Volume 158 — South Western Reporter

Wicks, Special Judge. Action by C. C. Abee against J. A. Clop-ton and W- C. Holland. From a judgment for plaintiff against both defendants and in favor of defendant Holland against defendant Clopton, defendant Holland appeals.

<p>1. Appeal and Error (§,719*) — Assignments oe Error — Necessity oe Assignments.</p> <p>While ordinarily, in absence of fundamental error apparent upon the face of the record, assignments of error will not be considered when not presented as required by the appellate court rules, under Eev. Civ. St. 1911, art. 4645, providing that the case on appeal from interlocutory orders granting or refusing an injunction may be heard on the bill, answer, and affidavits, assignments of error need not be filed in such case but the case will be beard on bill, answer, and the evidence introduced.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p> <p>2. Injunction (§ 9*)— Ordinances — Right.</p> <p>Equity will not enjoin the enforcement of a void ordinance where its enforcement would not injuriously affect complainants’ property rights! and hence will not enjoin the enforcement of an ordinance prohibiting stock from running at large in a city, even if void, where it is not shown that complainants own any animals in the city.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 8; Dec. Dig. § 9.*]</p>

<p>1. Limitation ox Actions (§ 55*) — Accrual ox Right.</p> <p>Where defendant’s lessor laid its track m the street in front of plaintiff’s residence, but plaintiff was not damaged, until the track was leased by defendant, the statute of limitations did not begin to run until the beginning of the damage; and hence plaintiff’s action is not barred because of the long continued use by defendant’s lessor.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]</p> <p>2. Railroads (§ 114*) — Injuries from Maintenance — Findings—Conflicts.</p> <p>In an action for damages for the maintenance of tracks in a street in front of plaintiff’s property, which caused a depreciation in its value, the jury answered special issues 1 and 2, which were whether the permanent operation by defendant caused greater damage than the operation by defendant’s lessor, and whether the increased use caused greater depreciation, in the affirmative, and fixed the amount of the depreciation, and also answered special issue 5, whether, leaving out of consideration any previous use of the tracks, defendant’s use of the tracks caused a depreciation, in the affirmative, fixing the same amount of damage. Special question 4, whether the method of the operation since the defendant began to use the tracks would cause an increased damage, was answered in the negative, and question 4½, which was as to the amount of the future damage, was not answered. Held, that the answers to the special questions and issues were not conflicting, and supported a judgment for plaintiff; question 4 referring to the manner of the operation of the trains, and not to the increased operation.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §,§ 365-371; Dec. Dig. § 114.*]</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by C. A. Kinkel and wife against the Rio Grande & El Paso Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Pecos County; W. C. Douglas, Judge.</p> <p>Action by John Broughton, independent executor of James P. Douglas, deceased, against Mary L. Purington. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales (§ 130*) — Rescission — Actions — Sufficiency of Evidence.</p> <p>Evidence, in an action by the purchaser to rescind the sale of an automobile, held to show that plaintiff kept and used the car after he knew that its defects could or would not be cured by the seller.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.*]</p> <p>2. Sales (§ 121*) — Rescission—Waives.</p> <p>The purchaser of an automobile, by keeping and using it after he became satisfied that its defects could or would not be cured by the seller, waived his right to rescind the contract because of such defects, leaving as his only remedy an action for damages for breach of warranties.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 296-301; Dec. Dig. § 121.*]</p> <p>3. Sales (§ 121*) — Rescission—Fbaud.</p> <p>As a rule, one defrauded in a contract of sale must disaffirm at the earliest practical time after discovering the fraud, and if he retains and continues to use the property thereafter he waives his right to rescind, especially when he elects to affirm the contract by notifying the seller that he will hold him for damages for breach of warranty.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §,§ 291-301; Dec. Dig. § 121.*]</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by J. C. Beebe and others against Hallie B. Sweeney and others. From a judgment for defendants, plaintiffs appeal.</p>

Kittrell, Judge.' Suit for partition by Emma Williams and another against Julia Randall and others. Judgment in favor of defendants, and plaintiffs appeal.

Application in the county court by A. C. Abraham for appointment de bonis non against Elmer C. Kimmons and others, contestants. On trial de novo on appeal to the district court, judgment for the applicant, and contestants appeal.

<p>Appeal from District Court, Colorado County; M. Kennon, Judge.</p> <p>Action by Hattie Brown and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Red River County; Ben H. Denton, Judge.</p> <p>Action by Arch Baker against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Carriers (§ 318*) — Personal Injuries — Sufficiency of Evidence. — Injury.</p> <p>Evidence in an express messenger’s action for injuries held to show that the injury complained of was caused by the accident on defendant’s train.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*]</p> <p>2. Damages (§ 130*) — Excessive Damages— Personal Injuries.</p> <p>In an express messenger’s action for injuries, where the jury found that he was injured in his back and spine, a verdict of $2,-000 would not be disturbed as being excessive.</p> <p>[Ed. Note. — For other, cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.*]</p> <p>On Motion for Rehearing.</p> <p>3. Evidence (§ 461*)— Parol Evidence to Vary Writing — ambiguity—Release.</p> <p>A writing executed by an express messenger in settlement of his claim against defendant railroad for personal injury releasing the company from the consequences of injury at A., and from all manner of actions, suits, debts, and sums of money, was uncertain as to what causes of actions were meant, so that parol evidence was admissible to establish the intention of the parties.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.*]</p>

Error from District Court, Tarrant County; R. H. Buck, Judge. Action by the American National Bank against A. D. Lloyd and another. Judgment for plaintiff, and the defendant named brings error.

<p>1. Specific Performance (§§ 5, 102*) — Nature of Remedy.</p> <p>The remedy of specific performance of contracts is purely equitable given as a substitute for the legal remedy of compensation whenever it is inadequate or impracticable.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 5-8, 318, 319; Dec. Dig. §§ 5, 102.*]</p> <p>2. Specific Performance (§ 10*) — Right to Performance — Performance in Part.</p> <p>While ordinarily specific performance of a contract for the conveyance of land will be granted, it will generally be refused where the court can grant specific performance as to only part of the land agreed to be conveyed.</p> <p>[Ed. Note. — Por other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dec. Dig. § 10.*]</p> <p>3. Specific Performance (§ 10*) — Conveyance-Contracts — Validity.</p> <p>Under Rev. Civ. St. 1911, art. 1115, providing that a homestead shall not be sold or conveyed without the consent of the owner’s wife, a contract for the conveyance of a homestead cannot be specifically enforced unless the wife joined.</p> <p>[Ed. Note. — Por other cases, see Specific Performance, Cent. Dig. §§ 20-25, '50; Dec. Dig. § 10.*]</p> <p>4. Specific Performance (§ 10*) — Right to —Partial Performance.</p> <p>Where a contract for the sale of land included the vendor’s homestead, though his wife was not a party, specific performance will not be granted as to the land not a part of the homestead where the plaintiff did not offer to accept a conveyance of it in compliance with the contract, for, to grant specific performance of part of the land, leaving plaintiff a right of action for damages, would be making a new contract for the parties.</p> <p>[Ed. Note. — Por other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dec. Dig. § 10.*]</p> <p>On Rehearing.</p> <p>5. Costs (§ 238*) — Costs of Appeai>-Presen-tation of Grounds of Review Below.</p> <p>In an action for specific performance, where the decree erroneously failed to require the vendor to return the purchaser a deposit, costs of the appeal will not be allowed the purchaser who was unsuccessful below, where the motion for new trial did not call that error to the attention of the lower court.</p> <p>[Ed. Note. — Por other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.*]</p>

<p>1. Husband and Wife (§ 254*) — 1Community Property — Property Acquired During Marriage.</p> <p>Act Aug. 26, 1856 (Laws 1856, c. 128), provided that the Mississippi and Pacific Railroad land reserve should be subject to location and sale; that all settlers thereon might purchase 160 acres. at 50 cents an acre upon having the land surveyed and the field notes returned, as well as the payment of the 50 cents an acre by January 1, 1858; that the holders of genuine land certificates, etc., might locate the same within such reserve, and that the land commissioner might issue land scrip at 50 cents an acre. Thereafter certain parties, who had settled on land on such reserve prior to that act, had their respective tracts surveyed and the field notes returned, and subsequently assigned their rights to S., who thereafter married, and subsequent to his marriage, made the payment of 50 cents an acre and received patents for the land. Held, that the assignors of S. acquired no title by the statute, or by making the surveys and filing the field notes, but merely acquired the preferential right to purchase the land, and that the title of S. had its inception at the time of the payment of the 50 cents an acre, since there was no inception of title until a contractual relation was created by a compliance with all the terms of the offer by the state, and hence, the title of S. having had its inception during marriage, the property was community property, and not the separate property of S.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 897-899; Dec. Dig. § 254.*]</p> <p>2. Public Lands (§ 172*) — Conveyance by Occupant.</p> <p>An occupant of public land, who has no title thereto, can convey no title to another.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. § 172.*]</p> <p>3. Property (§ 7*) — Ownership — “Title” — “Equitable Ownership.”</p> <p>“Title” means ownership, either equitable or legal. “Equitable ownership” means a present title in land which will ripen into legal ownership "upon the performance of conditions subsequent. Title has its inception in beginning of a contractual relation which entitles a party to the land upon compliance with his part of the contract.</p> <p>[Ed. Note. — For other cases, see Property, Cent. Dig. § 9; Dec. Dig. § 7.*</p> <p>* For other definitions, see Words and Phrases, vol. 8, pp. 6979-6982.]</p> <p>4. Descent and Distribution (§ 8*) — Mortgages (§ 591*) — “Equity oe Redemption.”</p> <p>An “equity of redemption” is an interest in the land mortgaged which will descend to the heir of the mortgagor, who in legal contemplation continued to be the owner of the land. It is considered to be the real and beneficial estate, tantamount to the fee at law (quoting 3 Words and Phrases, 2447).</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 33-39; Dec. Dig. § 8;* Mortgages, Cent. Dig. §§ 1693, 1694-1708; Dec. Dig. § 591.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7653.].</p> <p>Key, C. J., dissenting.</p>

<p>1. Continuance (§§ 24, 26*) — Absent Witnesses— Ground fob Continuance.</p> <p>Defendant cannot obtain a continuance on the ground of the absence of material witnesses, where it appeared that other witnesses could testify to the same fact and that due diligence had not been used.</p> <p>[Eld. Note. — For other cases, see Continuance, Cent. Dig. §§ 72, 74-93; Dec. Dig. .§§ 24, 26.*]</p> <p>2. Carriers (§ 321*) — Carriage of Passengers — Actions—Instructions.</p> <p>In a personal injury action by a passenger, where the evidence merely showed that he refused to allow the railway company’s doctor to amputate his arm, and there was no testimony that any of his injuries resulted from malpractice, a charge that in assessing plaintiff’s damages he should be allowed such a sum of money as will fairly compensate him for the injuries that he sustained as the proximate result of defendant’s negligence is not erroneous in permitting an award of damages for injuries not received from defendant’s negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]</p> <p>3. Trial (§ 260*) — Instructions—Refusal.</p> <p>The refusal of special charges covered by the charge given is proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>4. Damages (§ 132*) — Personal Injuries— Measure of Damages.</p> <p>An allowance of $12,500 to a passenger for personal injuries, which permanently incapacitated one arm and caused the bones of 'his ribs to press upon one lung, predisposing it to disease, is not excessive, where he had been a strong healthy man 33 years of age, accustomed to earn his living by manual labor.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig.' § 132.*]</p> <p>5. Costs (§ 260*) — Vexatious Appeal — Damages.</p> <p>Merely because the questions presented by an appeal were not difficult and the appellate court believed that appellant’s counsel did not have confidence in some of the assignments will not authorize an imposition of damages for vexatious appeal.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.*]</p>

<p>1.Venue (§ 84*) — Change oe Venue — Fraud.</p> <p>Where an action for fraud in an exchange of land was brought in the county where the fraud was alleged to have been committed, plaintiff was not entitled to a change of venue because of his nonresidence in that county, where his plea of privilege did not charge that the allegation that the fraud was perpetrated in the county where the suit was brought was inserted in the petition for the fraudulent purpose of conferring jurisdiction.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 146-148; Dec. Dig. § 84.*]</p> <p>2. Appeal and Error (§ 683*) — Questions Not Raised at Trial — Suppressing Deposition.</p> <p>An assignment that the court erred in overruling a motion to suppress the deposition of a witness cannot be reviewed, where the record did not show that the motion was called to the attention of or ruled on by the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2907; Dec. Dig. § 683.*]</p> <p>3. Fraud (§ 59*) — Measure oe Damages.</p> <p>In an action for fraud in an exchange of property, the measure of damages is the difference between the value of the property with which plaintiff parted and the value of that which he received from defendant, and not the difference in value between the property alleged to have been misrepresented at the time of the sale and its value had the facts been as represented.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.*]</p> <p>4. Exchange oe Property (§ 8*) — Fraud-Conveyance — Bien on Other Property.</p> <p>Where defendant fraudulently induced plaintiff to make an exchange of certain real property, and before the discovery of the fraud defendant exchanged the property received by him with certain other property for property in M., plaintiff- in an action for damages for the fraud was entitled to an equitable lien on all of the property in M., so received by defendant, in the absence of proof as to the value of the other property added by defendant to that received from plaintiff to form the consideration for the exchange of the M. property, under the rule that when a trustee mixes the trust fund with his private funds the trust will attach to the entire fund; and this though a part of such consideration was defendant’s homestead.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §,§ 14-18; Dec. Dig. § 8.*]</p>

<p>1. Winns (§ 734*) — Suppression—Liability op Heik — Interest.</p> <p>Where testatrix’s sole heir, by suppressing her will, obtained possession of her whole estate, including a legacy to another, and the heir later died leaving a will bequeathing a legacy to such legatee more than sufficient to satisfy the legacy in the original will, the heir’s</p> <p>executor was not liable to such legatee for interest on the original legacy at the. highest rate.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1847-1872; Dec. Dig. § 734.*]</p> <p>On Rehearing.</p> <p>2. Wmns (§ 714*) — Bequest to Creditor-Satisfaction oe Debt.</p> <p>Decedent, who was testatrix’s sole heir, by suppressing her will in which she bequeathed to Y. $500 and an undivided interest in certain land, obtained the whole estate which he used during his lifetime, but left a will himself bequeathing to Y. $1,000, which was more than sufficient to pay his indebtedness to V. for the conversion of her interest in testatrix’s estate with interest at 6 per cent. Decedent and V. were cousins, having grown up as children together, and decedent made bequests to other persons to whom he was neither related nor indebted and left an estate more than sufficient to satisfy any debts he owed and all the special bequests made. Seld, to indicate an intent on decedent’s part that his bequest to V. should not operate as payment of his debt to her by the conversion of her legacy.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1698-1703; Dec. Dig. § 714.*]</p>

<p>Appeal from District Court, Coleman County; John W. Goodwin, Judge.</p> <p>Action by Matt McKinney against Theo Dunman. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by James W. Morris against the St. Louis Southwestern Rail-fray of Texas. Judgment for defendant, and plaintiff appeals.</p>

<p>1.Masteb and Servant (§ 218*) — Injuries to Servant — Assumption oe Risk — Inexperienced Servant.</p> <p>Where an inexperienced employs was injured by his hands being thrown against the knives of a defective machine by the jerking of a timber which he was holding in the machine, the fact that he knew he would be injured if his hands came in contact with the knives does not establish assumption of risk on his part, since he may not have known that they would be brought into contact with the knives by the jerking of the timber.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.*]</p> <p>2. Triad (§ 191*) — Instructions — Assumption as to Facts.</p> <p>In an action for such injuries, an instruction which assumed that the employé knew of the danger in operating the machine was misleading.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p> <p>3. Triad (§ 260*) — Instructions Covered by Charge.</p> <p>A requested instruction as to assumption of risk need not be given, where that issue is fairly submitted by the court’s charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>4. Master and Servant (§ 217*) — Injuries to Servant — Assumption op Risk — Knowd-edge of Danger.</p> <p>An employs does not assume the risk of all danger incident to his employment, simply because he knew that there was some danger connected therewith.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p> <p>5. Master and Servant (§ 217*) — Injuries to Servant — Assumption of Risk.</p> <p>The law does not require a servant to exercise ordinary care and diligence in ascertaining the danger incident to the work he is performing, but holds that he assumed the risk only of the danger which he knew or would have known by the exercise of ordinary care in the discharge of his duties.</p> <p>[Ed. Note. — For other cases, see 'Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p> <p>6. Master and Servant (§ 296*) — Harmdess Error — Instructions—Triviad Error.</p> <p>An instruction as to the contributory negligence of a servant, which required the jury to find the master guilty of negligence before they could find contributory negligence, is not prejudicial; since the question of contributory negligence is not material unless there was negligence on the part of the master.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]</p>

<p>Error ‘to District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Suit by J. C. Carter and another against A. G. Ilseng. Decree for complainants, and defendant brings error.</p>

<p>1.Railroads (§ 305*) — Highways—Crossings — Restoration oe Highway — Injuries to Travelers — Negligence.</p> <p>Const, art. 10, § 1, and Rev. Civ. St. 1911, arts. 6481, 6485, provide that any railroad corporation may construct its road across any highway intersected thereby, but shall restore the highway to its former state, or to such a state as not unnecessarily to impair its usefulness, and shall keep such crossing in repair. Defendant railroad company, in raising its tracks over a highway on the morning of the injury, had removed the dirt between the ties at the crossing, and made an embankment 18 inches high on the side of the track over the highway. On each side of the traveled part of the road the track had been surfaced up by putting gravel under and between the ties, but at the time plaintiff attempted to lead his horse across the tracks nothing had been done to restore the traveled part of the road to its former state, and while plaintiff was attempting at the suggestion of defendant’s foreman to lead his horse and buggy over the tracks the horse became, frightened by his feet slipping into the spaces between the ties and ran away, causing plaintiff’s injuries. Held, that defendant’s failure to provide a crossing on either side of the traveled part of the road for the temporary use of the public until the road had been restored, as it could have done, constituted actionable negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 968-971; . Dee. Dig. § 305.*]</p> <p>2. Railroads (§ 350*) — Unprotected Crossing-Injuries to Travelers — Contributory Negligence — Question por Jury.</p> <p>Plaintiff, in attempting to lead his horse oyer the tracks in accordance with the suggestion of defendant’s foreman in charge of the work, was not negligent, as a matter of law, in attempting to traverse the crossing instead of traveling about a mile further to another crossing,, where he could have crossed in safety.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>3. Trial (§ 251*) — Instructions — Application to Pleading.</p> <p>Where, in an action for injuries to plaintiff while leading his horse over a defective highway crossing over defendant’s railroad at the suggestion of defendant’s foreman in'charge of construction work going on at the crossing, the- petition counted on the railroad company’s negligence in failing to provide a safe crossing, and did not allege as a ground for recovery the negligence of the foreman in inviting plaintiff to cross and informing him that he could cross in safety, an instruction that the jury should find for plaintiff if they believed defendant’s foreman induced plaintiff to attempt the crossing, and, knowing the facts and circumstances of the case, he was negligent in so doing, and such negligence was the proximate cause of plaintiff’s injury, was erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p>

<p>Appeal from District Court, Tarrant County ; R. H. Buck, Judge.</p> <p>Action by C. L. Perryman against the Ft. Worth Belt Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Error to Jones County Court; Joe C. Randel, Judge.</p> <p>Action by R. B. Mallard against the Texas Central Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Telegraphs and Telephones (§ 68*) — Actual Damage — Remoteness — Failure to Deliver — Damages—Mental Distress.</p> <p>Mental distress, arising from defendant’s negligence in failing to deliver a telegram, re-suiting in plaintiff’s being required, in a strange city, to permit the burial of bis wife’s remains with money donated by persons charitably inclined, constituted actual damage, which was not too remote to sustain a recovery.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*]</p> <p>2. Telegraphs and Telephones (§ 37*)— Messages — Failure to Deliver — Defenses.</p> <p>Plaintiff’s wife having died in a strange city where plaintiff was without money or friends, plaintiff’s father telegraphed, authorizing M. to draw on him for money to be used for plaintiff’s benefit in providing a funeral. The telegram was not delivered, and plaintiff was compelled to permit his wife’s remains to be buried as the subject of charity. Held, that the fact that the telegram was addressed' to M., and not to plaintiff, was no defense to defendant’s liability to plaintiff for failure to deliver the message.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.*] •</p> <p>3. Telegraphs and Telephones (§ 71*) — Ex-cessiveness — Failure to Deliver Message.</p> <p>Plaintiff’s wife having died in a strange city, where plaintiff had neither friends nor funds, plaintiff’s father wired M. to furnish plaintiff money to be used for the burial of his wife’s remains. The message not having been delivered, the remains were buried as the subject of charity. Meld, that a verdict allowing plaintiff $600 for mental anguish was not excessive.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. § 71.*]</p>

<p>1. Exemptions (§ 4*) — Extent — Construction op Statutes.</p> <p>The statutes creating exemptions from execution and other forced sales for debt receive a liberal construction.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>2. Exemptions (§§ 45, 57*) — Property Exempt — Pool Tables — “Apparatus” — “Trade or Propession.”</p> <p>The proceeds of an insurance policy on' four pool tables are exempt from garnishment, the pool tables coming within the designation “apparatus,” and the business of running a pool hall being legitimate, and a “trade or profession,” within the exemption law (Rev. Civ. St. 1911, art. 3785, par. 5).</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61, 79; Dec. Dig. §§ 45, 57.*</p> <p>For other definitions, see Words and .Phrases, vol. 1, pp. 439, 4:40.]</p> <p>Conner, C. J., dissenting.</p>

W. Simpson, Judge. Action by the R. G. Andrews Lumber; Company against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for defendant, and, plaintiff’s motion being overruled, it brings error.

<p>Ap-Appeal'from Llano County Court; A. H. Willber, Judge. Action by W. P. Stribling against the Gulf, Colorado & Santa Pé Railway Company. Judgment for plaintiff, and defendant appeals..</p>