Volume 157 — South Western Reporter

<p>Criminal Law (§ 1090*) — Appeal—Review— Recobd.</p> <p>Rulings of the trial court cannot be passed on, in the absence of bills of exceptions and a statement of facts, without which they cannot be intelligently reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p>1. Limitation op Actions (§ 84*) — Suspension op Limitation — Residence Beyond State.</p> <p>When a defendant resides out of the state at the time a cause of action arises, such absence will not interrupt the running of limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 439-448; Dec. Dig. § 84.*]</p> <p>2. Limitation op Actions (§ 84*) — Absence from State — Suspension — Cause op Action-Accrual — Action on Judgment.</p> <p>Since no action accrues to revive a judgment until it has become dormant, where the judgment debtor at that time had left the state and was residing in New York, his absence did not suspend the running of limitations, so that, where limitations had run against the action to revive at the time the judgment creditor sued for administration of his estate in Texas, the proceeding was barred.</p> <p>TEd. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 439 — 448; Dec. Dig. § 84.*]</p>

<p>Appeal from Caldwell County Court; Geo. W. Kyser, Judge.</p> <p>Action by J. M. Taylor against the Iowa 'Manufacturing Company. Judgment’ for plaintiff, and defendant appeals.</p>

<p>1.Evidence (§ 482*) — Opinions—Usage.</p> <p>Where, in an action for injuries to cattle from rough handling in transit, a witness had had considerable experience in shipping cattle over the same route, and detailed facts and circumstances on which his opinion was based, it was proper to permit him to testify that the shipment was handled rougher than was ordinary or usual.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2235; Dec. Dig. § 482.*]</p> <p>2. Appeal and Error (§ 1050*) — Harmless Error — Evidence.</p> <p>Defendant was not entitled to object to the admission of certain evidence on plaintiff’s behalf, where similar testimony was given by other witnesses without objection by defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1088, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p> <p>3. Carriers (§ 228*) — Transportation op Live Stock — Delay.</p> <p>'Where, in an action against a carrier for delay in transporting cattle to market, plaintiff claimed that by reason of the delay he was compelled to sell on the evening market, which was lower than the morning market, and that if the cattle had been transported promptly they would have reached their destination in time lor the morning market, evidence as to the difference between the market price of the cattle in the morning and the evening was competent.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p> <p>4. Evidence (§ 525*) — Experts—Opinion-Appearance of Cattle.</p> <p>In an action for damages to plaintiff’s cattle by delay and rough handling in shipment, evidence of a salesman of nine years’ experience in the market to which the cattle had been shipped, after detailing facts and circumstances, that there had been loss because of depreciation in weight and stale appearance of the cattle, due to delay, etc., was proper.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2333; Dec. Dig. § 525.*] '</p> <p>5. Carriers (§ 228*) — Transportation of Live Stock — Delay—Rough Handling-Evidence.</p> <p>In an action against a carrier for injuries to cattle by delay and rough handling en route, evidence held to warrant a verdict for plaintiff, notwithstanding he accompanied the shipment.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. .Dig. § 228.*]</p> <p>6. Trial (§ 295*) — Instructions—Construction as a Whole.</p> <p>Where it appears from the whole charge that the jury could not have been misled, the fact that an isolated paragraph may be technically incorrect will not require a reversal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dee. Dig. § 295.*]</p> <p>7. Carriers (§ 230*) — Transportation of Live Stock — Instructions.</p> <p>In an action for injuries to cattle by delay and rough handling in transportation, an instruction that if the shipment went out from division joints on the first train after arrival, and no delay occurred at such places, plaintiff could not recover, notwithstanding the fact that there may have been rough handling and delay, whereby the cattle may have been injured at intervening points along the route, was properly refused.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]</p>

<p>On Motion for Rehearing.</p> <p>1. Appeal and Eeeoe (§ 743*) — Assignments op Eeeoe — Repekence to BIotion pob New Tbial.</p> <p>Since objections to charges given and refused need not be set up in. the motion for new trial, assignments of error alleging error in the charges need not refer to the motion for new trial as required by rule 25 (142 S. W. xii).</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p> <p>2. Appeal and Eeeoe (§ 882*) — Estoppel to Allege Eeeoe.</p> <p>Where a charge on contributory negligence is in the exact language of defendant’s plea of contributory negligence, defendant may not complain.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882;* Pleading, Cent. Dig. § 1145%.]</p> <p>3. Appeal and Eeeoe (§ 216*) — Objections —Instbuctions—Requests.</p> <p>If a charge is correct as far as it goes, 'appellant may not complain where he does not request a further instruction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. §§ 627-641.]</p> <p>4. Tbial (§ 194*) — Instbuctions—Weight op Evidence.</p> <p>A charge that the issues raised by these charges constituted contributory negligence was on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-154, 456-466; Dee. Dig. § 194;* Negligence, Cent. Dig. § 360.]</p> <p>5. Appeal and Eeeoe (§ 1068*) — Haemless Eeeoe — Instbuctions.</p> <p>Where several specific acts of negligence are relied upon for recovery, and the evidence is sufficient to warrant a finding upon any two or more of them, it is harmless error for the court to refuse an instruction directing a finding in favor of defendant on one alone, where there is a general verdict in behalf of plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. § 1068;* Trial, Cent. Dig. § 525.]</p> <p>6. Evidence (§ 219*) — Admissions — Com-PEOMISE AND SETTLEMENT — ACCIDENT IN-SUEANCE.</p> <p>In an action for injuries to a servant, defendant may not show a settlement, the result of a compromise, by plaintiff with an insurance company on an accident policy.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 760, 761; Dec. Dig. § 219.*]</p>

<p>Appeal from Panola County Court; W. R. Anderson, Judge.</p> <p>Action by Pruitt & Biggs against S. J. Fuller. From a judgment for .plaintiffs, defendant appeals.</p>

<p>Appeal from -District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by W. E. Powers against J. W. Beckwith and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Counties (§ 192*) — Validity oe Taxes— Abandonment oe Purpose Aeteb Bevied.</p> <p>An election held for that purpose having resulted in favor of the issuance of bonds by a road precinct for the construction of graveled and macadam roads, the county commissioners’ court ordered their issuance and levied a tax for the purpose of paying the interest and creating a sinking fund, and directed the county assessor to assess such tax for the year 1911, which tax was duly assessed. Before the time for the collection of such tax, a second election was held, at which it was voted to issue bonds for the construction of paved roads, and the commissioners’ court thereupon ordered the issuance of such bonds, to be dated Jan-nary 1, 1912, provided for the levy of a tax for the payment of interest and the creation, of a sinking fund, and annulled and rescinded its order, authorizing the first issue of bonds, except as to the levy and collection of the tax, the proceeds of which it ordered transferred to a special fund, for the purpose of paying the interest and creating a sinking fund for the bonds authorized at the second election. Held, that when the issuance of the bonds authorized at the first election was abandoned the levy previously made for their payment became invalid, and the attempt to transfer the tax, when collected, to a fund for the payment of the bonds authorized at the second election was unauthorized and void, as the commissioners’ court could not have levied a tax for the year 19ll for the payment of interest and creation of a sinking fund to meet bonds not to be issued until 1912; and Revised Civil Statutes 1895, art. 859, authorizing the commissioners’ court to transfer money from one fund to another, expressly applies only to money in hand.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 300-302; Dec. Dig. § 192.*]</p> <p>2. Pleading (§ 210*) — Demurrers — Requisites and Sufficiency.</p> <p>In an action to restrain the collection of a tax levied for the purpose of meeting bonds authorized at an election, on the ground that such issuance had been abandoned, and that the attempt of the commissioners’ court to transfer such tax to a fund for the purpose of paying bonds authorized by a second election was void, so-called special exceptions to the petition, because it affirmatively appeared therefrom that the taxes had been legally levied and assessed and were due and owing, because it appeared that it was defendant’s lawful duty to collect them, because it appeared that they could be lawfully collected under the first election and the order of the commissioners’ court declaring the result thereof, and making a valid tax levy, as well as a subsequent order reaffirming and ratifying such levy, because it appeared that the tax could be lawfully collected under the second election and the proceedings and orders thereunder, and because, if the order rescinding the order authorizing the issuance of the first bonds and transferring the tax was valid, the tax was collectible, and, if void, its validity under the first election was not affected thereby, were “speaking” general demurrers, and presented no question not raised by the general demurrer.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Dee. Dig. § 210.*]</p> <p>3. Counties (§ 196*) — Enjoining Collection — Laches.</p> <p>Where, after the levy of a tax, the purpose for which it was levied was abandoned, and the commissioners’ court, without authority, attempted to- transfer the tax to a fund for another purpose, taxpayers did not lose their right to restrain a collection of the tax by delaying such action until the tax collector •attempted or threatened to enforce such collection.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.*]</p> <p>4. Counties (§ 196*) — Enjoining Collection-Parties.</p> <p>Where, after the levy of a tax, the purpose for which it was levied was abandoned, and the county commissioners’ court attempted to transfer the tax to a fund for another purpose, the county judge and county commissioners were not necessary parties to a suit against the tax collector to restrain the collection of the tax.</p> <p>[Ed. Note. — For other eases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.*]</p>

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge.</p> <p>Action by P. J, Hart against Thompson & Scott and another. From a judgment for plaintiff against defendants named, they appeal.</p> <p>In February, 1912, P. J. Hart commenced this suit against the firm of Thompson & Scott, and the Stephenville North & South Texas Railway Company, seeking to recover damages for personal injuries inflicted upon one Roland Hart, a minor. There was a jury trial, which resulted in a verdict and judgment ior the plaintiff against Thompson & Scott, and a judgment for the railway company, and Thompson & Scott have appealed.</p> <p>The only questions presented for our decision are the action of the trial court in overruling and refusing to grant an application for continuance, and in refusing to grant a new trial predicated upon the application for continuance. The application and the action of the court thereon are set out in the bill of exceptions, which reads as follows:</p> <p>“Be it remembered that when the above styled and numbered cause was called for trial in the district court of Hamilton county on the 2d day of September, 1912, the plaintiff announced ready for trial, and the defendants Thompson & Scott announced not ready for trial, and thereupon presented to the court their application for a continuance; the same being their first application for a continuance, and the said term of court being the appearance term of court, in so far' as the said defendants were concerned, and the said application being in words and figures substantially as follows:</p> <p>“ ‘P. J. Hart v. Stephenville North & South Texas Railway Company and Thompson & Scott. In the District Court of Hamilton County, Texas, September Term, 1912.</p> <p>“ ‘Now come the said defendants, Thompson & Scott, and say they are not ready for trial and cannot safely go to trial at this term of court, and for cause for an order granting them a continuance of this cause until the next term of court show: That upon the service of citation herein upon John P. Scott, a member of the defendant firm, in May of this year, the said defendants'employed the firm of Goodson & Good-son, of Comanche, Tex., to represent them in the defense of this suit. Said defendants say that they are nonresidents of this state and reside in the city of St. Louis, and state of Missouri, where their principal office is situate ; that not long since, by letter bearing date August 25, 1912, written by Mr. H. N. Goodson, the junior member of the firm of Goodson .& Goodson, they were informed of the serious illness of the senior member of the firm, G. H. Goodson, and that on account of the same the said G. H. Goodson would be unable to represent these defendants in the trial of this cause, and further that the illness of the said G. H. Goodson was of so serious a nature that the younger member of the firm, H. N. Goodson, who was a son of said G. H. Goodson, would be unable to leave his father’s bedside, and would.be unable to be present at the trial of this case at this term of court, and that by reason thereof the said firm withdrew from the case and informed the said defendants that they would be compelled to get another attorney. Thereupon, as soon as they could and heretofore, to wit, on the 26th day of August, 1912, the said defendants employed one Harry P. Law-ther, of Dallas, Tex., to represent them in the defense of this suit and turned over to the said Lawther all the facts in their possession relative to the nature of the accident and gave him the names of all the witnesses whose .testimony would be material to their defense.</p> <p>“ ‘Said defendants further show that from the facts given to the said Lawther by the said defendants, and from the allegations in plaintiff’s petition itself, it appears that one H. P. Cooper was the foreman in charge of the work at the time of the accident, and that it is charged that the accident and consequent injury to Roland Hart was due to his negligence. Said defendants show that the said H. P. Cooper is not now in their employ, and that they are informed and believe that he has since said accident and since he left their employ removed from the state of Texas and now resides in the town of Fairbanks, Ariz. Defendants say that since the employment by them of the said Lawther to defend this suit the time has been too short for them to propound interrogatories and take the depositions of the said Cooper; that the testimony of the said Cooper is material to their defense herein, and they cannot safely go to trial without the same; that they expect to prove by the said Cooper that on the day of the accident he was in charge of the work train on the Stephenville North & South Texas Railway, which was engaged in doing finishing work on said railway and was distributing ties off of a flat car on the train; that the train was moving along slowly at about five or six miles an hour; that he personally knew where the ties were needed, and himself was engaged in throwing the ties from the car; that he was ignorant that the said Roland Hart or any other employé was sitting upon the flat car upon which the ties were loaded; that the proper place for said employés to have been riding was in the tool car, and he had ordered them into the tool car before the train started and supposed they were there; that the tie which struck the said Roland Hart and inflicted the injury complained of was not thrown upon the said Hart by the said Cooper, nor was the said Hart struck by the same as it was thrown from the car, but that said tie, after it struck the ground, rebounded and struck the said Hart, inflicting the injury complained ■ of; that such an occurrence was an unusual one, not expected by the said Cooper, was unforeseen by him and unexpected, and was purely an accident; that the said Cooper did not know, as aforesaid, that the said Hart was on the car or was sitting in any position where he could possibly have been injured until he heard the said Hart cry out after the accident.</p> <p>“ ‘Said defendants further show that another witness whose testimony is material to their defense herein, without which they cannot safely go to trial, is W. J. Cavanaugh, who was the conductor on the train at the time of the accident; that the said Cavan-augh is at present temporarily residing in the county of Grimes, in the state of Texas, and that since the employment of the said Lawther by the defendants, the time has been too short for him to propound interrogatories and obtain the deposition of the said Cavanaugh; that said defendants expect'to prove by the said Cavanaugh that, as aforesaid, he was the conductor on the work train at the time the said Roland Hart was injured; that the said work train was engaged in distributing ties along the roadbed of the said Stephenville North & South Texas Railway wherever the same were needed in dressing the track; that before they started out the said Cooper, who was the foreman of the work, announced that they would distribute some ties along the track where they were needed, and that the manner of distributing the ties, to wit, throwing them from the flat car as the train moved slowly along, was well known to all the employes of the train and to the said Roland Hart; that the said Cavanaugh was standing beside the said Cooper when he threw off the tie, the collision with which by the said Roland Hart resulted in the injury complained of in plaintiff’s petition; that when the said tie struck the ground, for some reason which to said witness appeared to be inexplicable and which was unforeseen and unexpected by him, the said tie rebounded and struck the said Roland Hart on the leg where he sat on the side of the car and near the rear end of the car; that said tie was not thrown against said Hart by the said Cooper, nor did the same strike the said Hart as it left the car, but, as before stated, after it struck the ground it rebounded and struck the said leg of the said Roland Hart; and that the same was an accident, pure and simple, and was not due to the fault or negligence of any one.</p> <p>“ ‘Defendants further say that another witness whose testimony is material to their defense, and without which they cannot safely go to trial at this term of court, is H. Tyson, and that they are in receipt of a letter from one J. E. Tyson, the father of said H. Tyson, dated August 20, 1912, stating that his son H. Tyson resided in Indian Creek, Tex. Said defendants show that they expect to prove by the said Tyson substantially the same facts as will be testified to by the said Cooper and Cavanaugh. Said defendants say that since the employment of the said Lawther the time has been -too short for him to propound interrogatories and obtain the depositions of the said Tyson. Said defendants further show that they expect to procure the testimony of the said witnesses Cooper, Cav-anaugh, and Tyson by the next term of this court.</p> <p>“ ‘Said defendants further show that the serious illness of the said G. H. Goodson as aforesaid has prevented the said firm of Goodson & Goodson from making the proper preparations for the trial of this case and using the diligence required by the law for obtaining the testimony of the aforesaid witnesses ; that the same was entirely unexpected and unavoidable, and that the said defendants’ failure to have the said witnesses in attendance on this court, or to have their testimony, has been without any fault on their part or of their attorney; in fact, the same has been rendered impossible by the unfortunate and sad occurrence of the said serious illness of the elder Goodson, as aforesaid. Said defendants further show that this continuance is not sought for delay only, but that justice may be done.</p> <p>“ ‘Wherefore, the premises considered, said defendants pray the court to grant them a continuance of this cause until the next term of court. [Signed] Harry P. Lawther, Attorney for Defendants Thompson & Scott.</p> <p>“ ‘The State of Texas, County of Dallas.</p> <p>“ ‘Before me, the undersigned authority, upon this day personally appeared Harry P. Lawther, who being by me duly sworn, upon his oath says that the matters and things contained in the foregoing application for a continuance are true. [Signed] Harry P. Lawther.</p> <p>“ ‘Subscribed and sworn to before me this the 31st day of August, A. D. 1912. [Signed] Livingston M. Mays, Notary Public in and for Dallas County, Texas. [Seal.]’</p> <p>“In connection with the said application for a continuance, one L. M. Mays, Esq., the attorney who presented the same, informed the court that Mr. Harry P. Lawther, who was the attorney of record for the said defendants, was upon that day engaged in the trial of a case in the district court of Dallas county, and that by' reason thereof it was impossible for him to be in attendance upon the court on that day, and that it would be impossible for him to be in attendance on said court for two or three days; and the said Mays respectfully requested the court to pass the same until the said Lawther could get out to Hamilton county to attend the trial of said cause.</p> <p>“But the court, upon consideration of said application for continuance and of said request to postpone the trial of the cause for two or three days, overruled the said application for a continuance and refused said request to postpone, and thereupon the said cause proceeded to trial in the absence of said defendants’ attorney, the said Harry P. Lawther, and in the absence of any attorney to represent them and in their own absence, and in the absence of all of their material witnesses, and resulted in a verdict against these defendants in the sum of $6,-083, and to this action of the court in thns overruling said first application for continuance and in refusing said request to postpone for a few days the trial of said cause, the defendants, by the said L. M. Mays, who appeared only for the purpose of presenting said application for a continuance and presenting said request for postponement of trial, then and there excepted and now do here except, and pray that this, their bill of exceptions, may be approved and signed by the court and made a part of the- record herein, which is accordingly done.</p> <p>“-, Judge.</p> <p>“Harry P. Lawther, Attorney for Defendants.</p> <p>“I know nothing of this, but have no objection to bill. Marshall Ferguson.</p> <p>“In approving the above and foregoing bill of exception I desire to add the following explanation of my conduct'in overruling the application for a continuance in question:</p> <p>“First. The original answer of defendants Thompson & Scott was signed by the firm of ‘Lawther & Pope,’ and the said answer contained only a general denial and a general demurrer, and there was no plea alleging that Roland Hart had been guilty of contributory negligence.</p> <p>“Second. The application for a continuance did not show the date when the said Thompson & Scott had been served with citation, and the plaintiff in answer to the application for continuance called the court’s attention to the fact that the citation which was served on Thompson & Scott showed that the same was served on May 5, 1912, and the application for a continuance offered no explanation of why Thompson & Scott had not employed counsel to represent them at an earlier date and offered no explanation why the counsel they did employ could not and did not, if they desired the evidence of the witnesses named in the application for a continuance, prepare such depositions as should have been taken during the months of May, June, July, and up to August 23, 1912, and no explanation was offered why the said counsel so employed did not, if they desired the evidence of the said witnesses, exercise due diligence to secure their testimony during said months.</p> <p>“Third. No explanation was offered why the law firm Of Lawther & Pope did not prepare and have filed an application for a commission to take depositions' after they were employed; that the district court of Hamilton county convened on August 26, 1912, and on the 26th day of August, 1912, the attorney for Thompson & Scott, Mr. Harry P. Lawther, at the instruction of the court through the district clerk of Hamilton county, Tex., was informed that this cage was set down for trial on the 2d day of September, and had been so set for trial on said date at a former term of this court, and that the case would be called for trial on that day, and, the same being a jury case, that the court would expect said case to be tried on that date; that no explanation was offered in the said motion why other member of the firm of Lawther & Pope, to wit, Mr. Pope, defendants’ attorney of record, was not present and could not have been present to represent the firm of Thompson & Scott.</p> <p>“Fourth. No explanation was offered and no reason given by Mr. L. M. Mays, Esq., who presented the application for a continuance, could not and did not appear and represent the interest of the said Thompson & Scott on the trial of the case and at the time the court passed upon the application for a continuance; the court had no reason to believe that the said L. M. Mays would not continue to represent the said Thompson & Scott. In this connection I deem it proper to say that the said L. M. Mays did remain in Hamilton until after the testimony was introduced and the case submitted to the jury, although he was not in the courthouse and did not participate in the trial, stating to the court after the overruling of the application for a continuance that he did not' represent the defendants. In this connection, however, it is proper to state that Mr. Mays attended the court and presented the defendants’ application for a new trial and presented and conducted the case in the court op motion for new trial, interrogating witnesses on the hearing thereof, and he has also further represented the defendant to the extent of presenting and having approved this bill of exception. In this connection, I wish to say that Mr. Mays appears to be an exceedingly capable lawyer, and I am unable to see any reason why he could not have represented the defendants on the trial of the case in an efficient and able way.</p> <p>“Fifth. The motion for a continuance disclosed on its face that each and all of the witnesses on account of whose testimony a continuance was sought was present on the flat car at the time the plaintiff was alleged to have been injured, and would have testified to plaintiff’s injuries substantially as plaintiff did himself — that is, that plaintiff was injured by a tie being thrown by one Cooper, who was defendants’ foreman, from the fiat car in question while the train was moving — and apparently- the only difference in the absent testimony and that produced by the plaintiff was in the fact that the plaintiff’s testimony showed that he was injured by the tie after it was thrown by Cooper before it struck the ground, and the testimony sought by the defendant would have shown that he was injured by the tie striking him on the rebound after it had struck the ground. Inasmuch as defendants’ alleged act of negligence consisted in the act of their foreman throwing the- tie in question from the train while moving upon which Roland Hart was sitting, as it appears from the application that the defendants’ witnesses will swear, it does not occur to me to make material difference whether he was injured by the tie before or after it struck the ground.</p> <p>“Sixth. Prom the showing made in the application made for a continuance, the court was of the opinion that it was probably not true that Oooper did not know that Roland Hart was sitting on the flat car as testified to by him, for the reason that said application states that Cavanaugh and Tyson saw him struck with the tie ‘where he sat on the side of the car and near the rear end of the ear.’</p> <p>“Seventh. The motion for a continuance did not show that Cavanaugh and Tyson were not in the employment of the said Thompson & Scott, and it was not shown that the said Thompson & Scott had exercised the least diligence to secure the presence of the said W. J. Cavanaugh and H. Tyson.</p> <p>“Eighth. The motion for a continuance did not contain and was not supported by the affidavit of either G. H. Goodson or H. N. Goodson to the effect that the said Goodson & Goodson were employed to represent the said Thompson & Scott, and as a matter of fact on the hearing of the motion for a new trial it was disclosed by the affidavit of H. N. Goodson that the firm of Goodson & Good-son were employed by the .¿Etna Insurance Company or some insurance company, and not by Thompson & Scott, and no connection was shown on the hearing of the motion for a new trial or elsewhere in the record between the insurance company and said Thompson & Scott.</p> <p>“A jury was in attendance upon the court, and it would have seriously interfered with the business of the court to have dismissed the jury and either postponed or continued the case, and no good reason was shown to the court why both or at least one member of the firm of Lawther & Pope could not have attended said trial, or why the importance of this case was not of equal dignity or more importance than the one that Mr. Lawther was trying in Dallas. Furthermore, I do not feel that it is sufficient ground for a continuance that counsel is engaged in the trial of some other case in some other court. It was not shown but that the court in Dallas would have postponed the case there, if proper application had been made. It does affirmatively appear, however, that defendants’ attorney announced ready in said case at Dallas with knowledge of the fact that this ease had already been previously set.</p> <p>“With this explanation I approve the above and foregoing bill of exception and direct that it be made a part of the record in the above numbered and entitled cause.</p> <p>“J. H. Arnold, Judge Presiding.”</p> <p>The trial judge was mistaken in the statement that the original answer of Thompson & Scott was signed by the firm of Lawther & Pope. The transcript shows that it was signed by Harry P. Lawther, as attorney for Thompson & Scott; and there is nothing in the record to show that Mr. Lawther had a partner, as stated by the trial judge. It was shown that citation was served upon appellants on the 15th day of May, 1012, and that Goodscii & Goodson were employed to defend the case by the ¿Etna Insurance Company on June 28, 1912.</p>

Masterson, Judge. Suit by George Richter and others, suing for themselves and others similarly interested, against the City of Houston. From an order granting a temporary injunction, defendant appeals.

<p>1.Depositions (§ 88*) — Foundation—Proof.</p> <p>. Even though it were permissible, in offering the deposition of plaintiff’s wife in evidence, to show that she was unable to attend court on account of sickness, such proof should not have gone into details by showing that she had previously had two surgical operations performed and had been in the hospital.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 234-236)4, 242-245; Dec. Dig. § 88.*]</p> <p>2. Appeal and Error (§ 1051*) — Harmless Error — Admission op Evidence.</p> <p>Judgment will not be reversed for error in admitting evidence over objections, where the same facts were shown by the testimony of other witnesses without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>3. Damages (§ 166*) — Admissions.</p> <p>Where, at' the time a letter written to defendant by plaintiff’s attorneys, stating that plaintiff’s damages were $500, plaintiff had already suffered a considerable part of his injuries, and his attorneys must have known that he was entitled to compensation for future suffering, the letter was admissible in evidence in a subsequent action by plaintiff for $30,500 for such injuries.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.*]</p> <p>4. Evidence (§ 213*) — -“Compromise.”</p> <p>Plaintiff’s counsel, before the bringing of the present action, wrote to defendant stating that they thereby handed to defendant’s agent plaintiff’s claim and asked that the matter be taken up so as to give defendant an opportunity to settle it without suit, and that, if a satisfactory settlement was not had, they would be compelled to sue, and further stated, after reciting the nature of the injuries, that plaintiff had never fully recovered from the effects of-the injury, and alleged his damages to be $500, “which is offered as a compromise. Please have the company take the matter up with us if it desires to' make settlement.” Held,, that the letter was not an offer to compromise within the rule excluding it from evidence as such, since $500 was the full amount of the claim made therein, and the letter did not purport to offer to reduce such amount.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 758; Dec. Dig. § 213.* For other definitions, see Words and Phrases, vol. 2, pp. 1374-1375; vol. 8, p. 7609.]</p> <p>5. Appeal and Error (§ 1050*) — Exclusion of Evidence — Reversal.</p> <p>Error in excluding a letter written by plaintiff’s attorneys to 'defendant railroad company before bringing the present action for $30,500 damages, stating that plaintiff’s claim was for $500 damages, required the reversal of a judgment for plaintiff for $8,400.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p>

<p>1. Master ahd Servant (§ 274*) — Action for Injuries — Evidence.</p> <p>In an action for the death of an employé whose business it was to keep in repair an elevator shaft in an unfinished building and who was struck by a descending bucket used in hoisting building materials and allowed to fall of its own weight without any warning and without ascertaining whether deceased was in a position where he was likely to be struck, evidence that deceased had worked for defendant on other buildings at the same kind of work and where the apparatus and conditions were the same as on the building in question should have been admitted to show deceased’s intimate knowledge of the conditions and dangers of the work in which he was engaged at the time he was killed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.*]</p> <p>2. Appeal and Error (§ 1057*) — Harmless Error — Instructions.</p> <p>The exclusion of such evidence was harmless, where the undisputed evidence showed an intimate knowledge by deceased of the conditions of the work, the operation of the bucket in the shaft, the danger from the falling bucket to any one in the shaft when it was above him, the impossibility of any one above the bucket seeing him in the shaft or of conveying any warning to him, and of the fact that no signals had been provided for or were used.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194 — 4199, 4205; Dec. Dig. § 1057.*]</p> <p>3. Master and Servant (§ 217*) — Liability for Injuries — Assumption of Risk.</p> <p>Where an employs working on an elevator shaft in an unfinished building voluntarily placed himself in a position of danger while a hoisting bucket which was permitted to fall of its own weight was above him, although his work could have been accomplished by waiting until the bucket was lowered, with not only general knowledge that the bucket was operated in this way without giving warning before permitting it to drop, but also with knowledge that it would be so operated at the particular time and that no warning would be given, after being warned not to go in the shaft while the bucket was above him before, and at the time of, the accident, in reliance on his own ability to avoid the falling bucket, and not in reliance on any expectation that he would be warned, he assumed the risk of injury from the employer’s negligence in permitting the bucket to drop without warning him or without ascertaining whether he was in a position to be injured, since it does not affect the defense of assumed risk that the danger was brought about by the negligence of the employer, if the injured employé knew at the time of the dangerous condition brought about by the negligent conduct of the business and of the extra danger to himself therefrom.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p> <p>4. Master and Servant (§ 179*) — Liability for Injuries — Negligence oe Fellow Servant!</p> <p>Under Rev. St. 1895, art. 3017, subd. 1, giving a cause of action for wrongful death caused by the negligence of the proprietor, owner, charterer, or hirer of any railroad, stagecoach, or other vehicle for the conveyance of goods or passengers or by the unfitness or negligence of their servants or agents, and subdivision 2, giving such cause of action when death is caused by any wrongful act, negligence, unskillfulness, or default of another, a private corporation which is not one of those referred to in subdivision 1 is not liable for the death of an employé through the negligence of another employé, but is liable if the death was caused by the negligence of a vice principal.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 354-358; Dec. Dig. §*</p> <p>5. Master and Servant (§ 190*) — Liability for Injuries — Negligence of Fellow Servant.</p> <p>Where a vice principal negligently directed an. employé to signal an engineer to permit a hoisting bucket in an elevator shaft to drop without warning another employé working in the shaft or ascertaining whether he was in a position to be injured and he was struck by the bucket and killed, his death was due to the negligence of the vice principal, and not to the negligence of the coemployé; the death not having been caused by any negligent execution of the order by the coemployé but by its execution at all.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. §*</p> <p>6.Appeal and Error (§ 1175*) — Disposition —Rendering Final Judgment.</p> <p>In an action for the death of an employé where the evidence was fully developed and no evidence offered by plaintiff excluded, and the undisputed evidence showed that plaintiff assumed the risk and did not suggest that upon another trial any additional facts could be disclosed, the court in reversing a judgment for plaintiff would render judgment for defendant as permitted by Rev. St. 1895, art. 1027, providing that when the judgment below shall be reversed the court shall render such judgment as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in which cases the case shall be remanded for a new trial.</p> <p>[Ed. Note. — For Error, Cent. Dig. 1175.*] other cases, see Appeal and §§ 4573-4587; Dec. Dig. §</p> <p>On Motion for Rehearing.</p> <p>7.Master and Servant (§ 278*) — Actions for Injuries — Sufficiency of Evidence.</p> <p>In an action for the death of an employé working in an elevator shaft in an unfinished building and struck by a descending bucket used to hoist materials and permitted to fall by its own weight, evidence held insufficient to show that the vice principal in charge of the work promised to protect him while he was working in the shaft.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]</p>

H. McClelland, Judge. Action by A. E. Brown against Hiram S. Newsome. Judgment for plaintiff, and defendant appeals. Appellant and appellee entered into a contract which, omitting the particular description therein of the wagon, mules, etc., conveyed, as reduced to writing, was as follows: “State of Texas, County of Upshur.

<p>Appeal from District Court, Liberty County; L. B. Hightower, Judge.</p> <p>Action by Walter Forest against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals;</p>

<p>1. Appeal and Error (§§ 281, 743*) — !Proceedings in Trial Court — Motion for New Trial — Court Rules.</p> <p>Court of Appeals rules 24, 25, as amended January, 1912 (142 S. W. xii), contemplate that no question can be presented on appeal that has not been presented to the ‘trial court in a motion for new trial, whether the case has been tried by the court or jury, and that each assignment of error shall refer to, the paragraph of the motion for new trial in which the question covered by the assignment was presented to the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 2999, 3011, 3024, 3081; Dec. Dig. §§ 281, 743.*]</p> <p>2. Infants (§ 19*) — Custody—Evidence.</p> <p>In an action to determine the right to the custody of an infant, evidence held, to warrant a finding that the best interests of the infant would be served by delivering her into the custody of complainants.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 19; Dec. Dig. § 19.*]</p>

Conley, Judge. Action by Robert Morgan against F. O. Starr, defendant, and the City of Beaumont, garnishee. From a judgment in favor of the garnishee and defendant that plaintiff take nothing against the garnishee nor the defendant or his sureties on his replevin bond, plaintiff appeals.

Kittrell, Judge. Action for injunction by the Alf Bennett Lumber Company of Texas, in which other parties intervened as plaintiffs, against H. B. Fall and another, in which the Beaumont Timber Company intervened as defendant, with a cross-action by defendants and motion to dissolve a temporary injunction. Prom an order dissolving the temporary injunction, plaintiff lumber company appeals.

<p>1. Tbial (§ 194*) — -Instruction—Weight of Evidence.</p> <p>In an action against a carrier for wrongful expulsion, where the defense was that the carrier’s officers really believed with reasonable grounds that plaintiff was not the purchaser of the ticket which he presented for carriage, and the court generally charged the jury that, if plaintiff failed or refused to identify himself as the original purchaser in a manner to satisfy an ordinarily prudent person, then verdict should be for defendant, a special charge, given on request of the defendant, that, if there was a sufficient difference between the signature upon' the ticket offered and the signature made by plaintiff at the request of the train auditor to make plaintiff’s identification unsatisfactory, then the burden rested upon plaintiff to establish his identity by such proof as would satisfy the mind of a reasonable, prudent man, and unless this was done plaintiff was not entitled to passage, was not improper as upon the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194;* Carriers, Cent. Dig. § 1337.]</p> <p>2. Trial (§ 229*) — Instructions — Repetition.</p> <p>In an action against a carrier for wrongful expulsion, where the court charged abstractly upon defendant’s theory of defense, the giving of a special charge presenting the rule of law in connection with the concrete facts was not improper as undue repetition.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.*]</p> <p>3. Carriers (§ 356*) — Carriage of Passengers — Identification.</p> <p>A purchaser of a reduced rate ticket providing for identification of the holder as the original purchaser, to be established by signature or otherwise to the satisfaction of any agent or conductor whenever requested, and that the ticket should be void if presented by any person other than the original purchaser, has the burden of identifying himself to the railroad company’s train auditor as the original purchaser in such a manner as ought to satisfy an ordinarily prudent person in the situation of the auditor, and if he fails or refuses he cannot recover damages for ejection.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409, 1410, 1423-1432; Dec. Dig. § 356.*]</p> <p>4. Cabrieks (§ 384*) — Misleading Instructions.</p> <p>In an action by the purchaser of a reduced rate ticket for wrongful expulsion, a special charge, given at the request of defendant, that if there was sufficient difference between the signature upon the ticket offered and the signature by plaintiff, made at the request of the train auditor, to make identification unsatisfactory, then plaintiff was bound to establish his identity by proof to the auditor of such a character as to satisfy the mind of a reasonable, conscientious and prudent person, or he was not entitled to passage, was not so misleading to the jury as to render probable the rendition of an improper verdict or to induce them to consider alone the circumstances relevant to identification.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1497-1500; Dee. Dig. § 384.*]</p>

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by E. P. Boaz against the Marshal] & East Texas Railway Company. From a judgment for plaintiff, defendant appeals.</p>

W. Goodwin, Judge. On motion for rehearing. Decided in conformity to the answers to question certified to the Supreme Court, which can be found in 153 S. W. 299.

<p>Principal and Agent (§ 183*) — Actions by Agent.</p> <p>One who was a party to the contracts sued on could sue for their breach, though he was, when the contracts were executed, also an agent.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 691-700; Dec. Dig. § 183.*]</p>

Action by the Walter Box Company against W. D. Blackburn and others in which defendant named and another sued for judgment over against the Hoch Hardware Company. Prom a judgment for plaintiff for a lesser amount than claimed, it appeals.

Sinks, Judge. Action by Dock McDavid against the Houston Chronicle Publishing Company. From a judgment for plaintiff, defendant appeals. This is a suit for damages, compensatory and punitory, by reason of the publication of an answer in a divorce suit filed by the daughter of appellee in Houston.

<p>1. Sales (§ 88*) — Actions fob Price — Sufficiency of Evidence.</p> <p>Evidence, in an action for the price of fertilizer, held to support a finding that the parties orally agreed that the purchaser n,eed not pay for the fertilizer until he sold it.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 248-250; Dec. Dig. § 88.*]</p> <p>2. Sales (§ 89*) — Consideration of Contract.</p> <p>Where the purchaser of fertilizer, the price of which was payable by the original contract on demand, after arrival, did not agree to pay interest on the price up to the time he sold it, there was no consideration for a subsequent agreement by the seller that the purchaser need not pay the price until the fertilizer was sold.</p> <p>TEd. Note. — For other cases, see Sales, Cent. Dig. §§ 251, 252, 259; Dee. Dig. § 89.*]</p> <p>On Appellee’s Motion for Rehearing.</p> <p>3. ArPEAL and Error (§ 493*) — Record-Contents— Jurisdiction of Lower Court.</p> <p>In a case involving less than the mimi-mum value required to give original jurisdiction to the county court, the fact that the county court acquired jurisdiction by an appeal from a justice’s court must appear from the transcript which the justice is required to send to the county court by Rev. Civ. St. 1911, arts. 2396, 2397, in order to give the Court of Civil Appeals jurisdiction of an appeal from the county court, and the fact of jurisdiction cannot be shown by the appeal bond filed in the justice’s court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2282-2284; Dec. Dig. § 493.*]</p> <p>On Appellee’s Motion for Further Rehearing.</p> <p>4. Costs (§ 236*) — Appellate Costs.</p> <p>The fact that the county court, instead of dismissing a suit brought by appellant for want of jurisdiction, which it did not have, rendered judgment that appellant take nothing, and that the Court of Civil Appeals, instead of dismissing appellant’s appeal, reversed the judgment and dismissed the case, was not ground for adjudging costs against appel-lee, but costs should be adjudged against appellant in both courts.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 907-933; Dec. Dig. § 236.*]</p>

<p>Appeal from Hays County Court; J. B. Wilson, Judge.</p> <p>Action by the Maryland Motor Car Insurance Company and others against J. F. Siens-heimer & Company. Judgment-for plaintiffs, and defendant appeals.</p>

<p>Deeds (§ 211*) — 'Validity—Misbepresenta-TIONS BY GRANTEE — EVIDENCE.</p> <p>Evidence of defendant, _ in an action by a father to cancel a deed gift to his son because of misrepresentations as to the amount of land conveyed, held! to sustain the finding that there were no misrepresentations, even conceding that the burden was on the son to produce a preponderance of the evidence.</p> <p>[Ed.' Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dee. Dig. § 211.*]</p>

<p>Appeal from Smith County Court; Jesse F. Odom, Judge.</p> <p>Action by Walter Connally & Company against Keeling & Field. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Hopkins County; R. L. Porter, Judge.</p> <p>Action by Tom Moore, by next friend, against W. L. Bryson and others. Judgment for plaintiff. Defendants appeal.</p>

<p>1. Trial (§ 260*) — Requested Instructions —Effect of Main Charge.</p> <p>In an action for injuries to a servant, a requested instruction that plaintiff could be compensated only for such future result of the injuries as they might believe would reasonably result therefrom, and not for consequences of the injury which might possibly result therefrom, is covered by the court’s charge that in assessing damages the jury ought to consider the nature and extent of the injury, the pain he had suffered as the proximate result of the injury, and any impairment of his ability to earn money proximately resulting, and in that way ascertain what amount will fairly and reasonably compensate him for the injury.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>2. Trial (§ 260*) — Requested Instructions— Inclusion in Main Charge.</p> <p>In an action for injuries in which it was shown that the absence of the patella reflexes was indicative of an injury to the spine, a requested instruction that if the jury believe that the patella reflexes were absent, yet also believed same were absent prior to the time when he was injured, is properly refused as covered in the main charge, that the jury could consider only such injuries as plaintiff received on the occasion of the collision.</p> <p>TEd. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>3. Evidence (§ 477*) — Opinion of Witness.</p> <p>In an action for personal injuries, a witness may properly state that plaintiff was not able to go to his meals.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2237-2241; Dec. Dig. § 477.*]</p> <p>4. Trial (§ 85*) — Evidence—Objections.</p> <p>An objection to the whole of testimony admissible in part is properly overruled.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.*]</p> <p>5. Evidence (§ 127*) — Exclamation of Pain by Person Injured.</p> <p>An exclamation of pain made by one injured on pressure being applied on his spine by a physician examining him is admissible on the question of his injuries.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 377-3S2; Dec. Dig. § 127.*]</p> <p>6. Damages (§ 132*) — Excessive Damages— Injury to ¿fine.</p> <p>Where the evidence showed a permanent injury to the spine, a verdict of $8,000 will not be held excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p>

<p>Appeal from District Court, Panola County ; W. C. Buford, Judge.</p> <p>Suit by Jim Gary against E. O. Johnson and others. Erom a judgment for plaintiff, defendants appeal.</p>

N. Browning, Judge. Action by Eugene Caruthers against the Ft. Worth & Denver City Railway Company and others, in which the Ft. Worth & Denver City Railway Company prayed judgment over against its codefendants in case a judgment was rendered against it. Judgment for plaintiff against the Ft. Worth & Denver City Railway Company, and it appeals.

<p>1. Negligence (§ 136*) — Proximate Cause-Question for Jury.</p> <p>Though the issue of proximate cause is a question of fact, the evidence may he such that the court may assume its existence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*)</p> <p>2. Carriers (§ 303*) — Carriage oe Passengers — Duty to Stop Train.</p> <p>Trainmen owe to a passenger the duty to stop the train and permit him to alight at his destination, and where they fail to stop at all, or to stop for a time sufficient to enable him to alight, but put him down in the dark at a place some distance from the station, whereby he falls into a cattle guard and is injured, they are guilty of actionable negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*)</p> <p>3. Carriers (§ 305*) — Injuries to Passengers — Proximate Cause.</p> <p>Where a passenger carried beyond his destination on a dark night was compelled to alight at an unusual place and walk the track back to the depot, an injury to him caused by his falling into a cattle guard in the track was the proximate result of the trainmen’s negligence, provided the passenger was not guilty of contributory negligence in failing to avoid the danger.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1132, 1136-1139, 1245-1246; Dec. Dig. § 305.*]</p> <p>4. Carriers (§ 247*) — Passengers—Who Are.</p> <p>A passenger remains such after alighting from a train until he leaves the railway premises or for a reasonable time in which he may leave them, and during that time is entitled to the protection of a passenger.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.*]</p> <p>5. Carriers (§ 303*) — Carriage oe Passengers — Safe Depots.</p> <p>The duty of a carrier to exercise proper care to provide safe places for passengers to board and alight from trains may not be evaded by negligently carrying a passenger beyond his destination and compelling him to get on or off the train at an unusual place in the dark.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*]</p> <p>6. Carriers (§ 347*) — Injuries to Passengers — Contributory Negligence — Question for Jury.</p> <p>Whether a passenger carried beyond Ms station on a dark night and compelled to alight at an unusual place and walk the track back to the depot was guilty of contributory negligence precluding a recovery for injuries sustained by falling into a cattle guard held for the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 138S-1397, 1402; Dec. Dig. § 347.*]</p>

A. Wilcox, Judge. Action by W. D. Hunter against J. T. Hill, who filed a cross-action. Prom a judgment for plaintiff, which denied relief on his cross-action, defendant appeals.

A. Turner, Judge. Habeas corpus by Albert C. Boyd against Phanie L. Boyd, to obtain the possession of a child, Emma Rachel Boyd, four years old, held by defendant. From a judgment awarding the custody of the child to defendant, relator appeals. This is a habeas corpus proceeding by the father to obtain the possession of his child, a girl four years of age, held by its mother. The trial resulted in a judgment continuing the child in the custody of the mother.

<p>1.Tbespass to Try Title (§ 47*) — Judgment —Final Judgment.</p> <p>The judgment, in trespass to try title, that plaintiffs take nothing, and that defendant recover of and from them the land in controversy, and that a certain road is the boundary between the parties, is a final one, though the parties agreed that the only question involved was as to the dividing line between their properties, thus eliminating, and depriving the court of power to determine, all but one issue.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.*]</p> <p>2. Judgment (§ 251*) — Pleadings to Sup-pokt.</p> <p>Where the most that appears from the pleadings and to agreement of the parties filed in trespass to try title is that there was a dispute between the parties as to the location of a line separating lands owned by them, what the dispute is not appearing, they do not present an issue to try, and do not support a judgment determining the boundary line.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*]</p> <p>3. Boundaries (§ 37*) — Evidence.</p> <p>Testimony, that in 1859 and subsequently the road to H.’s mill turned northwest before reaching the west line of the B. survey, is without probative force in establishing the south boundary line of plaintiffs’ land, described in their deed of 1894 as “the old road that formerly ran from H.’s old mill by the old plantation of R., as explained in a deed from L. to R., dated February 18, 1850.”</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.*]</p>

<p>Appeal from District Court, Bexar County; Claude V. Birkhead, Judge.</p> <p>Action by Catherine Wiest against H. S. Groesbeek, administrator of William Swain Hadley, deceased, W. H. F. Moss, and others. From a judgment for plaintiff, the defendants named appeal.</p>

Action by the Byrd Irrigation Company against J. G. Smyth. From a judgment awarding damages for the condemnation of certain land for an irrigation project, plaintiff appeals.

<p>1. TRIAL (§ 420*) — DIRECTION of Verdict— Waxvee of Eekok.</p> <p>Where appellant did not stand on his motion for an instructed verdict, but after it was overruled introduced testimony, there was no merit in his assignment of error in overruling such motion.</p> <p>i[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.*]</p> <p>2. Trial (§ 253*) — Instructions—Ignoring Issues.</p> <p>In trespass to try title, in which plaintiff attacked the boundary agreement relied upon by defendant on the ground of fraud, and the testimony on that issue was conflicting, the failure to submit the issue of fraud by defendant in obtaining the agreement from plaintiff was error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>3. Boundaries (§ 46*) — 'Validity of Agreement — Mistake.</p> <p>Where the means of information were equally open to both parties to a boundary agreement, a mistake as to the true location of the line, as shown by an approved survey, was not sufficient to invalidate the agreement, unless one of the parties knew the true line and thereby gained an advantage over the other.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.*]</p> <p>4.Boundaries (§ 46*) — Validity of Agreement — Fraud.</p> <p>Where one of the parties to a boundary agreement, who knew about a survey fixing the true line, concealed that fact from the other and thereby induced him to sign a boundary agreement to his disadvantage, the action of the first party constituted such fraud as would invalidate the agreement since, while the law favors agreements as to boundaries when fairly made on equal terms, it condemns fraud in obtaining such agreements.</p> <p>[Ed. Note. — For other cases, see Cent. Dig. §§ 212-226, 249-251; Boundaries, Dec. Dig. 46.*]</p>

<p>1. New Trial (§ 95*) — Grounds—Absence of Plaintiff and Counsel — Diligence.</p> <p>Where a nonresident plaintiff employed a nonresident attorney, and relied wholly on him to look after the case, and the attorney was injured about 10 days before the case was called for trial, and on the day before trial was obliged to go to bed for medical treatment, and plaintiff was not present at the trial, and showed no reason for his absence, except that his attorney had not advised him of the time to attend, a denial of a new trial after judgment by default was not an abuse of the trial court’s discretion, in the. absence of a showing that the attorney was in readiness to attend court when taken ill and of a showing of a meritorious cause of action.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 190-194; Dec. Dig. § 95.*]</p> <p>2. New Trial (§ 95*) — Grounds—Absence of Plaintiff and Counsel — Diligence.</p> <p>The absence of an attorney, hy reason of illness or other cause, is not ground for new trial unless the party was diligent and without fault, and unless injustice will result from a refusal, which is established by exhibiting a good cause of action or a meritorious defense.</p> <p>[Ed. Note. — For other eases, see New Trial, Cent. Dig. §§ 190-194; Dee. Dig. § 95.*]</p> <p>3. Trespass to Try Title (§ 47*) — Judgment —Effect.</p> <p>A judgment in trespass to try title that plaintiff take nothing by his suit is an adjudication that title is in defendant.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.*]</p> <p>4. Dismissal and Nonsuit (§ 60*) — Want of Prosecution — Dismissal.</p> <p>Where plaintiff fails to appear in person or by attorney, and there is no cross-action, the only judgment which should be rendered is one of dismissal for want of prosecution.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*]</p> <p>5. APPEAL AND ERROR (§ 719*) — QUESTIONS Review able — Error Apparent of Record.</p> <p>The error in rendering judgment that plaintiff in trespass to try title take nothing, where defendant merely filed a general demurrer, and pleas of not guilty and limitations, with a prayer that plaintiff take nothing, and where plaintiff did not appear in person or by attorney, is error apparent of record, which the court on appeal must notice, though not assigned, _ and the court on appeal must enter a proper judgment which is one of dismissal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p> <p>6. Dismissal and Nonsuit (§ 81*) — Setting Aside Dismissal for Want of Prosecution-Meritorious Cause of Action.</p> <p>A motion to set aside a judgment of dismissal for want of prosecution should allege facts constituting a meritorious cause of action.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.*]</p> <p>7. Dismissal and Nonsuit (§ 81*) — Setting Aside Judgment of Dismissal — Freedom from Negligence.</p> <p>A motion to set aside a judgment of dismissal for want of prosecution must show that the judgment cannot be ascribed to negligence of plaintiff or his attorney.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.*]</p>

<p>1. Limitation ot? Actions. (§ 127*) — Petition —Amendments.</p> <p>The running of limitations is stopped pending an action as to the cause of action alleged in the petition but not as to an amended petition setting up a new cause of action and asking for a different or inconsistent remedy.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p> <p>2. Limitation of Actions (§ 127*) — Petition —Amendments.</p> <p>Where the original petition against a carrier declared on tort charging the carrier with negligently failing to divert on the request of the shipper a car of freight, an amended petition, declaring on an express parol contract made with an agent of the carrier giving the shipper' the right to sell his goods while in transit and on notice to have them diverted to a new destination and delivered to the buyer, set up a new cause of action, and limitations against it ran until it was filed, because the same evidence would not support the allegations of the original and amended petitions and the measure of damages would not be the same.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p>

Action by C. G. McKinney against E. F. Rowson & Co., begun in justice court, where on judgment for plaintiff, defendant appealed to the county court, and from a judgment of the county court, also in favor of plaintiff, defendant again appeals. Appeal from Cameron County Court; Jno. Bartlett, Judge.

<p>1. Insurance (§ 145*) — Agents—Authority— Redelivery of Canceled Policy.</p> <p>An agent of an insurance company, as defined in Rev. Civ. St. 1911, art. 4961, with authority, to issue and deliver policies, has authority to redeliver a policy of insurance theretofore canceled, and his act will bind the company unless procured by fraud.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 276-291; Dea Dig. § 145.*]</p> <p>2. Insurance (§ 669*) — Insteuctions — Authority of Agent.</p> <p>In an action on an insurance policy, which had been canceled and later redelivered by the agent of the company, instructions which are calculated to induce the jury to believe that the company must have expressly authorized its agent to redeliver the canceled policy before it would be bound thereby are misleading and properly refused.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dee. Dig. § 669.*]</p> <p>3. Appeal and Ekeor (§ 742*) — Assignments of Error— Statements.</p> <p>Assignments, -based on error in the exclusion of testimony, will be overruled where they are not followed by a statement showing what objections were sustained by the court to the excluded testimony.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 1056*) — Harmless Error — Exclusion of Testimony — Issue Not in the Case.</p> <p>Assignments of error, based on the exclusion of testimony, will not be considered where the testimony ivas as to an issue not in the case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent, Dig. §§ 4187-4193, 4207; Dee. Dig. § 105é.*]</p> <p>5. Trial (§ 296*) — Instructions — Restricting Jury to Evidence.</p> <p>Where a jury is told in one charge that the burden is upon plaintiff to prove his case by a preponderance of the evidence, a charge on a particular issue, which states that if the jury believe certain facts they may find for the plaintiff, is not bad as permitting the jury to ignore the evidence and -base their belief on other sources.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p>

<p>Appeal from, District Court, Tarrant County ; Jas. W. Swayne, Judge.</p> <p>Action by W. N. Turney against the Ft. Worth Belt Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by E. P. Bomar against William Beeves and others. From the judgment, defendants appeal.</p>

<p>1. Appeal and Error (§ 743*) — Assignments of Error — Preparation—New Trial.</p> <p>Assignments of error which do not refer to that portion of a motion for new trial in which the errors are complained of, as required by Court of Appeals Buies 24, 25 (142 S. W. xii), will be disregarded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p> <p>2. Continuance (§ 25*) — Absent Witnesses —Premature Suit.</p> <p>It was not error to deny a motion for continuance to obtain the testimony of an absent witness to testify to facts showing that the suit was prematurely brought, where plaintiff’s testimony on that question was of such an uncertain character that it did not show that the debt was not due.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent./Dig. § 73; Dec. Dig. § 25.*]</p> <p>3. Evidence (§ 222*) — Declarations Against Interest — Maturitv oe Debt.</p> <p>Where defendant claimed that the debt sued on was not due, evidence of a third person, that defendant stated to him that the -indebtedness would fall due in four months from the date it was incurred, was admissible to support plaintiff’s allegation that the claim had matured.</p> <p>[Ed. Note. — For other cases, see -«Evidence, Cent. Dig. §§ 786-800, 803-808; Dec. Dig. § 222.*]</p> <p>4. Appeal and Error (§ 748*) — Assignments of Error — Consideration.</p> <p>Errors which are fundamental will be considered on appeal, notwithstanding the assignments are not in proper form.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.*]</p> <p>5. Judgment (§ 253*) — Conformity to Pleading — Foreclosure—Amount of Debt.</p> <p>Where plaintiff’s petition in a suit to recover $1,900 alleged that $800 of the amount was secured by chattel mortgage on a stallion, it was error to decree a foreclosure of the lien on the stallion for the entire amount of the debt.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. § 253.*]</p>

<p>1. Evidence (§ 472*) — Opinion Evidence — Proper Time for Transit.</p> <p>It is not proper for a witness, in an action for delay in a shipment of live stock, to give his opinion as to what is a reasonable time for the shipment; since that is the question which the jury are to determine in deciding whether the railroad company was negligent.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.*]</p> <p>2. Carriers (§ 230*) — Carriage of Dive Stock — Instruction—Measure of Damage.</p> <p>In an action for damage to live stock in transit, an instruction that the measure of damage was the difference between the market value of the cattle in their condition when delivered and in the condition in which they should have been delivered; that the measure of damage for delay is the depreciation in value while detained at the shipping point, and the difference in the market value at the time of arrival and at the time they should have arrived, was erroneous, since the first part comprehends the entire measure of damage, and the second part authorizes the jury to add additional compensation thereto.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]</p> <p>3. Carriers (§ 222*) — Carriage of Dive Stock — Action for Damage — Parties.</p> <p>In an action for damage to cattle in transit, the carrier cannot defend on the ground that plaintiff was a joint owner of the cattle with another, where the carrier made the contract of carriage with him alone.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 952; Dec. Dig. § 222.*]</p> <p>4. Trial (§ 267*) — Instructions—Charge in General Terms — Sufficiency.</p> <p>Where a special charge presented by the defense is not applicable to the evidence, a charge by the court presenting an affirmative defense in general terms is sufficient.</p> <p>[Ed. Note.—Eor other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dee. Dig. § 267.*]</p> <p>5. Trial (§ 252*) — Instructions — Conformity to Evidence.</p> <p>Where, in an action against two carriers for delay in a shipment of live stock, no evidence tending to show a delivery to, or delay by, the second carrier was introduced, an instruction asked by the first carrier shifting the burden of explaining the delay and the cause of injury to the second carrier is properly refused.</p> <p>[Ed. 'Note.—Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>6. Appeal and Error (§ 1037*)—Harmless Error—Refusal to Quash Citation.</p> <p>Error in overruling a motion to quash a citation is harmless after defendant’s appearance and answer in the court below.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 4032; Dec. Dig. § 1037.*]</p>

<p>Appeal from Somervell County Court; J. H. Farr, Judge.</p> <p>Action by J. W. Brazzell against O. B. Hendrix and another. Judgment for plaintiff. Defendant I-Iendrix appeals.</p>

<p>1. Carrieks (§ 228*) — Shipment oe Live Stock — Actions — Sufficiency. oe Evidence.</p> <p>In an action against a carrier for negligence and delay in transporting a shipment of mules, the testimony of a witness that .the reasonable market value of such mules, at the point of destination in the condition they would have been in, was from $50 to $60 was not sufficient proof of the value of the mules or the damages sustained.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p> <p>2. Carriers (§ 229*) — Shipment oe Live Stock — Negligence and Delay — Measure oe Damages.</p> <p>The measure of damages recoverable for negligence and delay, on the part of a carrier in transporting a shipment of mules, was the difference in their market value at the time and in the condition in which they arrived at their destination and their market value at the time and in the condition in which they would have arrived if handled with ordinary care and diligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]</p> <p>3. Evidence (§ 472*)— Facts or Conclusions.</p> <p>In an action against a carrier for delay in transporting a shipment of live stock, it was error to permit a witness to testify as to what would be a reasonable time for the transportation of such a shipment.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195,2248; Dec. Dig. § 472.*]</p> <p>4. Appeal and Error (§ 1173*) — Reversal as to One or More Defendants.</p> <p>Where plaintiff recovered against two defendants, and a verdict was directed for the third defendant, the setting aside of the final judgment on the appeal of the defendants against whom plaintiff recovered set it aside as to all, as there can be but one final judgment; and hence the court could not affirm as to the third defendant, although no error was assigned to the court’s action in directing a verdict for it.</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. § 1173.*]</p>

<p>Appeal from Denton County Court; S. H. Hopkins, Judge.</p> <p>Action by J. F. Drahn and others against the- Texas & New Orleans Railroad Company and another. Judgment for plaintiff, and said defendant appeals.</p>

<p>Appeal from District Court, Cotüe County ; Jo. A. P. Dickson, Judge.</p> <p>Suit by Mrs. Eula F'armer and another against the Farmers’ State Bank of Quanah. From judgment for plaintiffs, defendant appeals.</p>

Error from District Court, Medina County; R. H. Burney, Judge. Action by D. F. Price against C. M. Thompson and others. From a judgment for plaintiff against the defendant named, and also against defendant Thompson in favor of other defendants, defendant Thompson brings error.

E. Decker, Judge. Action by ,H. C. Wells against E. B. Buer-ger, in which a writ of garnishment issued against the Globe Fire Insurance Company. From an order dismissing the writ of garnishment plaintiff appeals.

<p>Appeal from Collingsworth County Court; R. H. Cocke, Judge.</p> <p>Action by the City National Bank of Wellington against the Globe Fire Insurance Company. Prom a judgment dismissing the insurance company as garnishee, the bank</p> <p>appeals.</p>

<p>1. Trial (§ 120*) — Argument oe Counsel— Improper Argument.</p> <p>A comment by a party’s counsel in his argument to the jury on evidence introduced on the trial does not justify an argument by the counsel of the adverse party relating to facts he was not permitted to prove by reason of objections made by the party’s counsel and sustained by the court.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.*]</p> <p>2. Appeal and Error (§ 1060*) — Harmless Error — Improper Argument op Counsel.</p> <p>Where the evidence of plaintiff strongly tended to rebut the allegations of defendant’s special answer supported entirely by the testimony of defendant, the improper argument of defendant’s counsel referring to facts which he was not permitted to prove by the court sustaining objections to the evidence and the statement that the facts were objected to because they would have supported defendant’s contention was reversible error.</p> <p>Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*]</p>

<p>Appeal ■ from . District Court, Galveston County; Clay S. Brigg, Judge.</p> <p>Action by Charles Clarke, doing business under the name of Charles Clarke & Co., against the Mannheim Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

Thomas, Judge. Action by E. Moseley against R. W. Warren and others in which Warren vouched in John A. Wood. There was a judgment for plaintiff against defendant, and judgment over in favor of him against Wood, and Wood brings error.

<p>1. Judicial Sales (§ 19*) — Liability of BIDDERS.</p> <p>Where on-a sale in a suit to foreclose a vendor’s lien the property was struck off to the holders of the lien on a bid by their brother assuming to act in their behalf, they were not bound by the purchase unless the brother was authorized to bid and purchase for them.</p> <p>LEd. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 41-^3, 45, 46; Doc. Dig. § 19.*]</p> <p>2. Appeal and Erbob (§ 1011*) — Review-Questions op Fact.</p> <p>Where the holders of a vendor’s lien and their brother both testified that the brother had no authority to bid for the holders of the lien at a sale of the property under foreclosure, the trial court’s finding that he acted without authority was not erroneous, although there were circumstances tending to show such authority.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-39S9; Dec. Dig. § 1011.*]</p>

<p>Appeal from District Court, Jones County; Jno. B. Thomas, Judge.</p> <p>Action by J. E. Chandler against William Dillard and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Deeds (§ 54*) — Delivery—Fraud.</p> <p>A deed is not effective unless delivered to the grantee with the intention by the grantor that it shall become operative, and a deed obtained from its depositary without the consent of the grantor through the fraud of the grantee is insufficient to pass title, and innocent purchasers or incumbrancers are protected only on the theory of estoppel, based on the negligence of the grantor resulting in the unauthorized delivery of the deed.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 116; Dec. Dig. § 54.*J</p> <p>2. Escrows (§ 14*) — Bond for Title — Delivery — Necessity.</p> <p>Where the obligee in a bond for title which is placed in escrow for delivery on compliance with conditions, procures a delivery of the bond through his fraud without the consent of the ob-ligor, _ the delivery is insufficient, and persons claiming through the obligee acquire no rights in the absence of the obligor’s negligence.</p> <p>[Ed. Note. — For other cases, see Escrows, Cent. Dig. §§ 17-20; Dec. Dig. § 14.*]</p> <p>3. Escrows (§ 14*) — Bond for Title — Unauthorized Delivery — Effect.</p> <p>Where a bond for title was placed in escrow for delivery on compliance with an unacknowledged contract, the obligor, by failing to record the contract or to take any steps to protect third persons dealing with the obligee, was not chargeable with negligence, and third persons dealing with the obligee, who by fraud procured the delivery of the bond, acquired no rights as against the obligor.</p> <p>[Ed. Note. — For other cases, see Escrows, Cent. Dig. §§ 17-20; Dee. Dig. § 14.*]</p> <p>4. Vendor and Purchaser (§ 215*) — Bona Fide -Purchaser.</p> <p>The title of an obligee in a bond for title is equitable, and subsequent purchasers, and incumbrancers take the same charged with all the defects to which it would be subject in the hands of the obligee.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 449-452; Dec. Dig. § 215.*]</p> <p>5. Public Lands (§ 173*) — School Lands— Title and Right of Purchaser.</p> <p>A grantee of one to whom school lands had been awarded by the Commissioner of the General Land Office acquires an equitable title only prior to issuance of patent, but he may enforce rights which his grantor could enforce against third persons claiming under the grantor’s obli-gee in a bond for title, based on the fact that the obligee procured delivery of the bond by fraud, and the mere failure of the grantee to pay to the state the annual interest installments does not impair his right to relief, until forfeiture has been made and entered by the land commissioner as provided by law.</p> <p>[Ed. Note. — For other,cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p>

<p>Appeal from District Court, Cottle County; Jo A. P. Dicksop, Judge.</p> <p>Action by Mrs. A. F. Straight and another against J. W. Goodwin and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Brokers (§ 53*) — Commissions — When Earned.</p> <p>Where a purchaser for real estate is procured through the instrumentality of a broker, such broker is, as a general rule, entitled to commissions.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p> <p>2. Brokers (§ 86*) — Commissions — When Earned — Evidence.</p> <p>Evidence held to support a finding that a broker employed to procure a purchaser of real estate was the efficient and procuring cause of a sale actually made by another broker, authorizing a recovery of commissions.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.*]</p> <p>3. Bkokees (§ 55*) — Commissions — When Earned.</p> <p>The rule that a broker, employed to procure a purchaser who is the efficient and procuring cause of a sale, is entitled to his commissions, applies where the property is sold for a less sum than originally demanded by the owner, when employing the broker, though the sale is actually made to the same purchaser by another broker.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 82-84; Dec. Dig. § 55.*]</p> <p>4. Brokers (§ 55*) — Commissions — When . Earned.</p> <p>An owner authorizing several brokers to sell real estate for a specified price may consummate the sale through the broker first producing a customer1, but he must not interfere in favor of one broker to the disadvantage of another.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 82-84; Dee. Dig. § 55.*]</p>

<p>Appeal from District Court, Midland County; 6. J. Isaacs, Judge.</p> <p>Action by A. L. Conoway against J. A. Morrow and another. Prom a judgment for plaintiff, defendants appeal.</p>

Stratton, Special Judge. ' Action by Penn G. Dunn against the Missouri, Kansas & Texas Railway Company of Texas. Begun in justice’s court and appealed by defendant to the county court, ■where -judgment was again rendered for-plaintiff, and defendant appeals.

<p>1.LANDLORD AND TENANT (§ 209*) — LEASE— Liability for Rent — Subletting.</p> <p>Where a lease provided ' that the tenant might sublet the premises, but that bis liability for rent, should not be diminished or released thereby, and that the subtenants should also be bound to pay the rent to the landlord, and not to the lessee, and should be bound to pay the notes given to the landlord for rent, etc., such provision bound the tenant for the rent whether he sublet the premises or not.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. § 209.*]</p> <p>2. Evidence (§ 441*) — Written Lease — Variance by Parol.</p> <p>A provision in a written lease, authorizing the tenant to sublet the premises, but providing that the same should not affect the tenant’s liability for rent, could not be varied by any .contemporaneous parol agreement.</p> <p>[Ed. Note. — For other cases, see Evidence, . Cent. Dig. §§ 1719, 1723-1763, Í765-1845, 2030-2047; Dec. Dig. § 441.*]</p> <p>3. Landlord and Tenant (§ 209*) — Rent Notes —Action — Contract with Subtenants — Evidence.</p> <p>Where a lease provided that the tenant might sublet, but that such subletting should not affect the tenant’s liability for rent, the tenant’s contract with his subtenants was not material in an action by the landlord against the tenant on notes given for rent to accrue.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. § 209.*]</p> <p>4. Landlord and Tenant (§ 231*) — Liability for Rent — Release.</p> <p>In a lease authorizing the tenant to sublet, but providing that no subletting should affect the tenant’s liability for rent, evidence that the tenant, on informing the landlord that he was ill and wished to sublet the premises and go away and rest for six months, was told that it made no difference to the landlord who occupied the premises so long as the rent was paid, and that the tenant should go ahead and rest up, did not show a release of the tenant’s liability for rent.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.*]</p> <p>5. Landlord and Tenant (§ 231*) — Action for Rent — Defenses—Adjoining Premises —Unsanitary Condition — Evidence.</p> <p>Evidence of an unsanitary condition of adjoining premises belonging to a landlord, in the absence of allegation or proof that the tenant’s subtenants vacated the leased premises on account thereof, was inadmissible as a defense to an action for rent.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.*]</p> <p>6. Trial (§ 170*) — Question for Court or Jury — Direction of Verdict.</p> <p>In an action on rent notes, the court properly directed a verdict for plaintiff, where ’ defendant offered no valid defense thereto.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 390-394; Dec. Dig. § 170.*]</p> <p>7. Landlord and Tenant (§ 195*) — Action for Rent — Occupancy of Premises.</p> <p>Where defendant gave notes for rent under a lease, the fact that he did not occupy the premises for the whole term was immaterial to his liability on the notes.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 790-793; Dec. Dig. | 195.*] :</p> <p>8. Landlord and Tenant (§ 209*) — Sublet^ ting — Collection of Rents.</p> <p>Where a lease authorized a tenant to sublet, and made the subtenants liable to the landlord for rent, it was the duty of the tenant, and not of the landlord, to collect the rents from the subtenants.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. § 209.*]</p>

<p>Appeal from Navarro County Court; J. M. Blanding, Judge.</p> <p>Action by W. F. Elliott against M. Y. Clark and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. CARRIERS (§ 58*) — Carriage or Goods — Bill oe Lading — Rights op Transferee.</p> <p>Under a bill of lading providing .that the carrier would not be liable for any fault of the shipper or discrepancy in weight, it was not liable to the transferee of the shipper’s draft with, bill of lading attached, for the amount overpaid on account of such discrepancy.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 58.*]</p> <p>2. Carriers (§ 69*) — Carriage of Goods — Bill of Lading — Action by Transferee-Evidence.</p> <p>Evidence, in an action against a carrier for the amount overpaid by plaintiff upon a draft with bill of lading attached, showing a shipment of 62,000 pounds of corn when in fact the car contained but 46,000 pounds, held to show that the bill of lading truly indicated the amount delivered for carriage.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 217-219, 222, 228, 230, 232-239; Dec. Dig. § 69.*]</p> <p>3. Carriers (§ 69*) — Carriage of Goods— Action by Transferee of Bill of Lading —Effect of Shipment.</p> <p>In an action against a carrier for the amount overpaid by plaintiff upon a draft with bill of lading attached showing a shipment of 62,000 pounds of corn when in fact the car when unloaded contained but 46,000 pounds, tried' before the court without a jury and without any finding of fact, a judgment generally for plaintiff was not a finding that but 46,000 pounds were originally delivered to plaintiff.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 217-219, 222, 228, 230, 232-239: Dec. Dig. § 69.*]</p> <p>4.Appeal and Error (§ 934*) — Review — Presumptions, in Aid of Judgment.</p> <p>On appeal in an action tried without a jury and without any finding of fact, every reasonable intendment of the evidence must be indulged in aid of the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. Í 934.*]</p>

<p>Appeal from District Court, Jones County; Jno. B. Thomas, Judge.</p> <p>Action by S. N. Neatherly against L. N. Biter and another as sureties, and J. J. Bozeman, as city marshal for false arrest. Judgment for plaintiff, and defendant sureties appeal.</p>

<p>Appeal from District Court, Jones County; Jno. B. Thomas, Judge.</p> <p>Suit by J. A. Sanders and another against Mrs. M. J. Moore and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Aijpeal and Error (§ 1050*) — Harmless Error — Admission oe Evidence.</p> <p>In an action on a note, where defendant alleged that it was given for the price of goods purchased by him, and which were returned to and received by plaintiff in settlement and satisfaction of the note, the admission of defendant’s ' testimony ' as to the value of the goods and the price at which they were returned, which he based on catalogue prices, if erroneous on the ground that the catalogue was the best evidence, was harmless, since the value of the goods was wholly irrelevant; the only issue being whether they were returned to and received by plaintiff in full satisfaction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ■§§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p> <p>2. New Trial (§ 97*) — Grounds—Surprise.</p> <p>Where defendant’s answer clearly indicated his defense, and plaintiffs did not apply for a continuance in order to procure rebutting testimony, they could not claim that they were surprised by his testimony as a ground for a new trial.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 195-198; Dec. Dig. § 97.*]</p>

<p>Error to District Court, Hood County; W. J. Oxford, Judge.</p> <p>Action by the Hood County Mill & Elevator Company against the Ft. Worth Grain & Elevator Company, in which the Walker Grain Company and another doing business under that name were made defendants together with a third party. Judgment over in favor of the Ft. Worth Company against the Walker Grain Company, and the latter company brings error.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by O. P. Pyle against Milton Park and others. Judgment for plaintiff, and defendant Park appeals.</p>

<p>1. Appeal and Error (§ 301*) — Motion for New Trial — Necessity.</p> <p>The overruling of a general demurrer going to the foundation of the action, if error, is fundamental and need not be assigned as error in the motion for a new trial in order to be reviewed.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*]</p> <p>2. Appeal and Error (§ 301*) — Motion for New Triai^-Specification of Error — Necessity.</p> <p>In view of the statute, any ruling which appears of record, such as the overruling of special demurrers to the petition, may be considered on appeal, though not assigned as error in a motion for a new trial pursuant to Court of Civil Appeals rules; rule 24 (142 S. W. xii) requiring that all grounds of error relied on be specified in the motion for new trial to be considered on appeal.</p> <p>[Ed. ATote. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dee. Dig. | 301.*]</p> <p>3. Schools and School Districts (§ 22*)— Organization — Validity.</p> <p>Const, amend. 1909, § 3a, provides that every school district heretofore formed, whether the territory embraced within its boundaries lies wholly within a single county or partly in two or more counties, is hereby declared to be “and from its formation to have been a valid and lawful district, and that all bonds heretofore issued by such districts, which have been approved and registered, are declared to have been issued in conformity with the Constitution and laws and binding upon the district.” Held, that the constitutional amendment validated districts from their formation which were invalid because of want of constitutional authority to create them, though they were subsequently subdivided into other districts, and the fact that the district had been adjudged invalid by the Supreme Court before the enactment of the amendment would not prevent it from being validated by the amendment.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 41; Dec. Dig. § 22.*]</p> <p>4. Schools and School Districts (§ 32*)— Changes in District.</p> <p>An independent school district is not exempted from change by the Legislature.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-54;' Dec. Dig. § 32.*]</p> <p>5. Schools and School Districts (§ 32*)— Change of Boundaries.</p> <p>Where there was no law authorizing the change of boundaries of an independent district, the fact that the president of the school board of a district was notified and heard in proceedings to detach a part of the district and place it in the district of another county would not validate the change; it being invalid for want of authority.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-454; Dec. Dig. § 32.*]</p> <p>6. Schools and School Districts (§ 24*)— Organization of District — Collateral Attack.</p> <p>If the organization of an independent school district was not wholly invalid, it could be attacked for irregularities in its organization only in a direct proceeding brought for that purpose and not in a collateral proceeding.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 42, 45, 47 — 49; Dec. Dig. § 24.*]</p>

M. Smithdeal, Judge. Action by First State Bank of Mt. Calm against E. C. Fain and another. From a judgment changing the venue after a trial on defendants’ plea of privilege, plaintiff appeals.

<p>Error to District Court, iPalo Pinto County; W. J. Oxford, Judge.</p> <p>Action by J. R. •Creighton and others against Frank Richards and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. Election oe Remedies (§ 3*) — Legal and Equitable.</p> <p>A suit for specific performance of a contract to purchase, which was dismissed, was not an election of remedies by the vendor so as to preclude a subsequent action for the difference between the contract price and the sum realized upon a sale of the property.</p> <p>[Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. §,§ 3, 4; Dec. Dig. § 3.*]</p> <p>2. Election oe Remedies (§ 3*) — Legal and Equitable. '</p> <p>In order that a suit for specific performance by the vendor should constitute an election of remedies so as to preclude a subsequent action for damages for breach of contract to recover the difference between the contract price and the amount for which the vendor sold the property, the vendee must show that a specific enforcement of the contract was available.</p> <p>[Ed. Note. — Por other cases, see Election of Remedies, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.*]</p>

<p>1. Evidence (§ 29*) — Judicial Notice — Acts OE LEGISLATURE.</p> <p>The Court of Civil Appeals will take judicial notice that, at a certain time at which an appeal record was filed, none of the acts of the Legislature at its last regular session had been published.</p> <p>[Ed. Note. — For other cases, see Evidence, . Cent. Dig. §§ 36, 37, 39, 43-46, 48; Dec. Dig. § 29.*]</p> <p>2. Appeal and Error (§ 628*) — Appear to Wrong District.</p> <p>Where appellant’s failure to file his appeal in the proper District Court of Civil Appeals was caused by the general impression that the Governor had vetoed the act relating to the redistricting of the Court of Civil Appeals, known as the “Single Bill,” and the Supreme Court shared the impression, and the cause was transferred to the proper district, motion to dismiss or affirm on certificate, will be denied.</p> <p>[Ed. Note. — For other' cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dee. Dig. § 628.*]</p> <p>3. Pleading (§ 46*) — Parties—Legal Entity.</p> <p>Where the pleadings and affidavit and bond in an attachment suit show that plaintiff is suing as a bank by and through its president and solé manager, L. T. L., and that the bank is a private bank owned and controlled solely by L. T. L., and he had in fact no partner, the attachment proceedings will not be quashed on the theory that the plaintiff is not a legal entity, since the pleadings sufficiently show that L. T. L. was the real and only party suing.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 101-103; Dec. Dig. § 46.*]</p> <p>4. Attachment (§ 202*) — Sale of Property —Right to Proceeds.</p> <p>Where part of cattle attached did not belong to defendant, and a third person sued plaintiff for such levy, it is error for court to order all the proceeds of the sale of the cattle to be turned over to plaintiff in attachment.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 655, 656, 657; Dee. Dig. § 202.*]</p>

<p>Appeal from District Court, San Saba County; Clarence Martin, Judge.</p> <p>Action by J. A. Carter against J. M. Hall. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Bexar County Court for Civil Cases; Geo. W. Huntress, Judge.</p> <p>Action by the Hall Safe & Fixture Company against Abe Shaenfield and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1.Appeal and Error (§ 750*) — Assignments op Eeeobt-Conclusions op Law — Eppect.</p> <p>Assignments of error which do not attack the findings of fact by the court below, but only the conclusions of law, raise only the question of the sufficiency of the findings to support the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.*]</p> <p>2. Landlord and Tenant (§ 66*) — Estoppel op Tenant — Adverse Possession.</p> <p>Where one claiming land under the statute of 5 and 10 year limitations was in possession thereof under a lease, his possession is not adverse to the landlord, in the absence of a repudiation by him of his tenancy.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 199-209; Dec. Dig. § 66.*]</p> <p>3. Evidence ■(§ 265*) — Admissions—Recitals in Deeds — Eppect.</p> <p>A recital in a deed that the land conveyed thereby was deeded to the grantor by his father and mother is not sufficient to establish the existence of the deed referred to as against those not in privity with the parties to the deed containing the recitals.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.*]</p> <p>4. Tenancy in Common (§ 15*) — Adver'se Possession.</p> <p>The plea of limitations is not available to parties who have been in possession as tenants in common with the claimants of adverse interest.</p> <p>[Ed. Note. — -For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]</p> <p>5. Judgment (§ 732*) — Conclusiveness — Matters in Issue but Not Decided.</p> <p>Where a judgment in a former suit to try title to lands affirmatively shows that the lands derived through one conveyance only were covered by judgment, such judgment is not res judicata between the same parties as to lands derived, through a different conveyance, even thopgh such lands were within the pleadings in the former case.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1260, 1261; Dec. Dig. § 732.*]</p> <p>6. Judgment (§ 713*) — Conclusiveness— Matters in Issue on Pleadings.</p> <p>All matters put in issue by the pleadings, and which could have been adjudicated in the suit, are concluded by the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. § 713.*]</p> <p>7. Appeal and Error (§ 877*) — Parties Entitled to Allege Error — Error Not Af-pecting Appellant.</p> <p>Where in an action for partition between numerous parties, appellants have recovered all the land to which they are entitled, they cannot complain of error in the court in awarding to certain of the appellees land to which appellants have no claim.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.*]</p> <p>8. Cancellation op Instruments (§ 47*)— Evidence — Agency Coupled with Interest.</p> <p>Evidence that an attorney in fact had not complied with the terms of his powers of attorney, coupled with an interest, and had made misrepresentations to his principals, held, sufficient to warrant a judgment canceling the powers of attorney.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 102, 103; Dec. Dig. § 47 ;* Contracts, Cent.- Dig. § 1199.]</p>

B. Muse, Judge. Action by the Guaranty State Bank & Trust Company and others against the Jones Lumber Company and others. From a judgment, the defendant named and other defendants appeal.

<p>Appeal from District Court, Grayson County; J. M. Pearson, Judge.</p> <p>Guy Claussen was convicted of burglary, and lie appeals.</p>

<p>1. Appeal and Error (§ 743*9 — Assignments oe Error — Refeeence to Motion eob New Tbial.</p> <p>Assignments of error which merely state that error was complained of in appellant’s motion for a new trial, but do not refer to that part of the motion in which the error was complained of, as required by rule 25 of the Courts of Civil Appeals (142 S. W. xii), will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p> <p>On Rehearing.</p> <p>2. Cotjbts (§ 92*) — Rules op Decision — Obi-tee Dictum.</p> <p>Where the applicability of amended rule 24 for Courts of Civil Appeals (142 S. Wr. xii), amended January 24, 1912, was not presented by the record in a case in the Supreme Court, its discussion of the matter to which the rule related should be regarded as obiter dictum, and as such not binding on this court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. § 92.*]</p> <p>3. Appeal and Ebeob (§ 288*) — Prerequisites — Motion poe New Tbial.</p> <p>Prior to the adoption of rule 71a for district and county courts (145 S. W. vii), amended January 24, 1912, and requiring a motion for a new trial to be filed in all cases on appeal unless the error complained of is fundamental, except in such cases as the statutes do not require a motion for a new trial, there was no necessity in any case to file such a motion when the grounds for reversal related to any ruling of the trial court, .though, in order that certain matters might be reviewed upon by appeal, they must have been called to the attention of the trial court by such a motion.</p> <p>[Ed. Note. — F’or other cases, see Appeal and Error. Cent. Dig. §§ 1673, 1676-1679; Dec. Dig. § 288.*]</p> <p>4. Couets (§ 78*) — Rules op Oouet — Authority to Make.</p> <p>Under the express provision of Rev. Civ. St. 1911, art. 1524, authority is conferred upon the Supreme Court to make, establish, and enforce rules of practice and procedure for the government of the various courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dec. Dig. § 78.*]</p> <p>5. Appeal and Ebroe (§ 281*) — Prerequi- ' sites — Motion poe New Trial — Rules op Court.</p> <p>Rule 24 for Courts of Civil Appeals (142 S. W. xii) provides that assignments of error •shall distinctly specify the grounds of error relied on and set forth in the motion for a new trial, and that a ground of error not distinctly set forth in the motion shall be considered as waived unless it be fundamental error ; rule 25 requires that the motion shall point out the part of the record in which the error is complained of; and rule 71a for the district and county courts (145 S. W. vii) requires a motion for a new trial to be filed in all cases where the parties desire to appeal, unless the error is fundamental. Held, that the rules, considered together, were intended to change the rules of practice established by the former decisions of the Supreme Court, and especially the rule that the party need not call certain errors to the attention of the trial court in a motion for a new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.*]</p> <p>6. Appeal and Error (§ 281*) — Presentment op Grounds op Review — Motion poe New Trial.</p> <p>Rule 71a for district and county courts (145 S. W. vii), requiring that a motion for a new trial be filed in all cases where parties desire to appeal, does not conflict with Rev. Civ. St. 1911, §§ 2061, 2062, dispensing with the necessity of taking formal bills of exception to the ruling of the court in giving, refusing, or qualifying of instructions and rulings and actions of the court which otherwise appear of record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.*]</p> <p>7. Appeal and Ereob (§ 281*) — Presentation op Grounds op Review — Motion poe New Trial — Statutes.</p> <p>The importance of rules 24 and 25 for Courts of Civil Appeals (142 S. W. xii), requiring assignments of error to distinctly specify the error relied upon and distinctly set forth in a motion for a new trial, on penalty of waiver, and providing that the motion shall point out the part of the record in which the error is complained of, and rule 71a for district and county courts (145 S. W. vii) making a motion for a new trial necessary in all cases of appeal fronj the judgment of a trial court, is not destroyed by Acts 33d Leg., approved April 4, 1913, amending Rev. Civ. St. 1911, art. 1612, providing that the appellant shall file with the clerk of the court below all the assignments of error, distinctly specifying the grounds on which he relies before he takes the transcript_ from the clerk’s office, and that where a motion for a new trial has been filed the assignments need not be repeated, since the amendment merely dispenses with the necessity of filing assignments when a motion for new trial has been filed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.*]</p>

<p>1. Appeal and Error (§ 743*) — Assignments oe Error — Reference to Motion for New Trial.</p> <p>An assignment of error not referring to that portion of the motion for a new trial in which the error is complained of, as required by rule 25 of Courts of Civil Appeals (142 S. W. xii), will not be considered.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.-)</p> <p>2. Appeal and Error (§ 732*) — Assignments oe Error — Specifications of Error.</p> <p>An assignment of error in overruling defendant’s motion for a new trial is too general to require consideration.</p> <p>[Ed. Note. — Por other eases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]</p> <p>3. Appeal and Error {§ 759*) — Briefs— Copying Assignments of Error.</p> <p>Assignments of error which are not true copies of the originals appearing in the record cannot be considered.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>4. Appeal and Error (§ 1135*) — Affirmance —Insufficient Presentation of Case.</p> <p>Where the assignments of error cannot be considered because insufficiently presented, and no fundamental error appears, the judgment will be affirmed.</p> <p>[Ed. Note. — Por other eases, see Appeal and Error Cent. Dig. §§ 4454, 4455; Dec. Dig. § 1135.*]</p>

<p>Appeal from District Court, Pecos County; W. C. Douglas, Judge.</p> <p>Action by T. N. McKenzie against the Imperial Irrigation Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error (§ 743*) — Briefs—Assignments of Error — Reference to Motion for New Trial.</p> <p>Assignments of error not referring to that part of the motion for a new trial in which the error is complained of, as required by rules 24 and 25 of Courts of Civil Appeals, as amended January 24, 1912 (142 S. W. xii), cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p> <p>2. Appeal and Error (§ 1133*) — Affirmance —Insufficient Presentation of Case.</p> <p>Where assignments of error are not sufficient to present the case on appeal, and an examination of the record discloses no fundamental error, the judgment must be affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453; Dec. Dig. § 1133.*]</p>

<p>Appeal and Ebbob (§ 743*) — Questions Reviewable — Assignments of Ebbob — Rules of Court.</p> <p>Assignments of error containing no reference to the part of the motion for new trial in which the errors were complained of in the trial court, as required by Court of Civil Appeals Rule 25 (142 -S. W. xii), will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p>

Birkhead, Judge. Action between Marco Bargna and Mary Bargna. There was a judgment for the latter, and the former brings error.

<p>Appeal from Martin County Court; A. C. Eidson, Judge.</p> <p>Action between C. C. Slaughter and L. C. Kirkpatrick. Judgment for Kirkpatrick, and Slaughter appeals.</p>

<p>1. Instjbaiíce (§ 150*) — Life Policy — Construction — Suicide Clause.</p> <p>Where a life insurance policy provided that the agreements, benefits, and privileges stated on subsequent pages were made a part ot the contract, and on the second page contained a heading “agreements, benefits and privileges,” a provision that, in case of suicide within one year, the company should be liable only for the premiums paid, stated under a subhead, “general provisions,” on the third page, is made a part of the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 305-307; Dee. Dig. § 150.*]</p> <p>2. Insurance (§ 151*) — Life Policy — Construction — Application.</p> <p>In the absence of a statute, an application for life insurance, which contains a clause limiting the liability in case of suicide to the net reserve, is made a part of the policy by a clause therein that it is issued in consideration of the application.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 308-311; Dec. Dig. § 151.*]</p> <p>3. Insurance (§ 134*) — Life Policy — Construction.</p> <p>Under Rev. Civ. St. 1911, art. 4951, providing that every contract for life insurance, except those which are indisputable after two years or less, shall be accompanied by a copy of the application, a clause in a policy providing that “it shall be incontestable after one year,” provided the required premiums are paid, is free from conditions as to residence, travel, or place of death, does not impose an extra burden upon the insured, but frees him from those conditions, and the policy is within the exception contained in the statute.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent Dig. §§ 214-217; Dec. Dig. § 134.*]</p>

<p>Appeal from District Court, Potter County; James N. Browning, Judge.</p> <p>J. L. Culwell was convicted of crime, and appeals.</p>

<p>1. Trial (§ 139*) — Questions foe Juey — Directed Verdict.</p> <p>The court is authorized to take a case from the jury only when the evidence is of such a conclusive character that there is no room for ordinary minds to differ in the conclusion to be drawn from it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.*]</p> <p>2. Parent and Child (§ 2*) — Custody.</p> <p>In an action between a father and another over the custody of the father’s minor child, the paramount consideration is the interest and welfare of the child; but, the father being the natural guardian, and as such entitled to the custody of his child, _ it will be awarded him unless he is shown incompetent to have charge of it, or it be demonstrated that the welfare of1 the child demands a different disposition.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.*]</p> <p>3. Parent and Child (§ 2*) — 'Custody—Actions— Evidence.</p> <p>In an action by a father against. his. deceased wife’s sister for the custody of his minor child, evidence as to whether it was for the benefit of the child to be in the custody of his father held to raise a question for the jury.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.*]</p> <p>4. Parent and Child (§ 2*) — Custody—Affections of Child.</p> <p>In an action by a father to reclaim the custody of his minor child, whom he had not supported or had any relations with until after the death of the child’s mother, when it was some 11 years old, the affections of the child may be considered in determining the question of its disposal.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dee. Dig. § 2.*]</p> <p>5. Parent and Child (§ 2*) — Custody of Child — Conclusiveness of Judgment — Matters Concluded.</p> <p>An order of the county court, appointing a father guardian of the estate and person of his minor child, who inherited, the proceeds. of a life policy from his mother,, is not conclusive as to the custody of the child, and will not, despite the provision of the Constitution that the district court shall have only appellate jurisdiction over the county court in matters of guardianship, preclude that tribunal from determining the right of the father to the custody of the child, for the statute expressly declares that where one of the parents is dead, the survivor is the natural guardian of the minor children, and entitled to be appointed guardian of their estate, and therefore, although the county court is given jurisdiction of all matters of guardianship, that portion of its order making the father guardian of the child’s person is coram non judice.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.*]</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by D.. F. Taylor against the State Mutual Fire Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Collingsworth County; D. E. Decker, Judge.</p> <p>Action by B. T. Bray against J. W. Swear-ingen. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by E. W. Mebus against the El Paso Electric Railway Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Collin County; J. M. Pearson, Judge.</p> <p>Action by W. H. Horn against S. H. Housman and others. Judgment for plaintiff. Defendant Housman appeals.</p>

<p>Appeal from District Court, McLennan County; J. N. Gallagher, Special Judge.</p> <p>Action by Mrs. Marian Humphries and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, McLennan County; J. N. Gallagher, Special Judge.</p> <p>Action by Mrs. P. C. Jackson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Witnesses ' (§ 345*) — Impeachment—Proof 'of Indictment for Misdemeanors.</p> <p>A witness in a civil action may not be impeached by proof that he has been indicted for misdemeanors.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.*]</p> <p>2. Witnesses (§ 350*) — Party to Civil Suit as Witness — Impeachment.</p> <p>Under Rev. Civ. St. 1911, art. 3688, providing that no person shall be incompetent to testify because he is a party to the suit, and article 3647, providing that either party may examine the opposing party as a witness, but the examination must be conducted under the rules applicable to other witnesses, a party to a civil suit who testified in his own behalf may not be impeached by proof that he has been indicted for misdemeanors.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.*]</p> <p>3. Carriers (§ 316*) — Injuries to Passengers— Actions — Burden of Proof.</p> <p>The burden of proof on the whole case resting on a passenger suing for injuries by the derailment of the train never shifts, though proof of an accident to the train and injury to the passenger creates a presumption of fact against the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §8 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.*]</p> <p>4. -Teiai. (§ 194*) — Instructions—Comment on Weight oe Evidence.</p> <p>A charge in an action for injuries to a passenger by the derailment of the train that, if the train was derailed, the fact of derailment is prima facie evidence of the carrier’s negligence, is objectionable as a comment on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>5. Trial (§ 253*) — Instructions—Ignoring Evidence.</p> <p>Where, in an action for injuries to a passenger by the derailment of a train, there was evidence of a reasonable explanation of the derailment, a charge that, if the train was derailed, the burden was on the carrier to show that it was not caused through its negligence, and that the fact of derailment was prima facie evidence of negligence, was erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. § 253.*]</p>

<p>Appeal from Titus County Court; Sam Porter, Judge.</p> <p>Action by Sonk Counts against the Grand Temple & Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. Judgment for plaintiff. Defendant appeals.</p>

<p>Carriers (§ 321*) — Actions for Injuries— Instructions.</p> <p>In an action for injuries by a person who boarded a train with a passenger for the purpose of assisting her to a seat and attempted to alight after the train started, where the only evidence as to the conductor’s knowledge of his intention to alight was that relating to a conversation between plaintiff and the conductor, an instruction claimed to have authorized a finding of such knowledge, even though he did not have such conversation, could not have misled the jury, and was not reversible error under rule 62a for Courts of Civil Ap-- • peals, prohibiting reversals for errors not amounting to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of am improper judgment.</p> <p>[Ed. Note. — For other cases, .see Carriers, .Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*)</p>

<p>1. Telegraphs and Telephones (§ 20*) — -Injury prom Wires — Instructions—Definition.</p> <p>In an action for injuries to a horse caused by a wire left in the highway by a telephone company, where the evidence raised the question of negligence of the defendant, and the charge given by the court did not define negligence, it was reversible error to refuse a charge, requested by the defendant, that if the jury believed that an ordinarily prudent man, situated as defendant was, would have left the wire there, the defendant was not negligent, since without such a charge the jury were not instructed as to the degree of care required of the defendant.</p> <p>[Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.*]</p> <p>2. Telegraphs and Telephones (§ 20*) — Injury prom Wires — Instructions—Anticipation op Injury — Necessity.</p> <p>Where it was relevant to the evidence, it was error to refuse a requested charge that unless an ordinarily prudent man, situated as de-fndant was, would have reasonably anticipated that an accident would occur from his act in leaving a telephone wire in the highway, the defendant was not liable.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.*]</p> <p>3. Telegraphs and Telephones (§ 20*) — Injury prom Wires — Evidence—Admissibility — Precautions Against Recurrence.</p> <p>In an action against a telephone company for injuries to a horse caused by a wire left in the highway, where there was a conflict in the evidence as to the ownership of the wire, evidence that the defendant’s district chief shortly after the accident ordered linemen to remove the wire was admissible as tending to show ownership.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.*]</p> <p>4. Evidence (§ 317*) — Hearsay—Statement by Others Than Parties.</p> <p>In an action against a telephone company to recover for injuries to a horse caused by a wire left in the highway by the company, it is error to permit a witness whose statements are not binding on the company to testify as to what he told the owner of the horse.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*] Reese, J., dissenting in part.</p>

<p>Appeal from District Court, Concho County*; Jno. W. Goodwin, Judge. J. W. Wilson was convicted of aggravated assault, and he appeals.</p>

<p>Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge. Action by the Cicero Smith Lumber Company against Mrs. M. J. Woods and others. Judgment for the defendants, and plaintiff appeals.</p>

<p>Appeal from Hunt County Court; Geo. B. Hall, Judge. Action by Ward & Brown against the St. Louis & San Francisco Railway Company and others. Judgment for plaintiffs, and' defendant railway company appeals.</p>