144 S.W.

Volume 144 — South Western Reporter

102 opinions

144 S.W. 229Mathew v. State (1912)Reversed and remanded
1. Homicide (§ 800*)—Trial—Instructions —Self - Defense . Where the state claimed that accused’s attack on deceased was unprovoked, and accused claimed that he acted in defense of himself and his son, and there was evidence supporting accused’s claim, it was error to charge that a person can defend himself or the person of another from unlawful attack, and is justified in using all necessary force to defend himself, hut no more than reasonably necessary, since, if accused was authorized to use any force in self-defense, he was authorized to use all force necessary, and a charge on the theory of excessive force was improper. [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.*] 2. Homicide (§ 301*)—Trial—Instructions —Defense of Another. Where the theory of the state, that accused and his son had an understanding, by which the son was to engage in a conflict with deceased, and the accused was then to interfere, was combated by accused, who claimed that he acted in defense of himself and his son, it was error to charge that a person acting in defense of another is entitled to the same rights as the person in whose behalf he acted, since, even though the son was in the wrong, if accused did not know who brought on the diflieulty, his culpability was to be measured by his own intent and apprehension of danger, and not by that of his son. [Ed. Note.—For other eases, see Homicide, Cent. Dig. § 633; Dec. Dig. § 301.*] 3. Homicide (§ 301*)—Triai>-Instructions— Defense of Another—Threats. Instruction that, if the deceased had made threats to take the life of accused’s son, or to do him serious bodily harm, and if, from knowledge of such facts, it appeared to accused when he stabbed deceased that deceased was about to take the life of his son, or to do him serious bodily harm, and that accused stabbed deceased, believing such action to be necessary to prevent death or serious bodily harm upon his son, the jury should acquit accused was error, since it required the jury to find that the threats were actually made; whereas the true test was whether accused believed such threats to have been made. [Ed. Note.—For other cases, see Homicide, Cent. Dig, § 633; Dec. Dig. § ¿01.*] 4. Homicide (§ 301*)—Trial—Instructions— Defense of Another. A charge that, if accused attempted to go to the place where his son and deceased were engaged in a conflict, and in making such attempt was attacked by P., and at the time he stabbed deceased it reasonably appeared to him that deceased and P. were acting together to take the life of accused’s son, or do him serious bodily harm, accused had a right to take the life of either deceased or P. was not a proper charge, since it appeared to require a concert of action between deceased and P. to authorize accused to exercise the right of self-defense, which was not necessary. [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 633; Dec. Dig. § 301.*] 5. Homicide (§ 286*)—Trial—Instructions. It appeared that the killing took place in the afternoon; that in the morning of that day deceased and accused’s son had some difficulty, of which accused had been informed; that accused used language indicating resentment against deceased; that accused had gone to his place of business, and was engaged in other matters, when he was notified of the later trouble between his son and deceased; and that he immediately went to his son’s defense. Held, that a refusal to charge that, if the killing occurred, not on a previously formed design,'but on a subsequently formed design, they should attribute it to the latter, and not to the original, design was error. [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. § 286.*]
144 S.W. 285Shepherd Davenport v. McEvoy (1912)Affirmed
1. Exceptions, Bill or (§ 40*)— Filing — Extension of Time. The county court may, by orders entered at .a subsequent term, extend the time of filing of bills of exception and statements of fact. [Ed. Note. — For other eases, see Exceptions, Bill of, Cent. Dig. §§ 57-64; Dee. Dig. § 40.*]' ■2. Damages (§ 228*) — Remittitur. Error in awarding more than the petition claimed may be cured by a remittitur in 'accordance with Rev. St. 1895, arts. 1354-1359. [Ed. Note. — For other cases, see Damages, •Cent. Dig. §§ 576-579; Dec. Dig. § 228.*] 3. Appeal and Ebbob (§ 1071*) — Refusal to File Findings of Fact and Conclusions of Law — Revebsal. Where there is a request for the filing of findings of fact and conclusions of law, the trial court’s refusal to file such findings and conclusions will be ground for reversal, unless there is a statement of facts in the record from which it appears that the party appealing was not prejudiced. [Ed. Note. — For other cases, see Appeal and Error,^ Cent. Dig. §§ 4234-4239; Dec. Dig. *] 4. Appeal and Ebbob (§ 1071*) — Review— Haemless Ebbob. Where the only issues in an action for the price of an oil strainer were whether the plaintiff guaranteed the strainer and whether there was a breach of the guaranty, and there was evidence warranting a finding for plaintiff on both issues, the refusal of the trial court to file findings of fact and conclusions of law was harmless error. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*]
144 S.W. 286Snipes v. Morton (1912)Affirmed
1. Husband and Wipe (§ 267*) — Community PROPERTY — Right op Wipe to Alienate— Abandonment by Husband. Where a husband abandons his wife and leaves her in destitute circumstances, she may sell community property other than the homestead as a feme sole. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 931; Dec. Dig. § 267.*] 2. Homestead (§ 57*) — Community Property —Evidence. In trespass to try title against a husband and wife, evidence held to justify a finding that the property which the plaintiff claimed under a conveyance from the wife after abandonment of her by the husband was not a part of the homestead of the defendants. [Ed. Note. — For other cases, see Homestead, Dec. Dig. § 57.*) 3. Husband and Wipe (§ 270*) — Community Property — Aband onment — Evidence. In an action of trespass to try title against a husband and wife, evidence held to support a finding that the husband had abandoned the wife so as to clothe her with the rights and powers of a feme sole as respects the sale of community property for her support. [Ed. Note. — For other cases, see Husband and Wife, Dec. Dig. § 270.*] 4. Husband and Wipe (§ 267*) — Community Property — Deed op Husband. An absolute deed of a husband to community property of himself and wife is sufficient to vest the title in the grantee. [Ed. Note. — For other cases, see Husband and Wife, Dec. Dig. § 267.*] 5. Appeal and Error (§ 1010*) — Review-Findings op Fact. Though evidence in trespass to try title may have justified a finding that deeds of the defendants were intended as mortgages, the court on appeal will not disturb the finding below based on sufficient evidence that they were in fact absolute deeds. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. § 1010.*]
144 S.W. 288Bates v. Hill (1912)Reversed and remanded, with directions as to judgment…
1. Costs (§ 262*) — Frivolous Appeal — Delay— SEARCHING RECOKD. Where the plaintiff, who prevailed below, suggested that a writ of error was prosecuted only for delay, and asked an affirmance, with damages, the appellate court must look into the record to determine whether any grounds for appeal are presented, though no statement of facts or bill of exceptions appears in the record. [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 998-1000; Dec. Dig. § 262.*] 2. Appeal and ERrob (§ 1166*) — Amount in CONTROVERSY — JURISDICTION OP LOWEB COURT. An appeal from a judgment of the county court foreclosing a chattel mortgage will be reversed, where the petition does not show that the value of the property in controversy is within the trial court’s jurisdiction. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4527-4530; Dec. Dig. § 1166.*] 3. Dismissal and Nonsuit (§ 25*) — Privilege op Defendant. As the holder of a note jointly executed by two makers can sue either one of them alone, he may, having joined the two in one action, dismiss as to 'one who has sustained a plea of privilege, though the other maker has set up a cross-action against the one pleading privilege. [Ed. Note. — Por other cases, see Dismissal and Nonsuit, 'Cent. Dig. §§ 47-59; Dec. Dig. § 25.*] 4. Chattel Mortgages (§ 43*) — Security. A chattel mortgage, given to secure notes, is not invalid because bearing a date prior to the date of the notes. [Ed. Note. — Por other cases, see Chattel Mortgages, Dec. Dig. § 43.*]
144 S.W. 290Thompson Bros. Lumber Co. v. Bryant (1912)Reversed and rendered
Appeal from District .Court, Tyler County; W. B. Powell, Judge. Action by E. C. Bryant, by his next friend, against the Thompson Bros. Lumber Company. From a judgment for plaintiff, defendant appeals.
144 S.W. 294Deaton v. Southern Irr. Co. (1912)Affirmed
Appeal from District Court, Wharton County; Wells Thompson, Judge. Action by the Southern Irrigation Company against G. W. Deaton and others. From a judgment for plaintiff, defendant named appeals.
144 S.W. 297Penick v. Castles (1912)Reversed and rendered
1. Frauds, Statute op (§ 14*) — Parol Contracts — V ARIDITY. Defendant, acting for himself and his partner, sold cattle to a third person, who delivered in partial payment a check for $650, which was not paid. The third person at the same time bought cattle from plaintiff’s intestate for $7,200, and contracted to buy other cattle, and agreed to pay $1,000 as earnest money. The third person drew his check on a'bank, payable to the intestate, for $8,850, which included the amount of the $650 unpaid check. The bank paid the check, but on discovering that $1,650 did not represent the price of cattle bought by the third person, as represented, it sued the intestate therefor. The third person failed to pay the price of the cattle bought from defendant, and defendant and his partner kept the cattle. Defendant had no interest in the dealings between the third person and the intestate, and had no knowledge for several years that the $650 check had not been paid. Held, that a parol promise by defendant to pay his pro rata of any recovery "by the bank in its action against the intestate was not enforceable, within the statute of frauds (Sayles’ Ann. Oiv. St. 1897, art. 2543), as a promise to hold defendant on any part of the intestate’s individual indebtedness. [Ed. Note. — For other eases, see Frauds, Statute of, Cent. Dig. § 14; Dec. Dig. § 14.*] 2. Limitation of Actions (§ 146*) — Renewal Promise — Oral Promise — Validity. A cause of action in favor of the intestate against defendant, because defendant received $650, arose as soon as such sum was placed to the credit of defendant and his partner on the books of the bank; and under Sayles’ Ann. Oiv. St. 1897, art. 3354, an action thereon was barred in two years, and a parol promise, made after the expiration of the two years, to pay the claim was not sufficient, under section 3370, to renew the obligation. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 593-596; Dec. Dig. § 146.*] 3.' Banks and Banking (§ 142*) — Payment of Checks — Liability—Rights of Bank. The bank had no cause of action against defendant, either alone or jointly with any other person, because neither defendant nor any person having authority to represent him had any dealing with the bank. [Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 142.*] 4. Banks and Banking (§ 142*) — Payment of Checks — Right to Funds. The legal and equitable title to the funds arising from the, $8,850 check passed to the intestate when the check was paid, subject only to the right of the bank to recover from the intestate, as a result of mistake, an amount equal to the amount paid to intestate by the bank under the mistake. [Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 142.*]
144 S.W. 300Caruth v. Caruth (1912)Reversed and rendered
Appeal from District Court, Wilbarger County; S. P. Huff, Judge. Action by T. W. Caruth against J. G. Car-uth. Judgment for plaintiff, and defendant appeals.
144 S.W. 303Griffin v. Thompson Bros. Lumber Co. (1912)Affirmed
1. Master and Servant (§ 217*) — Injuries —Assumption of Risk — Knowledge. Where the outside timber on a lumber dock from which lumber was loaded into cars slanted slightly, a servant who knew of that condition assumed the risk of a fall from stepping on it. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*] 2. Master and Servant (§ 285*) — Injuries— Actions — Evidence. In an action by a servant, injured by falling from a timber dock, evidence held insufficient to go to the jury upon the issues of the looseness or slickness of the outside timber. [Ed. Note. — For other “cases, see Master and Servant, Dec. Dig. § 285.*]
144 S.W. 306Cherry v. First Texas Chemical Mfg. Co. (1912)Affirmed
1. Corporations (§ 401*) — Officer Representing Different Corporations — Notice. —Effect. Though an officer in a corporation to-whom a note was given as collateral security was also an officer in the corporation by whom; it was transferred, the connection was not sufficient to impute to the transferee notice of a vice in the note, and make it other than a bona fide holder. [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 401.*] 2. Bills and Notes (§§ 370, 373*) — Bona Fide Purchaser. The maker of a note which was transferred without notice of any vice, as collateral security for an open account, is liable to the transferee for the amount due on the account,, even though he may have had a defense of fraud or lack of consideration against the-payee. LEd. Note. — F'or other cases, see Bills and Notes. Cent. Dig. §§ 963, 966; Dec. Dig. §§. 370, 373.*]
144 S.W. 308Staley v. King Bank & Mercantile Co. (1912)Affirmed
P. Huff, Judge. Action in trespass to try title by P. C. Staley against King Bank & Mercantile Company and others; B. H. Warren and others, trustees, intervening. Judgment for inter-veners, and plaintiff appeals.
144 S.W. 310Louterstein v. Galveston, H. & S. A. Ry. Co. (1912)Affirmed
Appeal from Colorado County Court; J. J. Mansfield, Judge. Action by I. Louterstein against the Galveston, Harrisburg & San Antonio Railway •Company. From a judgment for defendant, plaintiff appeals.
144 S.W. 310Hopkins v. Garrison-Norton Lumber Co. (1912)Affirmed
Appeal from District Court, Sabine County; W. B. Powell, Judge. Action by Mrs. Annie Hopkins and others against the Garrison-Norton Lumber Company. Judgment for defendant, and plaintiffs appeal.
144 S.W. 314Olcott v. Squires (1912)Affirmed
B. Hightower, Judge. Action by Frederic P. Olcott against E. C. Squires and others. From a judgment for defendants and an order overruling a motion for a new trial, plaintiff appeals.
144 S.W. 316Craig v. Mings (1912)Reversed and remanded
Appeal from District Court, Hunt County; T. D. Montrose, Judge. Action by Q. T. Craig against B. W. Mings and another. From a judgment for defendants, plaintiff appeals.
144 S.W. 317Lovenberg v. Mellen (1912)Affirmed
Error from District Court, Galveston County; Clay S. Briggs, Judge. Action by Frances R. Mellen against B. P. Cooper, as executor of Eliza Cooper, which was abated by the death of defendant and revived against I. Lovenberg, Jr., administrator of the estate of defendant executor. Plaintiff dismissed, and there was a judgment for plaintiff on defendant’s plea in re-convention, and defendant brings error.
144 S.W. 320Broussard v. Mayumi (1912)Affirmed
1. Trespass to Try Title (§ 32*) — Pleading — Scope. Where plaintiff’s amended petition in trespass to try title alleged that he had conveyed land to defendant as containing a certain numr her of acres, under a contract providing that defendant should pay him for any excess acreage, and that there was an excess to which plaintiff was entitled and prayed that title and possession of the excess be decreed to him, the petition, though it contained a prayer for general relief, did not entitle plaintiff to recover compensation for the excess, defendant not having offered evidence rebutting plaintiff’s right to such compensation. [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. § 32.*] 2. Pleading- (§ 34*) — Construction Against Pleader. The pleadings of a party must be taken most strongly against him. [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 66; Dec. Dig. § 34.*]
144 S.W. 322North German Lloyd S. S. Co. v. Roehl (1912)Affirmed
1. Shipping (§ 166*) — Passenger Accommo-bations — Negligence — Evidence — Sufficiency. In an action against a steamship company for injury to a passenger who was thrown by a lurch of the vessel while she was in a toilet room, evidence held to sustain a finding that the company was negligent in not providing hand or guard rails in the room. [Ed. Note. — For other cases, see Shipping, Cent. Dig. § 548; Dec, Dig. § 166.*] 2. Shipping (§ 166*) — Passengeb Accommo- * dations — Negligence—Evidence. That other steamship companies had not equipped toilet rooms with guard rails to prevent passengers falling through lurching of a vessel does not show that a particular company was not negligent in failing to provide them, if a very cautious and prudent person in using that high degree of care which is required of carriers would have provided them. [Ed. Note. — For other cases, see Shipping, Dec. Dig. § 166.*] 3. Shipping (§ 166*) — Injury to Passenger — Assumption of Risk — Plea — Sufficiency. In an action against a steamship company for injury to a passenger caused by the vessel lurching while she was in a toilet room, a plea that she assumed the risk arising from the absence of hand rails in the room was insufficient for failure to allege that she knew the danger of entering a room not so equipped, or that the danger was obvious to her, or to any one of ordinary observation. [Ed. Note. — For other cases, see Shipping, Cent. Dig. § 547; Dec. Dig. § 166.*] 4. Shipping (§ 166*) — Passenger Accommodations — Assumption of Risk. A steamship passenger did not assume the risk of being injured through lurching of the vessel while she was in a toilet room, arising from the company’s failure to provide hand rails. [Ed. Note. — For other cases, see Shipping, Dec. Dig. § 166.*] 5. Appeal and Error (§ 1040*) — Harmless Error — Overruling Plea. In an action against a steamship company for injury to a passenger caused by the vessel lurching while she was in a toilet room, any error in overruling a plea that she assumed the risk of absence of hand rails in the room was harmless, where it was not shown that she knew the danger of using the room in the condition in which it was. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*] 6. Damages (§ 185*) — Personal Injury — Aggravation of Ailment — Evidence—Sufficiency. In an action against a steamship company for injury to a passenger, caused by lurching of the vessel and want of hand rails, evidence held to warrant a finding that plaintiff’s previous physical afflictions were aggravated by the accident. [Ed. Note. — For other cases, see Damages, Dec. Dig. § 185.*] 7. Damages (§ 33*) — Personal Injury — Aggravation of Ailment — Liability. Plaintiff’s previous ailments constitute no defense to an action for negligent injury; defendant being liable so far as the ailments were aggravated by his negligence. [Ed. Note. — For other cases, see Damages, Cent. Dig. § 142; Dec. Dig. § 33.*] 8. Damages (§ 132*) — Personal Injury — Ex-cessiveness. $10,200 is not excessive recovery for injury to a steamship passenger, who was thrown to the floor of a room through lurching of the vessel, through negligent absence of hand rails, where the accident reduced her to a deplorable physical condition continuing to the time of the trial [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]
144 S.W. 326Trotti v. Kinnear (1912)Affirmed
Appeal from District Court, Jasper County; W. B. Powell, Judge. Action by J. B. Kinnear against W. E. Trotti. From a judgment for plaintiff, defendant appeals.
144 S.W. 329Polk v. Seale (1912)
144 S.W. 334Word v. Houston Oil Co. of Texas (1912)Affirmed
Appeal from District Court, Tyler County; W. B. Powell, Judge. Action by T. S. Word against the Houston Oil Company of Texas and others. Judgment for defendants, and plaintiff appeals.
144 S.W. 340Butler v. Gulf Pipe Line Co. (1912)Affirmed
Appeal from District Court, Tyler County; W. B. Powell, Judge. Action by Joe Butler against the Gulf Pipe Line Company. From an order sustaining a demurrer to plaintiff’s amended petition and dismissing the action, plaintiff appeals.
144 S.W. 343Stewart & Alexander Lumber Co. v. Miller & Vidor Lumber Co. (1912)Reversed and remanded
G. Street, Judge. Action by the Miller & Vidor Lumber Company against William A. Holloday and others, in which the Stewart & Alexander Lumber Company intervened. From a judgment sustaining a demurrer to its petition, intervener appeals.
144 S.W. 347Wolfe v. St. Louis Southwestern Ry. Co. (1912)
144 S.W. 349Ford v. Munroe (1912)Affirmed
Appeal from District Court, McLennan County; Marshall Surratt, Judge. Action by Dan Ford and another against R. I. Munroe and others. Judgment for defendants. Plaintiffs appeal.
144 S.W. 350First Nat. Bank of Lone Oak v. Litchfield (1912)Reversed, and judgment entered for plaintiff
Appeal from District Court, Hunt County. Action by the First National Bank of Lone Oak against M. F. Litchfield and wife. Judgment for defendants, and plaintiff appeals.
144 S.W. 353Hunter v. Lyons (1912)Reversed
1. Brokers (§ 67*) — Compensation — Misconduct of Broker — Representing Both Parties. While, where a broker contracts for commission from both parties to a trade, he can generally recover from neither, on the ground that public policy prohibits such a violation of the fiduciary relation, where both of the principals knew of and assented to such double commission, it may be enforced. [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 52-54; Dec. Dig. § 67.*] 2. Brokers (§ 74*) — Compensation — Misconduct oe Broker — Representing Both Parties. Where both parties to a trade knew of and assented to contracts by the broker for commissions from both of them, and he was the efficient cause of the trade, upon a refusal by one of the parties to perform, the broker may recover from him, not only the commission which he contracted to pay, but also that which he would otherwise have received from the opposite party. [Ed. Note. — For other eases, see Brokers, Dec. Dig. § 74.*) 3. Pleading (§ 406*) — Joinder — Contract and Tort — Failure to Object. A court may consider a cause in which actions in contract and tort are joined, in the absence of any objection to the joinder. [Éd. Note. — For other cases, see Pleading', Cent. Dig. §§ 1355-1359; Dec. Dig. § 406.*] 4. Brokers (§ 74*) — Compensation — Mis-. conduct of Broker — Representing Both Parties. Where a party to a contract knew that the broker negotiating the deal would secure a commission from the opposite party as well as himself, his liability, upon a refusal to perform, for the amount which the broker would have received from the opposite party, is not dependent upon his knowledge of the exact amount to which the broker would have been entitled. [Ed. Note. — For other cases, see- Brokers, Dee. Dig. § 74.*]
144 S.W. 354Duffer v. Duffer (1912)Affirmed
1. DIVORCE (§ 184*) — Proceedings—Discretion of Trial Court. The trial court has a wide discretion in determining whether the testimony warrants a divorce, the present statute, Rev. St. 1895, art. 2979, as amended by Acts 1897, c. 49, expressly providing that, where the husband or wife testify, the court or jury shall determine the credibility of such witness and the weight to be given such testimony. [Ed. Note. — For other eases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*] 2. Divorce (§ 184*) — Appeal and Error-Findings — Review. A finding of the trial court denying a divorce will be disturbed only when it clearly appears that the court has erred, and not when the right to divorce depends wholly upon the testimony of the plaintiff. [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*]
144 S.W. 355Ogden v. Ogden (1912)Beversed and remanded
Appeal from District Court, Eastland County ; Thomas L. Blanton, Judge. Suit for divorce by N. H. Ogden against Minnie Ogden. From a judgment denying the divorce, plaintiff appeals.
144 S.W. 356Bourn v. Gray (1912)Affirmed
Appeal from Mitchell County Court; A. J. Coe, Judge. Action by J. C. Gray against F. M. Bourn and others. From a judgment for plaintiff, defendants appeal.
144 S.W. 357Philadelphia Underwriters' Agency of the Fire Ass'n of Philadelphia v. Neurenberg (1912)Affirmed
Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge. Action by W. S. Neurenberg against Philadelphia Underwriters’ Agency of the Fire Association of Philadelphia. From judgment for plaintiff, defendant appeals.
144 S.W. 358Cooper Bros. v. J. Rosenbaum Grain Co. (1912)Reversed and remanded
Sales (§ 23*) —Offer to Sell—Acceptance —WITHDRAWAL OF OFFER. Where, in an action for a breach of a contract to purchase grain, there was evidence showing an acceptance of the offer to purchase made by the defendants by the purchase by plaintiff of the grain in the open market before the communication of a revocation by telegram, there was sufficient evidence to support the action. [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 44-48; Dec. Dig. § 23.*]
144 S.W. 359Goodley v. Northern Texas Traction Co. (1912)Affirmed
1. Appeal and Error (§ 742*) — Bribes — Sufficiency. Assignments of error to instructions will not be considered, where they are grouped in appellant’s brief, several propositions are submitted collectively, the instructions were upon different issues, and different questions of law are presented by the assignments. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 2. Appeal and Error (§ 1064*) — Harmless Ebeor — Instructions. In an action for injury to a traveler in a collision with defendant’s street car, repetition of an instruction upon contributory negligence was not reversible error, where it does not appear probable that plaintiff was harmed thereby, and where one instruction presented a group of facts, supported by the evidence, slightly different from those presented in the other instruction. [Ed. Note.—For other cases, see Appeal and-Error, Dec. Dig. § 1064.*] 3. Teial (§ 266*)—Instructions — Weight of Special Ohabges. It was not error'to instruct that the special charges, given at defendant’s request, were entitled to equal weight with the main charge. [Ed. Note.—For other eases, see Trial, Cent. Dig. §§ 664-667; Dec. Dig. § 266.*]
144 S.W. 360Wilkerson v. City Nat. Bank of Decatur (1912)Eeversed and remanded, with directions to sustain plea
Appeal from Wise County Court; E. M. Allison, Judge. Action by the City National Bank of Decatur against A. W. Wilkerson and another. From a judgment overruling a plea of privilege to be sued in another precinct and county, defendant named appeals.
144 S.W. 361Reeves v. Simpson (1912)Affirmed
Appeal from District Court, Erath County; W. J. Oxford, Judge. Action by Ollie Ann Simpson and another against H. B. Beeves and wife. From, a judgment for plaintiffs, defendants appeal.
144 S.W. 362American Home Life Ins. Co. v. Melton (1912)Reversed, and judgment rendered for defendant
Appeal from District Court, Tarrant County; R. H. Buck, Judge. Action by Byrdie Melton, as administra-trix, against the American Home Life Insurance Company. From a judgment for plaintiff, defendant appeals.
144 S.W. 363Texas & Pacific Coal Co. v. Beall (1912)Reversed and remanded
1. Master and Servant (§ 217*) — Injury to Servant — Assumption of Risk. An experienced coal miner, engaged in filling cars and pushing the same to the main track to be coupled to the train, was killed by the train backing and precipitating his body against a projection. He had worked two weeks and knew of the projection and the danger of being caught 'between it and a passing train. Held, that he assumed the risk of such injury as a matter of law. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*] 2. Appeal and Error (§ 1177*)-t-Disposition of Case on Appeal — Remand. The court on appeal, reversing a judgment, will not render judgment unless the case has been fully developed in the trial court, and, where the evidence tends to support an issue not submitted on the trial, the court, reversing the judgment, will remand the case for another trial. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4620; Dec. Dig. § 1177.*]
144 S.W. 364Purdie v. Stephenville, N. & S. T. Ry. Co. (1912)Affirmed
Appeal from District Court, Comanche County; J. H. Arnold, Judge. Action by E. C. Purdie and wife against the Stephenville, North & South Texas Railway Company. From an order dissolving in part a restraining order, plaintiffs appeal.
144 S.W. 365Carter Grocer Co. v. Day (1912)Affirmed
Appeal from Tarrant County Court; C. T. Prewett, Judge. Action by T. J. Day and others against the Carter Grocer Company, in which defendant prayed in the alternative for judgment against A. A. Hunt. Judgment for plaintiff and for Hunt, and defendant appeals.
144 S.W. 367Gulf, T. & W. Ry. Co. v. Lowrie (1912)Affirmed
1.Railroads (§ 478*) — Fires — Petition — Sufficiency. A petition against a railroad company for setting a fire, stating that the fire destroyed plaintiff’s grass, turf, and grass roots to a stated amount, timber to another amount, and fence to another amount, did not merely charge injury to the real estate, but authorized recovery for burning of grass separately. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1698-1704; Dec. Dig. § 478.*] 2. Railroads (§ 479*) — Fires — Petition'— Sufficiency. ■ A petition against a railroad company for setting out a fire, stating that fires escaped on or about March 7th, and that more than one escape was permitted, authorized proof of fires on both the 7th and 8th. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1706-1708; Dec. Dig. § 479.*] 3. Railroads (§ 482*) — Fires—Cause—Evidence — Weight. In an action against a railroad company, evidence held to warrant a finding that the fires sued on originated on the company’s right of way. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1730-1736; Dec. Dig. § 482.*] 4. Appeal and Error (§ 1171*) — Harmless Error — Sufficiency of Evidence. In an action against a railroad company for setting out separate fires on separate days, a judgment will not be reversed for insufficiency of the evidence to show that the company caused one of the fires, where the instructions and the smallness of the verdict indicate that no damages were allowed on account of that fire. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. § 1171.*]
144 S.W. 677Payne v. State (1912)Affirmed
Criminal Law (§ 1144*) — Appeal—Presumptions — Absence or Record. In the absence of a statement of facts, the Court of Criminal Appeals will presume that all of the law applicable to the evidence was charged. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 278(5-2781, 2901, 3016-8037; Dec. Dig. § 1144.*]
144 S.W. 679Finney v. Walker (1912)Affirmed
1. Habeas Corpus (§ 113*) — Appeal—Decisions Reviewable — Change op Venue. Under Acts 31.st Leg. (1st Ex. Sess.) c. 32, adding article 1107a to Rev. St. 1895, providing that the judges of the district courts may in vacation, by consent of the parties, make all orders and perform all acts as fully as in term time, except to enter final judgment, provided that the judge may, by consent of the parties, try any cause, without a jury and enter final judgment, except in divorce cases, and that all such proceedings shall be conducted under the same rules as if done in term time, and the right of appeal and writ of error shall apply as if the acts had been done in term time, an order changing the venue of habeas corpus proceedings on application of the respondent, opposed by the relator only on the ground that the residence of the relator drew to it the residence of his son, for whose custody the proceedings were prosecuted, and that the venue was properly laid, is appealable, though the entire proceedings took place in vacation. [Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 113.*] 2. Habeas Corpus (§ 48*) — Proceedings— Venue. Under Rev. St. 1895, art. 1194, giving persons who are inhabitants of the state a right to be sued in the county of their domicile; except in specified eases, respondent in habeas corpus proceedings for the custody of a child is entitled to be sued in the county of her residence, rather than in the county of the residence of relator, the father of the child. [Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 48.*] 3. Habeas Corpus (§ 1*) — Nature oe Proceeding — “Civil Action.” Habeas corpus to determine a parent’s right to the custody of his minor child is a “civil action,” within the Constitution and statutes. [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 2, pp. 1183-1193; vol. 8, p. 7603.]
144 S.W. 682Wren v. Texas & P. Ry. Co. (1912)Affirmed
Appeal from District Court, Midland County; S. J. Isaacks, Judge. Action by S. A. Wren and another against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiffs appeal.
144 S.W. 685City of Houston v. Lockwood Inv. Co. (1912)Affirmed
Appeal from Harris County Court; A. E. Amerman, Judge. Action by the Lockwood Investment Company against the City of Houston. Judgment for plaintiff, and defendant appeals.
144 S.W. 687Brown v. Ferrell (1912)Affirmed
Appeal from District Court, Colorado County; M. Kennon, Judge. Action by Robert Brown and. wife against Fannie Ferrell and another. From a judgment for defendants, plaintiffs appeal.
144 S.W. 688Reid Auto Co. v. Gorsczya (1912)Reversed and remanded
1. Tbial (§' 143*) — Conflicting Evidence-Peremptory Insteuctions. Where the evidence was conflicting, a peremptory instruction was properly refused. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*] 2. Master and Servant (§ 305*) — Negligence . oe Servant — Liability of Mastep,. A master is liable for the acts of his servant done within the scope "of his .employment, though contrary to express orders as to the place or method of doing the work. ’ [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224; Dec. Dig. § 305.*] 3. Evidence (§ 121*) — Res Gestae. A statement by the driver of an automobile, made at the time of a collision with a vehicle, is admissible as a part of the res gestse. [Ed.' Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338; Dec. Dig. § 121.*] 4. Evidence (§ 244*) — Admissions—Officer OF CORPORATION. In an action for injuries in a collision with an automobile driven by a servant of defendant, who relied on the defense that the servant operated the car without authority, evidence that the president of defendant, a corporation, did not,’ in a conversation with plaintiff on the day of the accident, claim that the servant was driving the car without authority, was admissible. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*] 5. Evidence (§ 141*) — Other Similar Suits and Defenses. Evidence of other suits pending against defendant by reason of automobiles colliding with people, and that the defense in each case was that the operators of the automobiles had taken the cars out contrary to orders, was inadmissible. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 406, 408-413; Dec. Dig. § 141.*]
144 S.W. 688Klapproth v. Smith (1912)Reversed and remanded
1.Customs and Usages (§ 8*) — Contravention oe Law. In an action to charge defendants for loss of a horse and buggy hired by defendants’ minor sons, it was error to admit evidence for .plaintiff of a custom among the people of the particular town to permit their children to hire '■horses and buggies. [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 8-10; Dec. Dig. § 8.*] •2. Parent and Child (§ 13*) — Toets oe Child — Pabent’s Liability. To charge a parent for a tort of his minor child, it must be shown that the tort was committed at the parent’s direction, express or implied, or within the scope of the duties imposed ■upon the minor by the parent. [Ed. Note. — For other cases, see Parent and ■Child, Cent. Dig. §§ 145-151; Dec. Dig. § 13.*]
144 S.W. 690Smith v. Colquitt (1912)Reversed and dismissed in part, and affirmed in part
Appeal from Dallas County Court; W. F. Whitehurst, Judge. Action by J. M. Colquitt against J. H. Smith and another. From judgment for plaintiff, defendants appeal.
144 S.W. 691Missouri, K. & T. Ry. Co. of Texas v. Roberts (1912)Affirmed
Appeal from District Court, Bastrop County; Ed. R. Sinks, Judge. Action by A. C. Roberts against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
144 S.W. 693Concho, S. S. & L. v. Ry. Co. v. Sanders (1912)Affirmed
Error from Tom Green County Court, Milton Mays, Judge. Condemnation proceedings by the Concho, San Saba & Llano Valley Railway Company against R. J. Sanders. Judgment for defendant on a verdict, and plaintiff brings error.
144 S.W. 694Peters v. Lindsey (1912)Reversed
Contracts (§ 187’*) — Debt oe Thibd Person —Agreement to Pay. Where L., an administrator, sold community property to H., who took possession, agreeing with L. to pay one-half of the value of the land to plaintiffs, who were the children of L.’s deceased wife, such children were entitled to maintain a suit against H. for the recovery of such amount under the rule that an agreement with a debtor based on a valuable consideration to pay a debt due to a third person inures to the latter’s benefit, who may maintain an action thereon. [Ed. Note. — For other cases, see Contracts, Dec. Dig. § 187.*]
144 S.W. 695Duran v. Lucas (1912)Reversed and ■remanded
Appeal from Bee County Court; T. M. Cox, Judge. Action by Cyrus B. Rucas against Santiago (James) Duran. Prom a judgment for plaintiff, defendant appeals.
144 S.W. 695Cox v. Franz (1912)Reversed and remanded
Appeal and Error (§ 711*) — Review—Record— Sufficiency — Notice oe Appeal. Where the record on appeal from the county court of a case arising in the justice’s court showed a judgment in the county court, which recited that defendant was duly and legally cited to appear in answer, but failed to recite that any notice of the appeal from the justice’s court was served, such record was insufficient to show that the county court was authorized to render a default judgment under Rev. St. 1895, art. 1670, providing that default judgment may be rendered in a case appealed from the justice’s court, where the defendant has been duly notified and fails to appear. [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 711.*]
144 S.W. 697Barnett v. Ward (1912)Reversed and remanded
1. Justices of the Peace (§ 174*) — Appeal —Pleadings—Amendment—Jurisdiction. Where an action of debt was brought in justice court and a writ of attachment was issued and levied, and the defendant filed a plea of reconvention claiming that the attachment was wrongful and asking damages therefor, it was error for the county court upon appeal to permit the plea of reconvention to be amended so as to claim a recovery in' excess of $200. [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*] 2. Sales (§ 202*) — Tbanseee of Title. Where one purchased and paid for horses which were delivered to him, the title vested in him, instead of the seller, regardless of the fact that he borrowed the purchase money from a third person, and caused the seller to execute a bill of sale for such horses to the third person as security for the money borrowed. [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 542-551; Dec. Dig. § 202.*] 3. Evidence (§ 145*) — Admissibility. Testimony which is too remote should, be excluded. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 434; Dec. Dig. § 145.*] 4. Teial (§ 191*) — Insteuctions — Assumption of Facts — Weight of Evidence. An instruction upon, the issue of exemplary damages for a wrongful attachment, which assumed that the writ was maliciously and willfully sued out and levied, was erroneous, being on the weight of the evidence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. §• 191.*]
144 S.W. 698Gulf, C. & S. F. Ry. Co. v. A. B. Patterson & Co. (1912)Affirmed as to defendant named, and reversed and…
L. Porter, Judge. Action by A. B. Patterson & Co. against the Gulf, Colorado & Santa Fé Railway Company and another. From a judgment for plaintiffs, defendants appeal. On December 29, 1906, appellees delivered for shipment to the Gulf, Colorado & Santa Fé- Railway Company at Lampasas, Tex., 69 barrels of dressed poultry, consigned to Emerson, Marlow & Co., Chicago, Ill.
144 S.W. 701Astin v. Mosteller (1912)Reversed and remanded
Appeal from District Court, Hunt County; T. D. Montrose, Judge. Action by J. O. Hosteller against J. P. Astin. From a judgment for plaintiff, defendant appeals.
144 S.W. 701Southern Irr. Co. v. Wharton Nat. Bank (1912)Reversed and remanded
1. Bankruptcy (§ 396*) — Exemptions—Homestead. Under Bankr. Act July 1, 1898, c. 541, § 6, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), providing that the act shall not affect the allowance to bankrupts of the exemptions prescribed by the state laws in force at the filing of the petition in the state wherein they have their domicile, a homestead of a bankrupt, exempt from sale for debts under the laws of the state, is exempt to the bankrupt, and an assignment of corporate stock by the bankrupt to lift a lien from the homestead, though made while he is insolvent and in contemplation of bankruptcy, and within 'four months of bankruptcy, is valid. [Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 396.*] 2. Bankruptcy (§ 396*) — Exemptions—Statutes — Construction. The court, in applying the bankruptcy laws to exemptions, is governed by the interpretation of the exemption laws of the state of the domicile of the bankrupt. [Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 396.*] 3. Corporations (§ 123*) — Stock—Conversion — Acts Constituting. Where a bank and its president in possession of corporate stock knew that the stock belonged to a person claiming under a valid assignment of a bankrupt, and delivered the stock to the trustee in bankruptcy, who sold the stock to the president, who appropriated the same, the bank and the president were liable to such person for conversion thereof. [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 123.*] 4. Appeal and Error (§ 1175*) — Disposition of Case on Appeal. Where, in action for conversion of corporate stock, the testimony as to the value of the stock is conflicting, the court, on appeal from an erroneous judgment for defendant, may not render a proper judgment, but must reverse the judgment and remand the case to ascertain the value of the stock, and render judgment for the value, with interest from the conversion. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]
144 S.W. 704Union Stock Yards Co. v. Hovencamp (1912)Affirmed in part, and reversed in part
Action by M. W. Hovencamp and others against the Union Stock Yards Company and another. Erom a judgment for plaintiffs against the stockyards company alone, it appeals.
144 S.W. 705Midkiff & Caudle v. Johnson County Savings Bank (1912)Affirmed
1. Parties (§ 75*) — Objections—Pleas. A plea denying plaintiff’s right to recover in the capacity in which it sues is not a plea denying its right to sue in its own name, and is not applicable where it sues in its own name, and not in a representative capacity. [Ed. Note. — For other eases, see Parties, Cent. Dig. §§ 115, 116; Dec. Dig. § 75.*] 2. Justices oe the Peace (§ 183*) — Appeal - —Presumption. The pleadings, in an action commenced in justice court, being oral, it must be presumed in the Court of Civil Appeals that plaintiff properly pleaded as to whether it was a corporation, a partnership, or an individual. [Ed. Note. — For other eases, see Justices of the Peace, Cent. Dig. §§ 705 — 714; Dec. Dig. § 183.*] 3. Pleading (§ 377*) — Issues—Matters to be Pboved — Admission by Failure to Deny. There being no denial as to plaintiff being a partnership or a corporation, no proof of such fact was necessary. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1228-1231; Dec. Dig. § 377.*] 4. Bills and Notes (§ 287*) — Transfer-Printed Indorsement. That the transfers on the back of acceptances sued on were by printed signatures is immaterial, in. the absence of evidence that they were not adopted as the genuine signatures by the indorsers. [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. § 653; Dec. Dig. § 287.*] 5. Pleading (§ 293*) — Verification. A plea of incapacity of plaintiff to sue must be verified. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 882-884; Dec. Dig. § 293.*] 6. Pleading (§ 106*) — Plea in Abatement. A plea denying plaintiff’s right to maintain the suit in the capacity in which it sues is one in abatement. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 219-227; Dec. Dig. § 106.*] ' 7. Justices of the Peace (§ 174*) — Appeal —Trial De Novo — Plea in Abatement-Time for Filing. The plea in abatement denying plaintiff’s right to maintain the suit in the capacity in which it sues comes too late, after trial in the justice court and appeal to an intermediate court. [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]
144 S.W. 707Flippen v. Robinson (1912)Affirmed,
Error from District Court, Johnson County; O. L. Lockett, Judge. Action between Newton Flippen and Mary Robinson and others. There was a judgment for the latter, and the former brings error.
144 S.W. 708First State Bank of Teague v. Walter & Hafner Jewelry Co. (1912)Affirmed
Estoppel (§ 94*) — Conveksion. Where a bank, which was the creditor of a defunct corporation, and whose debt was secured by collateral and not sued on, knowingly acquiesced in the sale of the corporation’s entire stock in trade, and its cashier received, held, and delivered to the debtor a check for the price, though its debt was then past due, it was estopped from asserting a claim against the buyer for conversion of the debtor’s stock. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 245-247, 276-284; Dec. Dig. § 94.*]
144 S.W. 709City of Eagle Lake v. Lakeside Sugar Refining Co. (1912)Affirmed
1. Appeal and Error (§ 937*) — Review-Presumptions — Filing op Transcript. On a motion to dismiss an appeal on the ground that the transcript was not filed in the Court of Civil Appeals to which it was originally returnable, where that court had discretion to allow it to be filed within 90 days after the appeal was perfected, and the clerk thereof had no power to file it, unless authorized to do so by rule 2 for Courts of Civil Appeals (67 S. W. xiii), the Court of Civil Appeals to which it has been transferred, finding a transcript filed will presume that the clerk acted in accordance with his duty in filing it. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3788-3794; Dec. Dig. § 937.*] 2. Appeal and Error (§ 627*) — Filing Transcript — Waiver op Filing. The filing of a transcript on appeal within 90 days after the appeal has been perfected is not jurisdictional, and is a matter which the appellee may waive. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2749, 3126; Dec. Dig. § 627.*] 3. Appeal and Error (§ 797*) — Filing op Teanscripo^-Waiver. Where a transcript was filed in a Court of Civil Appeals after 90 days, and, after remaining on the docket of that court for six months without objection, the cause was transferred to another Court of Civil Appeals, where it remained another six months without objection, a motion to dismiss on the ground that the transcript was filed too late was waived. [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3149-3154; Dec. Dig. § 797.*] 4. Schools and School Districts (§ 106*)— Collection op Taxes — Authority to Sue. Under Laws 1905, p. 302, § 148,- which provides for the extension of city limits for school purposes only, and makes it the duty of the city officers to collect the school taxes within the added territory, the city is authorized to collect the taxes therein by suit. [Ed. Note. — For other cases, see Schools and School Districts, Dec. Dig. § 106.*] 5. Schools and School Districts (§ 42*)— Extension on District — Statutory Provisions. Under Sayles’ Ann. Oiv. St. 1897, art. 574, 17111011 provides that whenever a majority of the inhabitants of any territory adjoining a city to the extent of one-half mile in width shall vote in favor of becoming a part of the city the city may annex such territory, and Laws 1905, p. 302, § 148, which provides that any city which has taken charge of public schools within its limits may, by ordinance, extend its corporate lines for school purposes only on a petition signed by a majority of the qualified voters of the territory to be annexed, provided that the change shall not deprive the scholastic children of the remaining part of the common school district of the opportunity to attend school, any extension of a city’s limits for school purposes, though it embraces land more than one-half mile in width, is authorized, if it complies with the' condition preserving the right of attendance at school. [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 81-85; Dec. Dig. § 42.*] ■8. Schools and School Districts (§ 22*)— Extension on Districts — Constitutional and Statutory Provisions — Disincorpo-ration. Laws 1905, p. 302, § 148, authorizing extension of city limits for school purposes only on the affirmative vote of a majority of the qualified voters of the territory which is to be included, in so far as it does not require that' the city shall surrender control of its public schools theretofore assumed, is not in conflict with Const, art. 11, § 10, which provides that the Legislature may constitute any city or town a separate and independent school district. [Ed. Note. — For other cases, see Schools and School Districts, Dec. Dig. § 22.*] 7. Schools and School Districts (§ 102*)— Power to Tax — Constitutional and Statutory Provisions. Under Const, art. 7, § 3, as amended in 1883, which authorized an ad valorem tax on property within a school district at a certain rate, provided two-thirds of the qualified voters shall vote such tax, and which, as amended in 1908 (see Laws 1907, p. 413), made a majority vote sufficient, no property could be annexed to a city for school purposes and subjected to such tax without compliance with the requirement for a majority vote, and a vote taken within the. city limits several years before its extension to adjoining territory for school purposes was not a compliance with the requirement for a majority vote at an election held for the purpose of extending its limits; and hence a tax on such territory was unenforceable. [Ed. Note. — For other cases, see Schools and School Districts, Dec. Dig. § 102.*]
144 S.W. 712City of Eagle Lake v. Lakeside Rice Mill Co. (1912)Affirmed
Appeal from District Court, Colorado County; M. Kennon, Judge. Action by the City of Eagle Lake against the Lakeside Rice Mill Company. Judgment for defendant, and plaintiff appeals.
144 S.W. 713Knights of the Modern MacCabees v. Gillis (1912)Reversed and remanded
Appeal from District Court, Bosque County; O. L. Lockett, Judge. Action by Mary F. Gillis and another against the Knights of the Modern Maccabees. From a judgment for plaintiffs, defendant appeals.
144 S.W. 717Gage v. Menczer (1912)Reversed and remanded
1. Infants (§ 58*)— Contracts — Rescission. A purchaser of corporate stock during his minority could, before attaining his majority, repudiate the. transaction and recover the sum paid from his vendor and any other party to the transaction who received the fund. [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 149-160; Dec. Dig. § 58.*] <■ 2. Infants (§ 58*) — Contract—Rescission— Prosecution of Suit. The prosecution, after reaching majority, of a suit to cancel a contract entered into during minority, is an act of avoidance. [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 149-160; Dec. Dig. § 58.*] 3. Infants (§ 58*) — Contracts—Disaffirmance. Transactions by an infant in relation to personal property may be disaffirmed as well before as after majority. [Ed. Note. — For other cases, see Infants, Dee. Dig. § 58.*] 4. Infants (§ 58*) — Contracts—Recovery of Money Paid — Persons Liable. Where an infant has purchased corporate stock, he may, on disaffirming the contract, recover the sum paid therefor of a bank to which the vendor has paid the money in payment of a debt, whether the bank knew of his minority at the time of the. purchase of the stock or not. [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 149-160; Dec. Dig. § 58.*]
144 S.W. 721Cannel Coal Co. v. Luna (1912)Reversed, and ordered that the venue be changed to…
1. CORPORATIONS (§, 281*) — OFFICERS AND Agents — Appointment of Agents. In the absence of a requirement in its charter or in the laws of the state, a corporation may confer authority on an agent for the performance of any act or duty within the limits of its corporate powers by writing or by parol; and agency for it may be implied from acquiescence in or ratification of the acts performed by the agent. [Ed. Note. — For other cases, see Corpora-tor^ Cent. Dig. §§ 1187, 1188; Dec. Dig. § 2. Principal and Agent (§ 22*) — Evidence of Agency — Statements and Acts of Agent. The authority of an agent must be traced back to some word or act of the party sought to be shown to be the principal, and hence evidence of the statements or admissions of the alleged agent is not admissible to establish his authority until the fact of agency has been established by other evidence. [Ed. .Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*] 3.Principal and Agent (§ 121*) — Powers of Agent — Evidence — Testimony of Agent. An agent may testify as to the extent and nature of his authority, where such authority is based upon parol. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 413-415; Dec. Dig. § 121.*] 4.Principal and Agent (§ 119*) — Powers of Agent — Presumption of Authority. When a person holds out another as agent in a certain capacity, or knowingly permits him to act as his agent, or where the circumstances are such as to raise the presumption of agency, the authority of the agent to act will be presumed in so far as the rights of third persons are concerned. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 391-401; Dec. Dig. § 119.*] 5. Evidence (§ 244*) — Admissions—Corporate Officers and Agents. A corporation is not bound by the declarations or admissions of its individual directors, officers, or agents outside the scope of their agency or authority, nor when such admissions are not made in connection with the performance of their duties. [Éd. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*] 6. Principal and Agent (§ 22*) — Relation —Evidence—Agent’s Sign. ■ The signs and stationery of an alleged agent áre not competent to establish agency, in the absence of any evidence tending to show his authority as an agent. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §' 40; Dec. Dig. § 22.*] 7. Principal and Agent (§ 23*) — Existence of Agency — Sufficiency of Evidence. In an action against a corporation for personal injuries, evidence ’held insufficient to show that a certain person was defendant’s agent. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig, § 41; Dec. Dig. § 23.*] 8. Corporations (§• 503*) — Action Against —Venue—Domicile. The right to sue a corporation in another county than that of its domicile is for the benefit of the plaintiff, and to entitle him to such a venue he must clearly present the facts necessary to show that it has an agency or representative in the county in which suit is brought. [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1935-1939; Dec. Dig. § 503.*]
144 S.W. 725Cartwright v. La Brie (1912)Affirmed
Appeal from District Court, Sabine County; W. B. Powell, Judge. Trespass to try title by J. D. La Brie against Matthew Cartwright and others. Judgment for plaintiff against defendant Cartwright, and he appeals.
144 S.W. 732Deweesh v. Southwestern Telegraph & Telephone Co. (1912)Affirmed
1. Appeal and Error (§ 719*) — Questions Revibwable — Fundamental Error. The error in sustaining a general demurrer to the petition is fundamental, and will ba considered on appeal, though not assigned. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; Dec. Dig. § 719.*] 2. Courts (§ 91*) — Controlling Decisions. The Court of Civil Appeals will follow the latest decision of the Supreme Court, though it overrules prior decisions of the Supreme Court and of the Court of Civil Appeals. [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 325, 326; Dec. Dig. § 91.*] 3. Death (§ 14*) — Actions for Wrongful Death — Statutes. Under Rev. St.- 1895, art. 3017, § 2, authorizing an action for death caused by wrongful act, negligence, unskillfulness, or default of another, an action against a telephone company for the death of the wife of a subscriber does not lie where the death was the result of natural causes, but the company failed to provide a communication between the subscriber and a physician, which indirectly prevented the wife from receiving medical attention which might have saved her life, since the contingency is too remote on which to base an action based on breach of contract. [Ed. Note. — For other cases, see Death, Cent. Dig. § 16; Dec. Dig. § 14.*] 4. Death (§ 14*) — Actions for Wrongful Death — Statutes. Rev. S-t. 1895, art. 3017, § 1, authorizing an action for death caused by the negligence of a carrier, does not authorize an action for death caused by the failure of a telephone company to provide a way of communication between a subscriber and a physician to attend the wife of the subscriber suffering from a disease resulting in her death for want of medical attention. [Ed. Note. — Por other cases, see Death, Gent. Dig. § 16; Dec. Dig. § 14.*] 6. Death (§ 14*) — Actions fob Wrongful Death. A telephone corporation, though liable-for death caused by its own wrongful act, is not liable for the death of a person caused by the wrongful .act of its servants in failing to connect a subscriber with a physician to attend the wife of the subscriber suffering from a disease resulting in her death for want of medical attention. [Ed. Note. — Por other cases, see Death, Gent. Dig. § 16; Dec. Dig. § 14.*]
144 S.W. 941Stapp v. State (1912)Affirmed
Appeal from District Court, Eastland. County; Thomas L Blanton, Judge. E. E. Stapp was convicted of seduction, and he appeals.
144 S.W. 1016Freeman v. Terry (1912)Affirmed
Appeal from District Court, Frio County; J. F. Mullally, Judge. Action by William Terry against T. J. Freeman, receiver. From a judgment for plaintiff, defendant appeals.
144 S.W. 1021Kretzschmar v. Peschel (1912)Affirmed
1. Guardian and Ward (§ 182*) — Action on Guardian’s Bond — Jurisdiction. An action against a guardian and his sureties for $950 for the guardian’s conversion of the ward’s property, brought by the ward after termination of the guardianship, under Rev. St. 1895, art. 2764, by the ward attaining full age and by her marriage, is within the jurisdiction of the district court; and an order of the probate court, requiring the guardian to report,_ does not prevent the maintenance of the action. [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 629; Dee. Dig. § 182.*] 2. Guardian and Ward (§ 182*) — Action on Guardian’s Bond — Parties. A ward suing, after the termination of the guardianship; the guardian and his sureties for conversion need not make a notary public assisting the guardian in the fraud a party defendant. [Ed. Note. — For other eases, see Guardian and Ward, Cent. Dig. §§ 640-643; Dee. Dig. § 182.*] 3. Continuance (§ 30*) — Surprise—Amendment of Pleading. In an action on a guardian’s bond for the conversion of the ward’s property, where a receipt, given by the ward to the guardian, was relied on, a pleading of the ward, alleging that the receipt was' obtained by fraud, did not create any ground for surprise justifying a continuance on that ground, especially where every person who was present when the receipt was given was at the trial, except two persons, and no postponement to obtain their evidence was asked. [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig. § 30.*] 4. Pleading (§ 310*) — Exhibits—Aider to Petition. Where the petition, in an action on a guardian’s bond for conversion of the ward’s property, alleged that the guardian applied for and obtained the guardianship of the ward, that he gave a bond as guardian with code-fendants as sureties, that the bond was payable to the county judge and his successors in office, and attached the bond as an exhibit, the bond became a part of the petition, and could be looked to in aid of the petition, and thereby render it good as against a general demurrer. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 944, 946, 947; Dec. Dig. § 310.*] 5. Pleading (§ .310*) — Exhibits — Setting Out Instrument in H®o Verba. Where the petition, in an action on a guardian’s bond, attached the bond as an exhibit, it was not necessary that the bond should be set out in hsec verba in the petition. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 944, 946, 947; Dec. Dig. § 310.*] 6. Guardian and Ward (§ 182*) — Action on Bond — Parties. The county judge is not a necessary party to a suit by a ward against the guardian and his sureties on his bond, brought after the termination of the guardianship, but before the discharge of the guardian. [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 640-643; Dee. Dig. § 182.*] 7. Appeal and Error (§ 1041*) — Review-Harmless Error — Erroneous Rulings on Pleadings. Any error in allowing the filing of a supplemental petition, setting up a claim not submitted to nor allowed by the jury, is not prejudicial. [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1041.*] 8. Judgment (§ 223*) — Interest—Computation. The court, in an action on a guardian’s bond for the conversion of the ward’s property, may resort to the pleadings to determine the time from which interest allowed by the jury should be computed. [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 403; Dec. Dig. § 223.*] 9. Trial (§ 255*) — Instructions—Requests —Definition of Words. In an action on a guardian’s bond for conversion of the ward’s property, the failure to define the term “annual rests” used in the charge was not error, in the absence of any requested charge thereon. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. §' 255.*] 10. Trial (§ 244*) — Instructions —Undue Prominence to Facts. A special charge which amplifies and makes clearer the charge of the court is not objectionable as giving undue prominence to a point in the case. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]
144 S.W. 1024Wm. Cameron & Co. v. Cuffie (1912)Affirmed
Appeal from District Court, Polk County; L. B. Hightower, Judge. Consolidated actions by Wm. Cameron & Company, Incorporated, against Frank Cuf-fie and J. W. Cobb. From a judgment for both defendants, plaintiff appeals.
144 S.W. 1029Trinity County Lumber Co. v. Holt (1912)Affirmed
1. Assignments (§ 30*) — Requisites — Rigiit oe Action eoe Death. ' Under Rev. St. 1895, art. 4647, which provides for the sale of any cause of action or interest therein after suit filed, whether assignable in law and equity or not, and that, upon compliance with the required conditions as to filing, etc., the assignment shall be notice to all persons subsequently dealing with the cause of action, a partial assignment of a cause of action, based upon an injury resulting in death, was valid and enforceable, if the statutory requisites were observed. [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 55-60; Dec. Dig. § 30.*] 2. Assignments (§ 92*) — Right op Assignee —COMPROMISE. Under Rev. St. 1895, art. 4647, which provides that, when a transfer of a cause of action or a part thereof is duly acknowledged, filed, and noted on the docket, it is binding upon all persons subsequently dealing with the cause of action, the assignee of a part of a cause of action obtained his right immediately upon compliance with the statutory requirements, and a compromise or settlement of the original cause after notice of his rights will not release a defendant from liability for a pro tanto amount of the settlement. [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 158; Dee. Dig. § 92.*] 3. Assignments (§ 129*) — Actions. While the assignee of a cause of action is a purchaser pendente lite, he is not a necessary party to the original suit, and may thereafter bring a separate suit to enforce his claim, but is not precluded from intervening in the original suit. [Ed. Note. — For other cases, see Assignments, Dec. Dig. § 129.*] 4. Assignments (§ 92*) — Compliance with Statute — Admission op Notice. The purpose of Rev. St. 1895, art. 4647, which provides that, when an assignment of the whole or part of a cause of action shall be acknowledged, filed with the papers in the suit, and a minute entry made thereof, it shall be notice to and binding upon all persons subsequently dealing with the cause of action, is merely to furnish parties dealing with the cause notice of assignments, and where, upon the trial of an action on an assignment in a former cause, and in its brief, defendant admitted that it had' actual notice of the assignment before a compromise with the plaintiff in the original suit, a substantial compliance with the statute is all that is necessary to be shown, so that a failure to allege or show a compliance therewith will not preclude the assignee from recovering the amount of his claim. [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 158; Dec. Dig. § 92.*] 5. Judgment (§ 585*) —Bab—Assignee op Cause oh Action — Effect op Final Judgment. While persons acquiring an interest in the- subject-matter of a suit by assignment after the bringing of the suit are bound by the final judgment entered, under Rev. St. 1895, art. 4647, which protects the property of an assignee of a cause of action after suit by providing that, upon the filing of the assignment with the papers in the cause and a docket entry made, it shall be notice to and binding on all persons thereafter dealing with the subject-matter, a judgment upon a compromise with the plaintiff therein merely fixed the pro tanto liability of the defendant to the assignee, and did not release it from all liability in a later suit for the amount due under the assignment. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062-1064, 1067,1073, 1084, 1085, 1092-1095, 1097, 1132; Dec. Dig. § 585.*]
144 S.W. 1033Freeman v. Powell (1911)Reversed and rendered
1. Commerce (§ 27*) — Interstate Commerce —Employer’s Liability. An employs of an intrastate railroad company, engaged in preparing ice for use in passenger ears carrying interstate passengers, was engaged in interstate commerce; and hence the company’s liability to him for personal injuries received in the work is governed by Act Cong. April 22, 1908, c. 149, § 4, 35 Stat. 6(5 (IT. S. Comp. St. Supp. 1909, p. 1173), under which assumption of risk is available, unless the injury was caused by the employer’s violation of a statute enacted for the safety of employes, and not by Acts 29th Leg. c. 163, § 1, which precludes the defense of assumption of risk in certain cases. [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*] 2. Commerce (§ 5*) — Interstate Commerce —Congressional Power. The power of Congress over interstate commerce extends to all agencies and instrumentalities through which it is carried on. [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 3, 5; Dec. Dig. § 5.*]
144 S.W. 1035Gulf, C. & S. F. Ry. Co. v. Koch (1912)Reversed and remanded
1. Evidence (§ 113*) — Right of Way — Injury to Property — Actions—Admission of Evidence. In an action against a railroad company for injury to property by the erection of a viaduct across its yards, closing a street, plaintiff was asked on "cross-examination, after testifying that in February, 1910, the market value of his property was $2,000, and that he had made no improvements within three years, as to what he had rendered the lot for taxes for the years 1907, 1908, and 1909, and would have testified that he gave the lot in for taxes, $500 in 1907, $600 in 1908, and $900 in 1909. Held, that the evidence was admissible as tending to show the value of the property. [Éd. 'Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*] 2. Evidence (§ 215*) — Admissions — Admission Against Interest. The evidence was also admissible as an admission against plaintiff’s interest. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 754-759; Dec. Dig. § 215.*] 3. Trial (§ 260*) — Instructions — Charges Already Given. 'A special charge requested was properly refused, where the main charge and other special charges given covered the same question. [Ed. Note. — For other cases, see Trial, 'Cent. Dig. §§ 651-659; Dee. Dig. § 260.*] 4. Trial (§ 296*) — Harmless Error — Instructions. Any error in referring the jury to the petition for a full statement of the case was harmless, where the instructions also distinctly stated the issues. [Ed. Note. — For other cases, see Trial, Dec. Dig. § 296.*] 5. Appeal and Error (§ 216*) — Instructions —Request. Where defendant did not request a charge fully stating the case and issues, it cannot complain on appeal of a charge referring to the petition for a fuller statement. [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216 ;* Trial, Cent. Dig. §§ 627-641, 660, 662-676.] 6. Railroads (§ 114*) — Injury to Property —Taxes—Sueeiciency op Petition. The petition alleged that plaintiff owned a house and lot fronting on C. avenue and Thirteenth street, which streets were his only means of ingress and where he conducted the business of a locksmith; that C. avenue was one of the principal streets; and that defendant railroad company crossed it and A. avenue, with its tracks and yards and erected along A. avenue, the first street north of C. avenue, a viaduct across its tracks between Thirteenth and Seventeenth streets and closed O. avenue, across its tracks between Thirteenth and Seventeenth streets and immediately opposite plaintiff’s residence, by reason of which plaintiff’s access to the western part of the city was cut off and the travel was diverted to A. avenue, and the surface water was also caused to overflow the premises, to his damage, etc. Held, that the petition was demurrable on the ground that the damage claimed was not shown to be the proximate result of defendant’s negligence in constructing the viaduct and also for not alleging how or where defendant closed C. avenue. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 365-371; Dec. Dig. § 114.*]
144 S.W. 1037Missouri, K. & T. Ry. Co. of Texas v. Moses (1912)Reversed, and judgment rendered
Appeal from District Court, Hill County; W. C. Wear, Judge. Action by L. S. Moses against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
144 S.W. 1039Ferrell v. Delano (1912)Reversed and remanded
Appeal from District Court, Wharton County; Wells Thompson, Judge. Action by C. W. D. Ferrell against Mrs. H. Delano and others. From a judgment for defendants, plaintiff appeals.
144 S.W. 1041Johnson v. Ft. Worth Driving Club (1912)Reversed and remanded
1. LANDLORD AND TENANT (§ 105*) — LEASES— Construction, — Termination. A lease, containing a stipulation giving the owner a right to declare it forfeited if the lessee permits the sale of intoxicating liquors upon the premises, requires the lessee to exercise reasonable diligence to prevent such sale; but the lease cannot be forfeited where sales made on the leased premises were not permitted by the lessee. ,[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 329, 330; Dec. Dig. § 105.*] 2. Landlord and Tenant (§ 112*) — Leases— Stipulation — Waiver. The acceptance of rent by a landlord is not a waiver of his right to declare the lease forfeited under a stipulation giving him that privilege if the lessee shall permit the sale of intoxicating liquors on the premises, where, though there had been sales of intoxicating liquors on the premises, the lessee assured him that no further sales would be permitted. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 343-349; Dec. Dig. *]
144 S.W. 1042Texas & P. Ry. Co. v. Browder (1912)Affirmed
1. TRIAL (§ 194*) — INSTRUCTIONS—CHARGES on Facts. It would be erroneous to instruct that certain facts, grouped in the instruction, constituted negligence, if found to exist; it ordinarily being for the jury to determine whether certain facts constitute negligence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194;* Negligence, Cent. Dig. §§ 356-360.] 2. Appeal and Error (§ 742*) — Briefs— Propositions". A proposition that a request to charge, even if erroneous, was sufficient to call the-court’s attention to the question involved, so as to require it to give a proper charge thereon, cannot be considered under an assignment of error to the refusal to give the requested charge. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 3. Trial (§ 260*) — Instruotions—Requests-—Charges Already Given. A request to charge on contributory negligence was properly refused, where that question was fully covered by the main charge. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260;* Carriers, Cent. Dig. § 1407.] 4. Trial (§ 242*) — Misleading Instructions. That an instruction, in an action against a carrier for injuries to horses en route, referred in one place to the shipment as “cattle”' instead of horses, could not have misled the jury. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.*] 5. Appeal and Error (§ 1050*) — Harmless Error — Admission op Evidence. Any error in admitting evidence, in an action against a railroad company for injury to> horses by failure to unload and remove a horse which was being trampled upon, in permitting plaintiff to testify that on arrival at T. he went to an employs whom he, took to be the yard' clerk and asked that the horses be unloaded, so that the one down could be gotten up, which, was refused, on the ground that such employs had no authority to unload the horses, was harmless, where plaintiff also testified, without dispute, that before reaching T., and afterward, he tried to get the conductor to give him a chance to get the animal up, which the conductor refused to do. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*] 6. Appeal and Error (§ 1050*)—Harmless Error. Any error, in an action against a railroad company for injury to horsés by negligent failure to give the shipper an opportunity to remove a horse which was down in the car, in permitting the shipper to testify that after they passed a certain yard he told the conductor that the horse was still down, and the conductor said, “Why in hell did the yardman not get the animal up?” was harmless to defendant. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4153—4160, 4166; Dec: Dig. § 1050.*] 7. Appeal and Error (§ 1171*)—Trivial Error—Instructions—Measure op Damages» Any error in instructions on interest for which defendant was liable in an action for injuries to horses en route, which could only have authorized a recovery of two or three cents more than the sum to which plaintiff was entitled under a correct instruction, was not reversible. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. § 1171.*]
144 S.W. 1044O'Shields v. Poff (1912)Affirmed
1. Bills and Notes (§ 468*) — Commencement-Time of Accrual. A petition filed November, 1910, alleging that defendant guaranteed payment of a series of 10 vendor’s lien notes held by plaintiff, which were respectively due March 5, 1910, and in succeeding years in stated monthly installments and bearing annual interest payable as it accrued, that it was stipulated that a failure to pay any of the notes or any installments of interest due thereon should, at the election of the holder, mature all the notes, and that, though plaintiff had demanded the interest, defendant had not paid, does not show that the action was prematurely brought before the debt had matured, for the petition does not declare on á note maturing March 5, 1910, but contains allegations sufficient to indicate that such note was. one of a series payable monthly thereafter, and’that payment of the annual interest on all of the notes had been refused. [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1462, 1463; Dec. Dig. § 468.*] 2. INTEBEST (§ 43*) — CONSTKUCTION OF NOTE— “Payable as it Accbues.” In an action on eight notes, due on or before the 5th day of March of eight successive years, said notes being due in monthly installments, and each note and installment thereof bearing interest at 8 per cent, per annum, “said interest payable as it accrues,” the words “payable as it accrues,” mean “annually”; that is 8 per cent, interest per annum. [Ed. Note. — For other cases, see Interest, Cent. Dig. § 92; Dec. Dig. § 43.*]
144 S.W. 1045Trinity & B. v. Ry. Co. v. Geary (1912)Reversed and remanded
1. Trial (§ 252*) — Instructions — Applicability to Evidence. An instruction submitting an issue is erroneous, where there is no evidence sufficient to fairly raise the issue. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*] 2. Master and Servant (§ 265*) — Injury to Servant — Res Ipsa Loquitur — Evidence. Proof that an employé on a gravel train unloading gravel was injured by the sudden stopping of a car on which he was riding, caused by the breaking of the air hose, causing a sudden application of the air brake,- that the hose broke after the cars in the train had been on a siding for about 10 days exposed to weather, and that no inspection of the hose was made, was sufficient prima facie to raise a presumption that the parting of the hose and the accident were caused by a negligent defect in the hose, in the absence of any explanation of the cause of the accident. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 881; Dec. Dig. § 265.*] 3. Master and Servant (§ 265*)— Injury to Servant — Res Ipsa Loquitur — Evidence. Where the bursting or uncoupling of an air hose on a work train, thereby causing the sudden stopping of the cars and'injuring an em-ployé standing on a car, was due to the fact that when the cars were uncoupled the air hose was not uncoupled, and that, on the application of the brakes from the engine, which was backing the train, the uncoupled car went on, bursting the air hose and causing the stop, the presumption of a negligent defect in the hose, under the doctrine of res ipsa loquitur, was overcome. [Ed. Note. — For other cases, see Master and Servant, Cent Dig. § 881; Dec. Dig. § 265.*] 4. Master and Servant (§ 286*) — Injury to Servant — Questions eor Jury — Negligence. Where an employé suing for a personal injury alleges negligence generally, which is permissible where the doctrine of res ipsa loquitur is 'applicable, the case is properly submitted to the jury, where the facts do not rebut every negligence presumed; but where he particularizes the negligence, and the testimony conclusively rebuts the negligence specified, it is error to submit any ground of negligence. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig.'§§ 1010-1050; Dec. Dig. § 286.*] 5. Master and Servant (§ 288*) — Injury to Servant — Assumption of Risk — Question for Jury. Whether an employs unloading gravel on a work train assumed the risk of injury caused by the sudden stopping of the car, caused by the breaking of the air hose, and the resulting application of the emergency brake, held, under the evidence, for the jury. [Ed. Note. — For other -cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Deo. Dig. § 288.*] 6. Master and Servant (§ 198*) — Injury to Servant — Fellow Servants — Who Are. An employé riding on a gravel train to unload gravel, and having nothing to do with the control of the train or the air brake appliance, is, independently of the employer’s liability act, not a fellow servant of the employés controlling and managing the train. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. 198.*]
144 S.W. 1048Horan v. O'Connell (1912)Affirmed
Action by Minnie E. Horan and others against Michael O’Connell and others. Judgment against plaintiffs and for a part of defendants, and plaintiffs bring error.
144 S.W. 1051St. Louis Southwestern Ry. of Texas v. Gilbreath (1912)Reversed, and judgment rendered for defendant
Error from District Court, Upshur County; R. W. Simpson, Judge. Action by L. M. Gilbreath against the 'St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant brings error. The defendant in error sued to recover the value of 12 bales of cotton alleged to have been misdelivered by the railway company on a shipment made to shipper’s order, and in a trial to the court without a jury judgment was given in his favor for the value of the cotton.
144 S.W. 1054Hays v. Moore (1912)Affirmed
G. Neighbors, Special Judge. Action by J. W..Moore and another against Mrs. F. M. Hays and others for partition. From a judgment of partition, defendant named appeals.
144 S.W. 1130Stamford Compress Co. v. Farmers' & Merchants' Nat. Bank (1912)
144 S.W. 1139Houston Packing Co. v. Griffith (1912)Reversed and remanded
1. Evidence (§ 361*) — Documentary Evidence — Private Publication — Newspaper Quotations. In an action for damages for breach of defendant’s contract to buy a lot of fat steers, newspapers which gave daily reports of sales of stock and' quotations of prices, and which were relied on by cattle dealers in general as giving correct reports, were admissible in evidence for the purpose of showing such quotations. [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1514; Dee. Dig. § 361.*] 2. Witnesses (§ 37*) — Knowledge of Witness-Market Value. Persons who derive a knowledge of priees in a certain market from publications of quotations in that market may testify to their knowledge so obtained. [Edi Note. — For other cases, see Witnesses, Cent. Dig. §§ 80-87; Dec. Dig. § 37.*] 3. Trial (§ 85*) — Reception op Evidence-Evidence Admissible in Part. Where objection is made to the introduction of evidence as a whole, and part of it is not subject to such objection, the overruling of the objection Js not reversible error. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 223-225; Dec. Dig. § 85.*] 4. Evidence (§ 361*) — Documentary Evidence-Private P UBLICATIONS — NEWSPAP - er Quotations — Form. A newspaper item or quotation in the form: “The A. C. Bell Live Stock Commission Co. quotes Houston market as follows: Steers good to choice $3.75 to $4.00 per cwt.” — though showing that the report was obtained from an individual dealer, does not destroy its value as evidence of market prices. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1514; Dee. Dig. § 361.*] 5. Evidence (§ 461*) — Parol Evidence — Explanatory op Written Contract. In ah action for damages for breach of a written contract to purchase cattle that were to be fat, evidence for the seller that, at the time the contract was made, he was told that the cattle to be delivered thereunder need not be so fat as another lot which had been previously contracted for, was not contradictory of the contract, but was admissible as explanatory of it in respect to how fat the cattle in question were expected to be. TEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.*] 6. Evidence (§ 142*) — Competency—Market Value — Time op Valuation. In an action for damages for breach of a contract to buy cattle, evidence that cattle shipped by a witness to the same place at the same time brought him a certain price was inadmissible as evidence of value, where it appeared that they were shipped under a contract entered into two or three weeks before that time, which contract had fixed the price. [Ed. Note. — For other oases, see Evidence, Cent. Dig. §§ 416-423; Doc. Dig. § 142.*] 7. Evidence (§ 113*)— Competency — Market Value — Minimum Price. In an action for damages for breach of a contract to buy cattle delivered at a certain place at a certain time, evidence, as. to the range of prices during a period which included that date, and which showed the minimum market price during that period, was admissible. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*] 8. Evidence (§ 113*) — Competency—Mabket Value — Time and Place op Valuation. In an action for damages for the breach of a contract to buy cattle delivered at a certain place at a certain date, in which it was shown that between certain dates, including such date, there was practically no fluctuation in the price of such cattle at that place, evidence, of market prices on any date during such period was admissible. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*]
144 S.W. 1142Richmond v. Sims (1912)Reversed and remanded
Appeal from District Court, Fannin County; Ben H. Denton, Judge.. Action by Rosa M. Richmond and others against Belle Sims and others. From a judgment for defendants, plaintiffs appeal.
144 S.W. 1145Heard v. Clegg (1912)Affirmed
1. PRINCIPAL AND AGENT (§ 123*) — ARBITRATION — AUTHORITY op Agent — Evidence. Evidence held to support a finding that an agent had no authority to enter into an agreement for arbitration. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. § 123.*] 2. Principal and Agent (§ 120*) — Authority op Agent — Evidence. In an action to enforce an award of arbitrators based on an agreement for arbitration entered into by an agent of one of the parties, testimony by the principal that he had no knowledge of the proposition to arbitrate at the time he wrote a letter which it was claimed authorized arbitration was admissible. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 402-412; Dec. Dig. § 120.*] 3. Evidence (§ 155*) — Admissibility—Similar Evidence by Adverse Party. Where a party has introduced evidence on a particular subject-matter, the adverse party may introduce similar evidence. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.*] 4. Evidence (§ 271*) — Self-Serving Declarations. A portion of a letter, written by the party introducing it, which was merely argumentative and self-serving, was properly excluded. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1104; Dec. Dig. § 271.*] ' 5. Evidence (§ 383*) — Documentary Evidence-Portion of Letter. That a portion of a letter had been offered and received in evidence without objection did not require that other portions of the letter which were argumentative and self-serving in their nature be also admitted in evidence. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*] 6. Principal and Agent (§ 194*) — Authority op Agent — Instructions. Where, in an action against a principal and agent, the acts and declarations of the agent were first admitted in evidence, against the agent only, but upon conclusion of the evidence plaintiff tendered such acts and declarations as evidence against the principal also, an instruction that, as far as the tender was concerned, such testimony as was limited in the early part of the case to the agent, is now before the jury for all purposes, but, if the jury do not find and believe from the evidence that the principal authorized the agent to act in the transactions in controversy, they should not consider the acts and declarations for any purpose as against the principal, was not open to the objection that it excluded consideration of the acts and declarations of the agent in determining the question of agency. [Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 194.*] 7. Principal and Agent (§ 194*) — Actions— Instructions. In an action to enforce an award based on an agreement for arbitration entered into by defendant’s agent, the question as to the agent’s authority being in issue, an instruction defining the term “agency” was not improper. [Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 194.*] 8. Principal and Agent (§ 166*) — Arbitration— Authority op Agent. Where an agent without authority entered into an agreement for arbitration, the principal was not bound by the award, though he was informed of the pendency of the arbitration before the award was made. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 627-633; Dec. Dig. § 166.*] 9. Principal and Agent (§ 150*) — Contract of Agent — Liability of Agent. Where an agent when he signed an agreement for arbitration on behalf of his principal informed the other party to the agreement that he had no authority to so sign, the agent was not liable on the agreement. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 556-563; Dec. Dig. § 150.*] 10. Principal and Agent (§ 150*) — Arbitration Agreement — Liability of Agent. Where an agent, on his own behalf, and on behalf of his principal, but without authority to do so, signed an arbitration agreement, and the award was in favor of the agent but against the principal, no liability attached to the agent on the award, since it was in his favor, and any liability incurred by him on account of the unlawful assumption of authority was in damages as for a tort, and, it not being alleged in an action against the principal and agent to enforce the award that either the principal or the agent was insolvent, judgment was properly rendered for defendants. [Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 150.*]
144 S.W. 1148Arcola Sugar Mills Co. v. Luckey (1912)Reversed and rendered
1. Master and Servant (§ 104*) — Tools and Appliances — Locomotives—Jackscrews. Where a sugar mill company operated a short railroad on its plantation, and operated thereon only one small engine, which was in service only during the grinding season of each year, the company was not required to furnish jackscrews to be carried on the engine for use in putting it back on the track, if derailed; such screws being kept in a convenient place on the plantation. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 176; Dec. Dig. § 104.*] 2. Master and Servant (§§ 101, 102*) — Tools and Appliances — Duty oe Master. A master must use reasonable care to provide and maintain reasonably safe tools and appliances for the use of his servants. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 173; Dec. Dig. §§ 101, 102.*] 3. Master and Servant (§ 229*) — Contributory Negligence — Duty oe Servant. It is the duty of a servant in the discharge of his duties to 'use reasonable care for his own safety. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 674; Dec. Dig. § 229.*] 4. Master and Servant (§ 206*) — Assumption oe Risk — Risks Assumed. A servant assumes all the ordinary risks of the service. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 550; Dec. Dig. § 206.*] 5. Master and Servant (§ 235*) — Contributory Negligence — Tools and Appliances —Request eor or Choice oe Appliances. Where an engine operated on a sugar plantation was derailed, and the engineer, knowing that jackscrews were the proper and safe appliances for putting it back on the track, did not request their use, or state the necessity for their use, in putting the engine back, although jackscrews suitable for the re-railing of the engine were kept in a convenient place on the premises,, accessible to him, and could have been had by him upon request, his failure to ask for them was negligence, defeating recovery for injuries resulting from the use of other appliances. [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 715; Dec. Dig. § 235.*]
144 S.W. 1155McCuistion v. Fenet (1912)Reversed, and application dismissed
1. Evidence (§ 31*) — Judicial Notice — Provisions op City Charter. Under Sp. Laws 1905, c. 6, incorporating the city of Paris, and making it the duty of courts to take judicial notice of its provisions as though it were a public statute, in passing upon the sufficiency of pleadings in mandamus to compel action of the mayor and city council elected thereunder, relevant provisions of the charter must be considered, whether specifically set out or not. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 40-41; Dec. Dig. § 31.*] 2. Statutes (§ 228*) — Construction—Proviso. A proviso in a statute will be restricted to the immediately preceding parts of the clause to which it is attached, unless its terms or the subject-matter requires a broader construction. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 310; Dec. Dig. § 228.*] 3. Municipal Corporations (§ 126*) — Officers — Construction of Statute — Meaning of Language — “Any”—“Either.” Section 11 of the Paris city charter (Sp. Laws 1905, c. 6) is as follows: “Provided, that the offices of assessor and collector and city secretary, as heretofore combined by the city council under the name of city secretary, may so continue at the option of the council. * * *' Provided, further, that the city council may combine or abolish any of the offices above named.” Held, the word “any” refers to an indefinite number of objects, and, as “either” is singular, and has reference to only one group, “any” to give it its usual and ordinary meaning, must be construed to mean “all,” rather than “either,” and the proviso cannot therefore refer to section 11, as only two offices constitute the entire group therein, and the section itself combines such offices, leaving action by the council unnecessary, and the proviso cannot refer to a section dealing with the council itself, and, section 10 dealing only with offices and agencies which the council may create, it will be held to refer to section 9, enumerating all offices constituting the city government, except the city council; that section being the first appropriate section in proximity to the proviso. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 298-300; Dec. Dig. § 126.* For other definitions, see Words and Phrases, vol. 1, pp. 412-433; vol. 8, pp. 7575-7577; vol. 3, pp. 2324-2325.] 4. Statutes (§ 189*) — Construction—Meaning of Language. The verbiage of a legislative act must be construed as written, unless it is apparent that a literal construction would defeat the legislative intent. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 268; Dec. Dig. § 189.*] 5. Statutes (§ 228*) — Construction—Provisos. Provisos in a statute will not be construed to refer to that which immediately precedes them, if such a construction would involve a perversion of the grammatical construction, or the importation of terms other than those used, unless it is elsewhere shown that the literal construction of the language used would be inconsistent with the legislative intent. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 310; Dec. Dig. § 228.*] 6. Constitutional Law (§ 70*) — Construction — Consequences from Interpretation. In construing the proviso in section 11, Paris City Charter (Sp. Laws 1905, c. 6), which empowers the city council to combine or abolish the “above” offices, to refer to section 9, which enumerates certain city offices, the court is guided only by the expressed legislative intent, and may not consider that the council are thereby granted power to seriously impair the efficiency of the government by absurd and unwise combinations or the abolition- of important offices. [Ed. Note. — For other cases, see Constitutional Law, Cent.Dig. §§ 129-132, 137; Dec.Dig. § 70.*] 7. Constitutional Law (§ 70*) — Province of Courts — Interpretation of Legislative Acts. ' The province of the courts is to determine the intent of the Legislature from the provisions of a statute, not to supervise legislation, or keep it within the bounds of propriety and common sense. [Ed. Note. — For other cases, see Constitutional Law, Cent.Dig. §§ 129-132, 137; Dec.Dig. § 70.*] 8. Statutes (§ 219*) — Special City Charter —Construction by City Officials. While the contemporaneous construction of the Paris city charter (Sp. Laws 1905, c. 6) by the city council was to the effect that it permitted the abolishment of certain city offices, as evidenced by the actual abolishment of such offices, -and the people concurred therein by acquiescence, such a construction is not binding upon the courts, but is entitled to much persuasive force in the determination of a doubtful and ambiguous provision. [Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 296, 297; Dec. Dig. § 219.*]
144 S.W. 1160Marsh v. Phillips (1912)Affirmed
1.Principal anP Surety (§ 173*) — Signing by Principal — Effect as to Sureties. A principal is bound to reimburse his sureties, whether he signs the bond or not. (Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 497-499; Dec. Dig. § 173.*] 2.Principal and Surety (§ SI*) — Discharge. Where a lease required lessee to put certain machinery and stock in a leased building on which the lessor was given a lien for rent, the lessee to give a bond to secure performance of the condition which was to stand as liquidated damages for expenses in making changes in the building, the facts that the property put into the building was subject to a lien, that parts of it were released upon the claim of a third person, and that certain rent was paid before lessee abandoned the premises did not release the sureties. [Ed. Note. — For other eases, see Principal and Surety, Cent. Dig. § 126; Dec. Dig. § 81.*] 3. Principal and Surety (§ 46*) — Signature op Puincipai^-Estoppel. Where the sureties on a bond, after themselves signing it, permitted the principal to take it without his signature, they cannot, as against the obligee, object that it was not signed by the principal, and must themselves bear any resulting loss. [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 91-95; Dec. Dig. § 46.*] 4. Principal and Surety (§ 20*) — Signature op Principal — Necessity. A bond signed by the sureties with the intention of being bound was valid as to them, though the principal to whom they delivered it did not sign it. [Ed. Note. — For other cases., see Principal and Surety, Cent. Dig. §§ 39-42; Dec. Dig. § 20.*] 5. Landlord and Tenant (§ 157*) — Improvements— Performance — Bond. The owner of property leased it for five years for a candy factory under a lease which required the lessee to put into the building a large amount of machinery, for operating the factory, the rent to be a lien thereon, and a bond was executed by lessee conditioned on the lessee’s placing the machinery as agreed, the bond to remain in effect as liquidated damages in case of nonperformance for the cost of making the changes. Held, that the lessee was bound to put substantially all of the machinery into the building which he agreed to place there and the putting of a part of it did not satisfy the bond. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 571-607; Dec. Dig. § 157.*] 6. Damages (§ 78*) — Liquidated Damages or Penalty. The amount specified in the bond was not a penalty, but provided for liquidated damages. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 157-163; Dec. Dig. § 78.*] 7. Evidence (§ 460*) — Parol Evidence — Explaining Writing — Bond. Where a bond was given conditioned upon lessee’s putting certain machinery in the leased building as orally represented and agreed, evidence of oral negotiations between the parties .was admissible to show what machinery was to go into the building; that not being clearly shown by the bond. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.*] 8. Trial (§ 136*) — Province ox Court. It is the duty of the court to tell the jury the legal effect of an unambiguous written instrument. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. § 136.*]
144 S.W. 1163Illinois Cent. Ry. Co. v. Morris (1912)Affirmed
1. Carriers (§ 318*) — Carriage or Passengers — Injuries to Passenger. In an action for injuries received from exposure of passengers alighting from a train, evidence held to authorize a finding that the defendant was negligent in stopping its train at an unusual point, an improper distance from a shelter shed, and inducing the plaintiff and his wife, who were unacquainted with the surroundings, to alight there to their injury. [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 318.*] 2. Appeal and Error (§ 970*) — Discretion op Court — Order op Proof. Permitting the plaintiff in an action for damages to introduce testimony not in rebuttal after the defendant’s close is not ground for reversal, where it does not appear that the court abused its discretion. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3849-3851; Dec. Dig. § 970.*] 3. Carriers (§ 321*) — Injury to Passengers —Instructions—Sustaining Evidence. Where, in an action'for injuries from exposure after alighting from a train at an improper point, the plaintiff and his wife testified that the employes in charge of the train called out “all out for Memphis” at the point at which they alighted, an instruction permitting a finding for the plaintiff, if the jury believed that he and his wife “were invited or directed to alight from the train,” was proper. [Ed. Note. — For other cases, see Carriers, Déc. Dig. § 321.*] 4. Trial (§ 192*) — Instructions—Weight op Testimony. And, where such testimony was undisputed, the instruction was not improper as on the weight of the testimony in assuming, as a fact, that the employes of the defendant invited or directed the plaintiff and wife to leave the train. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*] 5. Appeal and Error '(§ 1066*) — Harmless Error — Instructions. Though an instruction in an action for injuries from exposure caused by alighting from a train at an improper point permitted the jury to find for the plaintiff if they believed that but for the negligence of defendant ‘‘plaintiff’s wife would not have been made sick, if she was sick, or would not have contracted any disease, if she has contracted any disease,” any error therein in not limiting the jury to the sickness and disease charged in the petition was harmless where there was no testimony of sickness or disease other than that alleged. ’ [Ed. Note. — For other cases, see.Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] 6. Carriers (§ 318*) — Carriage op Passengers — Evidence. Evidence in an action against a carrier for injuries from exposure after being induced to alight from its train at an improper point held to show that the exposure was the efficient cause of the injuries to plaintiff’s wife complained of. [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 318.*] 7. Appeal and Error (§ 1015*) — Refusal op New Trial — Review. Where the jury agreed that the _ plaintiff was entitled to recover, but determined the amount of the verdict by dividing the total of the sums they respectively thought wo.uld compensate by 12, and the testimony was conflicting as to whether they agreed beforehand that the quotient so reached should be their verdict, the refusal of a motion for a new trial on that ground does not require a reversal. [Ed. Note. — For other cases, see Appeal ana Error, Cent. Dig. §§ 3860-3876; Dec. Dig. § 1015.*]
144 S.W. 1166Altgelt v. Callaghan (1912)Affirmed in part
Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge. Election contest by E. J. Altgelt and others against Bryan Callaghan. From a judgment for contestee, contestants appeal.
144 S.W. 1174Fewell v. Kinsella (1912)Reformed and affirmed
Appeal from District Court, El Paso County; James R. Harper, Judge. Action by W. J. Fewell against Simon Kinsella. From a judgment granting insufficient relief, plaintiff appears.
144 S.W. 1180Hamner v. Barker (1912)Reformed and affirmed
Appeal from Palo Pinto County Court; J. C. Houts, Judge. Action by H. B. Barker against Ed. J. Hamner and others. From a judgment for plaintiff and for cross-complainants against the defendant named, the latter appeals.
144 S.W. 1181Indiana & Ohio Live Stock Ins. Co. v. Krenek (1911)Reversed and rendered
Appeal from Lee County Court, John H. Tate, Judge. Action by Henry B. Krenek against the Indiana & Ohio Live Stock Insurance Company. From a judgment for plaintiff, defendant appeals.
144 S.W. 1184Kuteman v. Lacy (1912)Affirmed
Appeal from District Court, Parker County; J. M. Patterson, Judge. Action by H. W. Kuteman and others against John W. Lacy and others. From a judgment for defendants, plaintiffs appeal.
144 S.W. 1186Lewis v. Vaughan (1912)Affirmed
Appeal from Coleman County Court; T. J. White, Judge. Action by W. B. Lewis against L. H. Vaughan. From a judgment for defendant, plaintiff appeals.
144 S.W. 1189Gibson v. Sterrett (1912)Affirmed
1. Injunction (§ 174*) — 1Temporary Injunction — Dissolution—Suiticiency of Negativing Affidavit. In an action to restrain defendant from arresting plaintifE for unlawfully fishing, an affidavit accompanying the answer held, to sufficiently deny the material allegations of the petition, so as to warrant dissolution of a temporary injunction on hearing in vacation. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 386, 387; Dee. Dig. § 174.*] 2. Injunction (| 152*) — Temporary Injunction — Final Hearing. Upon hearing in vacation, after granting a temporary injunction, the judge could finally determine plaintiff’s probable right to the temporary injunction and construe, in that connection, the meaning of a statute upon which such, right depended. iui/i Moto — Nov other cases, see Injunction, Gent. Dig. §§ 337, 343; Dee. Dig. § 152.*] 3. Statutes (§ 140*) — Amendment— Subject-Matter. It is a sufficient compliance with the constitutional requirements if the subject-matter of an amendment is germane to the subject-matter of the original statute, and within the title of that statute. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 208; Dec. Dig. § 140.*] 4. Fish (§ 13*) — Regulations—Prohibited Waters — “Pass.” A defined channel, extending between Padre and Mustang Islands, through which the tide flows and ebbs, leading from the interior end of a strait to Corpus Christi Bay, one of the coast waters of Texas on the Gulf of Mexico, through which channel the Gulf waters flow, is a part of the Corpus Christi Pass, within Pen. Code 3895, art. 529g, as amended by Acts 31st Leg. (1st Ex. Sess.) c. 23, prohibiting the taking of fish, except by hook and line, from all waters within one mile on either side of all passes leading from the Texas coast waters into the Gulf of Mexico. [Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 22-24; Dec. Dig. § 13.* For other definitions, see Words and Phrases, vol. 6, pp. 5215-5217; vol. 8, p. 7747.]
144 S.W. 1191Missouri, K. & T. Ry. Co. of Texas v. Morin (1912)Affirmed
1. Evidence (§ 588*) — Weight and Sufficiency — Physical Facts. Evidence that plaintiff, who was engaged in loading a car, was lying on sacks of, chops piled in the east end of the car, with his head to the east, when the car was struck by a moving engine roughly propelled against it from the east, as a result of which he was violently thrown in a westerly direction and injured, was not so in conflict with physical facts as to destroy its probative force. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*] 2. Tbial (§ 191*) — Insteuctions—Assumption of Facts. In an action by a laborer for injuries received while'engaged in loading a car owing to its being suddenly struck by an engine, a charge that if plaintiff had remained in the car, waiting for it to be replaced at the proper place after it had been moved, and if the servants of the defendant knew of plaintiff’s presence in the ear, and caused the engine to be run against it with such force that plaintiff was thrown from the top of sacks which had been loaded into the car, and if defendants’ servants in so running the car failed to exercise ordinary care,, which resulted in plaintiff’s injury, the verdict should be for him, is not erroneous, in assuming that defendant’s employes were guilty of negligence. [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*] 3. Railroads (§ 282*) — Injuries to Persons Working in Cars — Evidence. In an action by a laborer injured while loading a car, evidence held sufficient to warrant a finding that the railroad employés knew of his presence. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.*] 4. Appeal and Error (§ 882*) — Persons Entitled to Allege Eírror. Where defendant requested two special charges to be given in the alternative, and the court indorsed the first refused and the second given, and had them filed, and defendant’s counsel, over the protest of plaintiff, obtained permission to withdraw the second, which was on the same subject as the one refused, only fuller and more applicable to the case, defendant cannot on appeal object to the refusal of the first instruction. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] •
144 S.W. 1194St. Louis Southwestern Ry. Co. of Texas v. Woldert Grocery Co. (1912)Affirmed as to the Kansas City Southern Railway Company…
Odom, Judge. Action by the Woldert Grocery Company and others against the St. Louis Southwestern Railway Company of Texas. The Kansas City Southern Railway Company, the Missouri Pacific Railway Company, and the American Refrigerator Transit Company were made parties by cross-action by defendant. From a judgment for plaintiff, after peremptory instructions for the defendants in the cross-action, the St. Louis Southwestern Railway Company appeals.
144 S.W. 1196Missouri, K. & T. Ry. Co. of Texas v. C. H. Cox & Co. (1912)Affirmed
1. Carriers (§ 89*) — 'Carriage oe Goods— Perishable Goods — Carrier’s Right to Sell. A carrier may sell perishable goods when such sale is necessary to prevent total loss to the shipper, the agency for the owner arising from the necessity of the case; but without notification to the owner or shipper, if he can be reached, the necessity to sell does not arise. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 32Í-330; Dec. Dig. § 89.*] 2. Carriers (§ 94*) — 'Carriage oe Goods— Action eor Conversion. A carrier of perishable goods, who sells them without necessity for so doing, is liable for the value of the goods as for conversion. [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.*], 3. Appeal and Error (§ 1012*) — Review-Findings oe Fact. Findings of fact by the court are entitled to the same weight as a verdict, and will not be disregarded unless without any evidence to-support them or so against the weight of evidence as to be manifestly wrong. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. § 1012.*]