for rent during the year which defendant held over. LEd. Note. — For other cases, see Life Estates, Dec. Dig. § 25.*]
139 S.W. 1161St. Louis S. F. R. Co. v. Casselberry (1911)Affirmed
Appeal from District Court, Grayson County; B. L. Jones, Judge. Action by J. W. Casselberry against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals.
139 S.W. 1162Gilmore v. O'Neil (1911)Reversed and remanded
E. Ashe, Judge. Action by G. B. Gilmore and others against John O’Neil and others. From a judgment in favor of defendant O’Neil for the land in controversy and for the proceeds of certain oil in the hands of a bailee, plaintiffs appeal.
139 S.W. 1166John E. Morrison Co. v. Harrell (1911)Motion granted
Action between the John E. Morrison Company and J. E. Harrell. Said company, which appealed, moves for permission to file briefs.
139 S.W. 1166Gibbs v. Eastham (1911)First motion overruled
Higgins, Judge. Action between J. D. Gibbs and L. C. East-ham. Prom the judgment, Gibbs appeals. Eastham moves to dismiss the appeal, and Gibbs moves to require the clerk to file briefs.
139 S.W. 1167Cone v. Hudson (1911)Motion overruled
Appeal from District Court, Lubbock County; L. W. Dalton, Special Judge. Action by J. W. Cone against Lum Hudson. From an order discharging a receiver, plaintiff -appeals, and moves to file the record.
139 S.W. 1167Southern Pine Lumber Co. v. Arnold (1911)
On motion for rehearing. Motion overruled.
139 S.W. 1168Montmorency v. Montmorency. (1911)Affirmed
Divorce (§ 328*) — Abandonment — Marital Domicile — Locus. As affecting jurisdiction to decree divorce on constructive service, the domicile of an abandoned spouse becomes the marital domicile; and on abandonment of a wife in another jurisdiction, and on her subsequently becoming domiciled in Texas, a decree of a Texas court granting her .a divorce on constructive service against the husband, his whereabouts being unknown, is entitled to full faith and credit under Const. U. S. art. 4, § 1. [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 831-834; Dec. Dig. § 328.*]