155 S.W.

Volume 155 — South Western Reporter

134 opinions

155 S.W. 180Erp v. Robison (1913)Writ refused
Petition for mandamus by Sadie F. Erp and others against J. T.. Robison, Commissioner of the General Land Office.
155 S.W. 183Missouri, K. & T. Ry. Co. of Texas v. Beasley (1913)
155 S.W. 212Singleton v. State (1913)Affirmed
1. Criminal Law (§ 1090*) — Appeal—Bills 03? EXCEPTION — NECESSITY. The overruling of an application for a continuance in a criminal case cannot be reviewed, in the absence of a bill of exceptions. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1090.*] 2. Criminal Law (§ 1097*) — Appeai^State-3vient oe Facts — Necessity. Whether the verdict in a criminal case is contrary to the law and evidence cannot be determined, 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.*]
155 S.W. 226Scott v. State (1913)
155 S.W. 270Click v. State (1913)Affirmed
Appeal from Sabine County Court; T. R. Smith, Judge. Joe Click was convicted of aggravated assault, and he appeals.
155 S.W. 270Elmo Rock Co. v. Sowders (1913)Affirmed
Appeal and Error (§ 724*) — .Assignments of Error — Waiver. Assignments of error not in compliance with Courts of Civil Appeals rules 24 and 25 (142 S. W. xii), providing that assignments of error must distinctly specify the grounds of error, and defining a distinct specification of error, are waived. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.*]
155 S.W. 270Russell v. State (1913)Affirmed
Appeal from Sabine .County Court; T. R. Smith, Judge. John Russell was convicted of aggravated assault, and he appeals.
155 S.W. 270Thornton v. State (1913)Affirmed
Appeal from Sabine County Court; T. R. Smith, Judge. Hardy Thornton was convicted of aggravated assault, and he appeals.
155 S.W. 270McSweeney v. Ellerman (1913)Affirmed
Landlord and Tenant (§ 296*) — Sequestration (§ 20*) — Right of Lessor to Maintain — Possessory Action. While there is an implied obligation upon a lessor to deliver possession to his lessee, and in order to fulfill that obligation he may maintain a possessory action against one unlawfully upon the premises, yet where the lessee has accepted rent from one unlawfully in possession, and has treated him as a subtenant, the lessor can maintain no possessory action; and hence a writ of sequestration sued out by the lessor against the one in possession is improvidently issued, and there is no liability on the possessor’s replevy bond. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1272-1275, 1283; Dec. Dig. § 296 ;* Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. § 20.*]
155 S.W. 273Galveston & W. Ry Co. v. City of Galveston (1913)Reversed and remanded
1. Railroads (§ 76*) — Use ox Streets — Municipal Ordinance — Construction—Relocation ox Railroad. Under a city ordinance granting a railroad company a right to relocate its track between two points upon any degree of curvature, not less than 3 degrees, which it might determine upon, it was authorized to relocate its track upon a line which made a short curve of 13 degrees at one end and another short curve of 10 degrees at the other end, united by a straight line; the relocation line being in substantial conformity with the limitations of the ordinance, though not entirely forming a curve. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 195, 196, 199-201; Dec. Dig. § 76.*] 2. Railroads (§ 76*) — Municipal Ordinance — Construction — Relocation ox Railroad. A city ordinance, authorizing the relocation of a railroad between two points, carried with it the right to cross such streets and alleys, not crossed by the old line, as were necessary to such relocation. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 195, 196, 199-201; Dec. Dig. § 76.*] 3. Railroads (§ 78*) — Municipal Ordinance — Construction — Relocation ox Railroad. An ordinance of the city of Galveston, authorizing the relocation of a railroad “at any time thereafter” between two points, from which the track curved to the water’s edge, which it might determine upon, did not postpone the right to relocate the track until such time as the encroachment of the gulf water should render maintenance in the old location impracticable, or until a sea wall should be constructed and intersect the same, but gave a present right to relocate the track. [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 194; Dec. Dig. § 78.*] 4. Railroads (§ 75*) — Right ox Wat — Municipal Ordinance — Construction. Where the first section of a city ordinance confirmed a prior grant of a railroad right of way, and concluded with a proviso that the rights granted should be forfeited unless used within one year, such proviso applied only to the first section, where it appeared from the context of the entire ordinance that such was the intention. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 183-191; Dec. Dig. § 75.*] 5. Statutes (§ 228*) — Construction—Proviso. While a proviso usually qualifies the language preceding it, it may apply to provisions of succeeding sections of the same statute, if from the context of the statute such clearly appears to have been the intention. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 310; Dec. Dig. § 228.*] 6. Railroads (§ 75*) — Right ox Wat — Grant BT OlTT — VALIDITT OX CONDITION. Where the Legislature grants railroad companies the right to occupy city streets upon condition that the consent of the city be first obtained, and a city grants a right, and attaches to it a condition subsequent, not authorized by the statute, to the effect that the grant will be forfeited unless exercised within one year, such condition is void. [Ed. Note. — For other cases,, see Railroads, Cent. Dig. §§ 183-191; Dec. Dig. § 75.*] 7. Railroads (§ 75*) — Right ox Wat — Acceptance ox Grant. That a railroad company, after being given a right by ordinance of the city of Galveston to relocate its track between two points, from which it curved to the water’s edge, constructed its line over certain streets, the right to which it had been granted by the same ordinance, rehabilitated its track, and generally put itself in shape to carry out the purpose for which the relocation of the track was desired, constituted an acceptance of the grant, though it did not attempt to make the relocation for several years, and until the gulf waters and the building of the sea wall deprived it of the ola location. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 183-191; Dec. Dig. § 75.*] 8. Railroads (§ 82*) — Right ox Wat — For-xeiture ox Grant — “Reasonable Time.” Where, by valid ordinance of the city of Galveston, a railroad company was granted a right to relocate its track between two points where it curved to the water’s edge, and where it accepted such grant, it did not forfeit its right thereto for failure to exercise it within a reasonable time, though it delayed for 21 years before attempting to relocate its track, where there appeared to have been ample excuse for such delay; “reasonable time” being a relative term, depending upon the attending circumstances affecting the doing of the work. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 213-219; Dec. Dig. § 82.* For other definitions, see .Words and Phrases, vol. 7, pp. 5977-5983; vol. 8, p. 7780.] , 9. Railroads (§ 82*) — Ordinance — Construction-Grant ox Railroad Right ox Wat. Where a city had no right to attach, as a condition subsequent to a grant by ordinance of a railroad right of way, a provision that the grant should be forfeited unless exercised within a reasonable time, such a condition could not be implied. [Ed. Note'. — For other cases, see Railroads, Cent. Dig. §§ 213-219; Dec. Dig. § 82.*] 10. Railroads (§ 82*) — Right ox Wat — Forxeiture ox Grant. That a railroad company continued to use its old location for about 21 years after being granted a right by ordinance of the city of Galveston to relocate its track between two points, where it curved to the water’s edge, did not work a forfeiture of its rights under the grant. [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 213-219; Dec. Dig. § 82.*] . 11. Railroads (§ 75*) — Right ox Wat — Grant — Railroad Commission. An order of the State Railroad Commission, giving a railroad company a right to relocate its track upon any line “upon which it may legally acquire the right of.way,” did not give it a right to relocate its track without the assent of the city, since not only was the order not open to such construction, but under Rev. St. 1895, art. 4445, as amended by Acts 27th Leg. c. 36, defining its powers in such respect, the Commission had no authority to grant such a right. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1S3-191; Dec. Dig. § 75.*] 12. Railroads (§ 75*) — Right ox Wat — Wat ox Necessitt. That by the erection of the sea wall in the city of Galveston, by the county of Galveston,- a railroad company’s track was ciit in two, did not entitle the company to a new location across streets and alleys as a way of necessity, without the assent of the city, though the rule would' be otherwise, had the wall been erected by the city; no such right being given by Rev. St. 1895, art. 4438, which provides for the acquisition of railroad rights of way in cities. [Ed. Note. — For- other cases, see Railroads, -Cent. Dig,;,§§ 183-191; Dec. Dig. § 75.*] 13. Constitutional Law (§§ 134, 277*) — Impairment op Contracts — Railroad Right op Way. Where the connection between two points of a railroad in the city of Galveston was destroyed by the gulf waters and the building of -the sea wall by the county of Galveston, the ’railroad company had no right, under Const. U. S. Amend. 14, Bill of Rights, art. 1, § 19, or Const. U. S. art. 1, § 10, with regard to t]je impairment of the obligation of contracts, to build its track across streets and alleys on a new location, but must seek such right solely ■under an ordinance of the city of Galveston. [Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. §§ 344, 762, 766, 949; Dec. Dig. §§ 134, 277.*] 14. Municipal Corporations (§§ 680, 681*) —Powers—Geant op Railroad Right op Way. Under its amended charter of 18S9, giving plaintiff railroad company the right “to curve into and from any and all of the streets and avenues at any point or points it may select,” the city was authorized to grant to the railroad company the right to relocate its track. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. §§ 680, 681.*] 15. Railroads {§ 75*) — Right of Way — Validity of Grant. Where a railroad right of way in a city was acquired by one company by purchase from another, and the city by a subsequent ordinance confirmed and granted this right to the purchaser, the fact that the purchase was illegal could not invalidate the grant. [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 183-191; Dec. Dig. § 75.*]
155 S.W. 286American Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co. (1913)Affirmed in part and reversed in part, and motions for…
Appeal from District Court, Nueces County; W. B. Hopkins, Judge. Action by the Mercedes Plantation Company against the American Rio Grande Land & Irrigation Company. From a judgment for plaintiff, defendant appeals.
155 S.W. 307Lane v. First Nat. Bank of Canyon City (1913)Affirmed
1. Bills and Notes (§ 523*) — Evidence-Sufficiency. Evidence, in an action on vendor’s lien notes after payment in full to the payee, held to sustain a finding that the notes were pledged by the payee to the plaintiff bank to secure a loan to the payee by plaintiff; the transaction being through another bank, which acted as the payee’s agent. [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1822^-1825; Dec. Dig. § 523.*) 2. Bills and Notes (§ 358*) — Transfer as Collateral — Pre-Existing Debt. The transfer of a negotiable note as collateral security for a pre-existing debt is in due course of trade and for a valuable consideration. [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 913-923, 961; Dec. Dig. § 358.*] 3. Bills and Notes (§ 427*) — Payment After Transfer — Defense. Where a person, who assumed the payment of negotiable vendor’s lien notes, paid the amount of them, before maturity, to the original payee, though by reasonable diligence he could have discovered that the payee had pledged them to a bank as collateral, and that such bank had them in its possession, such payment and a release executed by the payee could not defeat the bank’s action to recover on the notes and foreclose the vendor’s lien. [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1233-1244; Dee. Dig. § 427.*)
155 S.W. 309Pecos & N. T. Ry. Co. v. Meyer (1913)Affirmed
1. Carriers (§ 76*) — Bills of Lading — “Lawful Holders” — Carmack Amendment. Under the Carmack Amendment (Act June 29, 1906, e. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]), which provides that any common carrier, receiving property for transportation from a point in one state to a point in another state, shall issue a receipt or bill of lading and shall be liable to the “lawful holder” thereof for any loss or injury to such property caused by it or by any carrier to which such property may be delivered or over whose line such property may pass, the term “lawful holder” comprehends the owner of the property transported or the one beneficially entitled to recover for the loss or injury, and manual possession of the bill of lading is not a prerequisite to the right to sue, so that a shipper accompanying the shipment was not deprived of his right to sue because he surrendered his bills of lading at the destination in exchange for free transportation on the return. [Ed-. Note. — For other cases, see Carriers, Cent. Dig. §§ 256-271, 363; Dec. Dig. § 76.* ' For other definitions, see Words and Phrases, vol. 5, p. 4029.] 2. Carriers (§ 184*) — Injury to Shipment —Pleading—Carmack Amendment. The effect of the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]), is to make all connecting carriers the agents of the initial carrier, and in an action thereunder against the initial carrier for injury to a shipment it was not necessary that the petition give the names of defendant’s connecting lines. [Ed. Note. — For . other cases, see Carriers, Cent. Dig. §§ 832-834; Dec. Dig. § 184.*] 3. Carriers (§ 230*) — Live Stock — Injury to Shipment — Instructions. In an action for injuries to a shipment of cattle, instruction that if defendant’s servants, at a place where said cattle were unloaded to feed and rest, negligently and carelessly permitted such quantity of salt to be placed in the feeding pens that the cattle, or part, became sick and some died from eating said salt, defendant was liable, but that if the salt, if any, was not placed there by defendant’s servants and its presence not known to them, and could not have been discovered by them by the exercise of ordinary care, defendant was not liable, was proper and sufficient. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*] 4. Trial (§ 260*) — Requested Instructions Covered by Those Given. A further instruction, requested by the defendant, that if the shipper accompanied the stock the carrier was not an insurer against loss from inadequacy of the feeding pens or other facilities, and that if, when the cattle were unloaded, there was salt in one of the troughs and plaintiff’s cattle ate- thereof and some were injured, yet unless the carrier’s employes in charge of the stockyards knew, or by reasonable diligence would have known, that the salt was there, and unless it was negligence on the carrier’s part to permit salt to be in the trough, the carrier was not liable, and that if a person reasonably prudent, under the circumstances, would have left such salt in the trough without apprehending injury to the cattle, the carrier would not be liable, differed so slightly from the charge given that its refusal was not harmful. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 5. Carriers (§ 177*) — Interstate Shipment —Injury to Goods — Effect oj\ Carmack Amendment — Liability for Loss. The Carmack Amendment (Act June 29,. ■1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) providing that a carrier receiving property for transportation from a point in one state to a point in another shall be liable to the lawful holder of the bill of lading for any loss or injury caused by it or by any common carrier to which such property may be delivered or over whose line it may pass, notwithstanding any contract or regulation to the contrary, does not render the initial carrier liable for loss irrespective of negligence, but Congress intended to give a shipper over connecting lines a direct remedy for damages and place on the carriers the burden of locating the particular company guilty of the wrong, and to annul the stipulation, usual in bills of lading, limiting liability of successive connecting carriers to damages resulting on their own lines. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.*] 6. Carriers (§ 228*) — Injury to Live Stock —Sufficiency of Evidence. A verdict for damages for injury to live stock held not without evidence to support it as to unreasonable delay in handling the shipment and negligence in furnishing impure food and water. [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*] 7. Trial (§ 250*) — Instructions—Issues. It is proper to refuse an instruction on a question conceded both by pleadings and evidence on the trial. [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 584-586; Dec. Dig. § 250.*] S. Trial (§ 194*) — Instructions—Weight of the Evidence. An instruction that a carrier was not liable for delays at any point unless at a certain one specified, and that before defendant could be held liable for delay there the jury must believe that the cattle were damaged by such delay, was on the weight of the evidence on a disputed issue: the testimony of a conductor showing a delay of nearly an hour at a point other than that mentioned and a further delay in reloading at a feeding point. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*] 9. Courts (§ 489*) — Conflicting Jurisdiction-United States and State Courts. Causes arising under the Carmack Amendment (Act June 29, 1906, e. 3591, § 7, pars. 11, 12 [U. S. Comp. St. Supp. 1911, p. 1307]), relating to interstate commerce, are cognizable by state courts. [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324-1330. 1333-1341, 1372-1374; Dec. Dig. § 489.*] 10. Evidence. (§ 539%*) — Expert Evidence —Time of a Railroad Run. The court did not err in permitting testimony by a shipper that he had had shipments before and knew what a good ordinary run was from a point in Texas to Kansas City; that it was 33 to 34 hours; that he had shipped cattle before over the same line to Kansas City when there were no delays in stock trains. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2350-2352; Dec. Dig. § 539%.*] 11. Evidence (§ 543%*) — Expert Testimony —Damages to Cattle — Shrinkage. An experienced cattle man, familiar with the condition of his ca,ttle when shipped and when delivered and knowing the market prices at destination, was qualified to-testify that the stale appearance of the cattle 'on account of their being shrunken and looking badly reduced the price 55 to 60 cents per hundred. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2359; Dec. Dig. § 543%.*] 12. Appeal and Error (§ 1050*) — Harmless Error — Admission of Evidence. Any error in permitting a cattle man to testify that the stale appearance of his cattle from being shrunken reduced the price 55 to 60 cents per hundred was harmless, where the plaintiff testified that he was present when the cattle were weighed and made a memorandum of the weights, which the weigher verified, and there was other competent evidence establishing the amount of the shrinkage and weight of the cattle. [Ed. Note. — For-other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] 13. Carriers (§ 230*) — Injury to Live Stock —Instructions. Instruction that a carrier must furnish reasonable and proper facilities and opportunities for feeding and resting live stock in course of transportation, and if necessary unload them for that purpose, was not improper as placing on a carrier the absolute duty of furnishing such facilities, and the absolute duty of supplying the stock with proper food, while the evidence showed that the shipper with two assistants . accompanied the stock for the purpose of caring for them. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]
155 S.W. 315Douthit v. Southern (1913)Reversed and remanded for new trial
Appeal from District Court, Harris County; Norman G. Kittrell, Judge. Action by Jasper L. Douthit and others against G. W. Southern. From a judgment for defendant, plaintiffs appeal.
155 S.W. 317Shriver v. McCann (1913)Reversed and remanded
Appeal from .District Court, Randall County; Jno. W. Veale, Special Judge. Action by William McCann against D. A. Shriver, with which was consolidated an action by Shriver against McCann. From a judgment in favor of McCann, Shriver appeals.
155 S.W. 321Abbott v. First Nat. Bank of Canyon (1913)Reformed and affirmed
Appeal from District Court, Randall County ; Jno. W. Yeale, Special Judge. Action by the First National Bank of Canyon against G. L. Abbott and others. Prom a.-.j.udgment for plaintiff, defendants appeal.
155 S.W. 325Kell Milling Co. v. Bank of Miami (1913)Affirmed
1. Corporations (§ 503*) — Actions—Venue. Under Rev. Civ. St. 1911, art. 1830, § 24, providing that suits against a private corporation can be commenced in any county in which the cause of action arose, an action against a corporation on an account, for grain purchased was properly brought by an assignee of the account in the county in which the grain was purchased, and the draft was drawn by the seller on the buyer, though the buying corporation had residence in another county. [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1935-1939, 1942-1946; Dec. Dig. § 503.*] 2. Appeal and Error (§ 1062*) — Harmless Error — Instructions. Where an action against a corporation was properly brought in the county of the venue because a part of the cause of action arose therein, ■ any error in submitting the issue of venue, as well as the question of fraud in transferring the cause of action, became immaterial. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*] 3. Venue (§ 27*) — Fraudulent Transeer of Action. It could not be claimed that a cause of action on an account was fraudulently transferred for the purpose of changing the venue to the county in which the transferee brought suit thereon, where the transfer was for a valuable consideration. [Ed. Note. — For other cases, see Venue, Cent. Dig. § 41; Dec. Dig. § 27.*] 4. Evidence (§ 166*) — Best- Evidence — Books oe Account. As a rule, original books of entry are the best evidence as to the items of a book account. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 556,-557; Dec. Dig. § 166.*] 5. Trial (§ 85*) — Reception op Evidence-Objections — General Objection — Evidence Admissible in Part. Where the testimony of a witness for ap-pellee, who testified from a copy, as to the items of the account which he had kept in books, the books not being produced or accounted for, showed that he had an independent recollection as to certain items in the account, appellant should have cross-examined witness, so as to separate the items, based upon his independent recollection from those based upon the books, and object to the latter; an objection to all of his testimony not being good. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 223-225; Dec. Dig. § 85.*] 6. Trial (§ 85*) — Reception op Evidence-Objections — General Objections — Evidence Admissible in Part. Where only a part of the evidence is inadmissible; a general objection to the whole- of the evidence is insufficient. [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 223-225; Dee. Dig. § 85.*] ' On Motion for Rehearing. 7. Appeal and Error (§ 712*) — Record — Stenographer’s Notes. A stenographer’s notes, containing the detailed proceedings of the trial, are not properly a part of the appellate record, and cannot be considered by the court on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2951-2955; Dec. Dig. § 712.*] 8. Trial (§ 105*) — Reception of Evidence-Objections — Waiver. Failure to object to the whole of an account, when it was actually introduced in. evidence, waived an insufficient objection previously made to certain items of the account.. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. § 105.*]
155 S.W. 328Zarate v. Villareal (1913)Reformed and affirmed
B. Hopkins, Judge. Trespass to try title by Juan Zarate and others against Antonio Villareal and others. From a judgment for defendants, plaintiffs appeal.
155 S.W. 341Mortimer v. Jackson (1913)Affirmed
1. Evidence (§ 230*) — Admissions. In trespass to try title, the testimony of the grantor in a deed to the land, that plaintiff’s grantor, who paid the purchase price, directed that another, through whom defendant claimed, be named as grantee and that she would after-wards convey it to him, was admissible, where the grantee was present and heard such statements and agreed to the arrangement. [Ed. Note. — Bor other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. § 230.*) 2. Vendor and Purchaser (§ 220*) — Innocent Purchaser — Trust. A person, who obtained a deed to the land in controversy, in trespass to try title, from a person who had no interest in it, and made no claim to it, was not entitled to be protected as an innocent purchaser against the person for whom the land was held in trust. [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 461-465, 720; Dec. Dig. § 220.*] 3. Trusts (§ 149*) — Transfer bt Beneficiary — Title Conveyed. Where the person who paid the purchase price for land caused it to be conveyed to another, so it would be beyond the reach of his wife, who was suing for a divorce, the agreement being that the grantee should afterwards convey it to him, his deed, executed to the plaintiff without the legal title having been conveyed to him, conveyed the equitable title to the land. [Ed. Note. — Por other cases, see Trusts, Cent. Dig. § 194; Dec. Dig. § 149.*] 4. Tbusts (§ 42*) — Evidence — Written Agreement — Acknowledgment. In trespass to try title, a document, wherein the holder of the equitable title to the land acknowledged that she held the same in trust for plaintiff’s grantor, was admissible in evidence to show an admission as to title, though not acknowledged as required by law. [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. § 61; Dee. Dig. § 42.*] 5. Continuance (§ 14*) — Grounds. In trespass to try title it was not error to refuse a continuance sought in order that two persons who clearly had no interest in the land, and through whom defendant did not claim, might be made parties. [Ed. Note. — For other eases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. § 14.*] 6. Trusts (§ 43*) — Evidence — Declaration or Cestui Que Trust. While the cestui que trust could not give his declarations in evidence to establish a trust in land in controversy in trespass to try title, he was properly permitted to testify to the facts, though such testimony was self-serving. [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]
155 S.W. 343Galveston, H. & S. A. Ry. Co. v. West (1913)Affirmed
Appeal from District Court, Kinney County. Action by Buck Searcy West and wife against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiffs, and defendant appeals.
155 S.W. 348Lane v. Hewgley (1913)Overruled
1.Constitutional Law (§ 277*) — Due Process of Law — Liquor Licenses — Nature— “Property Right.” While, as against the state, a licensee has no “property right” in a retail liquor license, he has such a right therein as against every One else within the constitutional guaranty against the deprivation of property without due process of law. [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 762, 766, 949; Dec. Dig.‘§ 277.* For other definitions, see Words and Phrases, vol. 6, p. 5729; vol. 8, p. 7770.] 2. Intoxicating Liquors (§ 108*) — Licenses-—Revocation—Review—“Civil Case.” An action under Rev. Civ. St. 1911, art. 7443, providing that any person aggrieved by the action of the Comptroller in vacating a retail liquor license may bring suit in the district, court against the Comptroller to reinstate such license, is a “civil case” within Const, art. 5, §• 6, conferring on Courts of Civil Appeals appellate jurisdiction in all civil cases of which the district or county courts have original or appellate jurisdiction, a civil case being a proceeding in a court of justice by one party against another for the enforcement or protection of a private right, or for the redress or prevention of a private wrong, and hence the Comptroller could appeal from a judgment reinstating such a license (citing 2 Words & Phrases, 1182). [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. §; 108.* For other definitions, see Words and Phrases, vol. 2, pp. 1183-1193; vol. 8, p. 7603.} 3. Appeal and EIrror (§ 374*) — Bonds—Exemptions— State Officers. Under Rev. Civ. St. 1911, art. 2105, providing that the head of any department of the-state prosecuting or defending, any action in his official capacity shall not be required to give bond on any appeal or writ of error taken by him in any civil case, the Comptroller of Publie Accounts was not required to file a bond or affidavit in lieu thereof on an appeal by him from a judgment reinstating a retail liquor license canceled by him. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2005-2010; D'ec. Dig. & 374.*]
155 S.W. 350Cole v. Forto (1913)Restraining order set aside, and cause remanded
1. Injunction (§ 150*) — "Temporary Injunction — Duration. Where, in a suit for an injunction, the judge issued a fiat directing the clerk to issue notices to the defendant to appear at the courthouse on a day named and show cause why the writ of injunction prayed for should not issue, and to issue a temporary restraining order commanding defendants to refrain from carrying out any of the various things alleged in the petition “pending the hearing hereof, as above directed,” the temporary restraining order expired on the date mentioned for the hearing whether any action was taken by the trial judge at that time or not. [Ed. Note. — For other cases, see Injunction, Cent. Dig. § S35; Dec. Dig. § 150.*] 2. Injunction (§ 118*) — Petition—Enjoining Collection. The petition, in an action to restrain city officers from putting into effect ordinances for the paving of certain streets and from collecting assessments therefor, should have alleged the sums sought to be collected, in order that the amount of the bond might be fixed under Rev. Civ. St. 1911, art. 4650, providing that, when an injunction is applied for to restrain the execution of a money judgment or the collection of a debt, the bond shall be fixed in double the amount of the judgment or debt. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*] 3. Taxation (§ 60S*) — Enjoining Collection — Remedy at Law. The collection of taxes will not be restrained by injunction, except where there is no adequate legal remedy. [Ed. Note. — For other cases, see Taxation, Cent Dig. §§ 1230-1241; Dec. Dig. § 608.*] 4. Municipal Corporations (§ 513*) — Special Assessments — Enjoining Collection —Remedy at Law. Rev. Civ. St. 1911, art. 1015, providing that any property owner, against whom or whose property any assessment for a street improvement is made, may within 20 days thereafter bring "suit in any court having jurisdiction to set aside or correct the assessment or any proceeding with reference thereto on account of error or invalidity, but that thereafter he and his heirs, assigns, or successors shall be barred from any such action or any defense of invalidity, provides an ample remedy at law to set aside such assessments and precludes relief by injunction. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1188-1206; Dec. Dig. § 513.*] 5. Municipal Corporations (§ 513*) — Public Improvements — Assessments to Set Aside — Statutory Provisions. Rev. Civ. St. 1911, art. 1015, authorizing the bringing of suits to set aside assessments for street improvements within 20 days after the assessment is made, and providing that thereafter the property owner, his heirs, assigns, or successors shall be barred from any such action or any defense of invalidity, is valid. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1188-1206; Dec. Dig. § 513.*] 6. Municipal Corporations (§ 147*) — Officers De Facto — Powers—Collateral Attack. In a suit to enjoin city officers from putting into effect ordinances for street paving or collecting assessments therefor, the right of the mayor de facto to hold his office could not be questioned, as the acts of de facto officers will be sustained in tax cases as in other cases. [Ed. Note. — For other eases, see, Municipal Corporations, Cent. Dig. §§ 324, 325; Dec. Dig. § 147.*]
155 S.W. 352Heidenheimer v. Beer (1913)Affirmed
Calhoun, Judge. Action by Henry Beer and others against I. Heidenheimer, Jr. From a judgment for plaintiffs, defendant appeals.
155 S.W. 356Texas & P. Ry. Co. v. Wiley (1913)Affirmed
Appeal from District Court, Harrison County; H. T. Lyttleton, Judge. Action by Henry Wiley, Jr., against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
155 S.W. 358Hale v. Barnes (1913)Reversed and remanded
1. Malicious Prosecution (§§ 16, 56*) — Elements oe Action. In order to entitle one to recover for wrongfully suing out an attachment, he must show that no probable cause existed for it, and that defendant was actuated by malice. [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 19-22, 59, 112-116; Dec. Dig. §§ 16, 56.*] 2. Malicious Prosecution (§ 64*) —Malice —Evidence. While, in absence of contrary evidence, the jury may find malice as a fact upon proof of want of probable cause for wrongfully suing out an attachment, the facts and circumstances may show that no malice in fact existed, even in the absence of probable cause. [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 151-153;' Dec. Dig. § 64.*] 3. Trial (§ 194*) — Instructions—Weight oe ■Evidence. In a cross-action for wrongfully suing out an attachment, the court charged that a debtor was not required to apply the proceeds of his property to any particular debt; that a debtor’s failure to pay his debts was not ground for attachment or justification for suing out the writ; that the fact that a creditor desired to collect his debt and needed the money would not justify suing out the' writ; that neglect to pay a debt, or carelessness in the conduct of business, or the mortgaging of property by a debtor to procui'e money to pay his debts, would not justify the belief that he was about to convert his property into money in order to get it •beyond the reach of creditors; and that probable cause to believe that the grounds set forth in the affidavit and attachment would be based by plaintiff, when he caused the affidavit to be made, upon competent evidence then before him; and further instructed that one who resorts to an attachment does so at his peril, and that no belief, however sincere, that the grounds set out in his affidavit are true, etc., would excuse him. Held1, that the instruction was erroneous as upon the weight of the evidence. [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 413, 436, 439-441, 446-454/ 456-466; Dec. Dig. § 194.*] 4. Trial (§ 194*) — Instructions—Weight oe Evidence. The statute prohibits the trial judge from incorporating in his instructions anything which might reasonably be construed as intimating his opinion as to how the case should be decided, or as to the weight to be given the evidence, unless it is not conflicting and clearly establishes the fact. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446^154, 456-466; Dec. Dig. § 194.*] 5. Tbiaii (§ 194*) — Instructions—Weight of Evidence. The court cannot instruct that certain evidence does not prove a particular fact, the statute prohibiting instructions as to the weight of the evidence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-^54, 456-466; Dec. Dig. § 194.*]
155 S.W. 361Trinity & B. v. Ry. Co. v. Smith (1913)Affirmed
1. Carbiebs (§ 320*) — Personal Injuries— —Impure Drinking Water — Question eob Jury — Evidence. In an action by a passenger alleging personal injuries to have been caused by water in defendant’s station, the questions whether the water was poisonous and poisoned plaintiff field, under the evidence, for the jury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248,' 1315-1325; Dec. Dig. § 320.*] 2. Carriers (§ 327*) — Drinking Water — Contributory Negligence. A passenger awaiting a train has the right to assume that water in a cooler in a station is good to drink, in the absence of something to put him on notice that it is not. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1363-1366; Dec. Dig. § 327.*] 3. Carriers (§ 347*) — Drinking Water — Contributory Negligence — Question bob Jury — Evidence. In an action ■ by a passenger for personal injuries caused by- drinking poisonous water in a station, the question of plaintiff’s contributory negligence in not noticing the strong odor of the water field, under the evidence, for the jury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dee. Dig. § 347.*] 4. Appeal and Error (§ 882*) — Invited Error-Admissions. Where a party requested a special charge on a certain issue, thereby, in effect, asserting that the testimony was sufficient to take it to the -jury, he cannot be heard on appeal to say that the evidence was insufficient to justify the submission of the issue. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] 5. Damages (§ 132*) — Excessive Damages— Personal Injuries. Where plaintiff, poisoned by drinking water furnished by defendant, could retain nothing on his stomach for several days, nor retain his urine for two or three weeks, during which he had a fever, and at the time of the trial his back hurt him, his ankles were swollen, and his kidneys w.ere permanently weakened, a verdict of $500 was not excessive, and did not show passion, or prejudice on the part of the jury. [Ed. Note. — For other cases, see Damages, Cent- Dig. §§ 372-385, 396; Dec. Dig. § 132.*]
155 S.W. 363Wood v. Dean (1913)Affirmed
L. Hawkins, Judge. Action by Annie Dean and others against John Wood and others. Judgment for plaintiffs and all defendants except John Wood, and he appeals.
155 S.W. 366Norwood v. King (1913)Affirmed
1. Husband and Wife (§ 267*) — Community Estate — Purchaser of Community Prop-eety. A purchaser of community property, sold by the surviving spouse, need only show that there are community debts, that the property conveyed is community property, and that the seller was the survivor of the community, not being required to show that the community debts were sufficient to necessitate the sale; and the burden is on one disputing the purchaser’s title to show that fact. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.*] 2. Husband and Wife (§ 270*) — Community Property — Evidence of Debt. A deed, dated November 1) 1902, conveying property for a consideration named, payable in cash, and promissory notes given for the remainder, was .prima facie evidence of an existing community debt. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 968-971, 973-984, 988; Dec. Dig. § 270.*] 3. Appeal and Erkob (§ 1050*) — Harmless Error. Any error in admitting evidence for plaintiff was immaterial, where plaintiff had already proved the same fact by other proof. [Ed, Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] 4. Husband and Wife (§ 270*) — Community Property — Sufficiency of Evidence. Evidence in trespass to try title held to show the existence of a community debt and the sale of the land in controversy in satisfaction thereof. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 968-971, 973-984, 988; Dec. Dig. § 270.*] 5. Husband and Wife (§ 267*) — Community Property — Sale—Rights of Purchaser. It is immaterial that a surviving husband had sufficient money to pay a community debt, so that the sale of community land was not necessary, if the purchaser thereof had no knowledge of the facts making the sale improper, since his rights would not be affected thereby. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.*]
155 S.W. 543Irby v. State (1913)Affirmed
1. Embezzlement (§ 35*)—Indictment—Evi-dence—Admissibility. The variance between an indictment for embezzlement of a described cheek and the cheek offered in evidence, which was like the description in the indictment, except that it contained in the upper left-hand corner a monogram of the bank, was immaterial. [Ed. Note.—For other cases, see Embezzlement, Cent. Dig. §§ 55-59; Dec. Dig. § 35.*] 2. Embezzlement (§ 35*)—Issues and Proof —Indictment—Time. The date alleged in an indictment for embezzlement as the date of the offense is immaterial, and the state may prove the commission of the offense at any time prior to the filing of the indictment and within the period of limitations. [Ed. Note.—For other cases, see Embezzlement, Cent. Dig. §§ 55-59; Dee. Dig. § 35.*] 3. Embezzlement (§ 42*)—Evidence—Admis-sibility. Where, on a trial for embezzlement of a check or the money thereof, the evidence showed that a check was delivered to accused for use in payment of a balance due the state on land, and that he deposited the check and received the money thereon, a letter written by accused prior to the finding of the indictment, reciting that a receipt from the land office would be found inclosed, while no receipt was inclosed, was admissible. [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 64; Dec. Dig. § 42.*] 4. Embezzlement (§ 38*) — Evidence—Admissibility. An objection to the admission in evidence of letters written by accused or by a third person prior to' the filing of an indictment for embezzlement on the ground that the letters were written after the date alleged in the indictment as the date of the offense was properly overruled. [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. § 38.*] 5. Cbiminal Law (§ 695*) — Rulings on Evidence — Objections. The trial court in ruling on evidence need only pass on the objections made. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-168S; Dec. Dig. § 695.*] 6. Cbiminal Law (§ 1030*) — Appeal—Questions Reviewable. The court on appeal will merely pass on whether the trial court erred in its rulings on the objections raised before it. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619-2621, 2632, 2653; Dec. Dig. § 1030.*] 7. Criminal .Law (§ 1052*) — Appeal—Questions Reviewable — Rulings on Motion for Continuance. Where no exception was reserved to the denial of a continuance, the court on appeal cannot review the ruling. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2659; Dec. Dig. § 1052.*] 8. Embezzlement (§ 44*) — Evidence—Sufficiency. Evidence held to support a conviction for embezzlement. [Ed. Note. — For other cases, see Embezzlement; Cent. Dig. §§ 67-70; Dec. Dig. § 44.*] 9. Criminal Law (§ 814*) — Grade of Offense — Evidence—Instructions. Where accused charged with embezzlement appropriated to his own use at least $115 of the money of prosecutor, the refusal to charge on embezzlement of a sum less than $50 was not erroneous. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 18S3, 1890, 1924, 1979-1985, 1087; Dee. Dig. § 814.*]
155 S.W. 551Ramsey v. West Texas Bank & Trust Co. (1913)Affirmed
Appeal from District Court, Bexar County. Action by the West Texas Bank & Trust Company against J. M. Ramsey. From a judgment for plaintiff, defendant appeals.
155 S.W. 551Brown v. Brown (1913)Affirmed
Appeal from Medina County Court; H. E. Haass, Judge. Action by R. L. Brown against W. L. Brown. Judgment for plaintiff, and defendant appeals.
155 S.W. 553Gulf, C. & S. F. Ry. Co. v. Franklin (1913)Affirmed
1. Cabriers (§ 318*) — Passenger’s Action for Injuries — Sufficiency of Evidence. In an action for injuries to a passenger thrown from the car platform by a sudden jerk or jar, evidence held to support a verdict for plaintiff. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*] 2. Appear and Error <§ 1003*) — Review-Questions of Fact. It is the peculiar province of the jury to pass upon the credibility of witnesses and the weight to be given to their testimony, and where the evidence would have supported a verdict for either party the verdict cannot be disturbed on the ground that the preponderance of the evidence was the other way. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 393S-3943; Dec. Dig. § 1003.*] 3. Carriers (§ 31S*) — Passenger’s Action for Injuries — Sufficiency of Evidence. In an action for injuries to a passenger thrown off the car platform, evidence that there was a low joint at the place of the injury, and that there was a sudden jar or jerk of the train, sufficiently showed that there was a defect in the track to support a verdict for plaintiff. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*] 4. Carriers (§ 347*) — Passenger’s Actions for Injuries — Questions for Jury. In an action for injuries to a passenger thrown off the platform of a car by a sudden jerk or jar, evidence as to his inability to get a seat and as to the danger of riding on the platform held to make a question for the jury as to his negligence in riding on the platform. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346. 1350-1386, 1388-1397, 1402; Dec. Dig. § 347.*] 5. Witnesses (§§ 395, 410*) — Corroboration of Impeached Witness. In a passenger’s action for injuries, where defendant proved statements by plaintiff, tending to show that his claim was not made in good faith, that he was a malingerer, and that his injuries and sufferings were based on feigned symptoms, made a strong effort to discredit him by showing immoral habits, and introduced a signed statement made by him soon after receiving the injuries and before fully recovering consciousness, evidence offered by plaintiff as to other statements by him as to how he was injured was admissible in rebuttal to corroborate his testimony. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1260, 1284; Dec. Dig. §§ 395, 410.*] 6. Release (§ 58*) — Actions—Questions for Jury. In an action for personal injuries, evidence held to make a question for the jury as to whether plaintiff was in his right mind at the time he executed a release of his claim against defendant. [Ed. Note. — For other eases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.*] 7. Release (§ 58*) — Actions—Questions for Jury. In an action for personal injuries, evidence as to plaintiff’s knowledge that money left for him by defendant before he fully recovered consciousness was the consideration of a release executed by him, and not merely for incidental expenses, such as doctor’s bills, held to make a question for the jury whether he ratified the release when in his right mind. [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.*]
155 S.W. 556London v. G. A. Kelly Plow Co. (1913)Affirmed
C. Buford, Judge. Action by R. W. London against the G. A. Kelly Plow Company. Judgment for defendant, and plaintiff appeals. On July 1, 1907, appellant entered into a written contract with appellee to serve the company in the capacity of sales manager for five years at a salary of $333.33 per month. On April 4, 1908, he was discharged from the service of the company.
155 S.W. 556Perkins Bros. Co. v. Anderson (1913)Affirmed
1. False Imprisonment (§ 15*) — Master and Servant (§ 301*) — Torts of Servant. A corporation is responsible for a wrongful assault or unlawful arrest made by a watchman or detective employed by it, although he has been appointed a special police officer at the request of his employer; a master being liable for the tortious acts of his servant in the business in which he was engaged, even though the 'servant had abused his authority. [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. § 15;* Master and Servant, Cent. Dig. §§ l2l0-1216, 1222; Dec. Dig. § 301.*] 2. False Imprisonment (§ 39*) — Master and Servant (§ 332*) — Toets oe Servant — Juey Question. In an action against the proprietors of a store for a wrongful assault and arrest by their detective, evidence held sufficient to go to the jury on the question whether the detective was acting within the scope of his employment. [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 116-11S; Dec. Dig. f 39;* Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. § 332.*] 3. Tbial (§ 252*) — Instructions — Applicability to Evidence. In an action against the proprietors of a store for a wrongful arrest and assault by their detective, where he testified that he arrested plaintiff because he suspected her of shoplifting, and that he followed her from the store because he saw her put something' in her bag, there was no foundation for an instruction that if he was acting merely as a peace officer of the town, and not in the discharge of his duties, the verdict should be for defendant, is improper, being without foundation in the evidence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 4. False Imprisonment (§ 15*) — Liability ' of Master for Acts of Servant. Where a peace officer was hired as a detective to watch in a store and to arrest shoplifters, the mere facts that the detective actually followed plaintiff out of the store before making the arrest on suspicion of having stolen goods, and that his employer was ignorant of it, are not conclusive that he was not in the discharge of his business as an employé. [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. § 15 ;* Master and Servant, Cent. Dig. § 1222.] 5. Trial (f 191*) — Instructions — Assumption of Facts. In an action against the proprietor of a store for damages for an assault and arrest by its detective, where he testified that he arrested plaintiff outside of the store because he thought she had stolen goods in her bag, a charge assuming that the transaction as a whole did not occur on the premises of the plaintiff is misleading, where the detective testified that he first saw her in the store, and followed her out of it. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*] 6. Assault and Battery (§ 35*) — Assault by Servant — Actions—Evidence. In an action against the proprietors of a store for an assault by their detective, evidence held sufficient to support a finding that there was an assault. [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 51; Dec. Dig. § 35.*] 7. Assault and Battery (§ 43*) — Actions— Instructions. In an action against the proprietors of a store for an assault by their detective, a charge which defined assault in the words of Rev. Cr. St. 1911 (Pen. Code) art. 1008, providing that the use of any unlawful violence upon the person of another with intent to injure him is an assault and battery, and any attempt to commit a battery, or any threatening gesture showing in itself an intention, coupled with the ability, to commit a battery, is an assault, is not improper, even though the evidence showed no battery, in including the definition of a battery found in article 1013; the definition of an assault being incomplete without a definition of a battery. [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 57-62; Dec. Dig. § 43.* For other definitions, see Words and Phrases, vol. 1, pp. 532-53S; vol. 8, p. 7582.]
155 S.W. 561Kansas City, M. & O. Ry. Co. of Texas v. State (1913)Affirmed
1. Abatement and Bevival (§ 8*) — Former Action Pending — Identity of Causes and Parties. The pendency of an action brought by citizens of a county seat to compel a railroad company to comply with Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat without passing through it and establishing and maintaining a depot therein, unless prevented by- natural obstacles, provided the town or its citizens grant a right of way and sufficient ground for ordinary depot purposes, was not ground for abating a subsequent action by the state to compel it to construct its road' through the county seat and to recover a penalty for its failure and refusal to do so; the parties and the causes of action asserted not being the same. [Ed. Note. — For other cases, see Abatement and Bevival, Cent. Dig. §§ 39-72; Dec. Dig. 8.*] 2. Bailroads (§ 44*) — Location of Boad— Actions — Petition. In an action by the state for a writ of mandamus or mandatory injunction to compel compliance with Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat without passing through it and maintaining a depot therein, unless prevented by natural obstacles, provided the town or its citizens shall grant a right of way and sufficient ground for ordinary depot purposes, and to recover a penalty for the company’s willful failure and refusal to comply therewith, a petition which alleged that the company had constructed its road within three miles of the county seat, an unincorporated town of about 400 inhabitants, without passing through it and without establishing and maintaining a depot, as required by the Constitution and laws of the state, the citizens of the town having tendered to it, prior to the construction of the road, a practicable right of way through its limits and sufficient ground for ordinary depot purposes, that there were no natural obstacles to prevent it passing through the town, that the state and the people thereof had an interest in and right to have the company comply with such provision and in having a depot maintained in the town fo.r the convenience and transaction of their business with county officials and with the various courts, and for receiving and delivering passengers and freight, and that the company’s failure to comply with the Constitution and laws would subject the people of the state to great inconvenience and expense, to which they would not be subjected if the railway was constructed through the town and a depot established and maintained therein, was not demurrable. [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 101; Dec. Dig. § 44.*] 3. Abatement and Bevival (§ 44*) — Appointment of Beceiver — Effect on Pending- Actions. The appointment of a receiver for a railroad corporation by a federal court, pending an action by the state to compel compliance with Const, art. 10, § 9, providing that no. railroad shall pass within three miles of a county seat without passing through it and maintaining a depot therein, unless prevented by natural obstacles, where the town or its citizens grant a right of way and sufficient ground for ordinary depot purposes, did not require the abatement, dismissal, or suspension of such action. [Ed. Note. — For other cases, see Abatement and Bevival, Dec. Dig. § 44;* Corporations, Cent. Dig. § 2249.] 4. Bailroads (§ 44*) — Location of Boad— Actions — Parties. Under Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat without passing through it and maintaining -a depot therein, unless prevented-by natural obstacles, if the town or its citizens grant a right of way and sufficient ground for ordinary depot purposes, the state may maintain a suit to compel compliance therewith by mandamus o,r^mandatory injunction; the right of action not being vested exclusively in the town or its citizens, since the state is interested in the enforcement of its Constitution and laws. [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.*] 5. RailROads (§ 44*) — Location of Road-Constitutional Provisions — Waiver. A railroad company offered to construct its line near a county seat and to establish a depot at the nearest point thereto, if the citizens of the county seat wo,uld grant a right of way through the county free of charge. The offer was unanimously accepted at a mass meeting of 35 or 40 citizens out of a .population of 400, and a committee appointed, who, by a contract with the company, obligated themselves to furnish a right of way; the company binding itself to construct the road, but no provision being contained as to establishing a depot. The right of way was obtained, the road constructed, but no depot established. Held, that compliance with Const, art. 10, § 9, providing that no railroad shall be constructed within three miles of a county seat without passing through it and maintaining a depot therein, unless prevented by natural obstacles, if the town or its citizens shall grant a right of way and sufficient ground for ordinary depot purposes, had not been waived; the mass meeting having no authority to waive such requirement, and, even if they had, the company not having carried out the offer accepted by the meeting. [Ed. Note.-^For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44".*] 6. Railroads (§ 44*) — Location of Road-Constitutional Provisions — Waiver. Even if the town and its citizens had waived their right to require the construction of the road through the county seat, the state, not having been a party to the agreement, was not restricted in its right to compel compliance with the constitutional provision. [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.*] 7. Limitation of Actions (§ 58*) — Accrual of Cause of Action. Limitations would run against a right of action to compel a railroad company to construct its road through a county seat within three miles of its line, as required by Const, art. 10, § 9, only from the time the road was constructed within three miles of the town, and not from the time the profiles of the right of way were filed with the county clerk. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 324-328, 346, 347; Dec. Dig. § 58.*] 8. Limitation of Actions (§ 11*) — Limitation as aóainst State. Limitations would not run against a right of action by the state to compel a railroad company to construct its road through a county seat within three miles of its line, as required by Const, art. 10, § 9. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. § 11.*] 9. Railroads (§ 44*) — Location of Road-Actions — Questions of Law or Fact. Under Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat without passing through it and maintaining a depot therein, unless prevented by natural obstacles, if the town or its citizens shall grant a right of way aud sufficient ground for ordinary depot purposes, in an action to compel compliance therewith, the question whether there were any natural obstacles preventing the construction of the road through the town was one of fact. [Ed. Note. — For other eases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.*] 10. Appeal and Error (§ 1050*) — Harmless Error — Admission of Evidence. In 1902 a railway company made its survey near a county seat, an unincorporated town, and filed its profiles. In 1907 the town was incorporated, but the incorporation was dissolved in 1910. The road was constructed in 1911. In a suit to compel compliance with Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat without passing through it and maintaining a depot therein, unless prevented by natural obstacles, provided the town or its citizens shall grant a right of way and sufficient ground fo,r ordinary depot purposes, the company alleged as a defense, among others, that its road passed through the corporate limits of the town. Evidence was received, over the company’s objection, that the corporate limits included areas of farming land no,t proper to be embraced, Held that, if the admission of this evidence was error, as a collateral attack upon the incorporation, it was harmless; there having been no incorporation, either when the survey was made or when the road was constructed. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*] 11. Railroads (§ 44*) — Location of Road-Actions — Judgment. In an action by the state to compel the construction of a railroad through a county seat within three miles of its line of road, as required by Const, art. 10, § 9, the judgment ordered the company, within 30 days, to survey a route through the town and locate a depot site, and further ordered that the citizens of the town be allowed 90 days after notice of the completion of the survey to secure the grant of the right of way and sufficient ground for depot purposes, and. to tender such grants and conveyances to the company, and that, in the event such deeds and grants could not be secured voluntarily, such citizens, or any of them, might execute an obligation, to be approved by the judge, conditioned for the payment of all expenses of procuring such right of way and depot grounds by condemnation proceedings, and tender such obligation, and ordered the company, when such tender had been made, to institute the necessary condemnation proceedings and do all other things necessary to secure such right of way and depot grounds. Held, that the judgment was not objectionable as being against the citizens of the town, who were not parties to the suit, since no judgment was rendered against the citizens, but conditions imposed upon them merely as the measure of the company’s obligation and duty, a failure to perform which would release the company from the requirements of the judgment. [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.*] 12. Appeal and Error (§ 1050*) — Harmless Error — Admission of Evidence. In an action against a railroad company to compel it to construct its road through a county seat within three miles of its line of road, as required by Const, art. 10, § 9, the admission of evidence that citizens of the town had mailed a bond to an officer of the company, conditioned to furnish right of way deeds and deeds to depot grounds or to pay the expenses incident to condemnation, if erroneous, where it appeared that such bond was not' received by the company’s officer, was harmless; the duty being on the company to take the initial step and designate the right of way before the citizens of the town were required to tender or grant the right of way. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*] 13. Evidence (§ 513*) — Opinions—Subjects of Expekt Testimony. In an action to compel compliance with Const, art. 10, § 9, providing that no railroad shall pass within three miles of a comity seat without passing through it and maintaining a depo,t therein, unless prevented hy natural obstacles, such as streams, hills, or mountains, provided the town or its citizens shall grant a right of way and sufficient ground for ordinary depot purposes, an experienced and skilled civil engineer, who had gone over the ground and examined the maps and profiles filed with the Railroad Commission, could testify that there were no hills, streams, or mountains preventing the building of the road through the town, and that no such obstacles were shown by the maps and profiles, especially where another witness testified to the same effect without objection. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2317, 2318; Dec. Dig. § 513.*] 14. Appeal and Error (§ 742*) — Assignments of Error — Statements. Assignments of error, not followed by explanatory statements, will be overruled. [Ed. No,te. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 15. Railroads (§ 44*) — Location op Road-Statutory Provisions. Under Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat without passing through it and maintaining a depot therein, unless prevented by natural obstacles, if the town or its citizens shall grant a right of way and sufficient ground for ordinary depot purposes, a railroad company, when it determines to pass within three miles of a county seat, must, unless prevented by natural obstacles, survey its line through the town and select a site for depot grounds, and not until then does the duty devolve upon the town or the citizens of furnishing such right of way and depot grounds. [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.*] 16. Injunction (§ 67*) — Railroads — Mandatory Injunction. Where a railroad company willfully fails to comply with Const, art. 10, § 9, requiring railroads to pass through county seats within three miles of their line, the court can enforce obedience thereto by mandatory injunction. [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 135; Dec. Dig. § 67.*] 17. Railroads (§ 44*) — Location of Road-Statutory Provisions. The courts may compel railroad companies to comply with Const, art. 10, § 9, requiring railroads to pass through county seats within three miles of the line of road, although the road has passed the town before suit is filed. [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.*] IS. Railroads (§ 44*) — Location of Road-Statutory Provisions. The statute authorizing the recovery of a penalty for failure to comply with Const, art. 10, § 9, requiring railroads to pass through county seats within three miles of the line of road, is not unconstitutional. [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.*]
155 S.W. 571Mendelsohn v. Gordon (1913)
Appeal from District Court, Harris County; Norman G. Kittrell, Judge. Suit by diaries Mendelsohn and others against Abe Gordon and others. A temporary injunction was dissolved, and plaintiffs appealed. Pending the appeal the district court made an order which put the dissolution order into immediate effect, and they now apply to the Court of Civil Ajipeals for an injunction to continue in force an order of the district court suspending the operation of the dissolution order pending the appeal. Injunction ordered to issue.
155 S.W. 573Moore v. Miller (1913)Affirmed
Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge. Action by H. J. Moore against M. B. Miller and others. Judgment for defendants, and plaintiff appeals.
155 S.W. 580D. Sullivan & Co. v. Ramsey (1913)Reversed and remanded
1. Trial (§ 251*) — Instructions—Issues. Where, in an action to recover the value of a mortgaged building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity of redemption, after foreclosing the lien, the issue was whether defendant company had purchased the mortgage debt under an agreement to protect plaintiffs’ interests in the property,' the submission of whether an individual defendant agreed to purchase the property from a substitute trustee for plaintiffs was properly refused. [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*] 2. Appeal and Error (§ 1062*) — Harmless Error^Submission op Issues. The submission of a special issue, in an action to recover the value of a mortgaged building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity of redemption, after foreclosing the lien, was not fatally objectionable ■ for requiring a finding whether title was placed in defendants’ name by the mortgagor in trust for plaintiffs or for the purpose of defrauding mortgagor’s creditors; the jury having found upon other issues that defendants held the equity in trust for plaintiffs.' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*] 3. Trial (§ 352*) — Special Interrogatories. The rule as to leading questions to witnesses does not apply to special issues; the form of such issues not being subject to review on appeal, unless they intimate what answer is expected or desired. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.*] 4. Trusts (§ 372*) — Fraud of Trustee — Sufficiency of Evidence. Evidence, in an action to recover the value of a mortgaged building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity of redemption, after foreclosing the lien, held to show that a ponveyance by defendants to another of the property was fraudulent as to plaintiffs. [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 600-603; Dec. Dig. § 372.*] 5. Trial (§ 251*) — Instructions—Issues. It was unnecessary to submit to the jury as to when the petitions were filed, where there was no issue on that question. [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 587-595; Dee. Dig. § 251.*] 6. Appeal and EIrror (§ 909*) — Presumptions — Support of Judgment. It is presumed on appeal that the trial court considered the contents of certain petitions, if their consideration was necessary to the rendition of the proper judgment. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.*] 7. Trusts (§ 362*) — Breach of Trust Agreement-Right of Action. Plaintiffs’ right of action to recover the value of a mortgagee] building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity of redemption, after foreclosing the lien, under an agreement with plaintiffs’ father, defendants’ debtor, to foreclose the lien and hold the property in trust for plaintiffs, was not affected by any insolvency of plaintiffs’ father when he conveyed his property in trust to defendants to pay his debts; plaintiffs having purchased the equity of redemption in the building before that time. [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 560-562; Dec. Dig. § 362.*] 8. Trusts (§ 231*) — Breach of Trust. The fact that one who agreed to hold mortgaged property in trust for the owners of the equity of redemption purchased it at the foreclosure sale for himself, and not for them, would not relieve him from liability to them for breach of his trust agreement. [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 330-335; Dec. Dig. § 231.*] 9. Mortgages (§ 274*) — Rights of Mortgagor-Purchaser of Equity. The rights of a purchaser of the equity of redemption for a valuable consideration from the mortgagor would not be affected by any illegality in an agreement theretofore made by the mortgagor with a creditor to convey his property to the creditor and pay the surplus, after paying the debts, to mortgagor’s rvife. [Ed. Note. — Por other cases, see Mortgages, Cent. Dig. §§ 718-724, 728; Dec. Dig. § 274.*]. 10. PieadiNG (§ 250*) — Amendment of Pleadings — Breach of Trust. In an action by the owner of the equity of redemption, originally brought to recover the price at which it was sold by mortgagee, in breach of an agreement to hold in trust for plaintiffs, the petition could be amended to recover the reasonable value of the property; the amendment merely affecting the measure of damages. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 730-733; Dec. Dig. § 250.*] 11. Election oe Remedies (§ 1*) — Right of Election. To sustain a defense founded upon the doctrine of election of remedies, plaintiff must have had two valid, available, and inconsistent remedies and actually undertook to pursue one of them. [Ed. Note. — For other eases, see Election of Remedies, Cent. Dig. § 1; Dec. Dig. § 1.*] 12. Trusts (§ 372*) — Actions for Breach-Sufficiency of Evidence. Evidence, in an action to recover the value of a mortgaged building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity of redemption, after foreclosing the lien, held to show a conversion of the property by defendants in repudiation of the trust agreement. [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 600-603; Dec. Dig. § 372.*] 13. Trusts (§ 359*) — Breach of Trust — Remedies of Beneficiary. Upon breach of an agreement by the purchaser of a mortgage debt, upon foreclosing of the lien, to hold the property in trust for plaintiffs, plaintiffs could either sue for the property, or its value, as they elected. [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 554-565, 566; Dec. Dig. § 359.*] 14. Trusts (§ 350*) — Remedies of BenefiI ciary — Conversion of Trust Property. Upon the conversion of trust property by the trustee, the beneficiary may recover in equity the value of the property, that being his only remedy when the property has passed beyond his reach; and where a trustee had sold or pretended to sell the property to several different purchasers, so as to involve it in much vexatious litigation, the beneficiary could sue for its value, instead of following the property. [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 515, 519; Dec. Dig. § 350.*] 15. Trusts (§ 233*) — Conversion by Trustee-Measure of Damages. The measure of recovery by a beneficiary for the wrongful conversion of land held in trust, in a suit for damages for breach of the trust agreement, and not for the proceeds of the sale, will be the value of the land at the time of trial, and not the usual measure of damages in ordinary cases of conversion. [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 339; Dec. Dig. § 233.*] . 16. Trusts (§ 231*) — Breach of Trust. All gain made by a trustee by the wrongful appropriation of the trust fund belongs to the cestui que trust, and all losses must be borne by the trustee, so that the beneficiary could recover the rents received by a trustee who wrongfully sold for his own use a building held in trust. [Ed. Note. — F'or other cases, see Trusts, Cent. Dig. §§ 330-335; Dec. Dig. § 231.*] 17. Limitation of Actions (§ 72*) — Minority —Effect of Marriage. The marriage of a minor put the statute of limitations running as to an action existing in her favor. [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 390-398; Dec. Dig. § 72.*] 18. Limitation of Actions (§ 127*) — Amendment of Pleadings. The statute of limitations only bars a cause of action set up by an amended petition, where the amendment sets up a new cause of action different from that alleged in the original petition. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dee. Dig. § 127 ;* Pleading, Cent. Dig. § 688.] 19. Limitation of Actions (§ 127*) — Amendments — New Cause of Action. An amended petition, which merely sought a greater amount of damages for the same right of action, did not set up a new cause of action, so as to be barred 'by limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-54Í7; Dec. Dig. § 127 ;* Pleading, Cent. Dig. § 688.] 20. Principal and Agent (§ 171*) — Liability of Principal — Wrongful Acts of Agent. ' A principal cannot enjoy the benefits arising from a repudiated agency without also assuming the burdens imposed thereby. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. § 171.*] 21. Principal and Agent (§ 115*) — Liability of Principal — Wrongful Acts of Agent. The principal was bound by representations of a duly authorized agent. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 339-343: Dec. Dig. § 115.*] 22. Principal and Agent (§ 158*) — Acts of Agent. The fraud of an authorized agent will invalidate a contract, though in perpetrating the fraud the agent acted without the principal’s knowledge. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 589-598; Dec. Dig.. § 158.*] 23. Principal and Agent (§ 23*) — Evidence of Agency. Evidence, in an action to recover the value of a mortgaged building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity of redemption, after foreclosing the lien, held to show that one of the defendants was the agent of another in making representations as to the sale of the property. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*} 24. Principal and Agent (§ 22*) — Declarations of Agent — Proof of Agency. Agency cannot be established by the declarations of the agent alone, but they will be considered in connection with other evidence, including proof of like acts ratified by the principal, for the purpose of establishing agency. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dee. Dig. § 22.*] 25. Fraud (§ 52*) — Evidence. Great latitude in making proof of fraud is admissible, and every circumstance, tending at all to show fraud is admissible in evidence. [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 48; Dee. Dig. § 52.*} 26. Evidence (§ 208*) — Pleading in Foemee Action. Where the parties to a former action and the issues therein were different from the parties and issues in the present action, the pleadings and proceedings in the former action were not admissible. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. § 208.*] 27. Evidence (§ 208*) — Proceeding in Pok-mee Action. In an action to recover the value of a mortgaged building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity of redemption, after foreclosing the lien, an answer filed by plaintiffs herein in a former action against them and defendants, at the instigation of defendants’ agent, in which plaintiffs claimed the property, was admissible to show that defendants then recognized plaintiffs’ claim, which was before the foreclosure sale. [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. § 208.*] 28. Witnesses (§ 379*) — Inconsistent Statements — Foemee Testimony. In an action to recover the value of a mortgaged building which defendants agreed to hold in trust for plaintiffs, purchasers of the equity from plaintiffs’ father, who was defendants’ debtor, evidence by a defendant in a former action by plaintiffs’ father against defendants, in which judgment went against them, that the person who is claimed to have sold the property for defendants was not his agent, was not admissible, not contradicting defendants’ evidence herein. [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.*] 29. Mortgages (§ 377*) — Foreclosure—Tbus-tees’ Pees. If the mortgagee and the owner of the equity of redemption agreed that no trustee’s fees should be allowed for the foreclosure proceedings, such fees should not be assessed against the owner of the equity of redemption. [Ed. Note. — Por other cases, see Mortgages, Cent. Dig. §§ 1133-1136; Dec. Dig. § 377.*]
155 S.W. 590Barron Clark v. White (1913)Affirmed
1. Appeal and Error ■(§ 742*) — Assignments op Error— Sufficiency. Where an assignment of error complaining of the changing of the venue for which there is a bill of exceptions is grouped with another complaining of a refusal of the other court to remand, which has no bill, followed by four propositions and one statement, they will not be considered, under Court of Civil Appeals rules 25 (142 S. W. xii) and 31 (142 S. W. xiii), defining a distinct specification of error, and providing that to_ each proposition there shall be subjoined a brief statement sufficient to explain and support the proposition. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 2. Appeal and Error (§ 742*) — Assignments op Error — Suppiciency. Although it is permissible to group assignments which relate to the same subject, each should be supported by its own proposition. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 3. Appeal and Error. (§ 722*) — Assignments op Error — Numbering Assignments. Under Court of Civil Appeals rule 29 (142 S. W. xii), providing that “assignments shall be numbered from the first to the last in their consecutive order,” where the brief begins with No. 4 and ends with No. 8, the assignments cannot be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*]
155 S.W. 591Kinney County Land Co. v. Cubbage (1913)Reformed and affirmed
L. Camp, Judge. Action by B. H. Cubbage against W. H. King and others, partners doing business as Kinney County Land Company, and others, with cross-action by defendants Howard and King against McCampbell and Hill. From the judgment McCampbell and Howard appeal.
155 S.W. 597Lancaster v. Roth (1913)Reversed and remanded
Appeal from District Court, Harrison County; H. T. Lyttleton, Judge. , Action by B. Roth against C. D. Lancaster. Judgment for plaintiff, and defendant appeals.
155 S.W. 603First Nat. Bank of Mineola v. Mineola State Bank (1913)
155 S.W. 608Pence v. Cobb (1913)Reversed and remanded
1. Trespass to Tey Title (§ 6*) — 1Title-Proof. Plaintiff in trespass to try title must show •title in himself. [Ed. Note. — For other cases, see Trespass to 'Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. I 6.*] 2. Public Hands (§ 223*) — Spanish and Mexican Geants — Nature. The interest of a pueblo under a Spanish ■or Mexican land grant was little more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for •commons, pasture, or other,public purposes, and the inhabitants could not convey in sever-.alty unless under conveyance from the pueblo with authority in the pueblo to so convey. [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 705-719, 721-725; Dec. Dig. § 223.*] .3. Public Lands (§ 210*)— Conveyance-Evidence— Sufficiency. In trespass to try title, evidence heU insufficient to show a conveyance of the land from a pueblo while the land was under the jurisdiction of Spain or Mexico. [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 659-665, 704; Dec. Dig. ■§ 210.*] ■4. Public Lands (§ 211*) —Geants — Confirmation. The provision of Act Feb. 11, 1858, that •the confirmation of previous land grants should not interfere with rights accruing before the act was passed, does not protect a claim as to which there is no evidence of title. [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 666-671; Dee. Dig. § 211.*] 5. Municipal Corporations (§ 51*) — Non-usee op Functions — Eppect. A municipal corporation cannot dissolve itself by mere nonuse of its corporate functions, as by failing to elect officers; dissolution being accomplished by legislative enactment, or other mode provided by law. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. § 51.*] 6. Municipal Corporations (§ 48*)— Corporations — Incorporation—Validity. A prior act incorporating a town having remained unrepealed and the incorporation undissolved, subsequent proceedings attempting to reincorporate were void, invalidating rights under a deed from or judgment against the authorities of the invalid corporation. [Ed. Note. — For Other cases, see Municipal Corporations, Cent. Dig. §§ 127, 128, 130-133; Dec. Dig. § 48.*] 7.Municipal Corporations (§ 15*) — Incorporation — Validity. Act April 12, 1895 (10 Gammel’s Laws of Texas, 820), validating incorporation of municipalities notwithstanding noncompliance with provisions of Rev. St. 1895, arts. 579-617, did not validate an incorporation that was invalid because of the existence of a prior corporation. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 40; Dec. Dig. § 15.*] 8. Municipal Corpobations (§ 49*) — Dissolution. An order entered in 1883 by a county commissioner’s court abolishing a municipal corporation attempted to be organized in 1882 did not affect a valid incorporation under an unrepealed act óf the Legislature passed in 1871. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 134-137; Dec. Dig. § 49.*] On Rehearing. 9. Appeal and Error (§ 1177*) — Revebsai>-Disposition op Cause. On reversal of a judgment in trespass to try title the cause will be remanded for new trial, where it appears that the facts regarding the title have not been fully developed, on account of an erroneous holding of the trial court. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.*]
155 S.W. 612Pecos & N. T. Ry. Co. v. Finklea (1913)Reversed and remanded
Appeal from District Court, Randall County; Jno. W. Veale, Special Judge. Action by Mrs. A. N. Finklea against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals;
155 S.W. 620City of San Antonio v. Alamo Nat. Bank (1913)Affirmed
1. Judgment (§ 744*) — Res Judicata — Questions Concluded. A decision of the court on appeal affirming a judgment for plaintiff suing a city on warrants for current expenses of a fiscal year, that the judgment bears interest, is conclusive on the parties in a subsequent action by plaintiff for mandamus to compel the city to pay the judgment and to levy a tax therefor. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1278-1281; Dec. Dig. § 744.*] 2. Interest (§ 22*) — Judgment on Warrants. ■ Under Rev. Civ. St. 1911, art. 4981, providing that all judgments shall bear interest,, a judgment against a city for a sum due on city warrants for current expenses óf a fiscal year bears interest when payment may only be exacted out of funds then applicable, or which may thereafter become applicable, to the payment of the warrants in numerical order, though the charter of the city specifically provides that warrants shall not bear interest. [Ed. Note. — For other cases, see Interest, Cent. Dig. §§ 43-53; Dec. Dig. § 22.*] 3. Appeal and Error (§ 742*) — Assignments oe Error — Statements—Necessity. Assignments of error not followed by statements will not be considered on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 4. Mandamus (§ 176*) — Petition—Relief. Where plaintiff in mandamus to compel a city to pay a judgment prayed that the city be required to pay the judgment, and interest and for general relief, the court could direct the payment of the costs incurred in the action resulting in the judgment, though the petition did not specifically mention the costs. [Ed. Note. — For other cases, see Mandamus, Cent.’Dig. §§ 392-394; Dec. £>ig. § 176.*] 5. Interest (§ 50*) — Tender—Sufficiency. Where a judgment against a city on city warrants drew interest, a tender by the city on condition that no interest could be exacted was insufficient to relieve it from liability for interest. [Ed. Note. — For other cases, see Interest, Cent. Dig. § 114; Dec. Dig. § 50.*] 6. Mandamus (§ 178*) — Judgment—Requisites. Where city warrants for current expenses were extinguished by a judgment against the city thereon, a judgment in mandamus ordering payment of the judgment and the levy of a tax therefor need not provide for the cancellation of the warrants. [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§’396-400, 410; Dec. Dig. § 178.*] On Motion for Rehearing. 7. Appeal afíd Error (§ 742*) — Assignments of Error. Where an assignment of error embraces two distinct propositions and the propositions are not germane to. the assignment, the assignment will not be considered. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]
155 S.W. 625Marshall & E. T. Ry. Co. v. Blackburn (1913)Affirmed
W. Simpson, Judge. Action by W. J. Blackburn against the 'Marshall & East Texas Railway Company. Judgment for plaintiff, and defendant appeals. It became necessary to remove and replace with another one a culvert under an embankment forming a part of appellant’s line of railway ■ near Rosewood. Appellee and others, in appellant’s employ as section men, were detailed to do the work under the direction of one Yancey, appellant’s bridge foreman.
155 S.W. 629Roberts Telephone & Electric Co. v. Farmers' & Merchants' Nat. Bank of Abilene (1913)Reformed ¿nd affirmed
Appeal from District Court, Taylor County; T. L. Blanton, Judge. Action by the Farmers’ & Merchants’ Nar tional Bank of Abilene and others .against the Roberts Telephone & Electric Company and others. From a decree directing distribution of the assets of defendant telephone company in the hands of receivers, the corporation and others appeal. The Roberts Telephone & Electric Company, a corporation under the laws of Texas, owned and operated a telephone exchange in Abilene. It was indebted to the Stromberg-Carlson Telephone Manufacturing Company, a corporation under the laws of New York, in the sum of $22,696.34, to the Farmers’ & Merchants’ National Bank of Abilene in the sum of $5,500, and to other parties. The Stromberg-Carlson Company claimed its debt was secured by a mortgage lien on the property of the Roberts Company. The bank claimed its debt was so secured also, and there was a controversy between it and the Stromberg-Carlson Company as to priority of their respective liens, each claiming its lien as to part of the Roberts Company’s property was superior to the lien of the other. The Stromberg-Carlson Company by a suit in a federal court against tl(e Roberts Company and the bank sought the appointment of a receiver for -the Roberts Company, and a settlement of its controversy with the bank as to the superiority of their respective liens. In this suit the Stromberg-Carlson Company was represented by Hardwick & Hardwick as attorneys, and the bank was represented by Leggett & Kirby as attorneys. In accordance with an agreement between the Stromberg-Carlson Company and the bank, the suit in the federal court was dismissed, and one for the appointment of a receiver for the Roberts Company was commenced by. the bank in the district court for Taylor county. The Stromberg-Carlson Company was made a defendant In this suit, and in an answer filed joined the bank in its prayer for the appointment of a receiver. In this suit, as in the one in the federal court, the Strom-berg-Carlson Company was represented by Hardwick & Hardwick as attorneys, and the bank by Leggett & Kirby as attorneys. By an order made October 10, 1907, the district court for Taylor county appointed Henry James, cashier of said bank, and Chas. E. Speed, traveling salesman for Texas, Louisiana, and Arkansas of said Stromberg-Carl-son Company, receivers for said Roberts Company, and by an order made October 12, 1907, authorized them to employ an attorney or attorneys to represent them as such receivers. Thereupon they employed Hard-wick & Hardwick and Leggett & Kirby as such attorneys. April 14, 1908, the court rendered judgment in favor of the bank against the Roberts Company for $6,554.16, and in favor of the Stromberg-Carlson Company for $26,526.34, and determined that the bank and the Stromberg-Carlson Company, respectively, had a lien on property of the Roberts Company to secure the payment of the sum adjudged in its favor. Those sums, respectively, besides interest, included 10 per cent, on the amount of the indebtedness as attorney’s fees. It seems that claims against the Roberts Company other than those mentioned, aggregating the sum of $4,-119.53, were paid by the receivers, and that an unsecured claim against said Roberts Company for $849.54 and 8 per cent interest from September 26, 1908, in favor of the North Electric Company, had been allowed by the court, but had not been paid. The first report made by the receivers to the court was filed October 12, 1908. It showed that, when they took possession of the Roberts Company’s property by virtue of the order appointing them receivers, they failed to make an itemized inventory thereof, and for that reason were then unable to make such an inventory. They submitted, however, a list of the property in their hands as receivers at the date of this report, and estimated the value of the property belonging to the Roberts Company at the time they 'were appointed receivers at $40,873.31. By an order made March 22, 1910, the receivers were authorized to sell the property in their hands as such. April 16, 1910, a sale thereof made by them to Lyman E. Klotz for $41,-500 was approved by the court, and the receivers were directed to convey the property to Klotz “clear and free from any and all liens and incumbrances, save and except the assumption by said Lyman E. Klotz” of a debt of $1,500 against a portion of certain lots in Abilene forming a part of same. In this order the receivers were directed to retain $6,200 of the $41,500 to be paid by Klotz for the property, out of which to pay the expenses of the receivership, “including operating expenses, hire of employés, receivers’ charges and attorney’s fees, and all other expenses,” and to prorate according to their respective claims and pay the remainder thereof to the Stromberg-Carlson Company and said bank. The receivers were further directed, if there was any of the $6,200 left after paying said expenses, to pay same over to. said Stromberg-Carlson Company and said bank in proportion to their respective claims. The final report of the receivers was filed February 16, 1911; and October 7, 1911, they filed a “corrected and amended final report.” From these reports it appeared, it seems, that before the sale of all the property then remaining to Klotz the receivers had realized on sales made by them of other property belonging to the Roberts Company about the sum of $6,253.88 — making , with the proceeds of the sale to Klotz, the sum of $47,753.88 realized from sales of property belonging to the Roberts Company. It further appeared that they had expended for “construction” $12,849.59, had paid an account of interest accruing on the debts due the Stromberg-Carlson Company and the bank after they were appointed receivers about the sum of $5,000, had paid to one of themselves, Speed, on account of services and expenses as receiver $3,048.35, and to the other, James, on account of his services as receiver, $2,483.35, to Hardwick "& Hardwick on account of services as attorneys for the receivers $1,500, and to Leggett & Kirby on account of services as attorneys for the receivers $1,500. The final report filed by the receivers showed they then had on hand funds belonging to the Roberts Company amounting to $78.95. August 28, 1911, Lyman E. Klotz, the purchaser of the property at the sale confirmed by the order of the court made April 16, 1910, intervened in the suit, and sought judgment against the receivers for a sum he alleged he had been compelled to pay on account of taxes chargeable against the property sold to him by the receivers. October 7, 1911, the Roberts Company, C. W. Roberts, who alleged he was a creditor of said Roberts Company, Fannie G. Roberts, who alleged she was a creditor of and also a stockholder in said Roberts Company, and Mary D. Roberts and Hugh Roberts, who alleged that they also were stockholders therein, intervened in the suit, and in their own behalf and in behalf of unsecured creditors of the Roberts Company named in their petition contested the final report made by the receivers, in so far, among other things, as it showed the sum of only $78.95 in their hands, and claimed credit for payments of sums to the receivers and their attorneys for services and expéns-es, for payments on account of Interest which had accrued on the Stromberg-Carl-son Company’s and the bank’s claims after the appointment of the receivers, and for payments made to said Stromberg-Carlson Company 'and said bank to the extent of the sums expended out of the revenues arising from the operation of the telephone exchange in betterments of the property. It appears from findings made and filed by the court that Speed at the time he was appointed receiver was not, and never afterwards became, a citizen of Texas. On this finding the court concluded that the appointment of Speed as receiver “was void and of no-binding force,” and that he had wrongfully received of funds belonging to the Roberts Company, on account of fees and expenses as receiver, the sum of $3,048.35; but further found that Speed acted in good faith and performed services and incurred expenses worth $1,000, and that that sum should be paid to him by James out of the funds of the Roberts Company. The court further found that the services rendered by James as receiver and the services rendered by Hardwick & Hardwick and Leggett & Kirby as attorneys for the receivers reasonably were worth the sums, respectively, received by them. He further found: (1) That the property of the Roberts Company at the time the receivers were appointed was of the value of $40,000; (2) that said property consisted of a telephone exchange, which was operated by the receivers as directed by the court, and that while operating it the receivers received and paid out about $110,000, and “added to the plant material improvements in the way of betterments”; (3) that James had in his hands as receiver the sum of $2,170.44, after crediting him with $1,000 on account of Speed’s services; (4) that there remained unpaid of the debt due the Stromberg-Carlson Company the sum of $974.65 and of the debt due the bank the sum of $440.39, which, after the payment of court costs unpaid, should be paid out of the funds in the hands of James as receiver before any part of said funds should be used to pay any other claim; and that, after said sums were fully paid, the balance, if any, remaining in the hands of the receiver should be applied (1) to the payment of Klotz’s claim for reimbursement on account of taxes paid by him on the property sold to him by the receivers, (2) to the payment of the sum due the North Electric Company, and (3) to the payment of the sum of $882.30 due by the Roberts Company to C. W. Roberts on. account of services rendered before receivers were appointed; (5) that the inter-veners had knowledge of the appointment of James and Speed as receivers, of their acting add performing services as such, of the employment of Hardwick & Hardwick and Leg-gett & Kirby as attorneys for said receivers, and of the performance by them of. services as such, and made no complaint on account thereof until the March term, 1911, of the Taylor county district court; (6) that by an order made April 14, 1908, the court had directed all persons having claims against the Roberts Company to-'.present’same for allowance, and that the interveners, except the' North Electric Company, had failed to present their respective claims within the time fixed by said order. By his judgment the court determined that the appointment of Speed as receiver was void, that Spe'ed therefore was not entitled to be compensated for-ser vices performed and expenses incurred by him as receiver, and that James was entitled to recover of Speed the sum of $3,048.-35 received by him on account of such services and expenses; but nevertheless made an allowance of $1,000 to James to be paid to Speed for services rendered’ by him. The judgment further determined that, after deducting the $1,000 allowed on account of Speed’s services, James had on his hands as receiver $2,170.44, and directed him out of same to pay the balance of $974.65 due the Stromberg-Carlson Company and the balance of $440.39 due the bank, and then to pay the sum remaining, $755.44, into the registry of the court. The clerk of the court was directed when he received the $755.44, to deduct therefrom costs due him, then to pay to Klotz $187, and then pay to the North Electric Company the balance thereof remaining in his hands. The appeal is prosecuted by the Roberts Telephone & Electric Company, C. W. Roberts, Mrs. Mary D. Roberts, Miss Fannie G. Roberts, and Hugh Roberts.
155 S.W. 633Carver Bros. v. Merrett (1913)Reversed and remanded for new trial
A. Turner, Judge. Action by John Merrett against Carver Bros, and the Merchants’ & Planters’ National Bank of Mt. Pleasant. Judgment for plaintiff Merrett and for the bank against Carver Bros., and they appeal.
155 S.W. 636Shaw v. Windham (1913)Affirmed
1. Adverse Possession (§ 114*) — Evidence— Sufficiency. Evidence held to support a finding that a defendant did not acquire title by adverse possession under the ten years’ statute • of limitations. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 6S2, 683, 685, 686; Dec. Dig. § 114.*] 2. Appeal and -Error (§ 1011*) — Findings— Conclusiveness. A finding on conflicting evidence is binding on the court on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dee. Dig. § 1011.*] 3. Adverse Possession (§ 68*) — Hostile Claim — Intention to Claim Title. A possession, to be adverse, must be hostile to the true owner, and there must be a coincident intention to claim title; and, where one claimed only to the, true line between his property and adjacent premises, there is no adverse holding except to the true line. [Ed. Note. — For other cases, see Adverse Possession. Cent. Dig. §§ 387-393; Dee. Dig. § 68.*]
155 S.W. 638Carter v. Kansas City Southern Ry. Co. (1913)Reversed and remanded
1. Master and Servant (§ 111*) — Injuries to Servant — Duty op Master. It is the duty of a railway company to exercise care to equip its cars with attachments for keeping their doors closed to guard against injuries to employés who handle them. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig; § 111.*] 2. Master and Servant (§ 111*) — Injuries to Servant — Appliances. A freight car, which a brakeman was required to handle in the ordinary operation of trains, is an appliance when considered with reference to the master’s duty to furnish safe implements and appliances. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.*] 3. Master and Servant (§ 284*) — Injuries to Servant — Questions eor Jury. In an action by a brakeman who was injured by being struck by an open car door when he was throwing a switch, evidence held sufficient to go to the jury. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*] 4. Master and Servant (§ 217*) — Injuries to Servant — Assumption oe Risk. In general, a' servant assumes the risk of injury from all defects and dangers of which he knows, and those which he should, by the exercise of ordinary circumspection, ascertain in the course of his employment. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*] 5. Master and Servant (§ 180*) — Injuries to Servant — Fellow Servant Rule. The federal Employer’s Liability Act of 1908 (Act April 22, 1908, c. 149, § 1, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), providing that-every common carrier, while engaging in commerce between any of the several states, shall be liable in damages for any person suffering injury while employed by such carrier in such commerce resulting from the negligence of any officers, agents, or employes of the carrier, abolishes the common-law fellow-servant doctrine. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.*] 6. Master and Servant (§ 288*) — Injuries to Servant — Assumption op Risk — Questions eor Jury. Whether or not an employs assumes the risk of a given situation is generally a question of fact for the jury, and the court must submit it, unless the evidence is of such a character that ordinary minds would not differ as to the proper conclusion. [Ed. Note. — For other cases, see Master & Servant, Cent. Dig. §§ 1068-1077; Dec. Dig. § 288.*] 7. MASTER AND SERVANT (§§ 204, 228*) — NEGLIGENCE (§ 101*) — Injuries to Servant-Contributory Negligence. The contributory negligence of an injured servant will not, under the statutes, completely bar recovery, but will merely lessen it, while, if the injury is caused by a risk assumed by the servant, recovery is wholly barred. [Ed. Note. — For other cases,- see Master and Servant, Cent. Dig. §§ 544-546, 670, 671; Dec. Dig. §§ 204, 228 ;* Negligence, Cent. Dig. §§ 85, .163, 164; riec. ¿ig. § 101.*] 8. Master and Servant (§§ 203, 217,227,243*) —Injuries to Servant — Contributory Negligence and Assumption oe Risk Distinguished. The doctrine of assumption of risk is predicated upon a contract, express or implied, and is founded upon the knowledge of the servant, either actual or constructive, as to the hazards to be encountered and his consent to take the chance of danger, while the defense of contributory negligence is bottomed on misconduct, consequently a brakeman does not assume the risk of injury from a defective fastening on a car door, unless he knew of its existence, or by the exercise of ordinary care should have known, and for the same reason his violation of the master’s rules constitutes contributory negligence and not assumption of risk. [Ed. Note. — For other cases, see Master & Servant, Cent. Dig. §§ 538-543, 574-600, 668, 669, 682, 759-775; Dee. Dig. §§ 203, 217, 227, 243.*] 9. Master and Servant (§ 289*) — Injuries to Servant — Violation oe Rules. A servant, such as a brakeman for a railway company, who violated the master’s rule, is not guilty of contributory negligence, as a matter of law, in ail cases, for circumstances may create an emergency which will excuse the servant’s disregard of the rule. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 10. Master and Servant (§ 247*) — Injuries to Servant — Actions—Defenses. In an action by a brakeman injured by an open car door while making a switch, the fact that it was a flying switch, contrary to the master’s rules, is not a defense, where the mode of making the switch was not the proximate cause of the injury. [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 795-800; Dec. Dig. § 247.*] 11. Appeal and Error (§ 1047*) — Harmless Error. In a personal injury action by a servant, where verdict was directed for defendant on the ground that plaintiff assumed the risk, the refusal of the court to put expert witnesses, who were to testify as to plaintiff’s injuries, under the rule was harmless, having no effect on the disposition of the case. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4132, 4133, 4146-4152; Dec. Dig. § 1047.*] 12. Appeal and Error (§ 970*) — Review — Discretion — Placing Witnesses Under Rule. The propriety of placing any class of witnesses under the rule rests largely in the discretion of the trial judge, and his ruling will not be reversed, except where an abuse is shown. [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3849-3851; Dee. Dig. § 970.*]
155 S.W. 644San Antonio Brewing Ass'n v. Wolfshohl (1913)Reversed, and judgment rendered for defendant
1. Evidence (§ 539*) — Opinion Evidence. Where plaintiff, who was injured by catching his hand in spools over which he was guiding a rope, had never seen another similar machine, and testified that he had never thought of a guard until after the accident, it was error to admit evidence by him that there should have been a cover over the spool and a lever to guide the rope. [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2349-2352; Dec. Dig. § 539.*] 2. Master and Servant (§ 286*) — Injuries —Jury Question. In an action for injuries by catching plaintiff’s hand in spools while guiding a rope on them, whether defendant was negligent in not covering the spool or furnishing a lever for the rope, or in not having the switch which controlled the machine nearer to it, held a jury question. [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] 3. Evidence (§ 470*) — Opinion Evidence-Expert Testimony. .Where the facts, which were placed before the jury, were such that it could form its own opinions on them as well as an expert witness, opinion evidence was not admissible thereon. [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2220; Dec. Dig. § 470.*] 4. Master and Servant (§ 217*) — Assumed Risk — Known Danger. Where plaintiff, injured by catching his hand in spools while guiding a rope on them, knowing that he could not reach the switch, which controlled the machine, from his position near the spools., in order to stop the machine if he caught his hand in the rope, which he knew might happen, he assumed any risk from the location of the switch. [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*] 5. Master and Servant (§ 289*) — Injuries —Contributory Negligence — Sufficiency op Evidence. In an action for injuries by catching plaintiff’s hand in spools while guiding the rope on them, whether plaintiff was guilty of contributory negligence causing the injury held a jury question. [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 6. Master and Servant (§ 227*) — Contributory Negligence — “Inadvertancy.” Inadvertancy is synonymous with inattention, heedlessness, carelessness, negligence, and thoughtlessness, so that a servant cannot recover for injuries caused through his own inadvertence. [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 668, 669; Dec. Dig. § 227.* Por other definitions, see Words and Phrases, vol. 4, pp. 3488, 3489.] 7. Master and Servant (§ 85*) — Master’s Duty. An employer is not required to foresee the negligence of an employe and guard against it. [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 135, 136, 139,' 140; Dec. Dig. § 85.*] 8. Negligence (§ 65*) — “Contributory Negligence.” Contributory negligence is such an act or omission of plaintiff, amounting to • a want of ordinary care which, concurring or co-operating with defendant’s negligent act, is the proximate cause of the injury. [Ed. Note. — Por other cases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. § 65.* Por other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.] 9. Negligence (§■ 97*) — Comparative Negligence. The doctrine of comparative negligence is applicable only to common carriers, being made so in that case by statute, and in every other case contributory negligence is an absolute defense, however negligent defendant may be. [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 93, 162; Dec. Dig. § 97.*] 10. Negligence (§ 136*) — Jury Question. While negligence is usually a jury question, yet, where the facts have been found, it then becomes a question of law as to whether they are sufficient to constitute negligence. [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]
155 S.W. 647Crosby v. De Bord (1913)Affirmed
1. Sales (§ 175*) — Contract to Deliver Grain — Delivery. Plaintiff, having a growing crop of oats, agreed to thresh and deliver the same to defendant on or before July 20, 1912, excepting such as plaintiff desired to use for feeding his stock. In June, 1912, plaintiff delivered, and defendant accepted and paid for, 373 bushels at the agreed price, and before July 20th plaintiff offered to deliver the balance, which was refused. Held, that plaintiff’s failure to deliver all of the crop did not relieve defendant from liability for breach of contract in refusing to accept the oats tendered. [Ed. Note. — For other cases, see Sales, Cent. Dig. § 435; Dec. Dig. § 175.*] 2. Sales (§ 1*) — Contbacts—Specification of Quantity. The contract of sale was not invalid because no certain number of bushels of oats to be delivered was agreed on. [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1, 3-5; Dee. Dig. § 1.*] 3. Frauds, Statute oe (§ 72*) — Sale oe Growing Crop — Parol Contract. Where plaintiff, having a growing crop of oats, agreed to gather, thresh, and deliver the same to defendant at his warehouse by July 20, 1912, for which defendant was to pay 60 cents a bushel and take the entire crop, excepting such as plaintiff desired to retain for feeding on his farm, the contract .was not within the statute of frauds as a sale of an interest in real property. [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 116-118, 146; Dec. Dig. § 72.*]
155 S.W. 648Gregory v. Pecos & N. T. Ry. Co. (1913)Reversed and remanded upon granting a motion fo'r rehearing
1. Release (§ 13*) — Consideration. A brakeman, injured in the employ of a railroad company, signed a release for such injuries in consideration of $1 and “of the promise of said company to employ me for one day as -, at the usual rate of pay,” and the brakeman afterwards applied to the company for the position of flagman, in which application it was stated that his employment was .to be from day to day, and he was employed as flagman, and afterwards as passenger brakeman, and then as bill clerk. Held', that there was a sufficient consideration for the release, though it did not fix the nature of the employment; that having been fixed by the subsequent acts of the parties so as to constitute a completed transaction. [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 21-27, 29; Dec. Dig. § 13.*] 2. Release (§ 58*) — Misrepresentations — Evidence. Evidence, in a brakeman’s action for personal injuries, held to make it a jury question whether, when a release was brought to plaintiff for his execution at the hospital, the hospital physician and the claim agent did not tell him that hé was practically well and would be well in a few days. [Ed. Note. — For ■ other cases, see Release, Cent. Dig. §§ 109-114; Dee. Dig. § 58.*] 3. MASTER AND SERVANT (§ 296*) — INJURIES —Contributory Negligence — Concurring Negligence. Under the employer’s liability act (Rev. Civ. St. 1911, arts. 6644, 6619), providing that the preceding articles shall not impair or diminish the defense of contributory negligence when the injury of an empioyé of a common carrier is caused proximately by his own contributory negligence, except as otherwise provided, and that the fact that the. employs may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished in proportion to" the amount of negligence attributed to such employs, It was error, in an action by a railroad brakeman for personal injuries, to instruct that if the contributory negligence of plaintiff, concurring or co-operating with any negligent act of defendant, was the direct cause of the injury the jury should find for defendant. [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 1180-1194; Dec. Dig. § 296.*] 4. Trial (§ 296*) — Instructions—Cure by Other Instructions. Error in instructing, in a railroad brakeman’s action for injuries, that if plaintiff’s contributory negligence, concurring with any negligence of defendant, was the direct cause of the injury the jury should find for defendant, was not cured by a correct instruction that plaintiff’s contributory negligence would not bar a recovery, but that his damages should be reduced in the proportion that his negligence bears to the defendant’s negligence. [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]
155 S.W. 652Chicago, R. I. & G. Ry. Co. v. Pemberton (1913)Affirmed
Appeal and Eeeoe (§ 759*) — Assignments op Brkoe — Bkiefs. The assignments of errbr not - complying with Courts of Civil Appeals Rules 23-25 (142 S. W. xii) for preparation of briefs, and no fundamental error appearing, errors will be' treated as waived and will not be reviewed. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]
155 S.W. 653Southern Kansas Ry. Co. of Texas v. Graham (1913)Reversed and remanded
Appeal from Roberts County Court; J-. E. Kinney, Judge. Action by W. C. Graham against the Southern Kansas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
155 S.W. 655S. K. McCall Co. v. Page (1913)
155 S.W. 656Southwestern, Portland Cement Co. v. O. D. Havard Co. (1913)Affirmed
1. Sales (§ 168%*)— Sale on Tkial — 1Time eor Return. Where articles are sold on 30 days’ trial, they if not satisfactory at the end of such time to be returned by the purchaser, time is of the essence of the contract as regards the right to return them; so that he, having retained and used them beyond such time, loses the right to return them, and is liable for the price. [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 409 — 421; Dec. Dig. § 16Sy2.*] 2. Sales (§ 355*) — Special Defenses — Waiver. One sued for the price of articles cannot avoid the time limitation contained in the contract, and pleaded by plaintiff, of 30 days in which to try them and return them if not satisfactory, by showing a waiver thereof, unless he pleads the waiver. [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 1025-1043; Dec. Dig. § 355.*] On Rehearing. 3. Justices of the Peace (§ 92*) — Pleading —Special Defense. Even in a justice court, defendant, relying on a special defense as waiver of a provision of the contract sued on, must in some way raise it by his pleadings. [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 324, 325; Dec. Dig. § 92.*] 4. Appeal and Error (§ 512*) — Intermediate Court — Record. If defendant in the county court amended his pleadings so as to raise issues not raised by his pleadings in the justice’s court, the record should in some way affirmatively show this. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2326; Dee. Dig. § 512.*]
155 S.W. 657Pease v. State Ex Rel. Sutherland (1913)Reformed and affirmed
1. Appeal and Error (§ 1097*) — Subsequent Appeal — Former Decision as Law op Case. The determination of questions raised on a former appeal is the law of the case on a subsequent appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358 — 4368, 4427; Dee.' Dig. § 1097.*] 2. Continuance (§ 37*) — Application por Continuance — Setting out Facts. In an application for a continuance for absent witnesses, the facts expected to be proved by them should be set out instead of the pleader’s conclusions. [Ed. Note. — For other cases, see Continuance, Cent Dig. §§ 117-121, 127; Dec. Dig. § 37.*]. 3. Continuance (§ 23*) — Grounds—Absence op Witnesses — Materiality. Defendant, in a quo ■ warranto proceeding to oust him from his office as mayor, applied for a continuance on the ground that he was deprived of the testimony of absent witnesses, who had been election officers, as to whether an election judge, who was shown to have mismarked ballots for illiterate voters, was intoxicated or not, without alleging any conspiracy between the election officers, or that the absent witnesses had anything to do with appointing the election judge, or as to other irregularities not invalidating a vote. Reid that, as the only issue was who got the most legal votes, the application was properly denied because the evidence sought thereby was immaterial. [Ed. Noté. — For other cases, see Continuance, Cent. J>ig. §§ 68-71; Dec. Dig. § 23.*} 4. Continuance (§ 22*) — Grounds—Delay. , Application for a continuance in quo war-ranto to oust defendant from his office as mayor, where the only issue was as to whether defendant or relator had gotten the most legal votes, and where it appeared that no effort had been made to procure the testimony of absent witnesses by deposition as might have been done, and that the application was framed solely with the view of obtaining a continuance for the term rather than a postponement, and that appellant did not propose to take such depositions, or to use the testimony at a former trial, which testimony was voluminous, held properly denied on the ground that it was made for delay, and, in view of the speedy trial contemplated upon quo warranto, would be an injustice to appellee. [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dec. Dig. § 22.*] 5. Appeal and Error (§ 837*) — Review — Matters oe Evidence — Application eob Continuance. In view of Rev. Civ. St. 1911, art. 1918, making no distinction between first and subsequent applications for continuance other than that on a first application it shall not be necessary to show that the absent testimony cannot be procured from any other source, an appellate court, in passing upon the overruling of an application, for a continuance, may look to the evidence taken upon the trial to determine whether the testimony desired was in fact material, and whether in fact any injury resulted by reason of its absence. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.*] 6. Elections (§ 293*) — Contest—Petition. Under allegations in a petition in quo war-ranto to oust defendant from his office as mayor and place relator therein, on the ground of fraud in the election consisting of election officers marking the ballots of illiterate voters contrary to instructions, and that in a voting precinct a certain number of votes were cast for relator which were mismarked by an election judge, the ballots, as contained in the ballot box of that precinct, were admissible. [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 288-296; Dec. Dig. § 293.*] 7. Appeal and Error (§ 1033*) — Harmless Error^-Admission oe Evidence. Error, if any, in the admission of evidence favorable to the party complaining, was harmless. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*] 8. Trial (§ 84*) — Objection to Admission oe Evidence — Sufficiency. A party objecting that testimony in a stenographer’s transcript, duly certified and filed, was not admissible without proof under oath of its correctness should object specifically; the objection that no proper predicate was laid being too general to require the court to swear the stenographer and prove his transcript. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 211-218, 220-222; Dec. Dig. § 84.*] 9.Trial (§ 377*) — Trial before Court — Reception of Evidence. Upon a trial before the court, the same strictness in regard to the admission of evidence is not required as on a trial before a jury. [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 887-890; Dec. Dig. § 377.*] 10. Appeal and Error (§ 1170*) — Harmless Error — Examination of witnesses — Leading Questions — Rules of Court. In quo warranto to oust defendant from his office as mayor on the ground of fraud and irregularities in the election, nearly all of the witnesses, to whom leading questions were propounded, were Mexicans testifying through an interpreter, and most of the questions were asked on redirect examination in response to questions not complained of, while other questions were on immaterial matters. Reid that, as a leading question must be prejudicial before error can be predicated upon the overruling of objection thereto, and in view of rule 62a for Courts of Civil Appeals (149 S. W. x) prohibiting reversals, unless for actual prejudice or error contributing to a wrong judgment, error, if any, in the asking of such leading questions was harmless. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§-4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*} 11. Appeal and Error (§ 728*) — ‘Assignments of Error — Setting out Testimony. Assignments of error to the admission of evidence, not showing the evidence admitted, will not be reviewed. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.*] 12. Appeal and Error (§ 1170*) — Harmless Error — Admission of Evidence — Rule of Court. In quo warranto to oust defendant from his officers mayor on the ground of fraud and irregularities at the election, error in permitting a witness to testify that he stated to another, on leaving the polls, that, if they won the election, it would be nothing but luck, was not reversible error in view of rule 62a for Courts of Civil Appeals (149 S. W. x), prohibiting reversals unless for actual prejudice. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*] 13. Appeal and Error (§ 1056*) — Harmless Error — Exclusion of Evidence. In quo warranto to oust defendant from his office as mayor on the ground of fraud and irregularities in the election, the refusal to permit a witness who had testified that nobody complained of any irregularities, and that he did not hear of a certain third person doing anything, to testify as to whether he heard such third person make any complaint about irregularities was harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*] 14. Appeal and Error (§' 1050*) — Harmless Error — Facts Otherwise Shown. Error in permitting a witness in an election contest to be asked whether his uncle had been indicted many times for irregularities in the election in question was harmless in view of the fact that the uncle himself testified he had been indicted in a large number of cases growing out of such election. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] 16.Evidence (§ 474%*) — Opinion Evidence —Electioneering. In quo warranto to oust defendant from Ms office as mayor, where a witness testified that he heard no one electioneering or any conversations in the room, 'but that if loud electioneering had taken place he would have heard it, there was no error in refusing to allow him to state his opinion as to whether he would probably have noticed electioneering if any had taken place. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. § 474%.*] 16. Evidence (§ 155*)^Admissibility— Evidence Admitted in Part. Where defendant, in quo warranto to oust him from his office as mayor, put in evidence parts of the testimony of certain witnesses at a previous trial, relator was entitled to introduce the remainder of the testimony given upon the same occasion, as well as statements made upon the examining trial regarding the same matter. ' [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.*] 17. Appeal and Ebeoe (§ 1170*) — Harmless Error — Admission op Evidence — Materiality. In view of rule 62a for Courts of Civil Appeals (149 S. W. x), prohibiting reversals unless for actual prejudice or error resulting in a wrong judgment, error in reproducing the former testimony of witnesses in an election contest, where parts thereof had not been introduced by the adverse party, in view of- the fact that the court had heard nearly all of it before, was not ground for reversal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig.. § 1170.*] 18. Elections (§ 180*) — Ballots—Validity. A ballot with a cross after the name against which he wished to vote could not be counted. [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*] 19. Elections (§ 227*) — Ballots—Validity. Ballots directed by illiterate voters to be marked for one candidate, but in fact fraudulently marked for another, could not be counted for the candidate for whom they were marked. [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 197-200; Dec. Dig. § 227.*] 20. Appeal and Error (§ 1071*) — Harmless Error — Error in Immaterial Finding. Error in a finding, not necessary in support of a judgment, is harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4234-4239; Dec. Dig. § 1071.*] 21. Elections (§ 295*) — Contest—Judgment op Ouster — Sufficiency of Evidence. Evidence, in quo warranto to oust defendant from his office as mayor and to place relator therein on the ground of fraud and irregularities in the election, held sufficient to sustain a judgment ousting defendant from office and awarding the same to relator. [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297-299; Dec. Dig. § 295.*] 22. Elections (§ 303*) — Contest—Judgment of Ouster — Award of Office. A petition in quo warranto alleging that relator was entitled to hold and enjoy the office of mayor for the term of two years, and to receive the emoluments thereof alleged to 'be of the reasonable value of $3,600 for the two years, and praying in part that he be adjudged entitled to the office and its franchises and privileges with a prayer for general relief, justified a judgment that relator, on being awarded the office, was entitled, as against defendant, to demand the proportionate part of the salary of such office to the date of judgment at the rate of $1,800 per annum. [Ed. Note. — For other cases, see Elections, Cent. Dig. § 315; Dec. Dig. § 303.*]
155 S.W. 663Southwestern Telegraph & Telephone Co. v. Shirley (1913)Affirmed
1. Removal of Causes (§ 110*) —Agreement of Parties. An agreement between the parties that a case should be remanded from a federal court to which it was removed to the state district court was binding, so as to preclude one of the parties after remand from claiming that the case should have been tried in the federal court. [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 236; Dec. Dig. § 110.*] 2. Removal of Causes (§ 48*) — Grounds of Removal. Where the cause of action against two corporations was not separable, the case could not be removed to the 'federal courts on the ground of diversity of citizenship, though one of the defendants was a foreign corporation, and plaintiff was an alien. [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 94; Dec. Dig. § 48.*] 3. Appeal and Error (§§ 544, 553*) — Bill of Exceptions — Continuance. Error in denying an application for a continuance will not be reviewed if not preserved in a bill of exceptions; an exception noted in the judgment refusing the continuance not supplying the place of a bill of exceptions. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. §§ 544, 553.*] 4. ELECTRICITY (§ 19*) — ACTION FOB INJURIES —Sufficiency of Evidence. Evidence in an action for injuries by contact with an electric wire which fell across a large power wire suspended over the street held to make it a jury question whether the wire hung down on the street. [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19-.*] 5. Appeal and Error (§ 882*) — Estoppel to Allege Error. Appellant cannot object to the submission of an issue which'was submitted at his own request. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] 6. Electricity (§ 16*) — Injuries—Negligence. If an accident occurred by reason of electric wires hanging over a street improperly insulated, it would be immaterial upon the electric company’s liability whether they hung there for a short or a long time; the negligence not consisting in the length of time they hung over the street. [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.*] 7. Electricity (§ 19*) — Injuries—Presumptions of Negligence. Where one is injured by contact with an electric wire suspended over a street, the presence of the wire is a presumption of negligence, placing the burden upon the electric company to free itself from the effect of such presumption. [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*] 8. Electricity (§ 16*) — Duty of Company-Insulation of Wires. It is the duty of an electric company which maintains smaller wires suspended above highly charged electric wires to have the small wires perfectly insulated, so that, should they fall upon the other wires so as to receive a sufficient charge of electricity as to make them dangerous to life, injury would not result.' [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.*] 9.Electricity (§ 16*) — Injuries —Proximate Cause. The proximate cause of an injury from contact with a defectively insulated wire which fell upon a large power wire; and hung over the street charged with electricity from the power wire, was the falling of the uninsulated wire upon the power wire, since the accident would not have occurred without that. [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.*] 10. Electricity (§ 16*) — Negligence—Condition of Wires — Constructive Knowledge. If an electric wire was in such a condition that it would break in the absence of storm or unusual force, the electric company was chargeable with knowledge that it might break, and that its insulation was defective. [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.*] 11. Damages (§ 132*) — Excessive Damages —Personal Injuries. A verdict for $23,500 for personal injuries held not excessive. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]
155 S.W. 667Weeks v. Stevens (1913)Reversed and remanded
1. Fraud (§ 59*) — Inducing Contract — Measure op Damages. Where plaintiff sues to recover damages for fraudulent representations by which he was induced to enter into a contract to his loss, the measure of damages is the difference between the value of that which he has parted with and the value of that which he has received under the agreement. [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.*] 2. Damages (§ 120*) — Contract to Furnish Water — Measure op Damages. For breach of a verbal contract to furnish water sufficient to mature crops, the measure of damages is the difference between the amount actually realized from the crop and the amount that would have been realized had sufficient water 'been furnished. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 291-305; D'ee. Dig. § 120.*] 3. Contracts (§ 246*) — Substitution—Contract to Furnish Water. Where a person is induced by fraudulent representations, as to the sufficiency of water to mature the crops, to enter into a written contract for a lease of land, and thereafter a verbal agreement is made that the landlord will furnish sufficient water to mature the crops by digging wells, etc., the verbal contract is a complete novation of the written one. [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1131-1138; Dec. Dig. § 246.*] 4. Contracts (§ 346*) — Action for Breach-Issues — Fraud. Where plaintiff sued to recover for the damages incurred by fraudulent representations in inducing a written contract for lease of land and also brings an action for breach of an oral agreement to furnish water to mature crops which was a substitute for the written contract, it is error to submit any question of fraud as affecting the damages incurred by reason of the breach of the verbal agreement. [Ed. Note. — For other cases, see Contracts, Cent Dig. §§ 1714, 1718-1751; Dec. Dig. § 346.*] 5. Evidence (§ 445*) — Parol Evidence — Novation. Where a verbal contract is a complete novation of a written contract, parol evidence of the verbal contract does not offend against the rule relating to varying the terms of a written contract. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.*]
155 S.W. 669Hicks v. Norton (1913)Affirmed
. Appeal from District Court, Victoria Coun ty; John M. Green, Judge. Action by E. G. Hicks against George W. Norton. Judgment for defendant, and plaintiff appeals.
155 S.W. 672Artesian Belt Ry. Co. v. Young (1913)Affirmed
1. Damages (§ 206*) — Physical Examinations — Refusal. In a personal injury action by a passenger on a railroad, evidence that the passenger’s attorney refused to permit a physical examination by a physician representing the railroad is immaterial on the question of plaintiff’s good faith; a party not being bound to submit himself to examination of interested or partisan physicians, and his refusal to do so should not be used against him. ' „ [Ed. Note. — Eor other cases, see Damages, Cent. Dig. § 531; Dec. Dig. § 206.*] 2. Appeal and Error (§ 1058*) — Review-Harmless Error. In a personal injury action by a passenger where his counsel refused, in the presence of the jury, to permit a physical examination by three disinterested physicans, the erroneous inadinission of evidence of a previous refusal to submit to a physical examination was harmless. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*] 3. Appeal and Error (§ 732*) — Assignments oe Error — Sufficiency. An assignment of error complaining, in a general manner, that a new trial was improperly refused because the verdict, in a personal injury action, was grossly excessive and unsupported by the evidence is insufficient to warrant consideration on appeal. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]
155 S.W. 673Burns v. Parker (1913)Affirmed
C. Roberts, Judge. Proceeding by Jennie E. Parker and others against J. I-I. Burns. From a judgment removing defendant as guardian of the estate of Ernest L. Burns, a minor, and appointing plaintiff; defendant appeals.
155 S.W. 676Ft. Worth & D. C. Ry. Co. v. Jordan (1913)Affirmed
1. Carriers (§ 205*) — Transportation op Animals — Carrier’s Liability. Under the statutes of Texas, a carrier is bound to receive and transport live animals as other property, and is liable as an insurer for any loss not arising from act of God, the public enemy,' the act of the owner, vicious propensities, or inherent character of the animals [Ed. Note. — For other 'eases, see Carriers, Cent. Dig. .§§ 918, 920, 923 ; Dec. Dig. § 205.*] 2. Carriers ’(§ 230*) — Transportation op Animals — Verdict. Where plaintiff sued two railroad companies for killing a horse and injury to certain furniture in transportation, and defendant ■ D. Company pleaded that the injury was due to the negligence of its codefendant, the B. Company, and prayed for recovery over against the latter for the amount of any recovery against it by plaintiff, the evidence being conflicting as to which company caused the damage, and plaintiff being entitled to recover against both without proof of negligence, a verdict for plaintiff against the D. Company only for $179 and in favor-of the latter against the B. Company for only» $50 was not erroneous. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*] 3. Carriers (§ 229*) — Injury to Animals— Damages — Medical Treatment — Removal op Carcass. Where ■ plaintiff delivered to a carrier certain horses and other personal property to be transported to C., and during the trip one of the horses was so injured that he could not stand, and had to be hauled from the car at destination where he was given medical treatment, and soon after died, plaintiff was entitled to recover the expense of treating the horse and also the amount paid to the city scavenger for hauling off the carcass as a part of the damage sustained. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]
155 S.W. 678Galveston, H. & H. R. v. Hodnett (1913)Affirmed
Appeal from District Court, Harris County ; Norman G. Kittrell, Judge. Action by W. J. Hodnett against the Galveston, Houston & Henderson Railroad Company. From a judgment for plaintiff, defendant appeals.
155 S.W. 684Courchesne v. Santa Fé Fuel Co. (1913)Affirmed
1. Injunction (§ 26*) — Staying Suits — Right to Relief. Injunction does not lie to stay prosecution of a suit merely because there is no cause of action to sustain it, nor to enjoin assertion of a cross-action where no fraud in prosecuting it is claimed. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dee. Dig. § 20.*] 2. Injunction (§ 26*) — Staying Suits — Right to Relief. That judgments of a justice court or of a county court would be final in certain suits brought in justice court does not authorize the county court' to enjoin prosecution of such suits. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49; 54-61; Dec. Dig. § 26.*] 3. Pakties (§ 54*)— Cross-Action — Right to Pboseoute. ,, A defendant is entitled to maintain a cross-action to bring in a party who he claims is liable over to him in the event that any judgment be rendered against him. [Ed. Note. — For other cases, see Parties, Cent. Dig. § 85; Dec. Dig. § 54.*]
155 S.W. 686Calhoun v. Kirkpatrick (1913)Affirmed
1. Justices of the Peace (§ 129*)—Judg-ment— Collateral Attack. An improper postponement of a case of forcible detainer in justice’s court for more than six days was a mere irregularity, which would not affect the justice’s jurisdiction, so as to make the judgment subject to collateral attack in an action between the parties for breach of a rent contract; the justice having jurisdiction of the person and subject-matter. [Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 408-411; Dec. Dig. § 129.*] 2. Landlord and Tenant (§ 291*)—Nonpay-ment oe Rent—Eviction—Crops. Where the tenant failed to pay the rentals reserved in a lease of irrigated garden land, and was ejected in forcible detainer by the landlord, the tenant could not recover the value of the crops growing on the land when evicted. [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 1217-1241, 1243-1269; Dee. Dig. § 291.*]
155 S.W. 688Newman v. San Antonio Traction Co. (1913)Affirmed
Appeal from District Court, Bexar County; A. H. Seeligson, Judge. Action by M. W. Newman against the San Antonio Traction Company. From a judgment for defendant, plaintiff appeals.
155 S.W. 690Tenison v. Hagendorn (1913)Affirmed
Error from District Coúrt, Dallas County. Action by Max Hagendorn against E. O. Tenison and another. There was a judgment for plaintiff, and defendant named brings error.
155 S.W. 695Holcomb v. Ely (1913)Reversed and rendered
Appeal from Scurry County Court; Fritz ft. Smith, Judge. Action by E. J. Ely against D. Holcomb, in which defendant counterclaimed. From a judgment for plaintiff, defendant appeals.
155 S.W. 696Southern Kansas Ry. Co. of Texas v. Vance. (1913)Reformed and affirmed
1. Eminent Domain (§ 242*) — Jurisdiction— Appointment of Commissioners. Under Sayles’ Ann. Civ. St. 1897, art. 4447 et seq., providing for appointment by the county court of commissioners to assess the damages in proceedings to condemn land, the district court is without jurisdiction to appoint commissioners on the application of a railroad company seeking to condemn a right of way, appointment is void, and the acts of the commissioners are subject to collateral attack. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 626; Dec. Dig. § 242.*] 2. Eminent Domain (§ 167*) — Statutory Proceedings — Compliance—Requisites. One claiming title under condemnation proceedings must show a strict compliance with the statute, and proceedings not in accordance therewith are insufficient, whether excepted to or not. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 451-456; Dee. Dig. § 167.*] 3. Eminent Domain (§ 228*) — Appointment of Commissioners to Assess Damages— Jurisdiction of Court. The county court of a county, though deprived of civil jurisdiction, is the proper tribunal to appoint commissioners to assess damages in condemnation proceedings under Sayles’ Ann. Civ. St. 1897, art. 4447 et seq.,- and the district court has no power to appoint commissioners. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 582; Dec. Dig. § 228.*] 4. Eminent Domain (§ 167*) — Right to Exercise — Statutory Provisions. The right to take private property for a public use may only be exercised under the protection of a legislative grant, and under the conditions attached thereto. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 451-456; Dec. Dig. § 167.*] 5. Eminent Domain (§ 228*) — Appointment of Commissioners — De Facto Commissioners. Commissioners appointed by the district court to assess damages in condemnation proceedings, while Sayles’ Ann. Civ. St. 1897, art. 4447 et seq., requires the county court to appoint commissioners, are not de facto commissioners and are without right to act. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 582; Dee. Dig. § 228.*] 6. Constitutional Daw (§ 281*) — Due Process of Law — Condemnation Proceedings. The taking of private property for a public use is a deprivation of property without due process of law, where the court appointing commissioners to assess damages has no authority so to do, and the commissioners have no authority to act. [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 880; Dec. Dig. § 281.*] 7. Eminent Domain (§ 185*) — Proceedings— Jurisdiction — Waiver of Want of Jurisdiction. An owner of land sought to be taken by a railroad company for a right of way does not waive his rights or claim for damages nor admit the regularity of the proceedings by appearing before commissioners to assess damages appointed by a court having no authority to appoint, since the appointment is void. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 499; Dec. Dig. § 185.*] 8. Eminent Domain (§ 242*) — 'Collateral Attack on Proceedings — Arbitration. A railroad company, seeking to condemn land, applied to the district court for the appointment of commissioners to assess damages. The court appointed commissioners. The owner agreed in writing that the commissioners need not serve him with process, but could proceed to condemn his land. It was not shown that he agreed to submit the issues to the commissioners and abide their decision, and after their award he objected to their findings and attempted to appeal. Held, that he did not agree to a statutory or common-law arbitration, and he could collaterally attack the proceedings of the commissioners on the ground that the district court had no authority to appoint them. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 626; Dec. Dig. § 242.*] 9. Eminent Domain (§ 280*) — Appropriation —Estoppel. An owner of land appropriated by a railroad company for a railroad right of way is not estopped to demand compensation, though he was present during construction of the road, for, until he has received compensation, the land belongs to him, and he may sue for the land or for the damages for its appropriation. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 776; Dec. Dig. § 280.*] 10. Eminent Domain (§ 163*) — Award of Damages — Deposit in Court — Sufficiency. Where a railroad company, seeking to condemn land for a right of way, instituted proceedings therefor in the district court, while the statute provides that the proceedings must be in the county court, and the district court appointed commissioners to assess damages, and the company paid the damages to the “clerk” of the county, there was no sufficient payment, under the statute, requiring payment into court. [Ed. Note. — For other cases, see Eminent Domain, Gent. Dig. §§ 436-441; Dec. Dig. § 163.*] 11. Limitation ox Actions ■(§ 32*) — WRONGFUL APPROPRIATION OF LAND — DAMAGES. In trespass to try title to land wrongfully appropriated by a railroad company for its right of way, no damages can he recovered for more than two years back, being barred by the two years’ statute of limitation. [Ed. Note. — For other cases, see Limitation ,of Actions, Gent. Dig. §§ 143-145; Dec. Dig. § 32.*] On Motion for Rehearing. 12. Eminent Domain (§ 253*) — Appeai>-ju-BISDIOTION OF LOWER COURT. An owner, entitled to appeal from the judgment of commissioners assessing damages in proceedings to condemn land, may not appeal from the judgment of commissioners appointed by a court having no authority to appoint, since an appeal cannot confer on an appellate court jurisdiction which the court below did not possess. [Ed. Note. — For other cases, see Eminent Domain, Gent. Dig. §§ 660-664; Dec. Dig. § 253.*] 13. Judgment (§ 542*) — Res Judicata. A judgment rendered by a tribunal unknown to the law estops no one. [Ed. Note. — For other cases, see Judgment, Gent. Dig. § 987; Dee. Dig. § 542.*] 14. Courts (§ 23*) — Jurisdiction — Agreement of Parties. Parties may not by agreement confer jurisdiction on courts or create courts. [Ed.' Note. — For other cases, see Courts, Cent. Dig. §§ 75, 75%, 81; Dec. Dig. § 23.*] 15. Eminent Domain >(§ 242*) — Judgment-Estoppel. Where the district court, without jurisdiction, appointed commissioners to assess damages in proceedings by a railroad company to condemn land for a right of way, the owner was not estopped from attacking the damages, unless he knew of the illegality of the appointment and agreed to accept the decision of the commissioners as final, and unless he, by his acts, induced the company to apply to the district court to make the appointment of commissioners instead of to the county court, authorized by statute to make the appointment. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 626; Dec. Dig., § 242.*]
155 S.W. 703Houston Belt & Terminal Ry. Co. v. Stephens (1913)Reversed and remanded
Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by Joe K. Stephens against the Houston Belt & Terminal Railway Company. From a judgment for plaintiff, defendant appeals.
155 S.W. 715Youngberg v. El Paso Brick Company (1913)Affirmed
Morris, Special Judge. Action by the El Paso Brick Company against C.' M. Youngberg and others. From a judgment for plaintiff and other defendants against C. M. Youngberg alone, he appeals.
155 S.W. 718McCullough Hardware Co. v. Call (1913)Affirmed
Error to District Court, Scurry County; Jno. B. Thomas, Judge. Action by T. H. Call against the McCullough Hardware Company and others. Judgment for plaintiff, and defendants bring error.
155 S.W. 945Long v. Shelton (1913)Affirmed
1. Vendor and Purchaser (§ 242*) — Bona Fide Purchaser — Burden oe Proof. Defendant in trespass to try title claiming as a bona fide purchaser without notice under a deed subsequent to that of plaintiff had the burden of proving payment of a valuable consideration and want of notice. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.*] 2. Vendor and Purchaser (§ 238*) — Bona Fide Purchaser — Purchaser from Bona Fide Purchaser. A purchaser from a bona fide purchaser for a valuable consideration is protected by that purchase, regardless of the fact that he knew of an adverse claim under a prior deed. [Ed. Note. — For other cases, .see Vendor and Purchaser, Cent. Dig. §§ 580-582; Dec. Dig. § 238.*] 3. Trial (§ 141*) — Question of Law or Fact -Credibility- of Witnesses. It is the province of the jury, not only to draw inferences and conclusions from the testimony of witnesses but to pass on their credibility as well, but when witnesses testify by deposition and are uncontradicted, and nothing is disclosed which tends to impeach their credibility and but one inference can be drawn from their testimony, the court may assume its truth. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.*] 4. Appeal and Error (§ 1062*) — Review-Harmless Error — Rules of Court. Under rule 62a for Courts of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed for error of law at the trial, unless the court is of the opinion that the error was such a denial of appellant’s right as to cause the rendition of an improper judgment. the court will not reverse for” refusal to submit an issue of notice, where there is no probability that a jury would have determined the question differently. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*] 5. Stipulations {§ 14*) — Construction — Stipulation as to Issues. An agreement in trespass to try title, where the answer was a general denial and a plea of not guilty, that plaintiff and defendant both claimed under one K. as common source of title, not in any way modified or restricted, will be construed as intended to cover all that was put in issue by tbe pleadings, as affirming that K. held title, and to relieve both parties from the necessity of connecting themselves with title prior to the common source. [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 24-37; Dee. Dig. § 14.*] 6. Stipulations (§ 18*) — Effect — Common Source of Title — Right to Attack. In trespass to try title, where both parties agreed that they claimed under a common source of title, defendant could not impeach such title by showing a superior title from the sovereignty of the soil independent of his deed from the common source. [Eld. Note. — For other eases, see Stipulations, Cent. Dig. §§ 41-54; Dee. Dig. §.18.*] 7. Trespass to Try Title (§ 38*) — Burden-of Proof — Want of Title in Common Source. When the common source has been shown by the introduction of deeds or other muni-ments of title, the defendant cannot defeat the plaintiff’s recovery by merely showing an outstanding title anterior to the common source, but must go further, and show that the common source had no title. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*]. 8. Trespass to Try Title (§. 38*) — Burden' of Proof. In trespass to try title, the plaintiff must show a good title in himself. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. -Dig. § 38.*] 9. Trespass to Try Title (§ 40*) — Admissibility of Evidence. In trespass to try title, where defendant claimed a part of the land by a chain of title from a patentee, the report of a commissioner in partition, who was the grantee of the paten-tee at some uncertain date, and was not shown to have ever been divested of title, allotting the lands to defendant’s predecessors, could not be considered a circumstance to prove a transfer from him, without a showing that he had previously held title. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dee. Dig. § 40.*] 10. Estoppel (§ 80*) — Estoppel by Conduct. To establish a title in the heirs of an al-lottee of land by estoppel as against a commissioner in partition who appeared in their chain of title as a grantee from the patentee, it would be necessary to prove that the commissioner at the time the partition was made held the title to the land, that the heirs were ignorant of the true status of the title, and were by this conduct induced to alter their position with reference to their property rights. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 214, 215; Dec. Dig. § 86.*] 11. Estoppel (§ 116*) — Estoppel by Conduct. ; The burden of proving the facts which constitute an estoppel by conduct rests upon the party claiming the benefit of the estoppel. [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 306; Dec. Dig. § 116.*] 12. Trespass to Try Title (§ 41*) — Sufficiency of Evidence — Title in Common Source. Evidence in trespass to try title held insufficient to show that the common source had title at the time he made the conveyance to plaintiff. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.*] 13. Trespass to Try Title (§ 38*) — Burden of Proof — Want of Title in Common Source. Plaintiff in trespass to try title seeking to defeat defendant’s claim under a better title from the common source must show that the common source had no title. [Ed. Note. — For other cases, see Trespass to ■Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*] 14. Wills (§ £81*) — 1Title of Devisee— When Effective. An estate by . devise takes effect immediately upon the death of the testator, unless otherwise directed. [Ed. Note. — For other eases, see Wills, Cent. Dig. §§ 1005-1007; Dec. Dig. § 481.*] 15. Wills (§ 481*) — Probate of Foreign Will — Effect on Title. Rev. St. 1895, art. 5353, providing for recording a foreign will after it has been probated according to the laws of the state in which the testator died, and article 5355, providing that such wills after probate and record should take effect as a deed of conveyance of the property from the time when it was delivered for record, were not intended to fix the time when the title to the property devised should vest; but, when it has been probated, the title of the devisee relates back to and becomes effective from the death of the testator, the same as title under a domestic will. [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1005-1007; Dec. Dig. § 481.*]
155 S.W. 949Red Deer Oil Development Co. v. Huggins (1913)Affirmed
1. Abatement and Revival (§ 14*) — Other Action Pending. A former action brought to a court which has no jurisdiction of the subject-matter cannot be pleaded as another action pending. [Ed. Note. — For other cases, see' Abatement and Revival, Cent. Dig. §§ 105-110; Dec. Dig. § 14.*] 2. Courts (§ 169*) — Jurisdiction — Amount in Controversy. Where the jurisdiction of a court is dependent on the amount in controversy, neither the amount of the verdict nor the prayer of the petition determine the question of jurisdiction, which must be determined by the amount claimed by plaintiff in his original petition, unless it appears therefrom that he has improperly sought to give jurisdiction where it did not properly belong. [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.*] 3. Courts (§ 169*) — Jurisdiction—“Amount in Controversy” — Value oe Property. In suits to foreclose liens, the value of the property covered by the lien determines the amount in controversy for the purpose of determining whether the court has jurisdiction of the subject-matter; but such rule does not apply when the lien is' given by statute, and the only right conferred and asserted is to seize and sell so much of the property as may be necessary to satisfy the debt. [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.* For other definitions, see Words and Phrases, vol. 1, pp. 376-377; vol. 8, p. 7574.] 4. Abatement and Revival (§ 14*) — Courts (§ 169*) — Another Action Pending — Amount in Controversy — Oil Well — Lien — Enforcement. Since Bev. Civ. St. 1911, arts. 5644-5649, conferring a lien for labor performed in the drilling of oil wells, does not limit the lien to so much of the property of the owner as may be necessary to satisfy the debt, but includes the entire property connected with the well, a lien claimant under such act could not confer jurisdiction on the county court by only -seeking to impose a lien on a part of the property sufficient to satisfy the debt, when the entire property connected with the well and subject to the lien exceeded $1,000 in value, and hence the amount in controversy in such action was the value of all the property, so that the county court had no jurisdiction of the subject-matter', and the pendency of a suit-to foreclose the lien in such court could not be pleaded in abatement of a suit on the same facts for the same relief in the district court, though no order of dismissal had been entered in the county court proceeding. [Ed. Note. — For other cases, see Abatement and Revival,' Cent. Dig. §§ 105-110; Dec. Dig. §14;* Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.*]
155 S.W. 951Wheeler v. City of Flatonia (1913)
155 S.W. 954Yarbrough v. Clarkson (1913)Affirmed
1. Evidence (§ 390*) — Parol Evidence — Intent — Mistake in Deed. The description in a deed being definite and certain, parol evidence that other land than that described was intended to be conveyed is not admissible in trespass to try title; it being-only in a suit to correct a deed on the ground of fraud or mistake that its terms can be so varied or contradicted. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719-1721, 1723-1728; Dec. Dig. § 390.*] 2. Trespass to Try Title (§ 10*) — Title to Support. Plaintiff, in procuring a deed to himself from B. of land which he afterwards, by mistake, he claims, conveyed to defendant C., having been the agent of defendant P., who furnished the consideration, so that he never had title, but held it in trust for defendant P., judgment in trespass to try title was properly against plaintiff; the superior title being shown in defendant P. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 13; Dec. Dig. § 10.*]
155 S.W. 955Galveston, H. & S. A. Ry. Co. v. Blocker (1913)Affirmed as to the named defendant, and reversed as to…
Appeal from District Court, Bexar County. Action by J. R. Blocker and añother against the Galveston, Harrisbuig & San Antonio Railway Company and others. From a judgment for plaintiffs, defendants appeal.
155 S.W. 959Chambers v. Grisham (1913)
155 S.W. 960Jackson v. Stone (1913)Reversed and rendered in part, and affirmed in part
Appeal from District Court, Jasper County; W. B. Powell, Judge. Action by T. H. Stone and another against W. J. Jackson and another. From a judgment for plaintiffs, defendants appeal.
155 S.W. 962Davis v. Moye (1913)Reversed and rendered
Appeal from District Court, Tyler County; W. B. Powell, Judge. Action by Jim Moye against Mrs. C. G. Davis. Judgment for plaintiff, and defendant appeals.
155 S.W. 965Houston Electric Co. v. Glen Park Co. (1913)
155 S.W. 971Sowder v. North Texas State Bank (1913)Affirmed
. Appeal from District Court, Tarrant County; W. T. Simmons, Judge. Action by the North Texas State Bank against R. C. Sowder and another. From a judgment for plaintiff, defendants appeal.
155 S.W. 973Texas Midland R. R. v. Monroe (1913)Affirmed
Appeal from District Court, Hunt County; R. L. Porter, Judge. Action by J. H. Monroe against the Texas Midland Railroad. From a judgment for plaintiff, defendant appeals.
155 S.W. 976McGaff v. Scrimshire (1913)Affirmed
Appeal from Tarrant County Court; Chas. T. ■ Prewett, Judge. Action by W. B. Scrimshire against O. P. McGafiC. Erom a judgment for plaintiff:, defendant appeals.
155 S.W. 977McKnight v. Lange Mfg. Co. (1913)Affirmed
R. Sinks, Judge. Action by J. F. McKnight against the Lange Manufacturing Company and others. Judgment for plaintiff for a part only of the relief demanded, and he appeals.
155 S.W. 979Missouri, K. & T. Ry. Co. v. Brown (1913)Affirmed
Appeal from District Court, Tarrant County; R. H. Buck, Judge. Action by J. K. Brown and others against the Missouri, Kansas & Texas Railway Company and others. Judgment for plaintiffs, and defendants appeal.
155 S.W. 980De Witz v. Saner-Whiteman Lumber Co. (1913)Affirmed
Perkins, Judge. Trespass to try title by Robert De Witz and others against the Saner-Whiteman Lumber Company. From a judgment for plaintiffs for less than the relief demanded, they appeal.
155 S.W. 982White v. Cowles (1913)Affirmed
Error to District Court, Clay County; P. A. Martin, Judge. Action by E. J. Cowles against Charles H. White and others. There was a judgment for plaintiff, and defendants bring error.
155 S.W. 984Detering v. Boyles (1913)Reversed and remanded
1. Evidence (§ 419*) — Parol Evidence — Consideration. Parol evidence that before delivery of the deed the parol contract of sale of the land was modified by reduction of the price below the amount of consideration expressed in the deed is admissible. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*] 2. Vendor and Purchaser (§ 260*) — Vendor’s Lien. Any unpaid balance of purchase money is secured by vendor’s lien, though it was originally understood that it should all be paid on delivery of deed, and this was waived as to part of it, and the purchaser’s oral promise to pay the balance accepted. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. § 266.*]
155 S.W. 986Kirwan v. Alamo Iron Works (1913)Reversed and remanded
1. Limitation of Actions (§ 24*) — Breach of Warranties in Written Contract — Petition. A petition, ■ alleging that defendant agreed in writing to deliver to plaintiff enumerated machinery to perform the work ordinarily performed by such machinery, that it should be of good material and workmanship, that because of defendant’s negligence the machinery was defective as to material and workmanship and failed to perform the work required of it and proved a total failure, that defendant failed to furnish a specified part of the appliances, and that plaintiff was damaged in consequence thereof, states a cause of action founded on warranties in a written contract within the four-year statute of limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 112-117; Dec. Dig. § 24.*] 2. Limitation of Actions (§ 28*) — Implied Warranty. . An action on an implied warranty of suitableness for the purpose for which goods are purchased under a contract in writing is within the. two-year statute of limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135, 142; Dec. Dig. § 28.*] 3. Limitation of Actions (§ 24*) — Instruments in Writing — Petition. A petition, alleging that defendant contracted in writing to deliver an engine to pump water on crops, that subsequently defendant informed plaintiff that he could not furnish the engine, but could furnish a secondhand engine,that plaintiff, being unable to secure a new engine as quickly as the secondhand one, directed defendant to ship the same, that defendant did not ship the secondhand engine until nearly a month later and on its arrival it failed to operate, that plaintiff had made his preparations to plant his crops, and that if defendant had shipped the new engine as required by contract it would have arrived in time to have enabled plaintiff to irrigate his crops, but that in consequence of defendant’s violation of the written contract plaintiff’s crops were almost a total failure, states a cause of action founded on an instrument in writing within the four-year statute of limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 112-117; D'ec. Dig. § 24.*] 4. Limitation of Actions (§ 27*) — Verbal Contracts — Time to Sue. An action founded on a parol contract is within the two-year statute of limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 132, 133; Dec. Dig. § 27.*]
155 S.W. 988Grieb v. Stahl (1913)Affirmed
Error from District Court, Harris County; Norman G. Kittrell, Judge. Action by Katharine Grieb and others against Maria Stahl and others. Judgment for defendants, and plaintiffs bring error.
155 S.W. 989First Nat. Bank of Beaumont v. Union Trust Co. (1913)Reversed, and preference allowed
Appeal from District Court, Travis County; George Calhoun, Judge. Action by the State against the Union Trust Company for dissolution, in which the First National Bank of Beaumont filed a claim for preference concerning certain items sent to the insolvent company for collection. From a judgment allowing the claim, but refusing the preference, claimant appeals. The nature and result of this suit are stated as follows in appellant’s brief: “This suit was instituted by the state of Texas, as plaintiff, against the Union Trust Company, an insolvent banking corporation created by special act of the Legislature of Texas, as defendant, for the purpose of securing the appointment of a receiver of said Union Trust Company and a winding up of its affairs and distribution of its assets among its creditors. After the appointment of the receiver, the appellant herein, First National Bank of Beaumont, by leave of court, intervened in the cause and set up a claim against the Union Trust Company for* certain moneys due said intervener by the Union Trust Company; said moneys being the proceeds of a promissory note belonging to intervener which had by intervener been transmitted to the Union Trust Company for collection. The intervener prayed in its petition for judgment against the Union Trust Company for the amount of the collection and for the allowance of a preference over the general creditors of the Union Trust Company in the payment of its said claim. The judgment of the trial court was in favor of intervener for the amount due it on its said claim, but denied to intervener any preference over general creditors of .the Union Trust Company for the payment of its claim. The sole question presented on this appeal is whether or not intervener is entitled to a preference. The case was submitted to the trial judge and will be submitted here on an agreed statement of facts, and it is also agreed that, if the ruling of the trial judge to the effect that intervener is not entitled to a preference for its claim be correct, then the judgment should be affirmed; if the ruling be otherwise, it is agreed that the judgment of the trial court should be reversed, and judgment here rendered in favor of intervener for payment of its claim in full.” Counsel for appellee concedes the correctness of that statement, with the addition of stipulation No. 3 of the agreement in reference to the transcript, which stipulation will hereafter be set out. The case was submitted to the trial court upon an agreed statement of the. material facts, which agreement reads as follows: “Come now the First National Bank of Beaumont, intervener in the above-styled and numbered cause, and T. H. Davis, receiver of the Union Trust Company, and agree that the material facts relevant- to said intervention are as follows, to wit: “(1) The Union Trust Company is a private corporation, created by special act of the Legislature of Texas, passed in the year 1870, and was up to the 10th day of January, 1910, doing a general banking business with places of business at Austin, Tex., San An--tonio, Tex., Aransas Pass, Tex., Manor, Tex., and several other points, hereinafter designated. “(2) The ■ intervener is a banking corporation duly chartered and incorporated under the banking laws of the United States of America and has its principal office and place of business in Beaumont, Jefferson county, Tex. “(3) On the 10th day of January, 1910, this court, by its order entered in this cause, appointed T. H. Davis receiver of the property and effects of defendant herein, the Union Trust Company, and said T. H. Davis on the same day duly qualified as such receiver and took possession of the property and effects1 of said defendant. Said receiver, upon taking possession'of the effects of said defendant, found on hand and in its possession the sum of $19,175.84 in cash; said cash was situated in the vaults of said defendant as follows, to wit: At San Antonio, $2,271.93; at Aransas - Pass, $233.75; at Lockhart, $4,595.73; Austin, $815.91; Band-era, $2,877.35; Boerne, $1,534.35; 'Christine, $1,024.57; ICyle, $1,592.55; Lavernia, $38.39; and at Manor, $2,191.31. The assets of the Union Trust Company are not sufficient to pay its debts in full. The receiver also, upon taking charge of the property of said trust company, found on hand in cash in the express office at Aransas Pass the sum of $2,-000, which was the property of said defendant. Said sum of $2,000 had been deposited by the agents of the defendant with the express company at San Antonio, Tex., on January 8, 1910, for transmission to its Aran-sas Pass branch, and arrived at Aransas Pass on the 10th day of January, 1910. “(4) On January 1, 1910, intervener was the holder and owner of a certain promissory note bearing date at Aransas Pass, Tex., November 5, 1909, by the terms of which the Brooke Lumber Company, 60 days after date, promised to pay to the order of the Beaumont Shingle & Lumber Company, at the office of the Union Trust Company at Aran-sas Pass, Tex., $322, with interest at the rate of 8 per cent, per annum on said sum from the date of said note until paid. On January 5, 1910, said intervener forwarded said promissory note to the Union Trust Company at Aransas Pass, Tex., for collection, and in the letter accompanying said note instructed said Union Trust Company to collect the money due on said note and to return the proceeds thereof to said Beaumont Bank at Beaumont, Tex. On January 7, 1910, the maker of said note, Brooke Lumber Company, paid' the full amount due thereon, including interest to said Union Trust Company, and said Union Trust Company, in receiving said note and in making said collection, merely acted as the agent of said Beaumont bank for the collection and return of said money, and said Beaumont Banli was not in any sense a general depositor of said Union Trust Company, so far as the proceeds of said note are concerned. Said Union Trust Company has never remitted to said Beaumont Bank the proceeds of said collection or any part thereof. Other similar claims1 on account of paper sent to the Aransas Pass branch of the Union Trust Company for collection and return have been filed and denied preference. “The various branches of the Union Trust Company were operated as follows: Each branch kept an account with its various depositors, and no account of'the depositors' of one branch was kept in the main office or in any branch office; a depositor in one branch was not a depositor in the main office or in any other branch, and his checks would not have been honored, except when drawn upon the branch in which the money had been deposited; the checks, deposit slips, passbooks, and other literature were made and issued in the name of the ‘Union Trust Company, Lockhart Branch,’ or ‘Union Trust Company, Aransas Pass Branch,’ etc. “The main office of the Union Trust Company was indebted to. every branch of said company,' except the one at Lockhart, at the' time of the appointment of the receiver herein whenever any branch of the Union Trust Company got more money on hand than was deemed necessary to transact its current business; upon demand, the excess was sent and charged to the main office of the company at San Antonio; and, whenever the supply of money on hand at any particular branch became insufficient to transact the ordinary business thereof, the main office of the Union Trust Company - at San Antonio would send it a sufficient amount of money to keep its doors open and to meet its current demands and charge its- account with such amount.” Stipulation No. 3 contained in the agreement in reference to the transcript reads as follows: “(3) It is further agreed by said parties1, with the approval of the court, that if the intervener is entitled only to a judgment for preference against the actual cash found by the receiver in the vaults of the Union Trust Company at Aransas Pass, Tex., then the judgment of the trial court should be affirmed, but that, if said intervener is entitled to a preference against the funds1 of the Union Trust Company found by the receiver in the branches of the Union Trust Company other than the Aransas Pass branch, then the judgment of the trial court should be reversed and judgment rendered by the Court of Civil Appeals that the inter-vener’s claim, as established by the judgment of the trial court, be paid in full.”
155 S.W. 992Gulf, C. & S. F. Ry. Co. v. Lowery (1913)Affirmed
1. Caeeiees (§ 52*) — Deliveey to Caeeiee. Issuance of a bill of lading by a carrier is prima facie, but not conclusive, evidence of a delivery of the goods to the carrier. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 109, 150-161, 163, 164; Dec. Dig. I 52.*] 2. Caeeiees (§ 41*) — “Deliveey” to Caeeiee —What Constitutes. In order to constitute a delivery of goods •to a carrier for transportation, complete control of them must be given to the carrier; i. e., the owner must not retain any manner of control over the goods, and," if any one else retains such control, it must be as the agent of the carrier, and not of the shipper. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 102-106; Dec. Dig. § 41.* For other definitions, see Words and Phrases, vol. 2, pp. 1958-1970; vol. 8, p. 7632.] 3.Caeeiees (§ 176*) — Deliveey oe Goods to Caeeiee — Cae Load Freight. Where a connecting carrier had delivered a car of corn on a side track which it controlled jointly with defendant company, which was to continue the transportation, and such connecting carrier’s agent stated that it had no charges against the car, whereupon defendant’s agent received the car at that place as he was authorized to do, he had no right thereafter to refuse to ship out the car because the connecting carrier thereafter objected, and by doing so defendant became a joint tort-feasor with the connecting carrier, and liable to plaintiff for damages sustained by reason of the delay in the shipment. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 766-774; Dee. Dig. § 176.*]
155 S.W. 994Sewall v. Christie (1913)Affirmed
Appeal from Harris County Court; Clark C. Wren, Judge. Action by Cleveland Sewall and others against George R. Christie. Judgment for defendant, and plaintiffs appeal.
155 S.W. 995Christensen v. Christiansen (1913)Reversed and rendered
1. Master and Servant (§ 302*) — Injuries to Third Persons — Scope oe Employment. Where defendant’s servant,- employed about a garage and frequently sent out in charge of cars for. carrying passengers, had no authority to use defendant’s automobile, in carrying plaintiff and his wife as passengers for hire, and was using it without defendant’s consent and outside the scope of his employment, the defendant was not liable for injuries to plaintiff resulting from his negligent operation of the car. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.*] 2. Master and Servant (§ 330*) — Injuries to Third Persons — Actions — Presumption. Where plaintiff, in an action 'for injuries resulting from the negligence of defendant’s servant in operating an automobile for hire shows that defendant is the owner of the automobile, and that the servant was employed, by defendant as driver of the automobile, he makes out a .prima facie case against defendant. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330.*]
155 S.W. 998Williamson v. McElroy (1913)Affirmed
Error from District Court, Hill County; C. M. Smithdeal, Judge. Action by E. A. McElroy and others against Delina Williamson and others. There was a judgment granting relief, and certain of the defendants bring error.
155 S.W. 1001Albers v. Roberts (1913)
155 S.W. 1003Chicago, R. I. & G. Ry. Co. v. Sears (1913)Affirmed
Appeal from District Court, Dallas County; E. B. Muse, Judge. . Action by William Sears, by next friend, against Chicago, Rock Island &’ Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
155 S.W. 1006Stephens County v. Palo Pinto County (1913)Reversed and rendered
Counties (§ 7*) — Boundaries—Establishment— Statutory Pbovisions. An established and definitely marked boundary line between two counties, recognized by the Commissioner of the General Land Office and the two counties at the time of the adoption of Rev. Civ. St. 1911, § 1400, providing that the county boundaries as recognized and established are adopted as the true boundaries, is the boundary line, though not mathematically correct. [Ed. Note. — For other cases, see Counties, Cent. Dig. § 3; Dec. Dig. § 7.*]
155 S.W. 1007Kollman v. Brooks (1913)Affirmed
Appeal from Williamson County Court; Richard Critz, Judge. Action by Will Kollman against M. E. Brooks and another. From a judgment for defendants, plaintiff appeals.
155 S.W. 1007Globe-Wernicke Co. v. B. Deutser Furniture Co. (1913)Reversed and remanded
W. Wilson, Judge. Action by the Globe-W'ernicke Company against the B. Deutser Furniture Company, with counterclaim by defendant. Judgment for defendant, and plaintiff appeals.
155 S.W. 1009Turner v. Stephens (1913)Reversed and remanded
Appeal from Concho County Court; C. F. Cottrell, Judge. Action by J. T. Turner against J. M. Stephens. From a judgment for defendant, plaintiff appeals.
155 S.W. 1010Texas Cent. R. Co. v. Eldredge (1913)Affirmed
1. Master and Servant (§ 6*) — Contract-s of Employment — Actions por Breach-Evidence. ' In an action on a parol agreement to employ plaintiff for life in consideration of his written release of a claim for damages for the I9SS of an eye, where the release recited a consideration of only $74.25, evidence as to the circumstances surrounding the accident and the extent of the injuries was admissible as bearing on the probability of such contract having been made. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 6; Dec. Dig. § 6.*] 2. Evidence (§ 317*) — Hearsay — Contracts op Employment — Actions por Breach. In an "action on a contract to employ plaintiff for life in consideration of his release of a claim for personal injuries, evidence as to the knowledge of defendant’s representative, who procured the release, that defendant’s attorneys had given an opinion that defendant was not liable for the injuries was hearsay and inadmissible; it not appearing that plaintiff was present or knew of such opinion. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174r-1192; Dec. Dig. § 317.*] 3. Master and Servant (§' 3*) — Contracts op Employment — Enforceability. A contract by an employer to' employ an employé for life in consideration of his release of a claim for damages for personal injuries was sufficiently definite as to the time of employment to be enforceable. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 2, 3; .Dec. Dig. § 3.*] 4. Contracts .(§ 10*) — Mutuality — Contracts op Employment. An agreement to employ plaintiff for life in consideration of his release of a claim for damages for personal injuries was not nonenforceable because optional on plaintiff’s part as to how long he would remain in the employment, where he accepted work thereunder and continued to work for defendant for about eight years and until discharged; this being notice to defendant that he intended to work for the time stipulated in the contract. [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*] 5. Master and Servant (§ 3*) — Contracts op Employment — Enforceability. An agreement to employ -plaintiff for life in consideration of his release of a claim for damages for personal injuries was’ npt nonenforceable because there was no stipulation as to the compensation, .character of his services, or the manner of performance, where he was a machinist and following the agreement worked as such for a number of years without any dispute as to the compensation, character of work, or manner of its performance. [Ed. Note. — For other cases,, see Master and Servant, Cent. Dig. §§ 2, 3; Dec. Dig. § 3.*] - 6. Evidence (§§ 417,'419*) — Parol Evidence Affecting Writing. A parol agreement to employ plaintiff for life in consideration of his written release of a claim for damages for personal injuries, which release recited a money consideration, could be proved either under the rule that parol evidence is admissible to show the consideration for a contract, although the contract is in writing and expresses a consideration therein, or under the rule that, where a contract is part in writing and part verbal, the verbal part may be established by parol evidence. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1899, 1912-1928; Dec. Dig. §§ 417, 419.*]
155 S.W. 1012Mansfield Oil Mill Co. v. Edgmon (1913)Reversed and ren-, dered
Appeal from District Court, Tarrant County; W. T. Simmons, Judge. Action by J. M. Edgmon against the Mansfield Oil Mill Company. Judgment for plaintiff. Defendant appeals.
155 S.W. 1013Weinberg v. Garren (1913)Affirmed
Appeal from Johnson Oounty Oourt; J. B. Haynes, Judge. Action by Ben Garren against Frank Weinberg. Judgment for plaintiff, and defendant appeals.
155 S.W. 1014Grogan v. Spaulding (1913)Affirmed
Appeal from District Court, Taylor County; T. L. Blanton, Judge. Action by P. T. Grogan, Jr., against John Spaulding and others. Judgment for defendants, and plaintiff appeals.
155 S.W. 1015Wright v. Wright (1913)Affirmed
Appeal from District Court, Ellis County; F. L. Hawkins, Judge. Action'by Mrs. Pearl Wright against J. H. Wright. Judgment for plaintiff, and defendant appeals.
155 S.W. 1017Smith v. Moore (1913)Reversed and remanded
Appeal from Reeves County Court; John Y. Eeavell, Judge. Action by Charley W. Smith against Mrs. Lena Moore and another. Prom a judgment of dismissal', rendered on sustaining a general demurrer to the petition, plaintiff appeals.
155 S.W. 1019Richard Cocke & Co. v. Big Muddy Coal & Iron Co. (1913)Reversed and remanded
Appeal from Harris County Court; Clark C. Wren, Judge. Action by the Big Muddy Coal & Iron Company against Richard Cocke & Co. Judgment for plaintiff, and defendant appeals.
155 S.W. 1022Hutto v. Hall (1913)Affirmed
Appeal from District Court, Jasper County; W. B. Powell, Judge. Action by Y. C. Hall and another against W. L. Hutto and another. Judgment for plaintiffs, and defendants appeal.
155 S.W. 1025Higginbotham v. Gulf, C. & S. F. Ry Co. (1913)Reversed and remanded
1. Raileoads (§ 390*) — Injuries to Persons on Track — Avoidable Injury. If those in charge of a train saw one upon the track and realized that he was in peril in time to stop the train and avoid injury and failed to use every means in their power consistent with the safety of those upon the train to prevent injury, the railroad is liable, notwithstanding the injured person was himself negligent in going on the track in front of the approaching train; and, if his actions were such that it appeared probable that he would not get off the track in time to avoid injury, those in charge will be held to have realized his peril, as under such circumstances they could not speculate on whether he would or would not get off and take the risk of injuring him when it was in their power to prevent injury. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.*] 2. Railroads (§ 400*) — Injuries to Person on Track — Action—Question for Jury-Discovered Peril. On evidence in an action against a railroad for the alleged wrongful death of one struck and killed by a train while he was standing on the track endeavoring to turn his horses back, held, that the question whether those in charge of the train saw deceased and realized his danger in time to have avoided injuring him and negligently failed to use the means at their command to prevent it was for the jury. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 460.*] 8. Railroads (§ 398*)— Injuries to Person on Track — Insufficiency of Evidence-Discovered Peril. The fact that those in charge of a train saw one upon the track and realized his danger may be proved by the circumstances in which lie injury oceurred¡ and is not required to be shown- by direct evidence. [Ed. Note. — For other cases, see Railroads, Cent.Dig. §§ 1356, 1358-1363; Dec.Dig. §398.*] 4. Railroads (§ 381*) — Injuries to Person on Track — Contributory Negligence. One who goes upon a track while trying to turn his horses back and remains thereon in front of an approaching train is negligent as a matter of law, and cannot recover unless his peril was discovered in time to avoid injury. TEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dec. Dig. § 381.*]
155 S.W. 1028San Antonio Traction Co. v. Urban (1913)Affirmed on rehearing
Appeal from District Court, Besar County; C. V. Birlthead, Judge. Action by Theresa Urban against the San Antonio Traction Company. From a judgment for plaintiff, defendant appeals.
155 S.W. 1032Producers' Oil Co. v. Bush (1913)Reversed, and rendered for defendant
1. Master and Servant (§ 199*) — Fellow Servants — -Who Are.' Employés engaged in drilling oil wells, each doing a specific part of the work, and neither having the power to employ and discharge, are fellow servants. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 491; Dec. Dig. § 199.*] 2. Master and Servant (§ 107*) — Obligation of Master — Safe Place to Work. The rule that one of the nondelegable duties of an employer is to provide a reasonably safe place in which to work is subject to the exception that the employer need not keep the working place safe, when the work which the employé is employed to perform changes the condition of the place, and makes it more or less dangerous as the work advances. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*] 3. Master and Servant (§ 118*) — Obligation of Master — Safe Place to Work. Employés engaged in drilling oil wells were supplied with ■ the necessary appliances, including a jet, to protect them against escaping gas. The employés were experienced and knew the danger of escaping gas, and of the necessity to use the jet for their safety. They decided while acting together that they would not make use of any jet. While the work progressed gas escaped, causing the death of one of them. Held, that the employer was not guilty of any breach of duty to furnish a reasonably safe place in which to work. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. § 118.*] 4. Master and Servant (§ 217*) — Injury to Servant — Assumption of Risk. An experienced employé in drilling oil wells who knows of the danger of escaping gas without using a jet, and who continues in the employment without using jet furnished by the employer, assumes the risk of injury by escaping gas. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 574^600; Dec. Dig. § 217.*] 5. Master and Servant (§ 185*) — Injury to Servant — Liability of Master. Where employés engaged in drilling oil wells were supplied with necessary tools, including a jet to protect them from escaping gas, and it was the duty of one of the em-ployés to make use of the jet whenever necessary, the failure to make use of the jet at the proper time to avoid danger from escaping gas, causing the death of a coemployé, was a breach of the duty of the employé, for which the employer was not liable. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]
155 S.W. 1040Thomason v. Rogers (1913)Affirmed
T.- Appeal and Error (§ 1043*) — Questions Reviewable — Immaterial Questions. The refusal of the court to determine the plea of privilege of defendant to be sued in the -county of his residence before hearing the cause • on the merits is immaterial, and defendant may not complain thereof on appeal. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig., §§ 4115-4121; Dee. Dig. § 1043.*] 2. Venue ,(§ 8*) — Fraud. Where a defendant employed to recover .and sell land of plaintiff for one-half of the land recovered or one-half of the proceeds of land ■sold did not report any sales made and appropriated to his own use the whole proceeds thereof, and failed to inform plaintiff of the status of his interest, though repeatedly re■quested so to do during a course of years, he was guilty of fraud which must be deemed to have existed at the time and place of sale of the land, and under Rev. Civ. St. 1911, art. 1830, cl. 7, providing that, in cases of fraud, the suit may be instituted in the county in which the fraud was committed, he could be sued in that county, though he resided elsewhere. [Ed. Note. — For other cases, see Venue, Cent. Dig. § 17; Dec. Dig. § 8.*] 3. Brokers (§ 71*) — Compensation — Contracts — Construction. A defendant employed to recover and sell lands of plaintiff for one-half of each separate tract recovered or one-half of the proceeds of any single tract sold may not appropriate the whole of the proceeds of a tract sold merely because his interest in other tracts not sold is of as great a value as the proceeds. [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. § 71.*] 4. Limitation op Actions (§ 100*) — Fraud-Discovert of Fraud. Where plaintiff employing defendant to recover and sell his land for a part of the land or the proceeds thereof was not informed of sales made by defendant, who appropriated the entire proceeds, and did not learn of the sales until after an independent investigation was made, an action for the fraud, begun within two years of the investigation was not barred by limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.*] 5. Appeal and Error (§ 742*-) — Assignments of Error — Propositions. The contention that appellant should have been allowed to deduct from appellee’s share of proceeds on a sale of land certain expenses not presented as an independent proposition, but under an assignment alleging that the court erred in rendering any judgment, will not be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]
155 S.W. 1042Porter v. Langley (1913)Affirmed
Appeal from District Court,' Hill County; J. C. Roberts, Judge. Action by L. Langley and others against Horton B. Porter and others. From a judgment for plaintiffs, defendants appeal.
155 S.W. 1046Carrollton Press Brick Co. v. Davis (1913)Affirmed
Action originally instituted by Damon W. Davis against Carrollton Press Brick Company and others, in which Matilda Davis, executrix, was substituted as plaintiff. From a judgment for plaintiff, defendant named appeals.
155 S.W. 1050Cooper v. Robischung Bros. (1913)Reversed
1. Master and Servant (§ 291*) — Action for Injuries — Issues — Safe Place to Work. Where the evidence in a servant’s action for injuries was that his master was installing bathtubs in a building in which the contractor had constructed elevators with scaffolds or platforms on the ground floor level over the cellar excavation, and that plaintiff’s employer with the consent of the contractor used such, scaffolds which gave way and injured plaintiff, and there was evidence also that he was injured by stepping off the scaffold, the case was properly submitted on the theory that the rule requiring a master to use ordinary care to furnish a servant a reasonably safe place in which to work was applicable. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.*] 2. Pleading (§ 205*) — General Demurrer-Effect, to Strike out General Denial. A general demurrer to an answer, however faulty the answer, should not be sustained when to do so would have the effect to strike out a general denial. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.*] 3. Appeal and Error (§ 725*) — Assignment of Error — Sufficiency. An assignment of error in refusing to sustain plaintiff’s several special exceptions to defendant’s answer was too- general to require consideration. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. .§§ 3002-3005; Dec. Dig. § 725.*] 4. Appeal and Error (§ 1058*) — Harmless Error — Admission op Evidence — Repetition. Where a witness in a servant’s action for injuries had testified fully as to the character and condition of the scaffold which gave way, the exclusion of a question asking him to describe how it was made and whether it was secure or weak, to which he would have answered that it was not safe, was not error, since the question elicited nothing new. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*] 5. Appeal and Error (§ 728*) — Assignments op Error — Sufficiency. An assignment of error in the exclusion of evidence which, together- with the bill of exceptions, does not show the answer excluded, presents no error. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8010-3012; Dec. Dig. § '728.*] 6. Master and Servant (§ 106*) — Action for Injuries — Admissibility of Evidence —Defendant’s Control. Where a master owes to a servant the duty of exercising ordinary care to furnish him a reasonably safe place to work, he cannot be heard to say, in justification of a failure to discharge such duty, that he did not control the place where he had put the servant to work. [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 193-198;. Dec. Dig. § 106.*] 7. Appeal and Error (§ 1053*) — Harmless Error — Admission of Evidence. In a servant’s action for injuries, where the court instructed that the master owed him the duty of exercising ordinary care to furnish a reasonably safe place to work, error in the admission of evidence that the master did not control the servant’s place of work was harmless. [Ed. Note. — For other eases, see Appeal and ■Error, Cent. Dig. §§ 4178 — 4184; Dec. Dig. § 1053.*] 8. Master and Servant (§ 205*) — Assump- ' tion of Risk — Reliance on Care of Master. A servant is not hound to use ordinary care to see whether the master has discharged his duty of using reasonable care to furnish him a safe place to work, but has the right to assume that the master has discharged such duty; and hence does not assume the risk arising from the master’s failure to perform such duty unless he knows that the place is dangerous or, in the exercise of ordinary care, must necessarily have acquired such knowledge. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 205.*] 9. Appeal and Error (§ 1064*) — Harmless Error — Instructions—Contributory Negligence. An instruction that contributory negligence means such an act or omission on the part of the plaintiff, amounting to a want of ordinary and proper care, as concurring with some negligent act of defendant was the proximate cause of the injury, while not technically correct, because charging that the omission must amount to the want of both “ordinary” and “proper” care, was not reversible error. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*] 10. Trial (§ 112*) — Argument — Limiting Time of Argument. In a servant’s action for injuries, in which 18 witnesses, including the plaintiff, were examined, and the testimony on several material issues was conflicting, the action of the trial court in limiting the time of plaintiff’s counsel for the opening and closing to 30 minutes, and in stopping him at the expiration of 40 minutes, was an improper exercise of the court’s power to limit the time of argument, and reversible error. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 273, 274; Dec. Dig. § 112.*]
155 S.W. 1053Tinsley v. Bottom (1913)Affirmed
Error to District Court, Hill County; C. M. Smithdeal, Judge. Action by J. B. Tinsley and others against C. Bottom and others. There was a judgment for defendants, and plaintiffs bring error.
155 S.W. 1055Saunders v. Chicago, R. I. & G. Ry. Co. (1913)Affirmed
1. Appeal and Error (§ 1040*) — Review— PREJUDICE. The overruling of demurrers or exceptions to certain clauses of written cattle ship'ment contracts, which exempted defendant from liability for damages resulting from certain causes, was not material, where none of such exemptions from liability were submitted to the jury as a basis of a verdict for defendant. [EcL Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*] 2. Cashiers (§ 230*) — Transportation op Dive Stock — Instructions. Where, in an action for injuries to cattle, the defendant presented the issue of nonlia-bility for injuries resulting solely on account of the inherent propensities of the cattle or their condition when shipped, and the court only charged that, even though the cattle were thin, yet, if the railroad company received them for shipment, it was its duty to exercise care to deliver them within a reasonable time, and, if the jury found delay en route and defendant did not exercise such diligence, then the finding should be for plaintiff, defendant was entitled to an affirmative charge, presenting such defense. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. .§ 230.*]. 3. Carriers (§ 230*) — Transportation op Cattle — Instructions. . Where defendant carrier pleaded that plaintiff had agreed to care for the cattle shipped. en route, and that the damage for which plaintiff sued, if any, resulted from the usage reasonably incident to such transportation, and the negligence of plaintiff and his agents in the manner of loading the cattle, the care en route, and the unloading of the same, such allegation was sufficient to authorize an instruction that, if plaintiff did not send as many men with the cattle as were necessary and damage resulted therefrom, defendant could not be held liable for such damage. [Ed. Note. — For other cases, see Carriers’, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*] 4. Carriers (§ 230*) —Instructions—Shipment op Cattle. An instruction that it was the carrier’s duty to use. ordinary care in furnishing cars for the shipment of cattle and to furnish cars in good condition, properly sanded and bedded to protect the cattle from slipping and falling, was not so conflicting as to be misleading. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]
155 S.W. 1175Pope v. St. Louis Southwestern Ry. Co. of Texas (1913)Reversed and remanded
1. Masteb and Servant (§ 289*) — Injury to Servant — Contributory Negligence. Where an employer furnished to his em-ployés a number of chisels, an employé_ using one of the chisels furnished was not guilty of contributory negligence, as a matter of law, because he could have procured a safe chisel at another place, hut failed to do so. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 2. Master and Servant (§ 286*) — Safe Appliances — Simple Tools. Whether a chisel furnished by an employer for use in “stripping” iron is a simple tool, so as not to require the employer to inspect it, held for the jury. [Ed. Note. — For other cases, see Master and Servant. .Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] 3. Master and Servant (§ 295*) — Injury to Servant — Assumption of Risk — Instructions. Where the facts were such that an employs suing for a personal injury would ordinarily assume the risk, the court, in submitting the issue, should inform the jury that the defense would not prevail if, under the facts, a man of ordinary prudence would have continued in the use of the defective appliance causing the injury complained of. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.*] 4. Master and Servant (§ 204*) — Injury to Servant — Assumption of Risk. Under Rev. Civ. St. 1911, art. 6645, providing that assumption of risk shall not he available as a defense where a person of ordinary care would have continued in the service with a knowledge of the defect and danger, a railroad company negligently furnishing a defective appliance cannot defeat an action for injury to an employé caused thereby, on the ground of assumption of risk, unless a man of ordinary prudence would not have used the appliance. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.*] 5. Negligence (§ 101*) — Injury to Servant —Contributory Negligence — Effect. Under Rev. Civ. St. 1911, art. 6649, providing that the damages sustained by a railroad employé for a personal injury shall be diminished in proportion to the amount of negligence attributable to him, a railroad company guilty of negligence in furnishing a defective appliance is liable for an injury sustained by an em-ployé in consequence thereof; but the damages must be diminished in proportion to the amount of negligence attributable to him. [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164; Dec. Dig. § 101.*]
155 S.W. 1181Jackson v. Dallas Fair Park Amusement Ass'n (1913)Affirmed
Error from District Court, Dallas County; E. B. Muse, Judge. Action by J. R. Jackson against the Dallas Fair Park Amusement Association. Plaintiff had judgment for $1, was denied a new trial, and brings error.
155 S.W. 1182Gutzman v. City of Ft. Worth (1913)Reversed and remanded
1.Appeal and Error (§ 1031*) — Reception op Evidence — Instructions—Curing Error. Where evidence erroneously admitted was later excluded by an instruction that the jury should not consider it for any purpose, it would be presumed that the error was cured, in absence of anything to show that the instruction was not followed. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dee. Dig. ' 1031.*] 2. Trial (§ 133*) — Misconduct oe Counsel —Curing Error — Instructions. Where, in an action against a city for injuries by reason of an alleged defective street, the city’s attorney stated in argument that if damages were allowed in such case improvements by the city would have to cease, but the court directed the jury not to consider the statement, any error therein would be presumed to have been cured. [Ed. Note. — For other cases, see Trial,. Cent. Dig. § 310; Dec. Dig. § 133.*] 3. Municipal Corporations (§ 822*) — In-stbucti o ns — Form. In an action for injuries caused by a defective city street, an instruction that plaintiff could not recover if the street was reasonably safe for travel, or if the city exercised ordinary care to maintain it in a safe condition, was not defective as a double charge in favor of the city. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. § 822.*] 4.Witnesses (§ 388*) — Impeachment—Preliminary Evidence. Where a material witness for plaintiff testified to an alleged defect in a street, by which plaintiff claimed she was injured, and to his having repaired, the same, but no foundation was laid for his impeachment, it was error for the court, after he had been excused from further attendance and had left the courthouse, to permit defendant to prove that the witness had declared that the work on the street, claimed to have been defective, was good. (Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. § 388.*]
155 S.W. 1184Galveston, H. & S. A. Ry. Co. v. Blumberg (1913)Reversed and rendered
1. Raileoads (§ 443*) — Killing Animals— Negligence. Where an animal passed on a railroad track in switch yards between two sections of standing cars just as the cars were switched together, - causing its death, but the trainmen did the switching in the usual way, and, had they seen the animal when it went on the track between the cars, the accident could not have been prevented, the railroad company was, as a matter of law, free from negligence. [Ed- Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*] 2. Raileoads (§ 441*) — Killing Animals— Liability. One suing for the death of an animal struck by cars. in switch yards, where the railroad company could not fence its tracks, must, to recover, show that the trainmen were guilty of negligence which caused the death of the animal. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dee. Dig. § 441.*] 3. Appeal and Ebbob (§ 1175*) — Revebsal— Rendeeing Final Judgment. Where the evidence is uncontradicted and the facts fully developed, the courf on appeal will reverse an erroneous judgment and render the proper judgment. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]
155 S.W. 1185Fish v. Sadler (1913)Reversed and remanded
1. Champerty and Maintenance (§ 5*) — Contract por Services — “Barratry.” Where attorneys having notes in their possession for collection surrendered them to their client, and thereby surrendered their lien for services rendered, and accepted as consideration a sum admittedly an insufficient remuneration for the work and the release of the lien, and a contract that, if the notes were paid, they should receive $300 more, and, if not paid within 90 days, the notes should be returned to the attorneys for collection, and they should then receive a reasonable fee for their services, such contract was not in violation of Pen. Code 1911, art. 421, providing that, if an attorney shall seek employment in any suit at law or in equity to prosecute the same by means of personal solicitation or employment, he shall be guilty of barratry. [Ed. Note. — For other cases, see Champerty and ■ Maintenance, Cent. Dig. §§ 24-51; Dec. Dig. § 6 * For other definitions, see Words and Phrases, vol. 1, p. 710.] 2. Champerty and Maintenance (§ 5*) — Contract with Attorneys — Construction. The contract was merely one for the collection of the notes under certain conditions, and not a purchase by- the attorneys of a lawsuit, nor was it against public policy or unprofessional. [Ed. Note. — For other cases, see Champerty and Maintenance, Cent. Dig. §§ 2A-51; Dec. Dig. § 5.*] 3. Attorney and Client (§ 148*) — Contract —Construction—Validity. Attorneys having notes in their hands for collection returned them to their client on receiving $250, and a contract that they should be paid $300 more in case the notes were paid within 90 days, and, if not then paid, the notes, should be returned to the attorneys for collection, and they should receive a reasonable fee. Held, that the attorneys were entitled to recover under the contract if after 90 days the notes were not returned to them, whether they had been paid, the-time of payment extended, or whether they had been transferred. [E!d. Note. — For other eases, see Attorney and Client, Cent. Dig. §§ 352, 353; Dec. Dig. § 148.*] 4.Contracts (§ 337*) — Pleading—Breach-Damages. It is error to sustain a demurrer to an action for breach of contract because the measure of damages contended for by plaintiff, is not the agreed one, since plaintiff is at least entitled to recover nominal damages on alleging a valid contract and its breach. [Ed. Note. — For other cases, see Contracts, ‘Cent. Dig. §§ 1682-1690; Dec. Dig. § 337.*]
155 S.W. 1187Missouri, K. & T. Ry. Co. of Texas v. Wood (1913)Affirmed
Appeal from District Court, Hunt County; R. L. Porter, Judge. Action by C. T. Wood against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
155 S.W. 1189Withers v. Crenshaw (1913)Affirmed
Appeal from 'District Court, Tarrant County ; Jas. W. Swayne, Judge. Trespass to try title by- V. F. Withers against J. O. Crenshaw arid others. Judgment for defendants, and plaintiff appeals.
155 S.W. 1189Electric Park Co. v. San Antonio Baseball Ass'n (1913)Appeal dismissed
Appeal and Eeeob (§ 781*) — Decisions Reviewable — Moot Cases. Where a temporary injunction restraining the removal of personal property from plaintiff’s land was dissolved, and the property was removed pending the appeal which did not stay the order dissolving the injunction, the app.eal will be dismissed; the case being moot, and the only point left being the question of costs. [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3122; Dec. Dig. § 781.*]
155 S.W. 1191Swanson v. Brawner (1913)
Appeal from District Court, Brazoria County; Wells Thompson, Judge. Action by Mrs. Nancy E. Brawner against the Brazoria Land & Cattle Company and A. C. Swanson. From a judgment for plaintiff against defendant Swanson, he appeals.
155 S.W. 1194Jordan v. Johnson (1913)Affirmed
M. Alexander, Special Judge. Action by Mary Jordan and others against Ed Johnson and another, in which Jane Britt and others'intervened. From a judgment for defendants and interveners, plaintiffs appeal.
155 S.W. 1197Whitaker v. Browning (1912)Affirmed
A. P. Dickson, Judge. Action between B. F. Whitaker and others and Mrs. Jennie Browning and others. From a judgment for the latter, the former appeal.
155 S.W. 1198Simmang v. Cheney (1913)Dismissed
1. Appeal and Error (§ 334*)—Weit 0p Ee-boe—Parties. A petition for writ of error, naming three persons as defendants in error, could not be considered as the suing out of a writ of error as to the executrix of one of them, who had previously died. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1848, 1851-1863; Dec. Dig. § 334.*] 2. Appeal and Ebeob (§ 395*)—Wbxt of Error—Bond. Where the obligee in a bond given for writ of error was dead when the bond was executed, it was a nullity, and could confer no jurisdiction on the appellate court. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 2064^-2070, 2085, 2086, 3127; Dec. Dig. § 395.*]
155 S.W. 1199Cartledge v. Wortham (1913)Affirmed
Appeal from District Court, Travis County; Chas. A. Wilcox, Judge. Suit by E. Cartledge against John L. Worth-am, Secretary of State. Prom a decree for defendant, plaintiff appeals. Certified to the Supreme Court. Questions answered 153 S. W. 297.