154 S.W.

Volume 154 — South Western Reporter

138 opinions

154 S.W. 229San Antonio & A. P. Ry. Co. v. Gray (1913)
154 S.W. 230Robles v. Robles (1913)Affirmed
Tenancy in Common (§ 15*) — Adverse Possession. The execution of a deed by a tenant in common and its recording by the grantee who took open and adverse possession thereunder, and paid the taxes, was notice to the other cotenant of the assertion of an adverse claim. [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]
154 S.W. 231Texas Lumber Mfg. Co. v. Prince (1913)Affirmed
Appeal from District Court, Hardin County; L. B. Hightower, Judge. Action by F. B. Prince against the Texas Lumber Manufacturing Company. Judgment for plaintiff, and defendant appeals.
154 S.W. 233Louisiana & Texas Lumber Co. v. Alexander (1913)Affirmed
ADVERSE POSSESSION (§ 50*) — INTERRUPTION-ATTORNMENT TO ANOTHER. Generally, continuity of possession of an adverse claimant is not broken by the attornment of his tenant to another without Ms knowledge or consent; bfit the rule does not apply when the attornment is to the owner of the property, and was obtained by him without any notice that the person in possession, w,ho attorns, is holding under one claiming adversely to him. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 255-261; Dec. Dig. § 50.*]
154 S.W. 235Alexander v. Louisiana & Texas Lumber Co. (1913)Affirmed
1. Appeal and Error (§ 731*) — Assignments op Error — Sufficiency. Assignments of error that the verdict is contrary to the law, that it is not supported by the evidence, and that it is contrary to the great preponderance of the evidence are too general to be renewable. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.*] 2. New Trial (§ 128*) — Grounds of Motion —Sufficiency. Under district and county courts rule 68, grounds of motion for new trial that the verdict is contrary to the law, that it is not supported by the evidence, and that it is contrary to the great preponderance of the evidence are too general to be considered by the district court. [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 257-262; Dee. Dig. § 128.*] 3. Appeal and Error (§ 1002*) — Review — Verdict — Conclusiveness. A verdict on conflicting evidence will not be disturbed on appeal. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]
154 S.W. 236Gregory v. Houston Oil Co. of Texas (1913)Appeal dismissed
B. Hightower, Judge. Action between J. S. Gregory and others and the Houston Oil Company of Texas. From an order refusing to dissolve a temporary injunction, J. S. Gregory and others appeal. •
154 S.W. 237Trinity & B. v. Ry. Co. v. McCune (1913)Affirmed
1. Continuance (§ 26*) — Denial — Discretionary Ruling. The denial of defendant’s application for continuance, sought because of the absence of a witness in its employ who had promised to attend but was detained by his wife’s sickness, was not an abuse of discretion, where defendant made no effort to take the witness’ deposition, though he had ample time to do so after service and before trial. [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 71-93; Dec. Dig. § 26.*] 2. Appeal and Error (§ 1053*) — Withdrawal op Evidence — Cure of Error. In a passenger’s action for injuries,_ an instruction withdrawing evidence relative to plaintiff’s reputation for sobriety cured the error in admitting it. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dee. Dig. § 1053.*] 3. Evidence (§ 553*) — Experts — Examination — Hypothetical Question. A hypothetical question was not improper because it did not embrace precisely the language of the evidence, where it gave substantially what the evidence showed. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*] 4. Trial (§ 296*) — Instructions—Cure of Error. In a passenger’s action for injuries, an instruction that “contributory negligence is such an act or omission on the part of the person injured as an ordinarily prudent person would not have done or would not have omitted to do, * * * which * * * contributed to bring about that injury,” was cured by other correct instructions specifically telling the jury to find for defendant if plaintiff failed to use ordinary care. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dee. Dig. § 296.*] 5. Carriers (§ 321*) — Injury to Passenger —Instructions—Evidence. In a passenger’s action for injuries, plaintiff’s testimony that, “if there was any apron or sheet iron on the car at all, it did not extend but a short distance, and I do not remember which side it was hooked to,” that his foot was caught between two buffers where the sheet iron rubs together over the buffers on one side, and that the sheet iron was up against his .foot, warranted an instruction predicated upon the defendant’s failure to provide a proper covering for the buffers between which plaintiff’s foot was caught. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326, 1337, 1343; Dec. Dig. § 321.*] 6. Carriers (§ 280*) — Injury to Passenger —Liability—Anticipated Injury. In order to hold a carrier liable for injuries to a passenger, it was not essential that it must have anticipated the precise injury oi precise person injured, but was sufficient that it ought to have anticipated a similar injury to some one similarly situated. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.*] 7. Appeal and Error (§ 760*) — Assignments of Error — Sufficiency—Refusal of Instruction. An assignment of error complaining of a refusal of an instruction may not be considered, where the instruction was not copied in the brief and the page of the record containing it was not pointed out [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.*] 8. Appeal and Error (§ 742*) — Assignment of Error — Sufficiency—Refusal of Instruction. An assignment of error complaining of the refusal of an instruction could not be considered, where neither the' proposition nor statement pointed out any evidence showing the relevancy of the instruction to the facts. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]
154 S.W. 239Missouri, K. & T. Ry. Co. of Texas v. Passons (1913)Affirmed
1. Railroads (§ 222*) — Operation — Nuisance-Evidence. In an action by a householder, who lived adjacent to a railroad company’s yard, evidence held sufficient to support a verdict that the operation of engines and cars was so careless as to be a nuisance. ' [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec. Dig. § 222.*] 2. Railroads (§ 222*) — Operation — Injuries — Depenses. In an action against a railroad company by a householder, who lived adjacent to its yards, for damage from smoke and noise, it appeared that when plaintiff first built there was only one track at that point, and the operation of trains thereon did not materially interfere with the occupation. Subsequently a large railroad yard was constructed and the number of engines greatly augmented, so that, with careless operation, they became a nuisance. Held that, if a structure, permanent in character, is a nuisance from which injury results to adjacent property, and the health of occupants is impaired or destroyed, the injured party may recover for any damage that is done, the fact that the house was constructed after the first track of the railroad was built does not estop plaintiff from claiming damages for subsequent injury. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec.' Dig. § 222.*] 3. Trial (§ 252*) — Instructions—Applicability to Evidence. In an action by a householder for damages for the negligent operation of trains and engines, which depreciated the value of her property and destroyed its comfortable enjoyment because of the smoke and noise, where she testified that one of the engineers operated an engine so that it never made any unusual noise, and the railroad company offered no rebutting testimony, a requested charge that it had a legal right to operate its trains adjacent to plaintiff’s premises, and that plaintiff could recover no damages for the consequences of those noises, sparks, and cinders which are ordinarily incident to the operation of locomotives, when operated by men of ordinary care, was properly refused, in view of the charge given, which required the jury to find that the engines were negligently operated, having no support in the evidence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dee. .Dig. § 252.*]
154 S.W. 243Jackson v. Furst, Edwards Co. (1913)Reversed and remanded
Appeal from District Court, Hill County; C. M. Smithdeal, Judge. Action by Furst, Edwards & Co. against W. E. Jackson. From a judgment allowing plaintiffs to dismiss, defendant appeals.
154 S.W. 245Murray Co. v. Putman (1913)Reversed and remanded
Appeal from District Court, Navarro County; H. B. Daviss, Judge. Action by C. A. Putman against the Murray Company. Judgment for plaintiff, and defendant appeals.
154 S.W. 247Bagley v. Brack (1913)Reversed and remanded
Appeal from Bexar County Court for Civil Cases; Hon. G. W. Huntress, Judge. Action by A. A. Brack against N. R. Bag-ley and another. From the judgment Bag-ley appeals.
154 S.W. 249Consumers' Lignite Co. v. Hubner (1913)Affirmed
1. Continuance (§ 46*) — Application—Discretionary Ruling. It was within the sound discretion of the court to overrule a first application for a continuance, which failed to state that the applicant had used due diligence to procure the testimony of the absent witness. [Ed. Note. — Eor other cases, see Continuance, Cent. Dig. §§ 132-140; Dec. Dig. § 46.*] 2. Continuance (§ 47*') — Admissions in Contest — Evidence in Contradiction. Where plaintiff, in his contest of an application for a continuance, made certain admissions, conditioned upon the application being found statutory, and the application did not in fact comply with the statute, the admission of evidence contradictory of such admissions was not error, though the trial court failed to state his reasons for denying the continuance. [Ed. Note. — Eor other eases, see Continuance, Cent. Dig. § 141; Dec. Dig. § 47.*] 3. Continuance (§ 35*) — Geounds—Avoidance. Where an application for continuance because of the absence of a material witness is otherwise sufficient, it should be' granted, unless the facts expected to be proved by the witness, and as stated in the application, are admitted to be true. [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 115; Dec. Dig. § 35.*] 4. Master and Servant (§ 286*) — Injury to Servant — Negligence—Question eor Jury. Where, in a mine employe’s action for injuries due to a fall from the bottom flight of a stair, which he necessarily descended in entering the mine, after his light ha.d been extinguished by being struck by some falling substance, the evidence was conflicting on whether such flight was protected by banisters, the question of whether defendant was negligent in maintaining a defective stairway was for the jury. [Ed. Note. — For other cases, see Master a.nd Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1050; Dec. Dig. § 286.*] 5. Appeal and Error (§ 1002*) — Verdict-Conflicting Evidence. A verdict for plaintiff on conflicting evidence could not be disturbed merely because defendant produced the greater number of witnesses, and their testimony was the more positive. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] 6. Master and Servant (§ 288*) — Injury to Servant — Assumption of Risk — Question for Jury. Where a mine employé, prior to his injury, had made but one trip down the stairs a.t the entrance of the mine, and was then accompanied by two of defendant’s employés, neither of whom called his attention to the fact that the bottom flight of the stairway was without banisters, and there was nothing to call his attention to. such fact, he did not, as a matter of law, assume the risk of an injury; due to his falling while reaching for the missing banister, after his light had been put out by some falling substance; a servant, on entering a master’s employment, not being required to use ordinary care to see that the master’s business is conducted in a reasonably safe manner. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*] 7. Master and Servant (§ 288*) — Injury to Servant — Assumption of Risk. That a mine employé, in ascending the stairway, assumes the risk of some substance falling from above does not, as a matter of law, result in his also assuming the risk of a defect in the stairway unknown to him, and as the result of which he falls to- the bottom of the shaft, after his light is put out by the falling substance; the risks assumed being only such as pertain to defects known to him. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*] 8. Master and Servant (§ 270*) — Injury to Servant — Evidence—Safe Place to Work. Evidence, in a mine employe’s ■ action for injuries due to a defective stairway, that defendant’s “mines were some of the 'best lignite mines in the state, as regards safety and efficiency of management,” was properly excluded; it not being competent proof of the safety of the mine in question that it was as safe as other mines. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dee. Dig. § 270.*] 9. Appeal and Error (§ 1058*) — Review-Harmless Error — Exclusion of Evidence. In a mine employe’s action for injuries due to the lower flight of a stairway not being protected with banisters, the refusal to permit a witness to testify in regard to the safety and efficiency of the management of defendant’s mines, if error, was harmless, where the same witness testified that the mine in question was “constructed along the usual lines, provided with steps and banisters, with the exception of the lower flight of steps.” [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*] 10. Evidence (§ 471*) — Opinion Evidence— .Construction op Law. In a mine employé’s action for injuries, testimony that, in the witness’ opinion, the mine was being operated in compliance with state mining laws was properly excluded,, since it involved a construction of the mining laws. [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2149^-2185; Dec. Dig. § 471.*] 11. Evidence (§ 471*) — Opinion Evidence-Conclusion op Witness. In a mine employé’s action for injuries, testimony that, in the witness’ opinion, the entries and driveways to. the mine were in a safe condition, being a conclusion of the witness, was properly excluded. [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 12. Master, and Servant (§ 293*) — Injury to Servant — Instruction. In a mine employé’s action for injuries due to a defective stairway, an instruction that the master “must use ordinary care to furnish the servant a reasonably safe method of ingress to. Ms mine” was not misleading in the use of the word “method,” particularly where he also instructed that plaintiff could not recover if the stairway was not defective. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*] 13. Master and Servant (§ 295*) — Injury to Servant — Instruction. An instruction, in a mine employé’s action for injuries due to. a defective stair in the man-way, that plaintiff assumed the risk of injury, if the accident was one ordinarily incident to the business of sending men into the mine through the manway, was not misleading in the use of the word “accident.” [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.*] 14. Trial (§ 133*) — Argument op Counsel— Cure op Error. Improper argument of counsel, in a mine employé’s action for injuries, in stating, “We have only brought this suit for $1,999.99, although we are entitled to more, because the defendant is a foreign corporation, and if we sued for more than this the defendant would move its case from this court,” was cured, where the court checked counsel and orally instructed the jury not to consider such argument, and defendant did not request any written instruction on the matter. [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*]
154 S.W. 255Hume v. Darsey (1913)Affirmed
1. Deeds (§ 211*) — Trusts (§ 89*) — Evidence. In trespass to try title evidence held to sustain a verdict finding that defendant D. did not purchase the land from the other defendants for plaintiff’s benefit, and that such other defendants were not fraudulently induced to sign a warranty deed without knowledge of its contents, while intending only to execute a quitclaim. [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647, 649; Dec. Dig. § 211;* Trusts, Cent. Dig. §§ 134 — 137; Dec. Dig. § 89.*] 2. Evidence (§ 151*) — Intent — State oe Mind. On an issue in trespass to try title as to whether witness intended to execute a quitclaim or warranty deed, he having testified fully as to the facts relied on to show that ■ he and his cograntor were imposed on in executing the warranty, it was not error to refuse to permit him to. further testify that he considered a quitclaim deed as the only kind he and his cograntor could or would give; and that, as far as certain others were concerned, who had an option to purchase the property from the grantee, it was as good for them as a warranty. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 440; Dec. Dig. § 151.*] 3. Evidence (§ 471*)— Opinion. Where a witness and his cograntor had conveyed the land in controversy to D., who had given an option to the heirs of L. to purchase the land from him, evidence that the witness considered that D. was a benefactor of such heirs, and that the conveyance to D. was virtually a deed to the heirs, they not having money to pay for the land, thus securing D. for Ms outlay in their behalf, was properly excluded. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 4. Evidence (§ 471*) — MATERIALITY—UNDERSTANDING OF WITNESS. On an issue whether the intervening defendants had been fraudulently induced to execute a warranty instead of a quitclaim deed to D., evidence of a witness, who was present when the deed was executed, that he understood the deed was to be a quitclaim was properly excluded; he being unable to state the facts and circumstances on which he based the understanding. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 5. Covenants (§ 78*) — Warranty op Title —Defenses. Where the heirs of. L. induced D. to purchase an outstanding title, which he did, receiving from his grantors a warranty deed, and giving to the heirs of L. a mere option to purchase from him. by paying the amount paid, and interest, but such heirs were under no obligation to exercise the option, and D. had no recourse on them, the fact that they instituted proceedings to have such outstanding title declared void, in which they were successful, did not preclude D. from recovering against his grantors on their warranty. [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 77; Dec. Dig. § 78.*]
154 S.W. 258Smith v. Adoue & Lobit (1913)Affirmed
1. Adveese Possession (§ 85*) — Husband and Wife — Separation—Lease—Evidence. In an action wherein the wife claimed land by adverse possession, a lease taken by the husband from the other claimant was properly admitted as evidence that the wife had not held adversely, though the evidence was conflicting whether the husband had then abandoned his wife. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 498-503, 656, 660, 668; Dec. Dig. § 85.*] 2. Adverse Possession (§ 116*) — Husband and Wife — Separation—Lease. In an action for land claimed by defendant by adverse possession, where there was a conflict in evidence whether defendant’s husband had abandoned her, and the husband had taken a lease .on the land, an instruction that, “if you find that defendant’s husband had not abandoned her during period of limitation and during that period leased the premises from the plaintiff, you should find for the plaintiff,” was proper. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. § 116.*] '3. Appeal and Error (§ 742*) — Assignments oe Error — Sufficiency—Rules of Court. JlU, An-- assignment, that “the court erred in sustaining the demurrer to suggestions of improvements,” subjoined by the proposition that “defendant’s amended suggestion of improvements was pleaded in accordance with the statutes, and defendant was entitled to their value,” followed by the statement that “defendant’s first amended suggestion of improvements was in accordance with the statutes of Texas, art. 4813, which ins the present law,” cannot be considered, under court rule 31 (142 S. W. xiii), providing that a statement in an assignment of error must contain a brief statement of so much of the record as supports and explains the proposition. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 4. Appeal and Error (§ 732*) — Assignments of Error — Sufficiency. An assignment that “the court erred in overruling the defendant’s motion for a new trial for the reasons assigned in said motion” is too general to be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*] 5. Appeal and Error (§ 1074*) —Assignments of Error — Disposition of Case. Whether the trial court erred in requiring a deposit of $200 as security for costs as a condition precedent to an appeal from an adverse judgment has nothing to do with the disposition of the appeal, and, not having prevented the appeal, wHl not be reviewed. [Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. §§ 4248 — 4252; Dec. Dig. § 1074.*]
154 S.W. 260Winslow v. Gentry (1913)Reversed and remanded
1. Venue (§ 8*) — Subject op Action — Action fob Negligence — “Trespass.” Under Rev. Civ. St. 1911, art. 1830, providing that no person shall be sued out of the county of his domicile except where the foundation of the suit is some trespass for which a civil action may lie, when suit may be brought in the county in which the trespass is committed, or in the county of defendant’s domicile, a “trespass” is an active wrong, as distinguished from negligently omitting what should have been done, and includes the negligent running of a yacht so as to cut the cable of another, and thereby destroy it. [Ed. Note. — Eor other cases, see Venue, Cent. Dig. § 17; Dec. Dig. § 8.* For other definitions, see Words and Phrases, vol. 8, pp. 7088-7092.] 2. Shipping (§86*) — Action — Evidence — Negligence. Evidence in an action for damages for alleged negligence of defendant in permitting her yacht to drive across the cable of plaintiff’s schooner, so as to cut it and cause the schooner’s destruction, held not sufficient to show negligence on the part of defendant. [Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 343, 353-360; Dec. Dig. § 86. *]
154 S.W. 261Lupton v. Willmann (1913)Affirmed
M. Woods, Judge. Action by R. J. Willmann against R. Lup-ton, to which the Atchison, Topeka & Santa Fé Railway Company and others were made parties. Judgment for plaintiff, and defendant appeals.
154 S.W. 262Lind v. Reeves & Co. (1913)Affirmed
1. Appeal and Bbeor (§ 1011*) — Findings— Conflicting Evidence. Findings of the trial court, sustained by ample evidence,, could not be disturbed on appeal, though the evidence was conflicting. [Ed. Note. — For other cases, see Appeal and Error,] Cent. Dig, §§ 3983-3989; Dec. Dig. § 1011.*] 2. Evidence (§ 471*) — Conclusion of Witness. In a buyer’s action for defects in a traction engine purchased, testimony of engineers, who had had charge of the engine, that it was absolutely new, and had not been run enough to injure it, was not inadmissible as the statement of an opinion. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 3. Evidence (§ 519*) — Experts—Competency. An engineer, who qualifies as an expert on engines, may give his opinion as to whether an engine with which he is familiar is new. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2328; Dec. Dig. § 519.*] 4. Appeal and Error (§ 664*)— Statement of Facts — Assignment of Ebbob. Where the statement of facts did not show that a witness testified to the facts set out in the bill of exceptions and complained of in the assignment of error, the court of review could not decide that error existed; the statement and bill being of equal dignity. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. § 664.*] 5. Appeal and Ebbob (§§ 690, 742*) — Statement of Facts — Assignment of Error— Statement Accompanying. Where neither the statement of facts nor the statement under an assignment of error shows the admission of testimony such as is complained of, the assignment will be overruled. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908, 3000; Dec. Dig. §§ 690, 742.*]
154 S.W. 264Whitney v. Parish of Vernon (1913)Reversed and rendered
Error to District Court, Jefferson County; L. B. Hightower, Judge. Action by the Parish of Vernon against William C. Whitney. Judgment for plaintiff, and defendant brings error.
154 S.W. 268Thompson & Tucker Lumber Co. v. Platt (1913)Affirmed
1. Estoppel (§ 30*) — Grantees — Common Source oe Title. Defendant, in trespass to try title, was estopped to deny title of one, under whom both parties claimed as a common source, to the certificate under which the land was located. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 74; Dee. Dig. § 30.*] 2. Trespass to Try Title (§ 41*) — Verdict —Evidence. In trespass to try title, evidence held to sustain a verdict for plaintiff on the facts. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.*] 3. Appeal and Error (§ 1005*) — Review-Verdict. Where a jury refused to find from the evidence adduced that a deed had been executed and lost, such verdict, approved • by the trial court, must be affirmed on appeal, if there is any evidence to support it. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3954; Dec. Dig. § 1005.*] 4. Champerty and Maintenance (§ 5*)— Power oe Attorney — Agreement to Convey Land eor Services — “Barratry.” A power of attorney, authorizing an attorney to sue for and recover land at his own expense, receiving for his services an undivided one-half of the land, was not a violation of barratry law; Acts 27th Leg. c. 57, defining “barratry,” and providing that if any attorney shall seek or obtain employment in any suit or case at law, or in equity, etc., he shall be deemed guilty of barratry. [Ed. Note. — For other cases, see Champerty and Maintenance, Cent. Dig. §§ 24-51; Dec. Dig. § 5.* For other definitions, see Words and Phrases, vol. 1, p. 710.] 5. Trespass to Try Title (§ 40*) — Evidence —Deeds—Abstract oe Title. Deeds showing a claim of title in the common source to a survey in which the land in controversy was located were admissible to support plaintiff’s claim that the original unconditional certificate had been transferred to such common source, though the deeds were not in plaintiff’s chain of title, and were not embraced in the abstract of title. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dec. Dig. § 40.*] 6. New Trial (§' 104*) — Newly Discovered Evidence. A motion for a new trial for newly discovered evidence of a fact sustained by practically undisputed evidence in the case was properly refused. [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.*]
154 S.W. 273Steddum v. Kirby Lumber Co. (1912)Affirmed
Appeal from District Court, San Augustine County; W. B. Powell, Judge. Action by N. B. Steddum against the Kirby Lumber Company and another. Prom a judgment for defendants, plaintiff appeals.
154 S.W. 278Trinity Valley & N. Ry. Co. v. Green (1913)Reformed and affirmed
1. CARRIERS (§ 347*) — Passengers—Injuries —Contributory Negligence. Where, after failing to stop a train at plaintiff’s station, the conductor encouraged plaintiff to jump from the train while it was moving, saying that he, the conductor, could •‘step off backwards,” and that it was safe for plaintiff to' jump, plaintiff’s contributory negligence in so doing was for the jury, in an action for resulting injuries. • [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346-1397, 1402; Dec. Dig. § 347.*] 2. Damages (§ 131*) — Excessive Damages— Personal Injuries. Plaintiff in jumping off a passenger train fell, bruising his face, breast, and stomach somewhat, but walked without difficulty to his home, three-fourths of a mile away, ate dinner, and went to bed, where he was confined for three days, and suffered some pain at first, but his injuries were slight. He suffered no other loss. Held, that a verdict for $487.50 was excessive, and would be reduced to $300. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370, 371; Dec. Dig. § 131.*]
154 S.W. 279Cook v. Houston Oil Co. of Texas (1913)Affirmed
Error from District Court, Hardin County; L. B. Hightower, Judge. Trespass to try title by Peter Cook and others against the Houston Oil Company of Texas. Judgment for defendant, and plaintiffs bring error.
154 S.W. 282Mallory S. S. Co. v. G. A. Bahn Diamond & Optical Co. (1912)Affirmed, and motion for rehearing overruled
Calhoun, Judge. Action by the G. A. Bahn Diamond & Optical Company against the Mallory Steamship Company and others. From a judgment for plaintiff and the unnamed defendants, the Steamship Company appeals.
154 S.W. 288Kirby Lumber Co. v. Cunningham (1913)Reversed and remanded
1. Receivers (§ 146*) — Termination oe Receivership-Liability oe Owner. Under Rev. St. 1895, art. 1472 et seq., relating to the application of funds in the hands of a receiver and the liability of property after redelivery, etc., the owner will not be responsible for liabilities for personal injuries incurred by the receiver, upon the redelivery of the property without sale, unless the property is equal in value to the claim, or the amount of such liabilities have been imposed on the owner by the decree for return as a condition thereof. ' [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 253-256; Dec. Dig. § 146.*], 2. Courts (§ 363*) — Federal Court& — Application of State Statute. Rev. St. 1895, art. 1472 et seq., relating to the application of funds in the hands of a receiver, etc., does not apply to a receivership in a federal court in so far as it provides rules of procedure, or limits the effect of judgments of such courts. [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. § 363.*] 3. Receivers (§ 146*) — Return of Property —Liability of Owner — Federal Receivership. To make a corporation liable for injuries to an employé while the property #was in the hands of a receiver appointed by a federal court, it must be shown that the receivership has been terminated and the property returned to the corporation with such liability • imposed upon it by the decree as a condition to receiving it, or that it has assumed such liability, or that the revenues were expended by the receiver in bet-terments. [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 253-256; Dec. Dig. § 146.*] 4. Appeal and Error (§ 187*) — Objection Below — Necessity — Misjoinder of Parties. Where misjoinder of defendants is not pleaded, it cannot be urged on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1184-1189; Dec. Dig. § 187.*] 5. Pleading (§ 290*) — Appointment — Proceedings Against Owner — Verified Pleadings. Rev. St. 1895, art. 1265, requiring the answer setting up certain matters to be verified, does not apply to an action against an- owner of property for injuries received while it was in the hands of a -receiver, so as to require the discharge of a receiver to be denied under oath or stand admitted, the statute not mentioning such a case. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 859-863, 886% ; Dec. Dig. § 290.*] 6. Receivers (§ 168*) — Actions -Against— Discharge. A suit cannot be maintained against receivers in their representative capacity after they have been discharged, and the property redelivered according to order of the court. [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 321, 322; Dec. Dig. § 168.'*] 7. Receivers (§ 183*) — 'General Denial-Effect. A general denial pleaded in an action for personal injuries while defendant lumber company was in the hands of a receiver would put in issue the appointment of a receiver. [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366; Dec. Dig. § 183.*] 8. Tbiae (§ 143*) — Juey Question. A question of fact was for the jury, where the evidence thereon was conflicting. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*] 9. Master and Servant (§ 276*) — Injuries— SUFFICIENCY OF EVIDENCE — PROXIMATE Cause. Evidence in an employé’s action for injuries by the derailment of the logging train on which plaintiff was riding held to sustain a finding that a defective condition of the car which resulted in a lowering of the sand board, and permitted it to strike a stake driven in the track, was a proximate cause of the accident. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950, 952, 954, 959, 970, 976; Dee. Dig. § 276.*] 10. Master and Servant (§ 276*) — Injuries —Proximate Cause — Sufficiency of Evidence. Evidence in an action for injuries to an employé by the derailment of a logging train by striking a wooden stake in the track held to show that the failure to keep a proper lookout or to have a headlight' on the engine or a light on the end of the car was not a proximate cause of the accident. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dee. Dig. § 276.*] 11. Trial (§ 252*) — Instructions—Issues. Instructions in a servant’s action for personal injuries should not have submitted grounds of negligence which could not, under the evidence, have proximately caused the injuries. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 12. Appeal and Error (§ 1066*) — Harmless Error — Instructions. In an action for injuries by the derailment of a logging train by striking a wooden stake in the track, error in submitting as grounds of negligence failure to keep a proper lookout, and in not having a headlight or a light on the end of the car, when the only ground of negligence which the evidence showed could have proximately caused the injury was in permitting a defective condition in the car so as to permit it to strike the stake, cannot be said not to have prejudiced defendant. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] 13. Negligence (§ 56*) — Injuries — “Proximate Cause.” A proximate cause of an accident is that which in a natural and continuous sequence, unbroken by any new independent cause, produces the event, and without which the injury would not have happened, and from which it could reasonably, and should, have been anticipated that injury would result as a natural and probable consequence under the circumstances (citing 6 Words & Phrases, pp. 5758, 5760). [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. §. 56.* For other definitions, see Words and Phrases, vol. 8, p. 7771.] 14. Master and Servant .(§ 296*) — Injuries — Instructions — Contributory Negligence. An instruction that an employé’s contributory negligence must have caused the injury in order to bar recovery, instead of charging that it must have “caused or contributed” to the injury, was erroneous. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*] 15. Master and Servant (§ 296*) — Instructions — Application to Case. The court should have instructed upon the concrete facts claimed to constitute contributory negligence 'by an employé, if the evidence raised the issue, and not merely have instructed generally on the question of contributory negligence. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dee. Dig. § 296.*] 16. Master and Servant (§ 288*) — Injuries —Jury Question — Assumed Risk. Evidence in an action for injuries to an em-ployé by the derailment of a logging train by striking a wooden stake, caused by ■ a defect in the car so as to let down a part of it far enough to strike the stake, held not to raise the issue of assumed risk. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1005, 1068-1088; Dec. Dig. § 288.*] 17. Appeal and Error (§ 843*) — Review-Questions Not Necessary for Decision. Where the judgment must be reversed and remanded for new trial on other grounds, the question whether the recovery was excessive will not be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § S43.*]
154 S.W. 295Danner v. Walker-Smith Co. (1912)Affirmed in part, and in part reversed and remanded
own County; John W. Goodwin, Judge. Action by the Walker-Smith Company and others against A.- J. Danner and others. Judgment for plaintiffs, and defendants appeal.
154 S.W. 303Ferguson v. Beaumont Land & Building Co. (1913)Writ dismissed
Error from District Court, Bell County; John D. Robinson, Judge. Action by the Beaumont Land & Building Company against James E. Ferguson and others, with cross-bill by defendant Ferguson. Fprom the judgment he brings error, and defendants move to dismiss the writ.
154 S.W. 305Pecos & N. T. Ry. Co. v. Bishop (1913)Affirmed
Appeal from District Court, Swisher County; D. S. Kinder, Judge. Action by R. A. Bishop and another against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiffs, and defendants appeal.
154 S.W. 312Scarborough v. Blount (1913)Reversed and remanded, with instructions/
B. Powell, Judge. Suit for partition' by certain heirs of Alfred Blount against others of such heirs, and P. E. Scarborough intervened. From the judgment, the intervener appeals.
154 S.W. 314Davis v. Riley (1913)Reversed and rendered
Taxation (§ 526*) — Poll Tax — Payment-Time — Issuance of Receipts — Nunc Peo Tunc — Authority of Collector. Rev. Civ. St. 1911, arts. 2943, 2944, 2945, 2957, 7615, 7616, required the tax collector to .keep his office at the county seat, making it his duty, however, to meet the citizens throughout the county in their respective precincts at such time as he should indicate for the payment of their taxes, but, if they failed to take advantage of such opportunity, they were then required to pay the same at the office of the collector, except in counties containing a city or town of more than 10,000 population other than the county seat, in which case the collector during January in each year is required to have a sworn deputy in such town, who is authorized to accept poll taxes and give receipts therefor. Terrell’s Election Law, § 152 (Acts 29th Leg. 1st Called' Sess. c. 11), provides that all poll taxes shall be paid on or before the 1st day of February of each year, and makes it a penal offense for the collector to receive poll taxes and antedate the receipts therefor after such time. Held that, since payment by a citizen of his poll tax at any other place than the office of the collector does not in law constitute a payment of the tax, so as to entitle the taxpayer to a receipt on which he can vote, unless made to a deputy in a town of 10,-000 inhabitants other than the county seat, payment of poll taxes by citizens not residing in such a town, on January 30, 1912, to a private agent authorized to pay the same to the tax collector and receive the receipts, which did not reach the tax collector until the 1st and 2d days of February, 1912, did not entitle the taxpayers to receipts dated as of January 31, 1912, so as to enable them to vote thereon. [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 969; Dec. Dig. § 526.*]
154 S.W. 317Walker Mercantile Co. v. J. R. Raney Co. (1912)Affirmed on appellee’s motion for rehearing, and…
Appeal from Coleman County Court; T. J. White, Judge. Action by the J. R. Raney Company against the Walker Mercantile Company and another. From a judgment for plaintiff, defendant company appeals.
154 S.W. 319Tiefel Bros. Winn v. Maxwell (1913)Affirmed
1. Detinue (§ 1*) — Trover and Conversion (§ 13*) — Nature oe Action — “Trover.” An action for the recovery of specific personal property is in substance an-action of “det-inue,” and in contradistinction to “trover,” which is to recover damages for the conversion, lies for the recovery of personal chattels in specie where unlawfully detained, or for damages for their detention. [Ed. Note. — For other cases, see Detinue, Cent. Dig. § 1; Dec. Dig. § 1;* Trover and Conversion, Cent. Dig. §§ 103-116; Dec. Dig. § 13.* For other definitions, see Words and Phrases, vol. 3, pp. 2040, 2041; vol. 8, pp. 7111-7113.] 2. Action (§ 45*) — Joinder oe Action. Despite the rule that an action upon a tort may not be joined with one of contract, unless the tort grows out of or is related to the contract, an action in the nature of detinue may be joined with one in the nature of debt. ■ [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 378-448; Dee. Dig. § 45.*] 3. Action (§ 57*) — Joinder op Actions. Where plaintiffs in one action sued for the possession of cattle and in another sued the same defendant upon a promissory note and a chattel mortgage which covered other live stock, the court properly consolidated the actions, where it appeared from defendant’s cross-action that he made a contract with plaintiffs for them to furnish him with money to purchase the cattle described in the first action, and to pay off the note and mortgage declared upon in the second suit, and that in substitution he was to execute a larger note for the whole amount and another mortgage upon all the stock; the causes of action being based on a single transaction. [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 632-675; Dec. Dig. § 57.*], 4. Sequestration (§ 21*) — Wrongful Sequestration — Measure op Damages. Where defendant’s cattle were wrongfully sequestrated, the measure of defendant’s damages is the'value of the same at trial, and not at the time of the levy. [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. § 21.*] 5 Appeal and ' Error (§ 907*) — Statement op Facts — Necessity. In the absence of a statement of facts, it will be assumed that all material facts necessary to support the verdict were established at trial. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.*] 6. Pleading (§ 214*) — Review — Presumptions. Where only a general demurrer was interposed to defendant’s plea in reconvention for damages for the wrongful sequestration of cattle, every reasonable intendment will be indulged in favor of the plea on appeal, as upon the demurrer below. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] 7. Appeal and Error (§ 742*) — Assignments op Error — Statements. Where appellants’ 'brief made no reference to the specification of errors in the motion for new trial, the assignments of error are insufficient under rules Nos. 24 and 25, providing that the statements thereunder must refer to that portion of the motion for new trial exhibiting the specifications of error complained of. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]
154 S.W. 322Wilson v. Brown (1912)Affirmed
Goodwin, Judge. Action by J. L. Wilson, guardian, against G. H. Brown. From a judgment for defendant, plaintiff appeals.
154 S.W. 327Texas Co. v. Strange (1913)Reversed and remanded
1. Appeal and Error (§ 766*) — Assignments of Brbob — Compliance with Rules. Consideration will not be denied .assignments of error as not complying with Court of Civil Appeals rules 24, 25 (142 S. W. xii), for preparation of briefs; the brief having been prepared prior to publication of any judicial construction of the rules, and, while not in strict compliance with them, there having been an earnest endeavor to comply with them, and their spirit having been met. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3101; Dec. Dig. § 766.*] 2. Evidence (§ 213*) — Negotiations for Compromise. Evidence of negotiations in an endeavor to secure a compromise of claimed damages is not admissible in an action on the claim; the negotiations having failed. [Ed. Note. — For other cases, see Evidence; Cent. Dig. §§ 745,-751, 753; Dec. Dig. § 213.*] 3. Damages (§ 171*) — Pecuniary Conditions — Personal Injuries. As parading plaintiff’s financial condition, ’ evidence, in an action for personal injuries, that he has to work is improper. [Ed. Note. — For other cases, see Damages, Cent. Dig. § 498; Dec. Dig. § 171.*] 4. Witnesses (§ 383*) — Impeachment—Collateral Issue. Testimony, in an action for personal injury, as to an agent of defendant telling plaintiff after the accident not to worry about his job, that it was not his fault, and that defendant would take care of him, is as to a collateral issue, and therefore not subject to impeachment. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. § .383.*] 5. Evidence (§ 243*) — Statement of Agent After Event. Statement of defendant’s agent subsequent to plaintiff’s injury, and not while the transaction was pending, that plaintiff should not worry about his job, that it was not his fault, and defendant would take care of Mm, was a mere opinion, not admissible against defendant in an action for the injury. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 908-915; Dec. Dig. § 243.*] 6. Trial (§ 260*) — Instructions—Requests More Specific Than Instructions Given. A requested charge in a servant’s action for injury, applying the law of contributory negligence or assumption of risk to the facts in a specific and pointed way, which called the attention of the jury to the particular defense, should be given, though the court charged on such issue; it not having grouped the facts and applied the law thereto as fully as presented in the requested special charge. [Ed. Note.- — Eor other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 7. Master and ' Servant (§ 185*) — Sai® Place to Work — Scaffolds—Nondelega-ble Duty. The duty-- of a master to furnish a servant a reasonably safe scaffold on which to work is not a delegable duty. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 419-423; Dec. Dig. § 185.*]
154 S.W. 330Caruthers v. Link (1913)Affirmed
Appeal from Milan County Court; John Watson, Judge. Action by J. D. Dink and others against H. C. Caruthers and another. Judgment for plaintiff, and defendant Caruthers appeals.
154 S.W. 331State v. Jasper E. R. Co. (1913)Reversed and remanded
1. Railroads (§ 226*) — Construction—Depots — Toilets—Statutes—Co nstructio n . Acts 31st Deg. c. 96 (Rev. Civ. St. 1911, art. 6592), requires every railroad corporation operating in Texas, for the transportation of passengers, to maintain suitable toilets at each passenger station on its line, either within its passenger depot or in connection therewith, etc. Held, that such act only requires the erection and maintenance of toilets by railroads at stations where it has constructed and maintains a building, commonly known as a “depot,” for the accommodation and protection of passengers received and discharged thereat, and ’does not require such maintenance at way or flag stations, where no depot or building has been erected. [Ed. Note. — For other cases, see Railroads, Cent. Dig. | 740; Dec. Dig. § 226.*] 2. Railroads (§ 254*) — Passenger Station— “Depot” — Toilets—Failure to Construct —Petition for Penalty. Where, in an action by the state against a railroad company for failing to construct and maintain proper toilets in or near a passenger depot, as required by Acts 31st Deg. c. 96 (Rev. Civ. St. 1911, art. 6592), the petition alleged that defendant established and had. maintained for more than four years a depot or place for the discharging, receiving, etc., of both passengers and freight for hire at such place, and that during such time defendant had failed or refused to erect and maintain toilets in said depot, or -within a reasonable and convenient distance therefrom, the petition sufficiently alleged that the railroad company maintained a building at such point for the accommodation and protection of passengers; the word “depot” being used in its ordinary sense to mean a building, “a railway station, a building for the accommodation and protection of railway passengers or freight.” [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764^-772; Dee. Dig. § 254.* For other definitions, see Words and Phrases, ■ vol. 3, pp. 2004, 2005.] 3. Stipulations (§ 14*) — Operation in Gen-erai>-Eeeect on Pleadings oe Agreement oe Fact. On the hearing of a demurrer to the petition, a written agreement as to facts not pleaded, which was not filed in the trial court, could not be regarded as a pleading, nor considered in construing the petition or determining the demurrer. [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 24^37; Dee. Dig. § 14.*] 4. Constitutional Law (§ 297*) — Railroads (§ 226*)— Construction — Depots— Toilets — Statutes. Acts 31st Leg. c. 96, approved March 20, 1909, required all railroads within the state, within 90 days after the act took effect, to construct and maintain proper toilets in or reasonably near their passenger stations constructed and maintained within the state. The act was carried into the Revised Civil Statutes of 1911 as article 6592, except that the words “within ninety days of the taking effect of this act” were omitted. Held, that the act having been in effect only two years when the provision was embodied in the Revised Civil Statutes, there was no necessity then for continuing the 90-day provision, and that the article as contained in the' statutes was therefore not viola-tive of Const. U. S. Amend. 14, as depriving the railroads of their property without due process of law, because it did not afford the railroad companies a reasonable time in which to comply therewith. [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 832-834; Dec. Dig. § 297;* Railroads, Cent. Dig. § 740; Dee. Dig. § 226.*] 5. Railroads (§ 226*)— Construction — Passenger Stations — Toilets—Statutes. A railroad company, not having constructed a passenger station building at a specified place, though required to do so by Rev. Civ. St. 1911, art. 6589, could not by reason of its violation of such section be made liable for failure to comply with article 6592, requiring the construction of proper toilets in or near railroad passenger stations. [Ed. Note. — For other ¿ases, see Railroads, Cent. Dig. § 740; Dec. Dig. § 226.*]
154 S.W. 335State v. Gulf, C. S. F. Ry. (1913)
154 S.W. 335State v. Orange N.W. R. Co. (1913)Reversed and remanded
1. Appeal and Error (§ 78*) — Final Judgment-Dismissal on Demurrer. A judgment sustaining a general demurrer to plaintiff’s petition and dismissing the suit is final and appealable. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426, 464-483; Dec. Dig. § 78.*] 2. Appeal and Error (§ 374*) — Action by State — Bond—Necessity. Where the state instituted suit against a railroad company to recover a penalty for its failure to construct proper toilets at a certain station, that the statute provides that the district attorney shall receive one-fourth of the recovery, and that the remainder shall be paid into the road and bridge fund of the county in which the suit is brought, did not make the district attorney and the county parties to the suit in such a sense as to require an appeal bond on an appeal by the state. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2005-2010; Dee. Dig. § 374.*]
154 S.W. 336Smyer v. Ft. Worth & Denver City Ry. Co. (1912)Affirmed
1. Appeal and Error (§ 1078*) — Assignments — Brief—Waiver. Assignments of error filed in the lower court, but not brought forward in appellant’s brief, were waived. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*] 2. Appeal and Error (§ 549*) — Assignments . oe Error — Presentation eor Review. Assignments of error, based on rulings upon the special exceptions to pleading, could not be reviewed in the absence of a statement of facts and bill of exceptions. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2441-2451; Dec. Dig. § 549.*] 3. Appeal and Error (§ 548*) — Rulings on Evidence — Bill op Exceptions. Rulings on the admission or exclusion of evidence are reviewable only when presented by a proper bill of exceptions. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*] 4. Appeal and Error (§ 548*) — Statement op Facts — Constructions. The giving or refusing of instructions is not reviewable, in the absence of a statement of facts, except where the error in the charge is so apparent as to leave no doubt but that the jury’s finding was controlled thereby. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*]
154 S.W. 337Houston Oil Co. of Texas v. Davis (1913)Reversed and remanded
Appeal from Newton County Court; G. C. Colson, Judge. Action by the Houston Oil Company of Texas against Henry Davis. From a judgment of dismissal, plaintiff appeals.
154 S.W. 340Pacific Express Co. v. Ross (1913)Reformed and rendered
1. CARRIERS (§ 158*) — CONTRACTS BETWEEN Shippeb and Carrier — Consignees. In an action against a carrier for injury to goods, the consignee is bound by a valid contract of carriage made between the shipper and the earner as to the value of the goods. [Ed'. Note. — For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-703%, 708-710, 71S, 718% ; Dec. Dig. § 15S.*] 2. Carriers (§ 158*) — Contracts Limiting Liability of Carriers for Negligence. A provision in a bill of lading that the carrier should not be held liable beyond the sum of $50, “unless the just and true value thereof is stated herein, and an extra charge is agreed to be paid therefor, based upon such higher value,” is not void as an attempt to arbitrarily limit liability for loss from negligence, without regard to real value. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-703%, 708-710, 718, 718% ; Dec. Dig. § 158.*] 3. CARRIERS (§ 155*) — Published Rates — Notice. A shipper, being required to take notice of published rates filed with and approved by the Interstate Commerce Commission, and ■which the carrier is required to charge, is bound by a provision in a hill of lading providing that, if the shipper does not state the value of a shipment in the bill of lading, the carrier will not be liable for more than $50, although he was ignorant of its presence; such being, in effect, a declaration that the goods were not worth more than $50. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 677, 679, 682-685, 691-696; Dec. Dig. § 155.*]
154 S.W. 345Tolle v. City of New Braunfels (1913)Beversed and rendered
1. Statutes (§ 90*) — Special and Local Laws — Municipal Corporations. Act Feb. 15, 1911 (Acts 32d Leg. c. 112), which authorizes the city of New Braunfels to condemn lands, etc., in constructing public utilities, violates Const, art. 3, § 56, and article 11, § 5, which prohibit the Legislature from changing the charters of cities of less than 10,-000 population by local or special law. [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 98-100; Dec. Dig. § 90.*] 2. Statutes (§ 90*) — Special Laws — “Begu-late.” The word “regulate,” as applied to charter regulation of municipal affairs, is given diverse construction, some courts construing it in a restricted sense, while others give it a liberal construction. [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 98-100; Dec. Dig. § 90.* For other definitions, see Words and Phrases, vol. 7, pp. 6041-6047; vol. 8, p. 7782.] On Motion for Behearing. 3.Eminent Domain (§ 9*) — Power to Exercise-Municipal Corporations. Kev. Civ. St. 1911, arts. 1003-1005, authorizing cities to condemn land to construct water mains, supply reservoirs or standpipes, does not authorize condemnation for a light plant, nor condemnation of the right to flood lands in maintaining waterworks. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 27-34; Dee. Dig. § 9.*]
154 S.W. 347Broussard v. Cruse (1913)Affirmed
1. Appeal and Eeeob (§ 1136*) — Disposition —Affirmance as to Past — Gbounds op Decision. In the absence of conclusions of law showing on what ground the trial court based its judgment, it must be affirmed if there is any ground presented by the pleadings and supported by ■ the evidence upon which it can be properly rested. [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3247-3486; Dec. Dig. § 1136.*] 2. Tbespass to Tey Title (§ 9*) — -Title to Stjppoet Action. Plaintiff in trespass to try title on showing that he was the owner of a special act certificate on which the land was located, and under which the title conveyed by the patent inured to his benefit, was entitled to recover, whether the title be legal or equitable. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 12; Dec. Dig. § 9.*] 3. Limitation op Actions (§ 19*.) — Recovery op Real Estate. By its express terms the four-year statute of limitations (Rev. St. 1895, art. 3358) does not apply to actions to recover real estate. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73-85; Dec. Dig. § 19.*] 4. Public Lands (§ 174*) — Patents—Legal Title. Where a special act, authorizing the issuance of a certificate to the original holder of an unconditional certificate, is a pure donation, conferring no rights on the holder’s assignee, the heirs of the holder are both the legal and beneficial owners of the special act certificate; and a patent thereunder vests them with the legal title. [Ed. Note. — For other cases, see Public Xands, Cent. Dig. §§ 552-554; Dec. Dig. § 174.*] 5. Tbespass to Tey Title (§ 25*) — Defenses —Stale Demands. One who claims land by virtue of a certificate, and its location and survey, through patents issued to the heirs of the original holder, has, as against such heirs, the legal title, and the doctrine of stale demand has no application to his claim; and, even if the heirs have an equitable title, it is distinguishable from a mere right to acquire title, and the defense of stale demand Cannot be interposed against the claim. [Ed. Note. — For other cases, see Trespass to Try Title, Gent. Dig. §§ SO, 31; Dee. Dig. § 25.*] 6. Public Lands (§ 176*) — Taxes—Granting of Patent by State — Construction. The holder of an unconditional headright certificate, based on a previous conditional certificate, assigned both certificates, and the as-signee located the unconditional certificate; but patents were refused on his certificate, on the ground that the county clerk had not made a proper legal return thereof, and the assignee withdrew the certificate from the land office, and thereafter procured a special act, directing the Commissioner of the General Land Office to issue a certificate to the original holder; and the Commissioner thereupon issued such certificate to the assignee, and patents thereon issued to his transferee under a transfer reciting that it was issued 'to the original holder in lieu of his headright certificate, and that the assignor claimed the special act certificate by virtue of his ownership of such certificate. Held, in trespass to try title by the heirs of the original holder, that the special act could not be construed as a bounty or donation to them, in which the assignee of the original unconditional certificate had no interest. [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dec. Dig. § 176.*] 7. Statutes (§ 218*) — Contemporary Construction. The contemporary construction of a special act, directing the Commissioner of the Land Office to issue a certificate to the original holder of an unconditional certificate, as shown by the action of the Governor and the Commissioner thereunder, is entitled to great weight in the construction of the act. [Ed. Note. — For other cases, see 'Statutes, Cent. Dig. §§ 294, 295 ;• Dec. Dig. § 218.*]
154 S.W. 351Crum v. Slade Bassett (1912)Reversed and remanded
1. Bbokebs (§ 54*) — Commission—Right to-Commission. To entitle a broker to recover a commission for the sale of land, he must have found a purchaser willing to purchase the land absolutely. [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*] 2. Bbokebs (§ 52*) — Commissions — Sufficiency of Evidence — Option. Plaintiffs, as brokers, procured a purchaser who entered into a contract with defendant, and paid $2,000 as part of the cash payment, to be forfeited in the event of his failure or refusal to complete the contract, which at plaintiffs’ request stipulated that in the event the purchaser forfeited the money paid, and the contract thereby was at an end, the defendant should retain $1,509, and plaintiff $500. Held, that the contract procured was not a contract of purchase absolutely, but gave the purchaser the option to complete it or to forfeit the payment, so that the plaintiffs were not entitled to a commission. [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 73; Dec. Dig. § 52.*] 3. Appeal and Error (§ 172*) — Presentation oe Grounds — Pleading. A claim not pleaded or asserted by plaintiff below cannot be considered on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1070-1078; Dec. Dig. § 172.*] 4. Pleading (§ 228*) — Special Exceptions. A petition alleged an agreement between plaintiffs and defendant that, if plaintiffs would procure a purchaser able and willing to purchase defendant’s land, defendant would pay a commission of 5 per cent, when the purchaser agreed to make his cash payment for the land, that plaintiffs procured a purchaser who entered into a contract with defendant and paid $2,-000 in cash, to be forfeited if he failed or refused to complete the contract, and the contract introduced by plaintiffs showed an agreement that, in the event of forfeiture, defendant was to retain $1,500 and plaintiffs $500; the answer set up the clause dividing the forfeited money and the fact that the purchaser had refused to complete the contract, and alleged that plaintiff could only recover the $500. Held that, in the absence of a special exception as to whether it was necessary for defendant to set out the terms of the contract, an exception to the answer on the ground that it was immaterial and irrelevant to the issues was properly overruled. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*]
154 S.W. 354Albrecht v. Lignoski (1913)Affirmed
Error from District Court, Dimmit County; J. F. Mullally, Judge. Action by Charles 'Lignoski against Carl A. Albrecht and another. Judgment for plaintiff, and defendants bring error.
154 S.W. 355Snow v. Letcher (1913)Reversed and remanded
1. Adverse Possession (§ 114*) — Evidence— Sufficiency. In an action to recover land, evidence held insufficient to sustain a plea of five years’ limitations. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682-690; Dec. Dig. § 114.*] 2. Adverse Possession (§ 13*) — Requisites. To sustain a plea of limitations in an action to recover land, defendant was bound to show adverse, continuous, and unbroken occupancy of the land for the required period. . [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65-76; D'ec. Dig. § 13.*] 3. Adverse Possession (§ 82*) — Continuity of Possession — Interruption. The continuity of possession of land relied on by defendant in an action to recover land under a plea of limitations was interrupted by failure, for more than a year after execution of deeds under which he claims, to record them. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 468-471; Dec. Dig. § 82.*] 4. Adverse Possession (§ 101*) — Scope—Possession. Possession of one tract of land under a deed conveying several tracts extends to all. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 575-589;. Dec. Dig. § 101.*]
154 S.W. 357Joy v. Crawford (1913)Reversed
Appeal from Kaufman County Court; Thos. R. Bond, Judge. Action by Mrs. Emma G. Joy and another against F. R. Crawford and another. Judgment for defendants, and plaintiffs appeal.
154 S.W. 359Jordan v. Jordan (1913)Reversed and rendered
A. Turner, Judge. Action by W. C. Jordan against Robert L. Jordan and others. Judgment for plaintiff, and defendants appeal. On February 17, 1887, Jordan Galloway and wife, by warranty deed, conveyed to Albert C. Jordan 190 acres of land in Cass county.
154 S.W. 361Grego v. Schneider (1913)Affirmed
1. Appeal and Error (§ 742*) — Propositions. A proposition in appellant’s brief, in an action for the custody of a minor, that a minor above the age of 14 years may select its own guardian, and a former decree by the same court awarding the custody of the minor to one parent must yield to such selection, especially if the parent to whom the custody was awarded is shown to have been an improper person to have such custody or fails to provide the necessaries and comforts of life, was multifarious and confusing and will not be considered. [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.*] 2. Divorce (§ 309*) — Custody op Children. The burden is on one claiming that fact to show that conditions have so changed since a judgment of divorce awarding the custody to one parent as to render such parent an improper custodian, requiring that custody be given to another. [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 803; Dec. Dig. § 309.*] 3. Parent and Child (§ 2*) — Right op Custody. A child 14 years of age cannot at will leave its father’s home and choose another person as its guardian, in the absence of essentia] legal proceedings in the probate court. [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.*]
154 S.W. 362Grand Lodge F. & A. Masons of Texas v. Moore (1913)Modified
Appeal from Dallas County Court; W. F. Whitehurst, Judge. Action by Sarah Moore against the Grand Lodge F. & A. Masons of Texas. Judgment for plaintiff, and defendant appeals.
154 S.W. 363Wells Fargo & Co. Express v. Gentry (1913)Reversed and remanded
1. Carriers (§ 133*) — Damages to Shipment —Evidence—Other Shipments. In an action against an express company for damage to fish shipped, evidence that other shipments made on the same day to a different destination from the same batch of fish were received and paid for without complaint was not admissible, at least in absence of a showing that all-of the fish shipped that day were prepared for shipment in the same manner. [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 583-587, 606; Dec. Dig. § 133.*] 2/Evidence (§ 99*) —Relevancy— “Relevant.” The meaning of the word “relevant,” as applied to evidence, is that which directly relates to the issue made by the pleadings. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. § 99.* For other definitions, see Words and Phrases, vol. 7, p. 6062.] 3. Evidence (§ 121*) — Res Gestae — Hearsay. In an action against an express company for damages to fish shipped, evidence that while witness and another were re-icing fish at a railroad station such other removed the top from the fish barrels, and said, “The fish don’t need any ice,” was not admissible as res gestse, being hearsay. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. § 121.*] 4. Carriers (§ 133*) — Damages to Shipment-Evidence. Where it appeared in an action against an express company for damages to a shipment of fish that the fish shown to witness was of the same batch of fish as those shipped, evidence of such witness as to the condition of the fish at a certain- time was admissible. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 583-587, 606; Dec. Dig. § 133.*]. 5. Trial (§ 252*) — Abstract Instructions. In an action against an express company for loss of freight, it was error to charge that the law required the express company to transport to destination within a reasonable time, where the undisputed evidence showed that the shipment was transported within the best possible time. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 6. Trial (§ 195*) —Instructions — Preponderance of Evidence. An instruction that the burden of proof is upon plaintiff to establish by a preponderance of the evidence the facts necessary to entitle him to recover, but this does not mean that he is required to introduce a greater number of witnesses than defendant, but only upon consideration of the evidence introduced by both parties it must appear more probable that the truth upon the essential facts is with him more than with defendant, was erroneous as being upon the weight of the evidence; there being six witnesses for plaintiff and eleven for defendant. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 455; Dec. Dig. § 195.*]
154 S.W. 365Meeks v. Holmes Commerce Co. (1913)Reversed and remanded
Evidence (§ 420*) — Parol Evidence Affecting Weitings — Conditional Delivery. In an action .between the original parties to a contract for the sale of goods, evidence that the contract was delivered by the buyer with an understanding that he might sell his business, and that the order would not become binding until and unless he, subsequently ordered the goods shipped, was competent; and, where such evidence was uncontradicted, judgment for the purchase price was improper. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1728, 1795, 1800, 1804, 1815, 1821, 1929-1944; Dec. Dig. § 420.*]
154 S.W. 366Williams v. Walter A. Wood Mowing & Reaping MacHine Co. (1913)
154 S.W. 367Gulf, C. & S. F. Ry. Co. v. Cason (1913)Reversed, and judgment rendered for appellant
Cabbiebs (§ 215*) — Live Stock — Damages. Where the loss of weight of cattle in shipment was only temporary, due to driving and penning the cattle for transportation, and was not shown to be due to any negligence of the company in failing to ship the cattle in time, the shipper could not recover from the carrier for such loss of weight. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. § 215.*]
154 S.W. 368Mount Franklin Lime & Stone Co. v. May (1913)
Additional findings of fact.
154 S.W. 368Gulf, C. & S. F. Ry. Co. v. Daniel (1913)Reversed, and judgment rendered for defendant
Appeal from Cooke County Court; C. R. Pearman, Judge. Action by W. E. Daniel against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.
154 S.W. 543Eastern Ry. Co. of New Mexico v. Littlefield (1913)Affirmed
1. Appeal and Error (§ 1032*) — Review— Discretion — Plea to the Jurisdiction-Trial. Refusal of the court to submit to the jury defendants’ plea to the jurisdiction prior to the trial on the merits in the exercise of the trial court’s discretion was not ground for reversal, in the absence of a showing of injury to defendants. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047 — 4051; Dec. Dig. § 1032.*] 2. Carriers (§ 222*) — Carriage oe Live Stock — Breach oe Contract — Action by Bailees. Where plaintiffs had possession and control of certain cattle belonging to another with authority to ship them to market, they were bailees and so authorized to recover for injuries to the cattle sustained by the carrier’s breach of the contract of shipment. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 952; Dec. Dig. § 222.*] 3. Trial (§ 260*) — Instructions—Request to .Charge — Instructions Given. It is not error to refuse a request to charge, where the charge given submits in substance the issue presented by the request [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 4 Carriers (§ 229*) — Carriage oe Live. Stock — Failure to Furnish Cars — Damages. Where it was proper for shippers of cattle to have them at the place of shipment six days before the time provided therefor, and the carrier failed to provide cars as it had contracted and as it was its duty to do, the expense incurred in holding the cattle before as well as after the date when the cars were .to be furnished was a proper element of damage. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]
154 S.W. 547Parker v. State (1913)Affirmed
Criminal Law (§ 1097*) — Appeal — Statement op Facts — Necessity. An order on a motion for a new trial on the 'ground that the verdict was contrary to law and the evidence cannot be reviewed, in the absence of a statement of facts. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]
154 S.W. 547Howard v. State (1913)Affirmed
Appeal from Criminal District Court, Dallas County; Barry Miller, Judge. Fletcher Howard, alias- Lee Coleman, was convicted of swindling, and he appeals1.
154 S.W. 547Parker v. State (1913)
154 S.W. 548Young v. State (1913)Affirmed
Appeal from District Court, Deon County; S. W. Dean, Judge. Gus Young was convicted of crime, and he appeals.
154 S.W. 548Miller v. State (1913)Affirmed
Appeal from Tarrant County Court; R. E. Bratton, Judge. Mrs. J. B. Miller was convicted of keeping a disorderly house, and appeals.
154 S.W. 548Castro v. State (1913)Affirmed
Appeal from District Court, Galveston 'County; Clay S. Briggs, Judge. Frank Castro was convicted of manslaughter, and appeals.
154 S.W. 581Ft. Worth & R. G. Ry. Co. v. Poindexter (1913)Affirmed
Appeal from Johnson County Court; J. B. Haynes, Judge. Action by Wm. Poindexter against the Et. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.
154 S.W. 583St. Louis S. W. Ry. Co. of Texas v. Griffin (1913)Affirmed
1. Constitutional Law (§ 90*) — Master and Servant (§ 11*) — Freedom of Speech — ' Blacklisting Statute — Service Letters to Discharged Employés. The Blacklisting Statute (Acts 31st Leg. c. 89), requiring a corporation to give its discharged employés service letters stating the true reasons for their discharge, does not deny to corporations freedom- of speech in violation of Const, art. 1, § 8. [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 172; Dee. Dig. § 90;* Master and Servant, Dec. Dig. § 11.*] 2. Constitutional Law (§ 275*) — Doe Process of Law — Blacklisting Statute — Service Letters to Discharged Employés. The Blacklisting Statute (Acts 31st Leg. c. 89), requiring a corporation to give service letters to discharged employés stating the true reasons for their discharge, does not contravene the due process of law provision of Const. Bill of Rights, § 19, or Const. U. S. Amend. 14, but is a reasonable regulation, 'and its subject is one proper to be dealt with under the police power of the state. [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 830, 835, 839, 843-846; Dee. Dig. § 275.*] 3. Constitutional Law (§ 238*) — Equal Protection of Laws — Blacklisting Statute— Service Letters to Discharged Employés. The Blacklisting Statute (Acts-31st Leg. c. 89), does not deprive corporations of the equal protection of the laws in violation of the state or federal Constitution, though it requires something to be done which the individual employer is not required to do ; it being proper in matters of legislation to deal with corporations as a class to themselves, and corporations having a right to exact an equality of legislation only as between themselves. [Ed. Noté. — For other cases, see Constitutional Law, Cent. Dig. §§ 688-699, 706-708; Dec. Dig. § 238.*] 4. Searches and Seizures (§ 7*) — Unreasonableness-Blacklisting Statute. The Blacklisting Statute (Acts 31st Leg. c. 89) is not violative of the provisions of the state and federal Constitutions in regard to unreasonable searches and seizures. [Ed. Note. — For other cases, see Searches and Seizures, Cent. Dig. § 5; Dec. Dig. § 7.*] 5. Master and Servant (§ 32*) — Blacklisting Statute — Liability for False Statement. A railroad corporation is not excused from liability for making false statements in a service letter given under the Blacklisting Statute (Acts 31st Leg. c. 89) on the ground that such statements are privileged. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 38; Dec. Dig. § 32.*] 6. Master and Servant (§ 32*) — Blacklisting Statute — “True Statement.” By the term “true statement,” as used in the Blacklisting Statute (Acts 31st Leg; c. 89), requiring a corporation to furnish to a discharged employé a service letter containing a true statement of the cause of his discharge, is meant that the employer shall fairly, honestly, and in good faith state the grounds or cause of discharge. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 38; Dec. Dig. § 32.*] 7.Master and Servant (§ 40*) — Blacklisting Statute — Action for Damages — Sufficiency of Evidence. Evidence, in an employe’s action for damages for failure of the employer to issue him a true statement of the reasons for his discharge, as required by the Blacklisting Statute (Acts 31st Leg. c. 89), held to sustain a finding that the statement given plaintiff, which alleged that he was discharged for not properly doing his work, was untrue, and was not made fairly, honestly, and in good faith. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 47-49; Dec. Dig. § 40.*]
154 S.W. 591Miller v. Burgess (1913)Affirmed
1. Appeal and Eeboe (§ 1212*) — Determina - tion of Cause — Scope of Issues on New Teial. Where, in an action against two partners on a note, one defendant defaulted and the other contended that they were not partners, and also that he did not execute the note, and the jury found for him on the issue of partnership and against him on the issue of execution, and on appeal the judgment was reversed generally, on the second trial evidence to establish the partnership was admissible, though it tended to strengthen plaintiff’s contention that the contesting defendant had executed the note. - [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4713;-Dec. Dig. § 1212.*] 2. Appeal and Ebeob (§ 1027*) — Haemless Eeboe — Evidence. Error in admitting evidence on an issue found in appellant’s favor was harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. § 1027.*] 3. TBIAL (§ 122*) — ARGUMENT OF COUNSEL— Failube to Call Witness. Where, in an action against two defendants on a note, only one defendant contested, and he introduced the deposition of the other defendant, and in his own testimony admitted that he saw the other defendant at the courthouse the morning of the trial, it was not error for plaintiff’s -counsel to comment upon the contesting defendant’s failure to place his codefendant upon'the witness stand, instead of using his deposition. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 299; Dec. Dig. § 122.*] 4. Jubt (§ 67*) — Challenge to Abbat — Gbounds. It was not ground for a challenge to array that the jury had been summoned by postal card, instead of orally, as provided by Rev. Civ. St. 1911, art. 5162, where the actual attendance of the jurors was thereby secured; such statute being merely directory, and no such grounds of challenge to array being specified by articles 5188-5201, relating thereto. [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 291-302, 306; Dec. Dig. § 67.*] 5. Continuance (§ 9*) — Recognition of Agreement — Disceetion. While Rev. Civ. St. 1911, art. 1917, authorizes the granting of a continuance by consent of the parties, it was not an abuse of discretion for the trial court to refuse to recognize an agreement of counsel for both parties to continue the case, where the case had been reset several times, and the only reason of the agreement was a groundless apprehension that an unreported decision in another case, as to the validity of summoning a jury by mail, as had been done, might have some bearing on the present case, and it appeared that such continuance would cause unnecessary expense and inconvenience the court. [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 12; Dee. Dig. § 9.*] 6. Bills and Notes (§ 517*) — Execution— Sufficiency of Evidence. Evidence, in an action on a note, held to sustain a finding that it was executed by the contesting defendant. [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1807-1815; Dec.Dig. § 517.*]
154 S.W. 594De Herrera v. Texas, Mexican Ry. Co. (1913)Affirmed
Appeal from District Court, Webb County; J. P. Mullally, Judge. Action by Teresa V. de Herrera and others against the Texas, Mexican Railway Company and others. Prom a judgment of dismissal, plaintiffs appeal.
154 S.W. 595Ball-Carden Co. v. Humphrey (1913)Reversed
Evidence (§ 250*) — 1Guardian and Ward (§ 92*) — Acts oe Principal Debtor — Ratification by Guarantor. Where the court instructed, on the theory that there was evidence sufficient to warrant a finding that a principal debtor had ratified the application of certain money to an unsecured open account, that, if the jury should find that such principal debtor had paid $100 on said note sued on with knowledge that said other money had been applied to the payment of the unsecured account, he ratified it, and they should find against him, and in another place instructed that, if they should find against the principal debtor, they should find against his guarantors except as thereafter charged, and there was no charge as to ratification by them, a requested charge, that the payment of such $100 by the principal debtor should not be considered as evidence against the guarantors if they had no knowledge of such payment or did not assent thereto, should have been given, since where one person has guaranteed the payment of a debt of another, acts of the principal debtor, committed after the guaranty, not participated in or ratified by the guarantor, do not bind him. [Ed. Note. — For other cases, see Evidence. Cent..Dig. §§ 976-982; Dee. Dig. § 250;* Guardian and Ward, Cent. Dig. § 104; Dec. Dig. § 92.*]
154 S.W. 597Plummer v. Plummer (1913)Affirmed
1. Divorce (§§ 303, 300*) — Custody and Support ox Children — Modification of Decree. In divorce cases the jurisdiction of the court over the custody and support of minor children is a continuing one, and the court may modify or alter its order as new issues or changed circumstances require. [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 703-795, 803; Dee. Dig. §§ 303, 300.*] 2. Divorce (§ 309*) — Provision for Children — Modification. In granting a wife a divorce, a trust was decreed in land separately owned by the husband for the support.and education of her children during their minority. Afterwards the husband conveyed his remaining interest in one-half of the land to children by a former marriage, Held, in trespass to try title by the children of the former marriage against the minor children, that the former- cannot complain of a judgment making their title subject to the terms of the divorce decree, on the theory that they will thereby be deprived of possession until the youngest defendant becomes of age, 13 years; the divorce decree being subject to modification on application by plaintiffs as successors to their father’s rights, if circumstances warrant modification. [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 803; Dec. Dig. § 309.*]
154 S.W. 599Jordan v. Morgan (1913)Reversed and rendered
1. Sales (§ 389*) — Action fob“ Damage-Findings — Inconsistent Findings. In an action by a seller of lumber under a contract providing that the lumber should be stacked for drying with strips not exceeding four inches in width, that there must be a distance of five feet between each stack, that the lumber must be stacked so as to give a five-inch flue and each length piled separately, for refusal of the buyer to accept, the jury answered a question whether plaintiff complied with the contract in the affirmative, and answered questions whether the lumber was stacked with strips not exceeding four inches in width, whether there was a distance of five feet between each stack, whether it was so stacked as to give a five-inch flue, and whether each length was piled separately, in the negative. Held, that the findings were not inconsistent; the jury manifestly intending that the contract was complied with except in the particulars specified. [Ed. Note. — For other cases, see Sales, Dec. Dig. § 389.*] 2. Sales (§ 370*) — Refusal to Accept — Right of Action. In an action for refusal to accept lumber, where the undisputed evidence showed, and the jury found, that the lumber was not stacked for drying as required by the contract, that this made a material difference in its value, and that the buyer had not waived performance, the seller was not entitled to recover for the buyer’s refusal to accept. [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1085; Dec. Dig. § 370.*] 3. Sales (§ 389*) — Refusal to Accept — Findings — Construction. At the time a buyer of lumber gave the seller notice to discontinue deliveries, the seller had in his millyard 800,000 feet, of which the buyer subsequently accepted 72,000 feet. In an action for refusal to accept the remainder, the jury found that “not all” of the lumber was stacked for drying as required by the contract of sale. There was no evidence as to the amount in addition to such 72,000 feet that was properly stacked. Held, that the jury’s finding would be construed as a finding that only the 72,000 feet was properly stacked. [Ed. Note. — For other cases, see Sales, Dec. Dig. § 389.*] 4. Sales (§ 176*) — Breach—Waiver— Operation and Effect. A waiver by a buyer of lumber of one breach of the contract as to the mode of piling or stacking for drying was not a waiver of other and subsequent breaches. [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 436-444; Dec. Dig. § 176.*] 5. Sales (§ 370*) — Refusal to Accept — Improper Motive. Where a seller of lumber failed to perform substantial terms of the contract, he could not recover for a refusal of the buyer to accept, although such refusal was due to a decline in the market price of lumber subsequent to the making of the contract. [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1085; Dec. Dig. § 370.*]
154 S.W. 602St. Louis Southwestern Ry. Co. of Texas v. Moore (1913)Reversed and remanded
1. Railroads (§ 446*) — Injuries to Animals on Track- — Liability. Where a railroad company had inclosed its right of way with a fence and cattle guards reasonably sufficient to exclude stock, there had been no previous trespasses at that place, and there was nothing to indicate that stock were likely to be there, those in charge of a train did not, as a matter of law, owe the owner of trespassing animals the duty of keeping a lookout to discover their presence on the track; and an instruction that such was their duty was improper. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.*] 2. Negligence (§ 1*) — Nature and Elements. Negligence is the failure to exercise that degree of care which the law exacts under the particular circumstances for the protection of the person and property df others. [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.]
154 S.W. 603E. F. Rowson Co. v. McKinney (1913)Ordered that statement be filed
1. Appeal and Error (§ 601*) — Record-Statement op Fact — Record in Transcript. A statement of facts copied into the transcript should be considered when there is no objection by the appellee. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2651-2653; Dec. Dig. § 601.*] 2. Courts (§ 78*) — Rules of Court — Constitutional and Statutory Provisions. Under the express provision of Const, art. 5, § 25, Acts 32d Leg. c. 119, § 6, providing that it shall not be necessary to copy the statement of facts in the transcript on appeal, but that on agreement of the parties and approval of the judge, and also in the event of a failure of the parties to agree and a filing of a statement of facts certified by the trial judge, the original thereof shall be sent up as a part of the record, is superior to and cannot be repealed by a rule of the Supreme Court. [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dee. Dig. § 78.*] 3. Appeal and Error (§ 601*) —Record — Statement of Facts — Statutory Provisions. Acts 32d Leg. c. 119, § 12, making the rules as to the filing of statements of fact in the district courts apply in the county courts, but only in cases where a stenographer has been appointed on the application of a party, and expressly repealing Acts 31st Leg. (1st Extra Sess.) c. 39, § 13, making the rules as to statements of fact the same in county courts as in district courts, was not intended to apply to other cases in the county courts, and hence it is not necessary to file a statement of facts separate from the clerk’s transcript of the record in any case appealed from the county court, except a case in which the court has so appointed a stenographer. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2651-2653; Dec. Dig. § 601.*]
154 S.W. 604Western Union Telegraph Co. v. Glass (1913)Affirmed
1. Trial (§ 260*) — Instructions. In an action against a telegraph company for delay in the delivery of a death message, whereby the addressee did not reach the place of interment in time for the funeral, it appeared that he could have telephoned or telegraphed to procure a postponement of the funeral. The court instructed that one threatened with injury must use all reasonable means to prevent it, and that, if plaintiff failed to use ordinary care, he would be guilty of contributory negligence. Held, that a requested instruction that plaintiff could not recover if a reasonably prudent man would have sent an answering message was sufficiently covered by the charge given. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.*] 2. Telegraphs and Telephones (§ 73*)— Death Messages. Where there is such delay in the delivery of a death message as to prevent the addressee from reaching the place of interment in time for the funeral, his failure to make an effort to postpone the funeral is negligence or not, according to the circumstances of the case. [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. 8 73.*] 3. Trial (§ 261*) — Instructions. Where the same sheet of paper contains a requested instruction which is erroneous and one which is not, the entire paper may be refused. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 660, 671, 675; Dec. Dig. § 261.*]
154 S.W. 606Stratton v. Riley (1913)Affirmed
Kennon, Judge. Action by David Stratton, by his guardian, Dan Brkel, against James J. Riley, Jr., and another, with cross-action by defendants against M. G. Tadloek. Verdict instructed for Tadloek, and judgment for defendants, and plaintiff appeals.
154 S.W. 608Barton v. R. P. Ash Co. (1913)Reformed and affirmed
Appeal from District Court, Panola County; W. C. Buford, Judge; Action by R. P. Ash & Co. against J. W. Barton and another. Prom a judgment in favor of plaintiffs, defendant Barton appeals.
154 S.W. 609Barker v. Johnson (1913)Affirmed
T- Lyttleton, Judge. Action by F. M. Johnson against T. C. Barker and others. Judgment for plaintiff, and defendant Barker appeals. By virtue of an execution issued March 11, 1909, on a judgment rendered by the Wood county district court November 22, 1904, in favor of appellant against J. E. Johnson, a levy was made by a deputy sheriff of I-Iarrison county on four mules and two wagons, then in Harrison county, as the property of said Johnson.
154 S.W. 612Wm. M. Rice Institute for Advancement of Literature, Science, & Art v. Gieseke (1913)Affirmed
1. Boundaries (§ 3*) — Monuments—1 Course and Distance. Where a stake at the southwest corner of a survey and a stake and mound at its northwest corner were called for in the field notes, and could not be found, but there was ample evidence that they were located 1,849 varas west of another survey, such location being established, the call for distance would yield to the call for the monuments. [Ed. Note. — For other cases, see B'oundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*] 2. Boundaries (§ 37*) — Marked Dine. Evidence that for more than 40 years the west line of a survey had been generally reputed and' recognized in the community as being located at a particular point, that the same was marked in 1869 by a surveyor, who searched for the old line and found it marked by old marks on trees along its course, was sufficient to establish an old marked line. [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.*]
154 S.W. 613Hearn v. Harless (1913)Affirmed
Appeal from Harris County Court; A. E. Amerman, Judge. Suit by B. F. Harless against D. S. Hearn and wife. Judgment for plaintiff, and defendants appeal.
154 S.W. 614Boiders v. Dooley (1913)Affirmed
Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by Sopby Boiders against H. H. Dooley and others. Judgment for defendants, and plaintiff appeals.
154 S.W. 616Fulshear v. Deadman (1913)Reversed and remanded
1. Adverse Possession (§ 100*) — Extent of Possession. In trespass to try title, where defendant claimed title by adverse possession, but only proved actual possession .of four or five acres, and had no written ■ evidence of title, except a mortgage which did not describe the boundaries, the court should have charged, as requested, that defendant’s adverse possession, if any, would not embrace more than 160 acres, in view of Rev. Civ. St. 1911, art. 5676, providing that possession of a less quantity than 160 acres shall not be construed to embrace more than 160 acres, unless the possession is under a written memorandum of title fixing the boundaries of the claim. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*] 2. Mortgages (§ 319*) — Presumption of Payment from Lapse of Time. Fifty years after the maturity of a debt secured by a mortgage, it would be presumed, in the absence of evidence to the contrary, that the debt was paid, and that the instrument was no longer effective as a mortgage. [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 855-863, 875, 913;- Dec. Dig. § 319.*]
154 S.W. 618Marks v. Jones (1913)Reversed and remanded
1. Trial (§ 251*) — Action by Materialman —Instruction—Conformity to Pleadings. Where, in a materialman’s action for lumber used by a contractor in rebuilding defendant’s house, the petition sought to recover upon the theory of estoppel, in that defendant and the contractor agreed, without plaintiff’s knowledge, to change the plan of the house, so as to secure more lumber than plaintiff had undertaken to furnish the contractor, an instruction' to find for the plaintiff if the house was not constructed in substantial compliance with the original plans was erroneous for failure to present the case presented by the petition. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*] 2. Estoppel (§ 63*) — By Conduct — Essential Elements. An owner is not estopped by conduct from denying liability for lumber bought by a contractor and used in rebuilding the owner’s residence, merely because he and the contractor, without notifying the materialman, agree upon a plan of the house differing from the plan under which the materialman agreed with the contractor to furnish the lumber; it being essential, to constitute estoppel by conduct, that there be false representations or concealment of material facts, with knowledge thereof by the wrongdoer, with intent that they shall be acted upon, and that they shall have in fact been, acted upon. [Ed. Note. — For other cases, see Estoppel, Dec. Dig. § 63.*] 3. Estoppel (§ 115*) — Evidence—'Variance. Where the petition, in a materialman’s action against an owner for the price of lumber furnished a contractor, stated a cause of action based solely on estoppel by conduct, it was error to admit proof of defendant’s direct promise to pay the debt. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 305; Dec. Dig. § 115.*] ' , 4. Frauds, Statute oe (§ 84*) — Agreement to Pay Another’s Debt. An owner’s parol agreement to pay for lumber previously contracted for by a contractor, to be used in rebuilding the owner’s house, was void under the statute of frauds. [Ed. .Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 154-161; Dec. Dig. § 84.*] 5. Trial (§ 252*) — Action by Materialman —Instruction—Evidence. Where a materialman’s action against a house owner for the price of lumber furnished the contractor was based upon estoppel by conduct, in that the plan of the house was changed by the contractor and owner, without the plaintiff’s knowledge, so as to enable the contractor to secure more lumber than the original plan called for, and there was no proof as to what amount of lumber would have been furnished under the original plan, and what amount actually was furnished, the court properly refused to instruct that plaintiff would in no event be entitled to recover more than the amount which the value of the lumber furnished exceeded the value of that which he would have furnished had there been no change in the plan. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596 -612; Dee. Dig. § 252.*] 6. Estoppel (§ 102*) — By Conduct — Extent oe Liability. Where a materialman agrees with a contractor to furnish lumber for a house to be rebuilt in accordance with certain plans, .and the owner and contractor fraudulently change the plans of the house, unknown to the material-man, so as to cause him to sell more lumber than the original plans called for, the owner can be held liable because of estoppel by conduct only for the value of the lumber furnished in excess of what he would have furnished had there been no change in the plans. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 294; Dec. Dig. § 192.*] 7.Trial (§ 251*) — Action by Materialman —Instruction—Issues. Where, in' a materialman’s action against an owner for lumber sold a contractor, the sole issue raised by the pleadings and evidence was whether defendant was liable by reason of conduct which estopped him from denying liability, the court properly refused to instruct upon an existing relation between plaintiff and defendant, which was created by plaintiff’s signing as surety for the contractor. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]
154 S.W. 621San Antonio Traction Co. v. Corley (1913)Affirmed
Appeal from District Court, Bexar County; J. L. Camp, Judge. . Action by J. P. Corley against the San Antonio Traction Company. Judgment for plaintiff, and defendant appeals.
154 S.W. 623Hankamer v. County Com'rs Court (1913)Affirmed in part, and reversed and remanded in part
Appeal from District Court, Chambers County; L. B. Hightower, Judge. Action by Ira A. Hankamer and others against the County Commissioners’ Court and others. From a judgment for defendants, plaintiffs appeal.
154 S.W. 624Clement v. City of Paris (1913)Reversed and remanded
D. Montrose, Judge. Action by R. M. Clement and others against the city of Paris and others. Judgment dismissing the suit, and plaintiffs appeal. Appellants are owners of lots abutting on the streets that surround and front on the “public square” in the city of Paris, and have erected on their property brick and stone business houses. This locality forms now, as it always has, the principal business portion of the city of Paris.
154 S.W. 629Townsend v. Houston Electric Co. (1913)Affirmed
Appeal from District Court, Harris County; Norman G. Kittrell, Judge. Action by Len Townsend against the Houston Electric Company. Judgment for defendant, and plaintiff appeals.
154 S.W. 633Missouri, K. & T. Ry. Co. of Texas v. Hedric (1913)Affirmed
1. Witnesses (§ 240*) — Examination—Heading Questions. The question, “Was it or not necessary for the safety of car repairers to have a ladder with spikes in the bottom of it?” was not leading. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.*] 2. Evidence (§ 546*) — Appeal and Error (§ 971*) — Competency oe Experts — Determination — Review. Whether a witness is qualified to testify as an expert is a question for the determination of the trial court, and its action will not be reviewed, unless gross abuse of discretion appears. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2346; Dec. Dig. § 546;* Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. § 971.*) 3. Appeal and Error (§ 1050*) — Harmless Error — Admission oe Testimony. Admission of testimony is harmless where other testimony of the same facts is admitted without objection. [Ed. Note.» — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. 1 1050.*] 4. Evidence (§ 539*) — Experts —Competency. Where a witness had been a car repairer for nine successive years, and for four or five years had used the ladder plaintiff was using when injured, he was qualified as an expert to testify whether spikes at the bottom of the ladder were necessary. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2349-2352; Dec. Dig. § 539.*] 5. Evidence (§ 474*) — Opinions —Knowledge oe Witness. Where a witness was a car repairer for nine years, and for four or five years had used the ladder plaintiff was using when injured, he had knowledge of facts sufficient to render admissible his testimony as to whether spikes-at the bottom of the ladder were necessary. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*] ■ 6. Evidence (§ 498%*). — Opinions—Knowledge oe Witness — Determination. Whether a witness has such knowledge of the facts as to make his opinion of value is in a great measure at the discretion of the-trial court. [Ed. Note. — For other eases, see Evidence,. Cent. Dig. §§ 2290, 2291; Dec. Dig. § 498%.*] 7. Appeal and Error (§ 1058*) — Review-Harmless Error — Exclusion oe Evidence. The exclusion of the opinion of a witness was harmless where substantially the same testimony was given at another time by the same and other witnesses. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*] 8. Master and Servant (§ 288*) — Injuries-to Servant — Question eor Jury — Assumption oe Risk. In an action for injuries to a servant alleged to have been caused by the absence of spikes from the bottom of the ladder, the-question of plaintiff’s knowledge of the condition of the ladder was for the jury. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. §. 288.*] 9. Trial (§ 295*) — Instructions as a Whole. —Assumption oe Risk. In an action for injuries to a servant, instructions on assumption of risk, whed considered as a whole, held not misleading. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*] 10. Master and Servant (§ 295*) — Injuries to Servant — Instructions—Assumption oe-Risk. In an action for injuries to a servant from, the falling of a ladder,- an instruction as to-plaintiff’s notice of the condition of the ladder, and his assumption of the risk, held substantially correct. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. §• 295.*] 11. Master and Servant (§ 289*) — Injuries-to Servant — Question eor Jury —Contributory Negligence. In an action for injuries to a servant caused by the falling of a ladder on which he was-working, evidence held to make plaintiff’s care-a question for the jury. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092, 1132;. Dec. Dig. § 289.*] 12. Damages (§ 216*) — Instructions — Double Damages. In an action for personal injuries, an instruction that, if plaintiff’s ability to labor had' been impaired by his injuries, the jury could consider the time lost and his impaired ability to work, proximately resulting from his injury to the time of trial, is not objectionable as authorizing double damages for loss of" labor from the time of the injury to the time of trial. [Ed. Note. — For other cases, see Damages,. Cent. Dig. §§ 548-555; Dec. Dig. § 216.*] 13. Trial (§ 260*) — Instructions—Requests-—Matters in General Charge. ■ Where a charge on assumed risk was sufficient, a refusal of the special charge was not error. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 14.' Appeal and Error (§ 1066*) — Harmless Error — Refusal of Instruction. In an action for injuries to a servant from an alleged defect in a ladder having no spikes to keep it from slipping, where defects other than that of the absence of spikes, as disclosed by the evidence, were insignificant and probably not considered by the jury, the refusal of defendant’s special charge that the jury should not consider such minor defects was harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]
154 S.W. 637Harry v. Hamilton (1913)Affirmed
Error to District Court, Dallas County; Kenneth Foree, Judge. Action by Mrs. M. J. Hamilton and another against Mrs. F. E. Harry. From a judgment for plaintiffs, defendant brings error.
154 S.W. 642Jackson Woolen Mills v. Moore (1913)Affirmed
Appeal from Smith County Court; Jesse F. Odom, Judge. Action by the Jackson Woolen Mills against A. P. Moore and others. From judgment for defendants, plaintiff appeals.
154 S.W. 645Rau v. American Nat. Ins. Co. (1913)Reversed and injunction dissolved
Appeal from Freestone County Court; H. B. Daviss, Judge. Action by Ed J. Rau against the American National Insurance Company. From an order granting a temporary injunction restraining plaintiff from instituting other and additional suits against defendant, plaintiff appeals.
154 S.W. 646Newton v. Easterwood (1913)Affirmed
1. Appeal and Error (§ 854*) — Review— Grounds of Judgment. ' A judgment clearly right should he sustained on appeal, regardless of the grounds assigned by the trial judge. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. § 854.*] 2. Estoppel (§ 38*) — Property Conveyed— After-Acquired Title. Where, after conveying land by warranty deed, the grantors acquired title at sheriff’s sale under a claim of subrogation under a mortgage previously given 'by themselves and a deceased brother, such title passed to their vendee, if the judgment under which the sale was made was valid. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 99-107; Dee. Dig. § 38.*] 3. Descent and’ Distribution (§ 129*) — Debts of Intestate — Mortgages. On the death of one of three joint mortgagors, the indebtedness remained a claim against decedent’s estate; his property descending to his heirs burdened with that debt and the mortgage given to secure its payment. [Ed. Note. — For other, cases, see Descent and Distribution, Cent. Dig. § 471: Dea Dig. § 129.*] 4. Subrogation (§ 41*) — Payment by Joint Mortgagor — Evidence—Sufficiency. Evidence held to show that a minor’s guardian paid out of the minor’s funds an amount due from the minor’s father on account of a mortgage executed by- him jointly with his brothers, precluding a subsequent claim by the brothers of right to subrogation under the mortgage on account of having paid the entire debt. [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 109-118; Dec. Dig. § 41.*] 5. Infants (§ 42*) — Judgment Against Ward — Sale of Property — Deed — Validity. After the death of one of three brothers, who jointly owned land, the survivors sued decedent’s minor heir, then an infant, to foreclose a lien claimed by subrogation under a mortgage given by the three brothers, though the amount due from decedent had been paid out of funds in the hands of one of the surviving brothers as guardian of the minor. Meld, that a deed taken by the surviving brothers at sheriffs sale under such foreclosure was void, and subject to attack in an action by the minor, after removal of his disabilities, brought against the surviving brothers and their grantees. [Ed. Note. — For other cases, see Infants, Cent. Dig. § 93; Dec. Dig. § 42.*] 6. Estoppel (§ 49*) — Aptee-Acquired Title. The equitable rule that title acquired by a vendor after his conveyance inures to the benefit' of his vendee implies an acquisition of a right which justly, as between the parties, belongs .to the vendee, and does not apply to a title held, actually or constructively, 'by the vendor in trust for a third party; and hence title acquired by vendors at sheriffs sale under a suit fraudulently prosecuted against their deceased brother’s minor heir, for whom one of them was guardian, did not pass to their vendee as an after-acquired title. [Ed. Note. — F’or other cases, see Estoppel, Cent. Dig. § 119; Dec. Dig. § 49.*] 7. Attorney and Client (§ 104*) — Knowledge oe Attorney — Imputation to Client. Knowledge of an attorney will be imputed to his client, if it was acquired in a transaction in which the former was acting as the latter’s attorney at the time. [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 92, 93, 1020; Dee. Dig. § 104.*] 8. Executors and Administrators (§ 388*) —Administrator’s Sale — Title Acquired. A purchaser at an administrator’s sale acquires only such interest as the estate owned. [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1573-1582; Dec. Dig. § 38'8.*] On Motion for Rehearing. 9. Estoppel (§ 35*) — After-Acquired Title. A purchaser who relies upon estoppel for an after-acquired title can have no greater right than has the grantor against whom the estoppel is claimed. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 84; Dec. Dig. § 35.*] 10. Estoppel (§ 44*) — Right to Assert. ■ A title by estoppel can be urged only against those who were estopped by the facts relied on, and does not extend to one who is not a privy in 'blood or estate to the persons against whom an estoppel was originally available. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §| 111, 113; Dec. Dig. § 44.*]
154 S.W. 653Quanah, A. & P. Ry. Co. v. Galloway (1913)
154 S.W. 654Overland Automobile Co. v. Buntyn (1913)Reversed and remanded
Appeal from Potter County Court; W. M. Jeter, Judge. Action by W. J. Buntyn against the Overland Automobile Company, a partnership. Judgment for plaintiff. Defendant appeals.
154 S.W. 656Dixon v. Lynn (1913)Motion sustained, and appeal dismissed
Appeal from District Court, Armstrong ■County; J. N. Browning, Judge. Action between B. F. Dixon and R. M. Lynn and others. From the judgment Dixon appeals, and appellees move to dismiss the mppeal.
154 S.W. 657Lasater v. Streetman (1913)Reversed and remanded
Appeal from Taylor County Court; T. A. Bledsoe, Judge. Action by J. W. Streetman against C. B. Lasater and others. From a judgment for plaintiff, defendants appeal.
154 S.W. 658Mott v. Spring Garden Ins. Co. (1913)Affirmed
Appeal from District Court, Taylor County ; Thos. L. Blanton, Judge. Action by W. N. Mott against the Spring Garden Insurance Company. From judgment for defendant, plaintiff appeals.
154 S.W. 661Holmes v. Coalson (1913)Appeal dismissed
1. Appeal and Error (§ 106*) — -Decisions Reviewable — Pleading oe Privilege-Final Judgment. An order overruling defendants’ pleas of privilege to be sued in the county of their residence, not being specially mentioned in Rev. Civ. St. 1911, arts. 2078, 2079, 2080, authorizing appeals from certain decisions, was not ap-pealable thereunder, nor was it appealable under article 1833, permitting an appeal from a judgment sustaining a plea of privilege; the last article being an exception to the statutes relating to appeals generally, and to be strictly construed. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 726-734; Dec. Dig. § 106;* Venue, Cent. Dig. § 149.] 2. Statutes (§ 228*) — Construction—Exceptions. Exceptions ■ to a statute of general terms cannot be- enlarged to include cases not embraced within the exceptions by mere implications or parity of reason. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 310; Dec. Dig. § 228.*]
154 S.W. 662Barnett v. Alamo Lumber Co. (1913)Reversed and remanded
Judgment (§ 17*) — Process to Sustain Default. A citation which has been served on defendant, but to which the clerk’s seal has not been affixed, will not support a judgment by default. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.*]
154 S.W. 662Modern Woodmen of America v. Metcalfe (1913)Affirmed
Error to District Court, Taylor County; Thos. L. Blanton, Judge. Action by Mrs. Willie Metcalfe against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error.
154 S.W. 664Hill County Cotton Oil Co. v. Gathings (1913)Affirmed
1. Continuance (§ 26*) — Grounds—Absence or Witness. It was not error to refuse a continuance, sought by defendant because of the absence of a witness, where the witness was present in the town where the court was sitting, and defendant failed to avail himself of the court’s offer to procure the witness if defendant would tender the witness his fees. [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. § 26.*] 2. Trial (§ 260*) — Instruction — Instructions Already Given. Where in a parent’s action for loss of the • services of her minor son, due to injuries received in defendant’s employ, the evidence was conflicting on the issue of her son’s immaturity and lack of experience, and the court instructed that the burden was on plaintiff to prove her case by a preponderance of the evidence, and that the jury should not find for plaintiff, unless they believed her son possessed such immaturity of judgment and lack of experience as would relieve him from the consequence of his negligence, it was not error to refuse an instruction which specifically placed on plaintiff the burden of proving this particular issue. [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 651-659; Dec. Dig. § 260.*] 3. Master and Servant (§ 286*) — Injury to Servant — Submission oe Issues —Pleading — Evidence. Where, in a parent’s action for loss of the services of her minor son, due to injuries received in defendant’s employ, the petition alleged that the boy was 15 years old, inexperienced with machinery, and ignorant of the danger of working about machinery, that this was known to defendant, and he did not warn him, and that the injury resulted from the boy’s clothes coming in contact with a grooved revolving shaft, which appeared to have a smooth surface, and the evidence supported these allegations, the court properly submitted to the jury the issue of his immaturity of judgment. [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. •§§ 1001, 1006, 1008, 1010-1050; 'Dec. Dig. § 286.*] 4. Appeal and Error (§ 882*) — !Invited Error-Submission op Issues. Where, in an action for damages from injuries to a minor employé, defendant requested an instruction which embodied the question of the injured party’s lack of experience and immaturity of judgment, defendant could not complain of the submission of such question to the jury in another instruction. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] 5. Parent and Child (§ 7*) — Emancipation. The fact that a widow’s son secured, employment with defendant while on a visit to his brother, without his mother’s knowledge, after she had told him he must go to school or go to work, and that previously she had consented to his taking other employment for wages, which he turned over to. her, receiving back only a part, did not emancipate her son so as to deprive her of a right to recover for loss of his services, due to injuries received while in defendant’s employ. [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.*]
154 S.W. 664Campbell v. Shifflett (1913)Affirmed
Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge. Action by E. L. Shifflett against J. I. Campbell. Judgment for plaintiff, and defendant appeals.
154 S.W. 669McPherson v. Hahl (1913)
Additional findings of fact.
154 S.W. 673Callen v. Collins (1913)Affirmed
1. Evidence (§ 542*) — Opinion Evidence-Competency oe Expert — Estimate oe Timber. A witness who testified that he had no independent experience as an estimator of timber, but that his experience had been confined to scaling timber, that he could look at a tree and tell how many feet of timber there were in it, that he made an estimate of the number of feet of timber taken from the land in controversy before they were cut down and taken away, and that from such examination he could tell, with reasonable certainty, what amount of timber was taken, was competent to give an opinion as to the amount taken. [Ed. Note. — For other cases, see Evidence, Cent. Dig. .§ 2355; Dec. Dig. § 542.*] 2. Evidence (§ 543*) — Opinion Evidence-Competency oe Expert — Market Value. A witness who testified that he knew the location of the land in controversy, showing that he had a correct idea of what constituted market value and knowledge of the timber market in that locality at the time, although he did not remember any sales at that particular time, was competent to testify as to the market value of timber taken therefrom. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356y2-2358; Dec. Dig. § 543.*] 3. New Trial (§§ 101, 105*) — Grounds—Misconduct or Prejudice oe Witness. The fact that a witness for plaintiff admitted, immediately after he had testified, that the purpose of his testimony was to hurt the attorney for the defendant was not ground for a new trial, where such statements were known and might have been put in evidence during the trial for the purpose of impeaching the testimony of the witness. [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 205, 206, 221-223, 229 ; Dec. D'ig. §§ 101, 105.*] 4. Trespass to Try Title (§ 52*) — Damages —Interest. In an action to recover land, plaintiff was entitled, as a matter of law, to interest upon the value of timber unlawfully cut by defendant from the time it was taken. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 83, 84; Dee. Dig. § 52.*]
154 S.W. 676Young v. Sorenson Hooper (1913)Reversed and remanded
1. Appeal and Error (§ 742*) — Assignments op Error — Sufficiency. Where assignments of error failed to- comply with rule 31 of the Court of Civil Appeals (142 S. W. xiii) providing that with each proposition there shall be a brief statement of the proceedings sufficient to explain and support the proposition, with a reference to the pages of the record, as a result of which they could not be considered, except by a continual reference to the transcript and statement of facts, they were not reviewable. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 2. Appeal and Error (§ 742*) — Assignments of Error — Sufficiency. An assignment of error was sufficient where, when considered with the proposition and statement, it informed the court of the points sought to be made, though it was not briefed strictly in accordance with the rules. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 3. Appeal and Error (§ 916*) — Review — Presumptions — Pleadings. Where, in an action originating in justice court on an account more than two years old, the plaintiff filed written pleadings in county -court, but failed to plead any agreement fixing the time when the account should become due, though the defendant specifically pleaded limitations, the usual presumption indulged in chse of oral pleadings in justice court will not be applied on appeal from the county court in favor of the action of the county court in submitting to the jury the question of the existence of such agreement. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. § 016.*] 4. Trial (§ 252*) — Instructions—Evidence. Where, in an action on an account more than two years old, the defendant pleaded limitations, and there was no evidence of any agreement as to when the account should become due, other than mere vague statements regarding an understanding between the parties, it was error to instruct the jury to find for plaintiff if the parties agreed that the account should not become due until a certain time within the limitation period. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] •5. Limitation of Actions (§ 199*) — Waiver —Evidence—Submission of Issue. In an action on an account more than two years old, evidence that some years prior to the making of the account defendant stated that the statute of limitations would never run against any account he made is insufficient to authorize a submission to the jury of the issue of waiver of the statute; such statement being no more than an agreement to waive the right to plead limitations, which agreement would be void as against public policy. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 727-730; Dec. Dig. § 199.*]
154 S.W. 677Hoy v. Peacock (1913)Affirmed
Vendos and Purchaser (§ 274*) — 'Vendor’s Lien — Foreclosure—Defenses—Breach of Warranty. Breach of a warranty deed based on an outstanding mortgage is no defense to a suit by the grantor to enforce a vendor’s lien, where it does not appear that he is insolvent, that the grantee offered to rescind the contract, or. that he has been evicted or is in danger of eviction, and at the time of the purchase he knew of the mortgage. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 769-771; Dee. Dig. § 274.*]
154 S.W. 679James v. Chaney (1913)Reformed and affirmed
Appeal from District Court, Wise County; J. W. Patterson, Judge. Action by T. L. James against J. L. Chaney and another. Judgment for defendants, and plaintiff appeals.
154 S.W. 684Brown Cracker & Candy Co. v. Johnson (1913)Affirmed
Appeal from District Court, Dallas County; Kenneth Foree, Judge. Action by Thomas A. Johnson against the Brown Cracker & Candy Company. Judgment for plaintiff, and defendant appeals.
154 S.W. 687Patton v. Shapiro (1913)Affirmed
1. Habeas Corpus (§ 49*) — -Objections to Jurisdiction. Where an application for habeas corpus was filed and defendants filed answers without questioning the jurisdiction or asserting their privilege to have the matter determined in the county of their residence, and judgment was entered in their favor, and at a subsequent term the relator filed a petition for a rehearing and new trial, defendants cannot object to the jurisdiction of the court, as their privilege of being sued in the county of their residence was lost by their previous failure to object on that ground. [Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 49.*] 2. Habeas Corpus (§ 117*) — Res Adjudica-ta — Grounds for Habeas Corpus Proceedings. ' A father brought habeas corpus for his minor daughter, held by defendants, on the-ground that he was the sole surviving parent, and that she was unlawfully restrained by defendants. Judgment was given against him,, and he petitioned for a rehearing and for a new trial and the setting aside of the former judgment. Held, that the former judgment did not prevent him from urging, in the subsequent proceedings, that he was a Jew; that his child was deprived of Jewish education and worship and of the association of her blood kin and relations ; that, if permitted to remain with defendants, she would remain ignorant of the religion of her people; that there was tuberculosis in the family of defendants; and that he feared the child would,-, contract the disease if she remained with defendants; and the judgment in the first proceeding is not res adjudi-cata of the judgment in favor of the petitioner in the second proceeding. [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 119, 120; Dec. Dig. § 117.*]
154 S.W. 689Davidson v. Harris (1913)Affirmed
Appeal from Nacogdoches County Court; E. P. Marshall, Judge. - Action by W. H. Harris and others against John P. Davidson. Judgment for plaintiffs, and defendant appeals.
154 S.W. 690J. H. Summers & Sons v. Cavin (1913)Reversed and remanded
Appeal from Nacogdoches County Court; P. P. Marshall, Judge. Action by G. W. Gavin against J. H. Summers & Sons. Prom a judgment for plaintiff, defendants appeal.
154 S.W. 691Wilkirson v. Bradford (1913)Reversed and remanded for another trial
Appeal from District Court,- Nolan County; Jas. L. Shepherd, Judge. Action by J. A. J. Bradford against O. L. Wilkirson and another. From a judgment for plaintiff, defendant Wilkirson appeals.
154 S.W. 693Houston Packing Co. v. Johnson (1913)Affirmed
Appeal from District Court) Galveston County; Clay S. Briggs, Judge. Action by Berndt Johnson against the Houston Packing Company. From a judgment for plaintiff, defendant appeals.
154 S.W. 694Gibson v. Oppenheimer (1913)Partly affirmed, and partly reversed and remanded
Appeal from District Court, La Salle County; J. E. Mullally, Judge. Trespass to try title by Rowena Gibson and others against Daniel Oppenheimer and others. From the judgment, plaintiffs Gibson and others appeal.
154 S.W. 701Dupree v. Savage (1913)Modified and affirmed
1. Vendob and Pubchaseb (§ 130*) — Mabketable Title — Feaud—Damages—Cloud on Title. Where a grantor had been deeded land with a covenant to grant a strip for a street, but he platted the whole into lots, although such covenant did not provide for forfeiture for nonperformance, such strip was in the nature of a trust, and there was such a cloud on the lots, including such strip, as to render the title unmarketable. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245, 246, 247; Dec. Dig. § 130.* For other definitions, see Words and Phrases, vol. 2, pp. 1233-1235.] 2. Feaud (§ 14*) — 'Waeeanties—Damages. Where a vendor of land of which the title was not marketable by falsely representing that he had good title, and that he had it examined, led a grantee to buy it without examining the title, although the grantee could not recover on the general warranty where he had not been ejected, he could recover damages for the fraud. [Ed. Note. — For other eases, see Fraud, Cent. Dig. §§ 9, 10; Dec. Dig. § 14.* For other definitions, see Words and Phrases, vol. 3, pp. 2943-2954; vol. 8, p. 7666.] 3. Feaud (§ 60*) — Remedy of Pubchaseb of Unmaeketable Title — Measuee of Damages. Where a buyer of a lot, the title to a strip of which was unmarketable, set up damages in an action for the price for fraud of his grantor, he could recover as one item of damages the cost of moving his house which he had built partly on that strip, although he had not yet moved the house, and might never have to move it. [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 65; Dec. Dig. § 60.*]
154 S.W. 1027Ft. Worth & D. C. Ry. Co. v. Read Bros. & Montgomery (1913)Affirmed
Appeal from District Court, Tarrant County ; J. W. Sayne, Judge. Action by Read Bros. & Montgomery and others against the Ft. Worth & Denver City Railway Company. From the judgment, defendant appeals.
154 S.W. 1030De Lay v. Wolffarth (1913)Affirmed
Appeal from District Court, Lubbock County; W. R. Spencer, Judge. Action by James R. De Lay against George W. Wolffarth. Judgment for defendant, and plaintiff appeals.
154 S.W. 1032Wichita Falls Compress v. W. L. Moody (1913)Affirmed as to the Compress Company and the Railroad…
B. Muse, Judge. Action by W. L. Moody & Company against the Wichita Falls Compress Company and others. Judgment for plaintiffs against the Wichita Falls Compress Company and others. From a judgment for plaintiffs against defendants City National Bank of Bowie, Tex., Wichita Falls Compress Company, and Missouri, Kansas & Texas Railway Company, they appeal.
154 S.W. 1055Tyson v. First State Bank & Trust Co. of Santa Anna (1913)Affirmed
1. Appeauakce (§ 13*) — Duty of Defendant to Take Notice — Amendment in Open Court. It is the duty of a defendant, who has answered the petition, - to take notice of a subsequent amendment thereof in open court, on leave, and govern himself accordingly, even if the amendment sets up a new cause of action. [Ed. Note. — For other cases, see Appearance, Cent. Dig. § 65; Dec. Dig. § 13.*] 2. Sequestration (§ 16*) — Abatement — Truth of Affidavit. The truth of the allegations of an affidavit for sequestration cannot be put in issue for purpose of abating the writ; but the remedy for their falsity is by suit on the bond. [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 33, 34; Dec. Dig. § 16.*] 3. Sequestration (§ 16*) — Affidavit—Agent of Plaintiff Corporation. The law requiring plaintiff, before a writ of sequestration issues, to make oath that he fears defendant or the person in possession will remove the property out of the limits of the county pending the suit, and Rev. St. 1895, art. 5, permitting an affidavit required of a party to be made by his agent, the affidavit of the agent of plaintiff corporation that it has such fear is sufficient. [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 33, 34; Dec. Dig. § 16.*] 4. Replevin {§ 125*) — Sequestration—Judgment on Bond — Pleadings. Where a sequestration writ issues, and defendant replevins the property, and judgment goes against him, it is the duty of the court to render judgment on the replevin bond; and this though there is no reference in the pleadings to the issuance of such proceedings. [Ed. Note. — For other cases, see Replevin, Cent. Dig. §§ 503, 504; Dec. Dig. § 125.*]
154 S.W. 1057Vickrey v. Griffin (1913)Reversed and remanded
Action by T. G. Griffin against C. W. Walters, in which a writ of sequestration was levied on property in the possession of W. R. Vickrey. From the judgment, Vickrey appeals.
154 S.W. 1058Pritchard v. Fox (1913)Affirmed
1. Estoppel (§ 38*) — Estoppel by Deed— After-Acquired Title. A general warranty deed to a one-seventh interest in land owned by a husband and wife,given by one of their seven children on death of the husband, passed the after-acquired title which descended to grantor on death of his mother. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 99-107; Dec. Dig. § 38.*] 2. Husband and Wife (§ 129*) — Liability of Wife — Warranty. A deed by a widow, who has remarried, and the surviving daughter, also married, to a one-seventh interest in land described as having descended to their decedent, whereas only a one-fourteenth interest descended to him, passes a one-fourteenth interest only; the warranty not operating against the grantors. [Ed. Note. — For other cases, see Husband and Wife. Cent. Dig. §§ 283, 468-470; Dec. Dig. § 129.*]
154 S.W. 1060Gulf, C. & S. F. Ry. Co. v. Guess (1913)Reversed and remanded
Appeal from District Court, Milam County; J. C. Scott, Judge. Action by B. L. Guess against the Gulf, Colorado & Santa Fé Railway Company. Judgment" for plaintiff. Defendant appeals.
154 S.W. 1062St. Louis Southwestern Ry. Co. of Texas v. Cavitt (1913)Affirmed
Appeal from District Court, Coryell County; J. H. Arnold, Judge. Action by J. F. Cavitt against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
154 S.W. 1062Gauss-Langenberg Hat Co. v. Alley (1913)Reversed and rendered
Appeal from Lynn County Court; Geo. W. Perryman, .Judge. Action by the Gauss-Langenberg Hat Company against Jack Alley. From a judgment for defendant, plaintiff appeals.
154 S.W. 1064Gardner v. Gardner (1913)Cause dismissed
Divorce (§ 280*) — Orders Appealable — “Final Judgment” — Order por Payment op Alimony. Under Rev. Civ. St. 1911, arts. 2078-2080, providing that appeals may 'be taken to the Courts of Civil Appeals, from every final judgment in the district court, but that there can be no appeal from interlocutory orders, except as specially provided by statute, and in the absence of any statute providing an appeal from an order granting alimony, an order in an action for divorce, where the main issues were divorce and the custody of children, made before final judgment, for the payment of alimony, for which defendant had been made liable, was not a “final judgment,” from which an appeal would lie. [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 764; Dec. Dig. § 280.* For other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663.]
154 S.W. 1065Bassham v. Robertson (1913)Affirmed
Appeal from Cottle County Court; W. E. Prescott, Judge. Action by G. N. Robertson against W. B. Bassham and another. Judgment for plaintiff. Defendant Bassham appeals, plaintiff assigning cross-error.
154 S.W. 1065Thompson v. Howard (1913)Affirmed
Appeal and Error (§ 753*) — Assignments op Error — Filing in Lower Court. Assignments of error will not be considered, where the record does not show that they were filed in the lower court. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 753.*]
154 S.W. 1067De Fierros v. Fierros (1913)Reversed, and judgment rendered that plaintiff take…
Appeal from District Court, Webb County; J. F. Mullally, Judge. Action by Eduardo Fierros against Teresa M. De Fierros. Judgment for plaintiff, and defendant appeals.
154 S.W. 1067Carmody v. Clayton (1913)Affirmed
Appeal from District Court, Navarro County; H. B. Daviss, Judge. Action by T. J. Carmody against J. H. Clayton. From a judgment for defendant, plaintiff appeals.
154 S.W. 1070Fell v. Kimble (1913)Reversed and remanded
Trial (§ 127*) — Conduct of Counsei>-Prej-udicial Error. In a personal injury action it is reversible error for plaintiff’s attorney to attempt to show over objection that because of indemnity insurance defendant will not be required to pay any judgment rendered against him, as by asking if a certain person who procured statements from witnesses was not a representative of an indemnity insurance company. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 275; Dec. Dig. § 127.*]
154 S.W. 1071Rojas v. Rojas (1913)Dismissed
Appeal akd Error (§ 787*) — Dismissal — Filins Briefs. Fundamental error not appearing from the record, the cause should, under Court of Civil Appeals rule 39 (142 S. W. xiii), be dismissed for want of prosecution; plaintiff in error not having complied with the statutes and rules as to filing briefs, or shown excuse therefor. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3129, 3130; Dec. Dig. § 7S7.*]
154 S.W. 1071Gulf, C. & S. F. Ry. Co. v. Wortham (1913)Reversed and rendered
Appeal from Lampasas County Court; M. M. White, Judge. Action by L. E. Wortham against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff in the justice court, defendant appealed to the count court, and from a judgment for plaintiff there defendant appeals.
154 S.W. 1161Lester v. Zink (1913)Affirmed
1. Landlord and Tenant (§ 53*)—'Trans-fer op Rbveesion — Effect — Rights of Parties as to Rents. Rents payable out of the produce of land not accruing until after a conveyance of the land passed with the land to the purchaser, subject to all the equities affecting the payment of rent of which the purchaser had notice; so that a purchaser having no notice, other than the tenant’s possession, of a parol lien by which the tenant might apply the rent to reimburse himself for money paid on an endorsement of a note for the landlord, became the owner of the rents. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 129-131, 134, 135; Dec. Dig. § 53.*] 2. LANDLORD AND TENANT (§ 210*) — APPORTIONMENT op Rent — Time op Occupation. The general rule is that even an apportionment of rent is never made under the common law in reference to length of time of occupation, but, when the rent falls due, the owner of the reversion at that time is entitled to the entire sum. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 835-845; Dec. Dig. § 210.*] 3. Landlord and Tenant (§ 53*) — Real Property — Purchaser’s Claim to Rent. Where the purchaser of the reversion of land in the possession of a tenant, without reservation of rent, inquired as to what the rental contract was, and knew that the tenant was to pay one-fourth of the cotton, but did not know of the existence of a parol lien by which the tenant might apply the rent to reimburse himself for money paid on an indorsement of the landlord’s note, and the tenant on information that the purchaser was about to take the farm said nothing about such a lien, the purchaser was not estopped by his failure to further inquire as to the lien to claim the full rent. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 129-131, 134, 135; Dec. Dig. § 53.*]
154 S.W. 1164Ætna Life Ins. Co. v. Farrell (1913)Reversed and rendered
Insueance (§ 84*) — Agents—Commission. In an action by a life insurance broker for commissions for securing liability business for defendant, evidence held insufficient to establish any agreement for the payment of commissions. [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 111-114; Dec. Dig. § 84.*]
154 S.W. 1168Yellow Pine Paper Mill Co. v. Wright (1913)Affirmed
Appeal from District Court, Orange County; W. B. Powell, Judge. Action by W. D. Wright against the Yellow Pine Paper Mill Company. Judgment for plaintiff, and defendant appeals.
154 S.W. 1171Fessinger v. El Paso Times Co. (1913)Affirmed
1. Libel and Slandee (§ 7*) — Actionable Words. A newspaper article, charging that plaintiff was arrested for assault, “forfeited a $25 bond,” and failed to answer the charge against him, “which is said to have been a mix-up in the red light district,” was libelous per se, and hence it was error to submit to the jury in a libel case the question whether it was libelous. [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. § 7.*] 2. Appeal and Error (§ 882*) — Invited Error-Submission op Issues. Where, in an action for the publication of a libelous newspaper article, instructions were, given for plaintiff drawn upon the theory that the article was not libelous per se, he was es-topped to object that, the article being in fact libelous per se, the court erred in submitting to the jury the question whether it was libelous. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] 3. Libel and Slander (§ 104*) — Evidence-Admissibility — Correction. While, in an action by F. for the publication of a libel, a second article published by defendant and headed, “P.’s Correction,” and commencing, “F. says,” followed by his statements, was not admissible under Rev. Civ. St. 1911, art. 5596, authorizing the admission of any correction made of the libelous article by defendant, since it was a correction made by plaintiff, it was still admissible independent of the statute as a circumstance tending to rebut any inference of malice. [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 284-291; Dec. Dig. § 104. *J 4. Libel and Slander (§ 120*) — Exemplary Damages — Malice. Exemplary damages are not recoverable in a libel case unless the libelous language was instigated by malice, even though the language be libelous per se. [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dec. Dig. § 120.*] 3. Libel and Slander (§ 4*) — Exemplary Damages — “Express Malice” — “Implied Malice.” In an action for libel, malice authorizing exemplary damages may be shown by evidence of the personal ill will of defendant, termed “express malice,” or may be inferred where the libelous article was recklessly or carelessly published, in which case it is “implied malice.” [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 111; Dec. Dig. § 4.* For other definitions, see Words and Phrases, vol. 3, pp. 2607-2611; vol. 8, p. 7658; vol. 4, pp. 3433, 3434; vol. 8, p. 7682.] 6. Appeal and Error (§ 1068*) — Harmless Error — Instruction. Error in a libel case in an instruction as to exemplary damages was harmless, where the jury found against plaintiff upon the issue of actual damages, and thus precluded any possible award of exemplary damages. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*] 7. Libel and Slander (§ 27*) — Actionable Words — Correction Statement. A correction article containing a statement of plaintiff’s claim as to the facts touched on in the libelous article, followed by the clause, “and there you are,” was not libelous, where every fact stated in the correction article was admitted to be true and was plaintiff’s version of the incident; the words quoted not being libelous per se, though equivocal and ambiguous. [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 104; Dec. Dig. § 27.*] 8. Libel and Slander (§ 86*) — Pleading. Where, in an action for the publication of libelous newspaper articles, an article complained of is not libelous per se, the plaintiff should allege its libelous character by proper innuendo showing same. [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 205-208; Dec. Dig. 86.*] 9. Appeal and Error (§ 758*) — Assignment op Error — Sufficiency. An assignment of error in the brief, which was not a true copy of any assignment appearing in the record, could not be considered on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.*]
154 S.W. 1176Matagorda Canal Co. v. Markham Irr. Co. (1913)Affirmed
Appeal from District Court, Matagorda County; Wells Thompson, Judge. Action by the Matagorda Canal Company against the Markham Irrigation Company. From an order denying a temporary injunction, plaintiff appeals.
154 S.W. 1181Collin County Nat. Bank v. Hughes (1913)Affirmed
1. Judgment (§ 870*) — Revival—Sciee. Fa-cias — Relief. Under the statute providing that a dormant judgment may be revived by scire facias or an action of debt thereon, a new judgment may be rendered in a proceeding by scire facias to revive a judgment. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1609, 1613-1640; Dec. Dig. § 870.*] 2. Judgment (§ 870*) — Revival —' Sciee Facias — Process—Seevice. As a proceeding by scire facias in the federal courts for Colorado is a mere continuation of the original suit, the only judgment being that execution issue, service by publication in scire facias to revive a judgment is good against a defendant who was personally served in the original action, notwithstanding that he had during the interim removed from the jurisdiction. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1609, 1613-1640; Dec. Dig. § 870.*] 3. Judgment (§ 934*) — Foreign Judgment-Limitations. Under the ten-year limitation of Rev. Civ. St. 1911, art. 5696, providing that a judgment in any court of record within the state may be revived within ten years and not .after, a foreign judgment, though revived by scire facias in the foreign jurisdiction, is barred in Texas by a lapse of more than ten years; it appearing that the defendant was a citizen of Texas during the running of the statute. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1764r-1768; Dec. Dig. § 934.*]
154 S.W. 1184Mutual Life Ins. Co. of New York v. Davis (1913)Affirmed
1. Insurance (§ 353*) — Live Insurance-Nonpayment of Premiums — Forfeiture. A debtor assigned his insurance policy to a creditor, who also held the policies of several other debtors, and the insurer made it a custom to send liis collector for the premiums, and in several cases where the premium was not paid at the bank gave the assignee notice of the nonpayment of the receipt; the general agents of the company admitting in one case that they were bound to present the receipt in- payment. Held that, where nine payments had been made on a ten-payment policy, which then could be converted into a certain sum of paid-up insurance, the insurer was not entitled to enforce a forfeiture for the nonpayment of the tenth premium, which had never been demanded; its agents knowing that the creditor kept no record of when the premiums' were due. [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 905-907, 1032, 1033; Dee. Dig. § 353.*] 2. Insubance (§ 349*) — Forfeiture—Laches. 'Where a creditor, to whom .a debtor had assigned an insurance policy, did not pay the last premium due because of the insurer’s failure to present the receipt for payment in accordance with its custom, the failure of the creditor to discover the nonpayment of the premium for some years, it appearing that the debtor was still alive, and the policy had merely been filed away, does not bar him on the ground of laches; the insurer being bound to take the initiative in demanding payment of the premium. [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 891, 895-902, 913; Dec. Dig. § 349.*] 3. Insurance ■(§ 371*) — Forfeiture—Waiver. Where a forfeiture of an insurance policy is once waived because of the course of dealings between the parties, it cannot later be interposed to defeat recovery. [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 943-946; Dec. Dig. § 371.*] 4. Insurance (§ 664*) — Actions on Policies —Evidence. In an action on a life policy, which the insurer claimed was forfeited because of the as-signee’s failure to pay the last premium, evidence showing that it was the insurer’s custom to present the premium receipts for payment, and that it had done so in the case of other policies held by plaintiff on the life of the insured and others, is admissible. [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1687, 1688, 1699; Dec. Dig. § 664.*] 5. Appeal and Error (§ 1051*) — Review-Harmless Error. In an action on an insurance policy, where recovery was sought to be defeated on the ground of nonpayment of the last premium, the admission of improper evidence showing that it was the custom between the insurer and the as-signee of the policy for the insurer to demand payment of the premiums is harmless error, where there was sufficient competent evidence to establish that custom. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]
154 S.W. 1190San Antonio Traction Co. v. Cassanova (1913)Reversed and remanded
Appeal from District Court, Bexar County ; Edward Dwyer, Judge. Action by J. L. Cassanova, by next friend, against the San Antonio Traction Company. From a judgment for plaintiff for $10,000, defendant appeals.
154 S.W. 1198Schmidt v. Boyce (1913)Affirmed
Appeal from Childress County Court; W. G. Gross, Judge. Action between William Schmidt and J. C. Boyce. Prom the judgment, Schmidt appeals.