171 S.W.

Volume 171 — South Western Reporter

147 opinions

171 S.W. 245St. Louis, B. & M. Ry. Co. v. Knowles (1914)Reversed and remanded, and rehearing denied
1. Coukts (§ 169*) — Jurisdiction—“Amount in Controversy. ’ The attorney’s fee sought to be recovered-under authority of Bev. St. 1911, art. 2178, in an action for the value of a mule killed by defendants’ train, was a part of the “amount in controversy,” within the constitutional and statutory provisions establishing the jurisdiction of courts. [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 433-425, 428-436, 443, 456, 458, 465; Dee. Dig. § 169 * For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.] 2. Beoeivers (§ 183*) — Railroads—Killing of Stock — Action Against Receiver — Petition. Where a petition not excepted to, in an action for the value of a mule killed by a train, though not specifically alleging that the mule was killed while the defendant receiver was operating the railway, alleged that it was killed through the negligence of defendants’ servants and employes in charge of the train, it stated a cause of action against the receiver, based on the ground that' the injury occurred after he became receiver. [Ed. Note. — For other cases, see Beceivers, Cent. Dig. §§ 361-366; Dec. Dig. § 183.*] 3. Bailroads (§ 447*) — Injury to Stock-Refusal of Instructions. Where, in an action for the value of a mule killed from being struck by a train, the court instructed merely that plaintiff was required to show that defendants were guilty of negligence, without stating that such negligence must have been the proximate cause of the injury, it was error to refuse instructions defining proximate cause and stating that plaintiff could not recover, unless defendants’ negligence was the proximate cause of the injury, though such requested instructions ignored the issue with respect to the necessity of fencing the point where the injury occurred. [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.*] 4. Railroads (§ 441*) — Injury to Stock-Failure to Fence — Burden of Proof. . In an action for the value of a mule killed from being struck by a train after it has gone upon the track where the right of ivay was not fenced, the burden was on the defendants to show that such place was within the necessary switching and depot limits, where a fence would be a nuisance and was not required. [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.*] 5. Railroads (§ 446*) — Injury to Stock— Negligence-JProximate Cause — Question for Jury. Where, in an action for the value of a mule killed by defendants’ train, the evidence conflicted on whether signals were given and in regard to the distance between the locomotive and the mule when the mule approached and ran along the track, the question whether defendants were guilty of negligence, which proximately caused the injury, was for the jury. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.*]
171 S.W. 247Seabrook v. First Nat. Bank of Port Lavaca (1914)Reversed and remanded
Appeal from District Court, Calhoun County; John M. Green, Judge. Action by the First National Bank of Port Lavaca against L. Seabrook and another. From a judgment for plaintiff, defendants appeal.
171 S.W. 248Denton v. English (1914)
171 S.W. 251Miller v. Campbell (1914)Affirmed
Error from District Court, Harris County; Norman G. Klttrell, Judge. Trespass to try title between Charles Miller and another and Ben Campbell. There was a judgment for the latter, and the former bring error.
171 S.W. 253Miller v. Flattery (1914)Reversed and remanded
1. Vendor and Purchases (§ 92*)—Rescis-sion by Vendor—Fraud. A vendor in a deed reciting a cash consideration of $2,200, who delivered it for a consideration part cash and part notes, assigned by the purchaser without recourse, on his agent’s assurance that he had a purchaser for the notes, upon the agent’s failure to have the notes cashed, could not rescind as against the purchaser. [Ed. Note.—For other cases, see Yendor and Purchaser, Dec. Dig. § 92.*] 2. Homestead (§ 38*)—Acquisition—Occu-pancy. When a homestead dedication has not been effected by actual occupancy, such effect must be accorded to ownership and visible acts of preparation to use it for a home. [Ed. Note.—For other cases, see Homestead, Cent. Dig. § 57; Dec. Dig. § 38.*] 3. Homestead (§ 57*)—Acquisition—Sufei-ciency oe Evidence. Evidence held to warrant a finding that premises were impressed with a homestead status at the time of their conveyance by plaintiffs. [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 83-85; Dec. Dig. § 57.*] 4. Homestead (§ 118*)—Joinder oe Wipe— Avoidance eor Fraud. Title to a homestead could not pass without the wife’s joinder in the conveyance, untainted by fraud of any kind upon her rights; and, if the deed was delivered by her husband- in fraud of her rights, she would not be precluded from asserting them against the purchaser. [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. § 118.*] 5. Homestead (§ 118*)—Conveyance—Fraud upon Wipe. Where a wife signed a deed of her homestead, reciting a consideration of $2,200, with the understanding that it was to be paid in cash, and where her husband, withodt her knowledge or consent, delivered it for a part cash consideration and notes assigned to him without recourse, the substitution of the notes in part payment was a fraud upon the wife’s rights, entitling her to rescind as against a purchaser with notice of the recited consideration, who made no inquiry to ascertain the husband’s authority to deliver on other terms of payment. [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. § 118?’] 6. Vendor and Purchaser (§ 229*)—Bona Fide Purchaser—Notice. One claiming title to land is charged with notice of every matter affecting the estate which appears on the face of any deed forming an essential link in the chain of his title, and also with notice 'of whatever he would have learned by any inquiry which the recitals therein required him to make. [Ed. Note.—For other cases, see Yendor and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. § 229.*] 7. Homestead (§ 129*) — Bona Fide Pubchas-ee — Notice—Featjd on Vendor. One purchasing for value from a purchaser of homestead premises, charged with notice of a recited consideration of $2,200 and constructive notice of the wife’s understanding, when she signed the deed, that payment was to be in cash, and having actual notice that notes assigned without recourse had been substituted as a part of the consideration, was justified in assuming that the substitution was authorized or ratified by the vendor, was not bound to make any inquiry as to such substitution, was not chargeable with constructive notice of the fraud practiced upon the vendor, and was entitled to the protection of an innocent purchaser. [Ed. Note. — For other eases, see Homestead, Cent. Dig. §§ 233, 234; Dec. Dig. § 129.*] 8. Homestead (§ 122*) — Rescission by Vendor — Estoppel. In such case, where the subsequent purchase was made several months after delivery of the deed to the first purchaser, during which time he had been in peaceable possession, collecting the revenues, and the subsequent purchaser had no notice or reason to think that the vendor was dissatisfied with the substitution of the notes instead of an entire cash consideration, such vendor was estopped to rescind as against the subsequent purchaser. [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 220-222; Dec. Dig. § 122.*]
171 S.W. 256Adams & Garrett v. Randle (1914)Affirmed
Appeal from District Court, Nueces Coimty; W. B. Hopkins, Judge. Action by J. J. Randle against William Adams and another, composing the firm of Adams & Garrett. From a judgment for plaintiff, defendants appeal.
171 S.W. 257Dawson v. King (1914)Reversed and remanded
1. Appeal and Error (§ 997*) — Review—Directed Verdict — Evidence Considebed. On an appeal by plaintiff from a judgment on a verdict directed for defendant, the plaintiff’s evidence must be taken as true. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4023, 4024; Dec. Dig. § 997.*] 2.Master and Servant (§ 288*) — Injubies to Servant — Assumption oe Risk — Question for Jury. Where a servant was injured by a ginhouse door falling upon him and there was no evidence that he knew of-the defect in the hanging of the door which was the cause of the fall, or that the defect was so obvious as to. give him implied knowledge thereon, he did not assume the risk as a matter of law. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*] 3.Master and Servant (§ 289*) — Injuries to Servant — Contributory Negligence-Question for Juey. In an action for injuries to a servant who fell from the upper to the lower floor of a gin-house when the door by which he was attempting to pull himself up fell with him, evidence held not to show that the servant was negligent as a matter of law. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 4. Master and Servant (§ 289*) — Injuries to Servant — Questions for Jury — Contributory Negligence. The contributory negligence of a servant is a question of fact for the jury, unless the act is a violation of some law, or the facts are undisputed and admit of but One reasonable conclusion. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 5. Master and Servant (§ 284*) — Injuries to Servant — Existence of Relation — Question for Jury. In a personal injury action by one who had been sent by one defendant to install a cotton gin on the premises of the other defendant, evidence held -sufficient to take to the jury the-. question whether the plaintiff was the servant of both or either of the defendants. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*]
171 S.W. 259Missouri, O. & G. Ry. Co. v. Plemmons (1914)Affirmed
Appeal from District Court, Grayson County; W. M. Peck, Judge. Action by H. W. Plemmons against the Missouri, Oklahoma & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.
171 S.W. 263Murphy v. Murphy (1914)Affirmed
Appeal and Error (§ 302*) — Assignments op Error — Sufficiency. Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), providing that the assignments made as grounds for a new trial in a motion duly filed shall constitute the assignments of error on appeal, where a motion for a new trial purported to give a history of the proceeding, but contained no charges of error on the part of the trial court and nowhere alleged that the evidence was insufficient to sustain the verdict, it was insufficient to present any error for .review on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.*]
171 S.W. 264Southern Pac. Co. v. Walker (1914)Affirmed on condition of remittitur
Appeal from District Court, Harris County; Norman G. Kittrell, Judge. Action by Annie Walker against the Southern Pacific Company and others. Judgment for plaintiff, and defendants appeal.
171 S.W. 266Williams v. Watt (1914)Affirmed
1. Corporations (§ 556*) — Rights or Stockholders — Receivers. Under Rev. St. 1911, art. 2128, providing that where a corporation is insolvent, or is in imminent danger of insolvency, a receiver may be appointed, a stockholder of a corporation is not entitled to the appointment of a receiver on the ground that it is insolvent, or in imminent danger of insolvency, unless he has cause of action against the corporation independent of his interest as a stockholder. [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2219-2226; Dec. Dig. § 556.*] 2. Corporations (§ 553*) — Stockholders — Rights oh — Receivers. Courts of equity will not appoint a receiver of a corporation at the suit of a stockholder on the ground of fraud, mismanagement, etc., on the part of the corporate authorities, but will merely enjoin or forbid the wrong complained of. [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dee. Dig. § 553.*] 3. Receivers _(§ 35*) — Appointment—Notice. While notice of an application for the appointment of a receiver is not required by statute, notice should be given, save in case of emergency. [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 54-60; Dec. Dig. § 35.*] 4. Receivers (§ 35*) — Vacation of Appointment — Notice. Though a petition did not warrant the appointment of a receiver without notice, such appointment will not be vacated on appeal for that reason, where an answer was filed. [Ed. Note. — Eor other cases, see Receivers, Cent. Dig. §§ 54-60; Dec. Dig. § 35.*] 5. Appeal and Error (§ 101*) — Decisions Appealable. No appeal can be taken from an order denying a motion to vacate the appointment of a receiver, but the appeal must be from the order making the appointment. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 681-687; Dec. Dig. § 101.*] 6. Injunction (§ 27*) — Enjoining Receiver —Grounds for. That a receiver is unfit, or is not properly discharging the duties of his office, is no ground for enjoining him from acting, or enjoining parties on whose petition he was appointed from further prosecuting their suit, for the surety on the receiver’s bond is liable for any misconduct. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.*] 7: Injunction (§ 27*) — Enjoining Receiver. That a receiver was surety upon the cost bond of the plaintiff, at whose suit he was appointed, and that such plaintiff was indebted to the corporation for which a receiver was ordered, is no ground for enjoining the receiver from acting; the court never having been asked to remove him nor to order him to sue plaintiff. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.*] 8.Injunction (§ 27*) — Enjoining Receiver. That a receiver is selling property of a corporation to himself is no ground for enjoining him from continuing to act, for his bond will protect those injured. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.*] 9. Injunction (§ 27*) — Enjoining Receiver. Where a receiver of the assets of a corporation was ordered by the -court to sell them, he will not be enjoined from selling because the assets may be sacrificed. [Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.*] 10. Injunction (§ 27*) — Enjoining Receiver —Grounds for. Where a receiver of a corporation was appointed, the fact that the trial court refused to hear the plea in abatement of those objecting to the appointment until he tried the case upon the merits is no ground for enjoining the receiver from acting, and those who instituted the receivership suit from continuing to prosecute it. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.*] 11. Injunction (§ 128*)r-RECEiVERSHip Proceedings — Evidence. In a suit where it was sought to enjoin a receiver, appointed at the suit of stockholders of a corporation, from continuing to act, and the stockholders from prosecuting their suit, evidence held insufficient to show that the stockholders were guilty of such fraud in procuring their stock that the receivership should be set aside. [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 278; Dec. Dig. § 128.*] 12. Injunction (§ 7*) — Scope of Remedy. Where a party could have procured relief 'by appeal from an order of which he complained, he is not entitled to an injunction to give him the same relief. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. § 7.*] 13. Injunction (§ ’27*) — Right to Enjoin Receiver. That a receiver of a corporation is conducting the business at a loss, while it had been before conducted at a profit, is no ground for enjoining him from continuing to act as such. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.*] 14. Injunction (§ 152*) — Temporary Injunction — Orders. It is proper, upon the hearing for a temporary injunction to restrain a receiver from acting, to refuse to restrain the parties at whose suit he was appointed from continuing to prosecute their suit. [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 337, 343; Dec. Dig. § 152.*]
171 S.W. 270Hooper v. Lottman (1914)Reversed and remanded
Appeal from District Court, Harris County; Norman G. Kittrell, Judge. Action by J. O. Hooper and another against H. W. Lottman and others. From a judgment for defendants, plaintiffs appeal.
171 S.W. 273Montgomery v. Boyd (1914)Affirmed
Appeal from Floyd County Court; Arthur B. Duncan, Judge. Action by R. M. Boyd against W. T. Montgomery. From judgment for plaintiff, defendant appeals.
171 S.W. 274J. D. Fields & Co. v. Allison (1914)Reversed and remanded
W. Timmins, Judge. Action by J. D. Fields & Co. against George S. Allison, which after a plea in abatement had been sustained, proceeded in the name of J. D. Fields as plaintiff. From a judgment in his favor for insufficient relief, Fields appeals.
171 S.W. 278Galveston Dry Goods Co. v. Mitchell (1914)
171 S.W. 279Soto v. State (1914)
171 S.W. 282San Antonio & A. P. Ry. Co. v. Smith (1914)Reversed and remanded
Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge. Action by the San Antonio & Aransas Pass Railway Company against Zay Smith. From a judgment for defendant, plaintiff appeals.
171 S.W. 282Johnston v. Rockhold (1914)Affirmed
Appeal from District Court, Dallas County; Kenneth Foree, Judge. Action by Hammon Johnston and others against Alfred Rockhold. Judgment for defendant and plaintiffs appeal.
171 S.W. 284Memphis Cotton Oil Co. v. Goode (1914)Affirmed
1. Evidence (§ 119*) — Competency — “Res Gestas.” In a action to recover an amount paid under a contract to furnish feeding pens for stock, where the issue was whether the contract price was to be paid per month, or for the feeding-term of three months, evidence that when plaintiff contracted he knew the price for feed at other oil mills, and in particular one in Oklahoma, and that he then gave defendant a telegram from that place, showing the feeding price there, offered to show plaintiff’s knowledge and his representation to defendant, was admissible as original evidence, part of the transaction, or “res gestae.” [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 303-306; Dec. Dig. § 119.* For other definitions, see Words and Phrases, First and Second Series, Res Gestae.] 2. Appeal and Error (§ 8S2*) — Party Entitled to Allege Error — Party Inviting Error. Where plaintiff, on his direct examination, did not testify as to the contents of a telegram, but that was brought out by defendant on cross-examination, error, if any, in admitting the evidence was one of which defendant could not complain on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § On Motion for Rehearing. 3. Witnesses (§ 393*) — Impeachment—Depositions. In an action to recover money paid under a contract for feeding cattle, where a witness for plaintiff deposed that he had heard a conversation between plaintiff and defendant as to the contract for the feeding of stock, and stat-' ing the agreed price, his former deposition that he had heard “the latter part” of the conversation, stating the same agreed price, was not to impeach the witness, since in both questions the matter sought was the conversation or agreement as to the price, and since there was no-contradiction in the answers. [IOd. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.*] 4. Appeal and Error (§ 1033*) — Harmless Error — Admission or Exclusion oe Evidence. Error, if any, in the admission of impeaching evidence, which tended to strengthen the theory'of the appellant, held not reversible error on his complaint. [Ed. Note. — For other cases, see Appeal and Eri'or,^ Cent. Dig. §§ 4052-4002; Dec. Dig. §
171 S.W. 287Jones v. Veltmann (1914)Reversed and remanded, with instructions to grant the…
Appeal from District Court, Kinney County; W. C. Douglas, Judge. Suit for injunction by John Jones against Joseph Veltmann and others. From a judgment denying the injunction, plaintiff appeals.
171 S.W. 292Houston & T. C. R. Co. v. Smallwood (1914)Reversed and remanded
1. MASTER AND SERVANT (§ 288*) — ACTION for Injuries — Question for Jury — Assumption of Risk. On evidence in a railroad servant’s action for injury from falling from a car load of lumber which he was trying to straighten, held, in view of the opportunity and capacity of the servant, an uneducated negro, for discovering the risk, that whether he knew or ought to have known that the pinch bar furnished him with directions to use it was defective, and appreciated the danger of using it as directed, was for the jury. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*] 2. Master and Servant (§ 217*) — Action for Injury — Assumption of Risk — “Unsafe”— “Dangerous.” In a railroad servant’s action for injury from falling from a car load of lumber which he had been, directed to straighten and arrange, where plaintiff knew that the work was dangerous and the danger of attempting to do it without help, and where the jury found that the defective condition of the pinch bar furnished him, with directions to straighten the lumber, was such that it could be seen by merely looking at it, and that plaintiff knew,, or, by ordinary care, could have known, that it was unsuitable and “unsafe” for doing the work, the latter finding being equivalent to a finding that it was “dangerous,” the facts found established the defense of his assumption of risk. [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.* For other definitions, see Words and Phrases, First and Second Series, Dangerous; Unsafe.] 3. Judgment (§ 256*) — Special Verdict — Effect — Re jectio n. When a special verdict has been returned, the trial court, in rendering judgment, cannot disregard- a finding on a material issue, even though such finding has no support whatever in the testimony. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.*] 4. Master and Servant (§ 297*) — Action for Injury — Findings—Assumption of Risk. In a railroad servant’s action for injury from falling from a car load of lumber which he was trying to straighten with a pinch bar, where the common-law doctrine of assumed 'risk applied, findings that he knew that the pinch bar furnished him was unsafe, and that his attempt to do the work without help was dangerous, established that his injury was from an assumed risk, even though he was inexperienced and had not been warned, as such warning would not have given lym any information which he did not have; and the finding that his injury did not result from any risk assumed when he entered the service did not alter the case. [Ed. Note. — For other cases, see Master and Sei-vant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.*]
171 S.W. 294Bastrop & Austin Bayou Rice Growers' Ass'n v. Cochran (1914)Affirmed
Error from District Court, Harris County; Norman G. Kittrell, Judge. Action by J. B. Cocliran against the Bas-trop & Austin Bayou Rice Growers’ Association and others. Judgment for plaintiff, and certain defendants bring error.
171 S.W. 296Bauer v. Crow (1914)Affirmed
. Appeal from District Court, Harris County ; Chas. E. Ashe, Judge. Action by J. W. Crow against Paul Bauer, William Barbee, and another, in which the First National Bank and another filed separate interventions. From a judgment for plaintiff, William Barbee and another appeal.
171 S.W. 301Midgley & Curtsinger v. Taylor (1914)
171 S.W. 302Pollard v. Allen Sims (1914)
171 S.W. 303Galveston, H. S. A. Ry. Co. v. Terrazas (1914)
171 S.W. 304Henderson Grant v. Gilbert (1914)Reversed and remanded
Appeal from District Court, Hale County ; L. S. Kinder, Judge. Action by Henderson & Grant against C. L. Gilbert. From a judgment for defendant, plaintiffs appeal.
171 S.W. 308Globe Loan Co. v. Betancourt (1914)Dismissed
Appeal and Ebbok (§ 65*) — Jurisdiction of Coubt op Civil Appeals — Amount in Oon-TBOVERSY. , Where plaintiff in justice’s court, demanding judgment for $104, recovered judgment for $76, and, on appeal by defendant, filed in the county court an amendment reducing the demand to $76, the amount in controversy in the county court was $76, and the Court of Civil Appeals has no jurisdiction of an appeal from a judgment for that amount. [Ed. 'Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.*]
171 S.W. 309Memphis Cotton Oil Co. v. Tolbert (1914)Reformed and affirmed
Appeal from District Court, Hall County; J. A. Nabers, Judge. Action by A. T. Tolbert against the Memphis Cotton Oil Company. Judgment for plaintiff, and defendant appeals.
171 S.W. 318Pecos & N. T. Ry. Co. v. Grundy (1914)Affirmed on condition of remittitur
Appeal from Randall County Court; C. E. Coss, Judge. Action by J. A. Grundy and another against the Pecos & Northern Texas Railway Company and another. Judgment for plaintiffs, and defendants appeal.
171 S.W. 489Grayson v. Grand Temple & Tabernacle in State (1914)
Clark, Judge. Action by L. E. Grayson against the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. From a judgment for defendant, plaintiff appeals. Reversed and rendered.
171 S.W. 490Grand Temple & Tabernacle in the State v. Johnson (1914)Affirmed
R. B. Minor, Judge. Action by Smith Johnson against the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. From a judgment for plaintiff, defendant appeals.
171 S.W. 492Barcus v. O'Brien (1914)Reversed and remanded
1.Garnishment (§ 133*) — Claims bt Third Persons — Interpleader.' A garnishee, in order to protect himself from having to pay the debt twice, may inter-plead all claimants of the fund in his hands. [Ed. Note. — For other cases, see Garnishment, Cent. Dig.' § 262; Dec. Dig. § 133.*] 2. Execution (§ 171*) — Equitable IJelief— Injunction — Garnishment in Another Court. Where a debtor against whom final judgment had been rendered in the district court was garnished in an action in the county court against Ms judgment creditor and filed his answer in the county court setting up the fact that another was claiming an interest in the district court, judgment as assignee, he might have the collection of the judgment by the assignee enjoined by the district court until the right to the fund had been settled in the county court, under Vernon’s Say les’ Ann. Civ. St. 1914, art. 4643, authorizing injunctions in cases where the applicant shows himself entitled to such relief under the general principles of equity. [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.*] 3. Garnishment (§ 44*) — Persons Subject-Judgment Debtors. . A defendant against whom a judgment which is final has been rendered is subject to garnishment. [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 90; Dec. Dig. § 44.*] 4. Judgment (§ 449*) — «Equitable Relief— Garnishment in Another Court — Ténder. Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4647, providing that no injunction shall be granted to stay a judgment except so much thereof as the complainant shall show himself equitably entitled to be relieved against, a judgment debtor who had been garnished in an action against his creditor could not ask to have the enforcement of the judgment against him by an assignee restrained pending the outcome of the other action, unless he tendered into court the difference between the amount of the judgment and the amount of the claim in the garnishment proceeding's. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 852, 853, 871; Dec. Dig. § 449.*] 5. Gabnishrnt (§ 44*) — Equitable Relief-Final Judgment. Where a judgment debtor gave notice of appeal, but did not file an appeal bond, and thereafter abandoned the appeal, and the creditor had secured the issuance of an execution thereon, the judgment was final so as to authorize garnishment against defendant therein. [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 90; Dec. Dig. § 44.*]
171 S.W. 494Zachry Gearhart v. Peterson Avant (1914)
171 S.W. 494W. A. Leyhe Piano Co. v. American Multigraph Sales Co. (1914)Affirmed
1.. Appeal and Errob (§ 770*) — Questions Presented — Suggestion oe Delay. Even though the appellant files no brief, a suggestion by the appellee that the appeal was taken for delay only opens the entire record, and requires the court to reverse the judgment for any material error there may be therein. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.*]. 2. Appeal and Error (§ 1001*) — Review— Verdict. Where there was evidence to support the findings of the jury on the controlling issues in the case, the verdict cannot be disturbed, although the evidence was not conclusive. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*] 3. Costs (§ 260*) — Frivolous Appeal — Damages. Damages for the taking of an appeal for purposes of delay will not be awarded, unless it appears from the record that there was absolutely no just cause for the appeal, and that it was taken for delay only. [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.*]
171 S.W. 497Wood v. Texas Ice & Gold Storage Co. (1914)Affirmed
Appeal from District Court, Dallas County ; Kenneth Foree, Judge. Action by H. C. Wood against the Texas Ice & Cold Storage Company. Judgment for defendant, and plaintiff appeals.
171 S.W. 498Bartholomew v. Culver (1914)
171 S.W. 499Bishop v. Japhet (1914)Affirmed in part and reversed in part
Kittrell, Judge. Suit by Dan A. Japhet against Fred M. Bishop. From a judgment dismissing both plaintiff’s original suit and defendant’s cross-action, plaintiff appeals.
171 S.W. 501Franklin v. Smith (1914)Affirmed
Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge. Suit by Henry Franklin against W. E. Smith and others. From a judgment in favor of defendants, plaintiff appeals.
171 S.W. 503Scates v. Rapid Transit Ry. Co. (1914)Affirmed
Appeal from District Court, Dallas County ; Kenneth Foree, Judge. Action by J. W. Scates against the Rapid Transit Railway Company. From, a judgment for defendant, plaintiff appeals.
171 S.W. 506Childs v. McGrew (1914)
171 S.W. 506De Grazier v. Longinotti (1914)Affirmed
1. Landlord and Tenant (§ 130*) — Suit for Nonpayment of Taxes — Defense—Breach of Covenant. Conceding that a landlord consented to subletting, Ms collection of additional rent from the subtenant, who was not disturbed before the end of the term, was not a breach of the landlord’s covenant for quiet enjoyment, constituting a defense to his suit against his tenant for nonpayment of taxes. [Ed. Note.' — For other cases, see Landlord and Tenant, Cent. Dig. §§ 470-481; Dec. Dig. § 130.*] 2. Landlord and Tenant (§ 132*) — Possession — Disturbance. A tenant is not damaged by his landlord’s collection of additional rent from a subtenant. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 460-464, 467-469, 1198; Dec. Dig. § 132.*]
171 S.W. 508Bryson v. Abney (1914)Reversed and remanded
1. Dedication (§ 20s’) — Public Road — Evidence. Where uninelosed land of a parcel not' platted into lots or streets was used generally by farmers and the public for the purpose of hitching horses, and leaving wagons thereon, and driving across and in a promiscuous way to reach roads on its margin, and there was no act of the owner or his predecessor indicating a purpose to dedicate the land to the public use, there-was no dedication of a right of way. [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 17-30; Dec. Dig. § 20.*] 2. Easements (§ 8*) — Risht oe Way — PRESCRIPTION. Where a use by the public of uninclosed: land of a tract, not platted into lots or streets, was permissive only, an easement of a public way by prescription could not be acquired. [Ed. Note. — For other cases, see Easements,. Cent. Dig. §§ 23, 24, 27-33; Dec. Dig. § 8.*]
171 S.W. 509Ball-Carden Co. v. Ridgell (1914)Reversed and rendered
Appeal from District Court, Dallas County; Kenneth. Poree, Judge. Action by R. R. Ridgell against George A. Carden and P. D. C. Ball, copartners doing business as the Ball-Carden Company. From a judgment for plaintiff, defendants appeal.
171 S.W. 512St. Louis, S. F. & T. Ry. Co. v. Smith (1914)Affirmed
1. Limitation of Actions (§ 127*) — Amendment of Pleading — New Cause of Action. Where a widow of a railroad employé killed while engaged in interstate commerce sued as widow, asserting that her cause arose under a state statute, it was not. the beginning of a new action for her to file an amended petition as the personal representative of the deceased seeking recovery under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), as the substitution of the personal representative relates back to the filing of the original petition; hence limitations did not apply to the filing of the amended petition. [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*] 2. Costs (§ 32*) — Awaed. Where the widow of an employé of a railroad company killed while engaged in interstate commerce ultimately recovered judgment under the federal Employers’ Liability Act as his personal representative, it was not improper, though the railroad company procured the reversal of a judgment in favor of the widow where she sued as such, to assess all costs against the company, including those up to the time the widow was substituted as personal representative. [Ed. Note.- — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. § 32.*]
171 S.W. 514Banks v. Blake (1914)Affirmed
Error from District Court, Jasper County; W. B. Powell, Judge. Suit by W. Gerard Banks against Roi Blake and others for partition. From a judgment in favor of defendants, plaintiff brings error, and appeals from an order denying a motion to set aside the judgment and for a new trial.
171 S.W. 515Patterson v. Sylvan Beach Co. (1914)Reversed and remanded
Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by the Sylvan Beach Company against J. T. Patterson and wife. Prom a judgment for plaintiff, defendants appeal.
171 S.W. 517Missouri, K. T. Ry. Texas v. Churchill (1914)Affirmed
Appeal from District Court, Galveston County; Edward F. Harris, Special Judge. Action by S. A. Churchill against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
171 S.W. 520Conn v. Houston Oil Co. of Texas (1914)Affirmed
1. Appeal and Error (§ 548*) — Objections to Charge — Review—Bill oe Exceptions —Necessity. An objection to a charge or any part thereof will not be reviewed by the appellate court, unless the objection is preserved by a proper bill of exceptions incorporated in the record. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*] 2. Vendor and Purchaser (§ 232*) — Bona Fide Purchasers — Constructive Notice-Prior Unrecorded Deed — Possession. Where, when a tram company purchased certain land in controversy from the heirs of D., one L. was living on and had possession of 86 acres, holding under an unrecorded deed in which the 86 acres was described by metes and bounds, but it was not shown that the tram company had knowledge of possession of any part of the tract other than that occupied by L., his possession was not constructive notice to the tram company of a prior unrecorded deed to the balance of the tract, nor did the fact that the’ deed under which L. was holding was unrecorded enlarge the effect of his possession as notice. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.*] 3. Vendor and Purchaser (§ 238*) — 'Bona Fide Purchaser — Knowledge oe Subsequent Grantee. Where plaintiff claimed title under a tram company, which was an innocent purchaser for value without notice of any superior outstanding title, plaintiff acquired the tram company’s rights, and it was immaterial that at the time it purchased it had knowledge of facts which, if possessed by the tram company, would have charged it with knowledge of a -prior conveyance by one of its prior grantors. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 580-582; Deo. Dig. § 238.*] 4. Aureal and Error (§ 564*) — Record—Filing-Statement oe Facts — Time. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073, allows 30 days after adjournment in which to file a statement of facts and bills of exception, and provides that on good cause shown the time may be extended, but not so as to delay the filing of the statement, together with the transcript of the record, in the appellate court within the time prescribed by law, subject to a proviso that any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as filed in time. Held that, under such proviso, a statement of facts filed before the transcript is required by law to be filed in the appellate court is filed in time, though not filed within the time specified by the trial court for filing the same as extended. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig.' § 564.*] 5. Exceptions, Bill oe (§ 42*) — Filing — Time — “Formalities.” The time for filing bills of exception relates to formalities in bringing a case to the appellate court for revision within Court of Civil Appeals rule 8 (142 S. W. xi), providing that all motions relating to informalities in the manner of bringing a ease into court shall be filed and entered by the clerk on the motion docket, within 30 days after the filing of the transcript' in the Court of Civil Appeals, or the objection is waived, if it can be waived by the party; and hence failure to file bills of exception in time was waived, where no motion to strike the same was filed within the time prescribed. [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 72; Dec. Dig. § 42.*] 6. Vendor and Purchaser (§ 243*) — Outstanding Title — Notice—Evidence. On an issue as to whether a tram .company under which plaintiff claimed was an innocent purchaser without notice of an outstanding title in having acquired title from certain heirs in December, 1892, February, 1893, and February, 1895, evidence that, in 1893, 1894, or 1895, the tram company’s manager expressed a fear of litigation with reference to the land and ordered a removal of the timber therefrom as quickly as possible, and that there was general talk among its employes indicating that the company did not have a good title to the land, was inadmissible. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 606-608; Dec. Dig'. I 243.*] 7. Appeal and Error (§ 301*) — Errors not Presented in Motion por New Trial — Errors Apparent oe Record — “Apparent.” The term “apparent,” as used in the clause “errors of law apparent on the face of the record,” means clear or manifest to the understanding ; plain; obvious; appearing to the eye or mind — not including errors which can be ascertained by looking into the record and considering the evidence; and hence assignments in an action to recover land that the judgment was contrary to law and without evidence to support it, in that it awarded to defendants three forty-seconds only of the land in controversy, when it should have awarded eleven fifty-sixths, there being no evidence that a tram company under which plaintiff claimed paid value in good faith and without notice of the adverse claim of those under whom defendants claimed, etc.,' and that the court erre'd in granting a peremptory instruction on the issue of purchase in good faith by the tram company, on the ground that there was no evidence that it was an innocent purchaser for value, did not present errors of law apparent on the face of the record, and could not be reviewed, where they were not presented as grounds for new trial. TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.* For other definitions, see Words and Phrases, First and Second Series, Apparent.]
171 S.W. 524O'Neil Engineering Co. v. City of San Augustine (1914)Affirmed
E. Davis, Judge. Action by the City of San Augustine and others against the O’Neil Engineering Company and others. From a judgment for plaintiffs, defendants appeal.
171 S.W. 528Magill v. Rugeley (1914)Affirmed
1. ATTORNEY AND CLIENT (§ 99*)— ATTORNEY’S Authority — Settlement oe Judgment. An attorney at law has no authority to accept anything but money in payment of a judgment recovered by him on a claim left with him for collection, without his client’s express consent. [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 196-2Q3; Dec. Dig. § 99.*] 2. Attorney and Client (§ 103*) — Attorney’s Authority — Acts Beyond Authority-Acquiescence. Where an attorney at law, without authority, accepted certain trust .certificates in settlement of a judgment he had obtained for his client, who, when he first learned of the settlement, refused to accept the certificates, and in a few days placed the collection of the judgment in the hand's of other attorneys, there was no ratification of the settlement. [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 154; Dec. Dig. § 103.*] 3. Attorney and Client (§ 77*) — Authority oe Attorney — Apparent Authority. Where one was employed only as an attorney at law to collect a debt for his client, the debtor could not assume that the attorney had authority to accept anything but money in satisfaction, so that the rule requiring a principal to give notice of any limitation on the authority of a general agent, or one having apparent authority to make the contract in question, does not apply. [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 88-90, 132, 136, 148, 149; Dec. Dig. § 77.*] 4. Attorney and Client (§ 99*) — Authority oe Attorney — Collection oe Judgment-Joint Owner. Where a note, placed in the hands of an attorney for collection, provided for a 10 per cent, attorney’s fee, and the client agreed to pay the attorney such percentage and $60 additional, such agreement did not make the attorney a joint owner of a judgment in favor of the client for the amount of the note, principal, interest, and attorney’s fee, so as to entitle the attorney to make a settlement with the debtor by receiving trust certificates instead of money, under the rule that an accord and satisfaction with one of several joint creditors is a satisfaction of the debt. [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 196-203; Dec. Dig. § 99.*] 5. Principal and Surety (§ 164*) — Surety’s Liability — Judgment. Where a judgment against a principal and surety directed that execution should issue on the property of the surety, only in the event that property of the principal sufficient to satisfy the judgment could not be found, the return of several executions issued against the principal nulla bona was prima facie sufficient to authorize a levy on the property of the surety. TEd. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 456-465; Dec. Dig. § 164.*]
171 S.W. 530Pollard v. Allen (1914)Reversed and rendered
1. Limitation ojt Actions (§ 102*) — Causes of Action Baeeed by Limitation — TRUSTS. Plaintiff claimed that he turned over money to his uncle by having it placed to his uncle’s credit in the bank, in which it was deposited at his uncle’s request and on his uncle’s promise that he would put it on interest for plaintiff, and that plaintiff could have it back any time he wanted it or needed it. Held that, assuming that the transaction took place as claimed and that a trust was thereby created, such trust, though a direct or express trust, since it arose from an express agreement of the parties, was not a technical, continuing, and subsisting trust against which limitations would not run. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 494-505; Dec. Dig. § 102.*] 2. Limitation of Actions (§ 87*) — Suspension — Absence from State — Nonresidents. The departure from the state of a nonresident, who had been temporarily present in the state, did no.t suspend the running of limitations against a cause of action against him. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 456-462; Dee. Dig. § 87.*] .3. Limitation of Actions (§ 46*) — Accrual of Cause of Action — Obligations Payable on Demand. Where plaintiff turned over money to his uncle on his uncle’s promise to put it in a bank on interest for plaintiff’s benefit, and to return it when plaintiff wanted it or needed it, there was an obligation payable on demand, against which limitations ran from the date of the receipt of the money by the uncle, or at least from the expiration of a reasonable time in which to make the agreed deposit. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 240-253; Dec. Dig. § 46.*]
171 S.W. 534Keasler v. Wray (1914)Affirmed
F. O’Neal, Judge. Suit by T. B. Keasler against C. P. Wray .and others to recover on notes, and for other relief. From a. judgment for defendants, plaintiff appeals. On November 2, 1911, C. P. Wray, as principal, and T. E. Wray, as surety, executed to the First National Bank of Hughes Springs ten promissory notes.
171 S.W. 537Louisiana & Texas Lumber Co. v. Southern Pine Lumber Co. (1914)Affirmed
County; John S. Prince, Judge. Trespass to try title by the Southern Pine Lumber Company against the Louisiana & Texas Lumber Company and others. Judgment for plaintiff, and defendant Lumber Company appeals.
171 S.W. 540Paris & G. N. R. Co. v. Lackey (1914)Reversed and remanded for new trial
Error from District Court, Lamar County; A. P. Dehoney, Judge. Action by J. T. Lackey against the Paris & Great Northern Railroad Company. There was a judgment for plaintiff, and defendant brings error. Tracks 1 and 2 in plaintiff in error’s (hereinafter referred to as defendant) yards at Paris ran north and south. The distance between the west rail of track 1 and the east rail of track 2 was 7 feet and 7 inches.
171 S.W. 542Houston Chronicle Pub. Co. v. Tiernan. (1914)Reversed and remanded
Appeal from District Court, Liberty County; J. Llewellyn, Judge. Action by R. H. Tiernan against the Houston Chronicle Publishing Company. Judgment for plaintiff, and defendant appeals.
171 S.W. 546Kirby Lumber Co. v. Hamilton (1914)Reformed and affirmed
Appeal from District Court, Hardin County; L. B. Hightower, Judge. Action by Reese Hamilton, by his next friend, against the Kirby Lumber Company. Judgment for plaintiff, and defendant appeals.
171 S.W. 549Tharp v. Blake (1914)Affirmed
1. Municipal Corporations (§ 59*) — BOWERS. A municipal corporation may only exercise those powers that are granted in express words or are necessarily and fairly implied in or incident to the powers expressly granted and those essential in the sense of being indispensable as distinguished from merely convenient to the authorized objects and purposes; any fair reasonable doubt concerning the power being resolved by the courts against its exercise. [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 149; Dec. Dig. § 59.*] 2. Municipal Corporations (§ 58*) — “Organic Act” — Powers. A statute by which a municipal corporation is organized and cieated is its “organic act” and the limit of its power, so that all acts beyond the scope of the powers there granted are void. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 145-147; Dec. Dig. § 58.* For other definitions, see Words and Phrases, First and Second Series, Organic Act.] 3. Municipal Corporations (§ 214*) — Existence — Contest — Authority op Town — Contracts — Employment op Attorney. Since Rev. St. 1911, art. 1042 et seq., specifying the powers of an incorporated town or village, contained nothing conferring authority on it to become a party to a contest to determine the validity o.f an election on the question whether the corporation should be abolished, and article 3078 declared that in such a contest no costs should be adjudged against the town, such town had no authority to employ an attorney to contest such an election nor to bind the town for the payment of fees for such services. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 582-588; Dee. Dig. § 214.*] 4. Municipal Corporations (§§ 226, 858*)— Incorporated Town — Contracts. An incorporated town, under the general laws of the state, can enter into valid contracts and incur debts only when the making of such contracts or debts is within the scope of its general corporate functions or of authority conferred by statute. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 645-650, 1813; Dec. Dig. §§ 226, 858.*] 5. Municipal Corporations (§ 244*) — Corporate Action — Ordinances — Resolutions. _ A city or town council speaks' through its ordinances or resolutions, passed and promulgated as permitted or required by the law creating it; and hence the employment of an attorney, if otherwise authorized, can only be properly accomplished by an ordinance or resolution. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 678-681, 683; Dec. Dig. § 244.*] 6. Municipal Corporations (§ 220*) — Contracts — Invalidity— Quantum Meruit. Where an incorporated town had no authority to employ an attorney to perform certain legal services, he could not recover the reasonable value thereof on a quantum meruit. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 599-608; Dec. Dig. § 220.*]
171 S.W. 552Continental Bank & Trust Co. v. Dealey Bros. (1914)Reversed and remanded
F. Whitehurst, Judge. Action by the Continental Bank & Trust Company against Dealey Brothers and others. From a judgment for plaintiff against one of the defendants, and for the other defendants against the plaintiff, plaintiff appeals. About October 3, 1907, the C. A. Bonds Lumber Company shipped two cars of shingles from Shreveport, La., to the Craven Lumber Company in Dallas, Tex.
171 S.W. 553Beard v. International & G. N. Ry. Co. (1914)Affirmed
1.Tbial (§ 252*) — Requested Instructions— Applicability to Evidence. Where an agent in charge of a car of ■bananas traveled on a nontransferable pass, issued to his principal, to a junction point, with the consent of the. conductor of the branch train, and was there injured while the car was being coupled onto a train on the main line, a requested charge that if the agent presented the pass believing he had a right to ride thereon, and it was accepted by the conductor knowing that he was the agent of the person named therein, the agent was a passenger, was not applicable to the evidence, since the conductor of the train •on which he was injured had not consented to his riding. [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 2. Cabriers (§ 244*) — Carriage of Passengers — Acquiescence oe Conductor. One who took charge of a car of bananas as the agent of another, and attempted to travel along with the car on a nontransferable pass issued to his principal, not believing that he had a right to ride thereon, but only that the train employes would permit him to do so, is not a passenger toward whom the law owes a high degree of care, but at most a licensee, since the railroad company cannot be bound by the acts of its conductors in accepting persons for passage when done in violation of law or of the known rules of the company. [Ed. Note. — For other eases, see Carriers,' Cent. Dig. §§ 1115, 1116; Dec. Dig. § 244.*] 3. Carriers (§ 246*) — Carriage of Passengers — Burden of Proof — Existence of Relation. One who attempts to ride on a nontransferable pass issued to another has the burden of showing that he was accepted by the carrier as a passenger. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1275, 1284, 1296; Dec. Dig. § 246.*] 4. Appeal and Error (§ 1064*) — Harmless EteROR — Instructions — Unnecessary Instructions. Where a person, injured while accompanying a car of fruit, was a licensee, not a passenger, because traveling on a nontransferable pass issued to another, an instruction that he was not a passenger because he had the car stopped at a place not authorized by the bill of lading, while unnecessary, was not prejudicial to plaintiff. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*] 5. Trial (§ 252*) — Instructions — Applicability to Evidence. In an action for injuries received by a licensee while in a railroad car, an instruction that the plaintiff could not recover for any defect in the brake was proper, where there was evidence that the brake was defective, but no evidence that there was any attempt to use the brake, since the defect could not have been the proximate cause of the injury. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 6. Trial (§ 260*) — Requested Instructions —Repetition. The court should not give a special charge embodying the same instructions that were previously given in the main charge. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 7. Appeal and Error (§ 499*) — Presenting Questions in Lower Court — Objections to Charge. A bill of exceptions to the giving of a special charge should show that the particular objection urged on appeal was called to the attention of the trial court as required by Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59 (Vernon’s 'Sayles’ Ann. Civ. St. 1914, art. 1971), although the language of that article mentions only the general charge. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-229S; Dec. Dig. § 499.*]
171 S.W. 556Houston Oil Co. of Texas v. Sudduth (1914)Affirmed in part, and reversed and rendered in part
Appeal from District Court, Newton County; A. E. Davis, Judge. Trespass to try title by Katie V. Sudduth and others against the Houston Oil Company of Texas. Judgment for plaintiffs, and defendant appeals.
171 S.W. 561Houston Lighting Power, 1905 v. Conley (1914)Affirmed
1.Master and Servant (§ 185*) — Duty oe Master — Delegation oe Duty. A master’s duty to provide the servant with a safe place to work is nondelegable, and a servant who selects a location for' a spool of wire which is to be unwound represented the master in the performance of a nondelegable duty, and the master is liable for negligence in the performance of such duty. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*! 2. Master' and Servant (§ 279*) — Negligence— Sufficiency oe Evidence. Evidence, in an action for injuries to a servant, held sufficient to support a finding that 'another servant was guilty of negligence in performing a nondelegable duty of the master. [Ed. Note. — For other cases, see Master and' Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.*] 3. Master and Servant (§ 208*)— Place to Work — Assumption oe Risk. The risk of failure to provide a safe place to work is one not ordinarily assumed as incident to servant’s employment. [Ed. Note. — For other cases, see Master and' Servant, Cent. Dig. § 551; Dec. Dig. § 208.*] 4. Master and Servant (§ 203*) — “Ordinary Risk” — “Extraordinary Risk.” Ordinary risks arising in a service are assumed by the servant; negligence of either master or servant is not an element of such risks, but they arise out of the conditions of the employment, and are such that the servant could not reasonably anticipate that injury would occur from them in the usual course of the-service, and are incapable of being foreseen or-avoided by the exercise of ordinary care by either master or servant. Extraordinary risks are those that are abnormal and arise out of the-master’s negligence. [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. §• 203.* For other definitions, see Words and Phrases, Second Series, Extraordinary Risk, also, First and Second Series, Ordinary Risk.] 5. Master and Servant (§ 208*) — Assumption oe Risk — Place to Work. The selection of a safe place for the location of a spool of wire while it was being unreeled was not a risk assumed by the servant who assisted in the unreeling. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 551; Dec. Dig. § 208.*] 6. Master and Servant (§§ 101, 102*) — Selection oe Place to Work — Degree of-Care. It is the master’s duty to exercise ordinary care to furnish a servant a reasonably safe place to work, and his failure to do so is negligence which renders him liable for an injury proximately caused thereby. [Ed. Note. — For other cases, see Master and. Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*] 7. Master and Servant (§ 286*) — Selection oe Place to Work — Questions for Jury. Whether a master was negligent in selecting a place for a servant to work held a question for the jury. [Ed. Note. — For other cases, see Master and-Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]
171 S.W. 711Ex parte Kellett (1914)Affirmed
W. Robinson, Judge. Ex parte application by Jack Kellett for a writ of habeas corpus to procure his admission to bail. Prom an order denying bail, he appeals.
171 S.W. 774Wicks v. Comves (1914)Affirmed
1. Specific Performance (§ 10*) — Partial Illegality of Contract. A contract, illegal in part, may be specifically enforced if the illegal part is severable, but not if the contract is entire. [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dee. Dig. § 10.*] 2. Contracts (§ 122*) — Validity of Lease-Contrary to City Ordinance. A lease of space, for a fruit stand on the outside of a store building, providing that if the occupation of the space be contrary to ordinance, then the lessee will be provided space inside the building, is not illegal, though an ordinance is passed forbidding the erection of such stand on the sidewalk. [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 495; Dee. Dig. § 122.*] 3. Landlord and Tenant (§ 32*) — Sub-lessee-Acceptance of Rents. Where an assignee of a stock of confection-ary and the lease of a store actually knew that there was a sublease to a fruit dealer, who had his stand on the outside of the store, the acceptance of the rents from the sublessee ratified the lease, though it contained a provision that if the city compelled the vacation of the fruit stand, the lessee would give the sublessee space inside. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 92; Dec. Dig. § 32.*] 4- Landlord and Tenant (§ 80*) — Breach of Contract — Surrender of Premises — Order of Court — Future Profits. Where, in sequestration proceedings between an assignee of a lease and a sublessee of the original lessee, it was expressly ordered by the court that a surrender of the premises would not prejudice the right of either party, such surrender cannot be urged as defeating the sublessee’s right to recover future profits in an’ action on the contract of lease. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 254-257; Dec. Dig. § 80.*] Walthall, J., dissenting.
171 S.W. 779R. B. Godley Lumber Co. v. Slaughter (1914)Reversed and rendered in part and affirmed in part
1. Vendor and Purchaser (§ 261*) — Vendor’s Lien — Assignment — Transfer of Title to Land. The assignee of a vendor’s lien note without an assignment of the title to the land is not entitled to have the legal title to the land decreed to be in him. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.*] 2. VENDOR AND PURCHASER (§ 261*) — DEBTS Secured by Vendor’s Lien — Transfer.—■ Effect. Transfer of a debt secured by a vendor’s' lien transfers the lien, but not the land. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.*] 3. Vendor and Purchaser (§ 261*) — Vendor’s Lien — Assignment — Transfer of Land. Where a vendor assigned a note for a part of the purchase price secured by a vendor’s lien, together with all his right, title, and interest in the land to an insurance company, but such company, in reassigning to plaintiff’s assignor, only assigned without recourse the note and lien on the land to secure payment of the same, neither plaintiff nor his assignor acquired any title to the land; and hence plaintiff could only recover his debt and have a decree foreclosing the lien, and no.t a decree vesting the title in him. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.*]
171 S.W. 782Glasscock v. Wells (1914)Affirmed
1.Hospitals (§ 4*) — Boakd op Managers— Appointment. Section 12 of Act March 26, 1913 (Acts 33d Leg. c. 39; Vernon’s Say les’ Ann. Civ. St. 1914, art. 1498?), provides for appointment by the commissioners of a board of managers for county hospitals for the care of persons suffering from illness or injury exists. Held, that a hospital established and maintained by a county, not to meet a temporary emergency like that arising from an epidemic of smallpox, but a permanent hospital, was contemplated, and appointment of a board to take charge of a building constructed for, but never equipped or used for, a hospital, and abandoned as unfit for the purpose, is not required. [Ed. Note. — For other cases, see Hospitals, Cent. Dig. §§ 5-10; Dec. Dig. § 4.*] 2. Hospitals (§ 4*) — Board op Managers— Appointment. Neither does the statute require appointment of a board to take charge of pesthouses used only occasionally solely to treat eases of smallpox. [Ed. Note. — For other eases, see Hospitals, Cent. Dig. §§ 5-10; Dec. Dig. § 4.*] 3. Hospitals (§ 4*) — Board op Managers— Appointment. A hospital operated by a city and county on their joint account pursuant to section 14 of Act March 26, 1913 (Acts 33d Leg. c. 39; Vernon’s Say les’ Ann. Civ. St. 1914, art. 149Sn), providing for its joint control by the commissioners’ court and city authorities, is not a county hospital, within the provision of section 12 (article 1498Z), for the appointment of a board of managers, and, moreover, control thereof by such a board is not only unauthorized but directly contrary to the provision in section 14. [Ed. Note. — For other cases, see Hospitals, Cent. Dig. §§ 5-10; Dec. Dig. § 4.*]
171 S.W. 784Milner v. Sims (1914)Reversed
Apipeal from District Court, Hopkins County ; Wm. Preisor, Judge. Suit by Ready Sims and others against M. F. Milner. From a judgment for plaintiffs, defendant appeals.
171 S.W. 786Style v. Lantrip (1914)Appeal dismissed
Appeal from District Court, Bowie County; W. T. Armistead, Special Judge. Petition by Mrs. Mattie Lantrip against Leonard Style and others. From an order appointing a receiver as prayed for, defendants appeal.
171 S.W. 789Marion County v. Perkins Bros. Co. (1914)Reversed, with instructions to dismiss
Appeal from District Court, Marion County ; W. T. Armstead, Judge. Suit by Perkins Bros. Company against Marion County and others. Judgment for plaintiff, and defendants appeal.
171 S.W. 790Murchison v. Murchison (1914)Reversed and rendered
1. Divoece (§ 48*) — Geounds—Condonation. Condonation applies to cruelty and other grounds of divorce, as well as to adultery; the only difference being that an act of cruelty is condoned only until the particular act is repeated. [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 169, 170, 184; Dec. Dig. § 48.*}. 2. Divoece (§ 27*) — Geound—Cbuelty. Corporal punishment administered by a wife to her stepdaughter was not such cruel treatment of the husband as entitled him to a divprce. [Éd. Note. — For other cases, see Divorce, Cent. Dig. §§ 27, 62-83; Dec. Dig. § 27.*] 3. DIvoece (§ 49*) — Cruel Treatment — Con-donation. Where a husband continued to live with his wife without protest harmoniously for a considerable time after she administered cor.poral punishment to his daughter, and without mentioning- the fact to her, and they separated not because he was unwilling to live with her as his wife, but because she was unwilling to longer live with him as her husband, her act in whipping the daughter was condoned. [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 171-179; Dec. Dig. § 49.*]
171 S.W. 791Buhler v. E. T. Burrowes Co. (1914)Reversed, and cause dismissed
1. COEPOBATIONS (§ 642*) — FoBEIGN COBPO-eations — Right to Sue — Noncompliance with Statute. A foreign corporation which contracted to sell and install in a building in this state screen doors and window screens and performed the contract, its agent doing the carpenter work necessary to fit and install them, was transacting business in the state, whether the screens were shipped to the purchaser or to the agent, and hence, where it had not obtained a permit to transact business in the state, it could not sue for the purchase price of the screens. [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.*] 2. Corporations (§ G42*) — Foreign Corporations — Right to Sue — Noncompliance with Statute — “Doing Business.’’ A single transaction is sufficient to constitute the transaction of business in this state by a foreign corporation not having a permit to transact business in the state. [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.* For other definitions, see Words and Phrases, First and Second Series, Doing Business.]
171 S.W. 793Porterfield v. Taylor (1914)Affirmed
1. Deeds (§ 6*) — Nature oe Instrument— Deed or Executory Contract to Convey. An instrument in form of a deed, reciting that the grantors had employed the grantee as their attorney to prosecute a suit to recover the land in controversy for another and in consideration of the faithful performance of the grantee’s duties, the grantors sold, etc., one-fourth of whatever sum might be realized out of and collected in the cause together with' one-fourth of all rents and appurtenances thereto pertaining, recovered by the grantors in the suit and assigned and transferred a one-fourth interest in the cause of action, etc., constituted a present conveyance of one-fourth of the grantors’ legal title in the land, ’ and not an executory contract to convey. [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 6; Dec. Dig. § 6.*] 2. Trusts (§ 103*) — Creation—Enforcement. Where a widow, having conveyed her homestead to her son, after marriage, employed an attorney to recover the land, executing with her husband a deed to a one-fourth interest in the cause of action and without the attorney’s knowledge obtained from the son a reconveyance, she held an undivided one-fourth of the land as the attorney’s trustee. [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*] 3. Partition (§ 16*) — Interest in Property. Where a client held a one-fourth interest in certain land as her attorney’s trustee, such title was sufficient to enable him to maintain partition. [Ed. Note. — For other cases, see Partition, Cent. Dig. § 52; Dec. Dig. § 16.*]
171 S.W. 795Bray v. Sewall (1914)Affirmed
1. Mortgages (§ 561*) — Actions for Deficiency-Sufficiency of Answer. In an action on promissory notes secured by a deed of trust for a deficiency remaining after foreclosure of the deed of trust, an answer by certain defendants, alleging facts as to collusion between plaintiff and another defendant alleged to have assumed payment of the notes, held subject to some of the special exceptions for immateriality, indefiniteness, and insufficiency, which were sustained by the trial court. [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1609-1621; Dee. Dig. § 561.*] ' 2. Appeal and Error (§ 737*) — Assignments of Error — Including Errors in One Assignment. Where the special exceptions to an answer each presented various questions of law, but the assignments of error complaining of the sustaining of the various exceptions were grouped, they could not be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3030-3032; Dec. Dig. § 737.*] 3. Appeal and Error (§ 742*) — Assignments of Error — Sufficiency of Statement Accompanying Assignments. Where the statement accompanying assignments of error complaining of the sustaining of special exceptions to the answer did not refer to the transcript, was not germane to the proposition under the assignments, and nowhere pointed out the part of the answer to which the exceptions referred, nor set out or gave the substance of the exceptions so as to show that they presented a single proposition of law, the brief did not conform to the rules. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]
171 S.W. 797St. Louis S.W. Ry. Co. of Texas v. Mathews (1914)Affirmed
Appeal and Ebroe (§ 263*) — Questions Reviewable — Refusal of Instbuctions — Exceptions. Refusal of special requested charges is not reviewable, unless exceptions were reserved to the refusal as required by statute. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*]
171 S.W. 797St. Louis, S. F. & T. Ry. Co. v. Tudle (1914)Appeal dismissed
Appeal from District Court, Grayson County; W. M. Peck, Judge. Action between James Tudle and others and the St. Louis, San Francisco & Texas Railway Company. There was a judgment for the former, and the latter appeals.
171 S.W. 798Chavers v. Henderson (1914)Reversed and rendered
Logs and Logging (§ 3*) — 'Conveyance oe Standing Timbee — Fobeeiture. An instrument conveying standing timber on described land, giving the purchaser five years within which to cut and remove the timber, and providing for the extension of the time on the purchaser’s first removing timber from the part of the land the vendor wishes to use for farming, does not create an interest in land, and the timber not removed within, the time is forfeited, where, before the expiration of the time, the vendor gave notice where to cut, and the purchaser failed to cut the timber. [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]
171 S.W. 799Missouri, K. T. Ry. of Texas v. Dellmon (1914)Affirmed
Error from District Court, Hunt County; Wm: Pierson, Judge. Action by Joe R. Dellmon against tbe Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for plaintiff, and defendant brings error.
171 S.W. 801Fireman's Fund Ins. Co. v. Lyon (1914)Reversed and rendered
B. Hall, Judge. Action by E. W. Lyon against the Fireman’s Fund Insurance Company. There was a judgment for plaintiff, and defendant brings error. This suit is by defendant in error to recover, on a fire insurance policy issued by the plaintiff in error upon a dwelling. The dwelling was destroyed by fire on September 13, 1911.
171 S.W. 803Tullos v. Church (1914)Affirmed
1. Counties (§ 196*) — 1Contracts—Existing Debt Limit — Injunction. . In view of Rev. St. 1911, art. 4643, subds. 1, 2, providing that a writ of injunction may be granted when the applicant is entitled to the relief demanded, and it requires the restraint of some act prejudicial to him, and where, pending litigation, a party is doing or threatening to do some act in violation of the right of the applicant, a taxpayer in a county may not only maintain a suit to enjoin the execution of a void debt, but to prevent illegal tax levy, in excess of the county’s constitutional debt limit. [Ed. Note. — For other eases, see Counties, Cent. Dig. § 308; Dee. Dig. § 196.*] 2. Counties (§ 196*) — Indebtedness — Injunction — Petition. A taxpayer’s petition, in a suit to enjoin a county from an illegal tax levy to meet a contract obligation in excess of the constitutional debt limit, must affirmatively show that the alleged prior indebtedness had been legally created, and was a valid and subsisting obligation against the county, when the contract obligation was sought to he created. [Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.*] 3. Counties (§ 222*) — Action on Obligations. Plaintiff, in a suit to obtain a judgment on an obligation of a county, must plead and prove all the thing's requisite to make it a valid and binding obligation. [Ed. Note. — For other eases, see Counties, Cent. Dig. §§ 355-359;» Dec. Dig. § 222.*]
171 S.W. 806St. Louis Southwestern Ry. Co. v. Anderson (1914)Reversed and remanded for a new trial
F. O’Neal, Judge. Action by T. J. Anderson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. This is the second time this case has been before this court.
171 S.W. 808Bulloch v. Missouri, K. & T. Ry. Co. (1914)Affirmed
1. Appeal and Error (§ 882*) — Review—Invited Error — Instructions.. Where a petition for injuries, suffered by reason of catching cold in an unheated car, alleges that plaintiff at the time was in perfect health, except a slight weakness incident to an operation for appendicitis, plaintiff cannot_ object that an instruction malting it the carrier’s duty to heat the car so that a person in normal health and physical condition would not suffer inconvenience stated too low a degree of warmth. [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] 2. Trial (§ 251*) — Instructions—Application to Issues. A petition for injuries to a passenger, suffered by reason of an unheated car, alleging that plaintiff was at the time in perfect health, except a slight weakness incident to a prior operation for appendicitis, is insufficient to authorize the submission of an issue of aggravation of previous injury. [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§.587-595; Dec. Dig. § 251.*] 3. Appeal and Error (§ 1066*) — Harmless Error — Instructions. A party may not allege error as to instruction on an issue not pleaded by him. [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] 4. Trial (§ 260*) — Instructions Covered by Main Charge. A requested instruction sufficiently covered by the main charge is properly refused. [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*} 5. Appeal and Error (§ 759*) — Briefs—Assignments. An assignment of error not copied in the brief will not be considered. [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]
171 S.W. 809Rogers v. Harris (1914)Affirmed
1. Guardian and Ward (§' 44*) — Authority to Lease. Rev. St. 1911, arts. 4124, 4136, authorize a guardian to manage and control the ward’s property, and to lease the same and collect the rent, but require him to account for reasonable rent when he is not ordered to lease. Articles 4137 and 4139 authorize the court to order a lease for not exceeding one year, and on complaint require the guardian to show cause why he should not be required to rent, and to make an order in such case. 'Held,, that a guardian, renting without an order, was not limited to a lease for a year, but had power to lease for a longer term. [Ed.1 Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 192-201; Dec. Dig. § 44.*] 2. Guardian and Ward (§ 44*) — Authority to Lease. A guardian at common law can lease a ward’s real estate for any term of years not expending beyond minority. [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 192-201; Dec. Dig. § 44.*] 3. Landlord and Tenant (§ 76*) — Action for Rent — Evidence. Evidence in action by a guardian for rent held to justify a finding that no agreement was made permitting defendants to sublet. [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 225-230; Dec. Dig. § 76.*] 4. Appeal and Error (§ 1074*) — Harmless Error. Where there is a full statement of facts, and no issue raised which cannot be satisfactorily disposed of without conclusions requested, and no objection is raised on appeal to the consideration of findings of fact and conclusions of law certified in the record, error, if any, in failing to file findings of fact and conclusions of law within the time prescribed by statute, is harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4248-4252; Dec. Dig. § 1074.*]
171 S.W. 812Supreme Ruling of Fraternal Mystic Circle v. Hoskins (1914)Affirmed
1. Insurance (§ 693*) — Mutual Benefit Insurance — Actions — Sufficiency of Evidence of Death. Where a benefit insurance certificate provided for payment upon satisfactory proof of the death of the member, a by-law providing that the member’s absence or disappearance from his .last known place of residence for any length of time should not be evidence of his death, and that no right should accrue under his certificate, nor should any benefits be paid until conclusive proof had been made of his death, aside from any presumption arising by reason of Ms absence, was void under Rev. St. 1911, art.. 5707, providing that any person absenting himself, beyond sea or elsewhere, for seven years successfully shall be presumed to be dead,, unless proof be made that he was alive within that time, since the by-law, construed in connection with the .certificate, did not except the absence of a member from the risks assumed, but merely provided what should constitute “satisfactory proof,” thereby restricting a rule of eyidence, contrary to public policy. [Ed. Note. — For other cases, see Insurance, 'Cent. Dig. '§ 1833; Dec. Dig. § 693.*] 2. Insurance (§ 699*) — Reinsurance—‘-‘Living, Contributing Members in Good . Standing” — Sufficiency of Evidence. The constitution and laws of a benefit society provided that any member who should ab•scond or depart from his last place of residence and remain away for one year without reporting his address to the secretary, should forfeit his membership; that the secretary should not receive from any person any assessment, dues, or fines on account of such member, but should .notify the person offering to make the payments that proof of the member’s location or residence was necessary, suspend the member, and report his action to the supreme secretary. Defendant took over the membership and affairs of such society by a contract providing that all “living, contributing members in good standing” thereby became members of defendant, and that benefit certificates issued to such members were thereby assumed by it. A member disappeared from his last known .place of residence more than a year prior to this contract and was not thereafter heard of within seven years from the date of his disappearance, but his dues had been paid and no attempt had been made to suspend him, though the facts were known to the local secretary, and reported by him to the society. There was no evidence that he was actually dead at the date of the contract. HeW, that the member was a contributing member in good standing at the date of the contract, and the evidence warranted a finding that he was a living member; especially as Rev. St. 1911, art. 5707, attaches no legal consequences to a person’s absence or disappearance, until the expiration of the seven years necessary to raise a presumption of death. [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 699.*] 3. Insurance (§ 755*) — Mutual Benefit Insurance-Suspension — Waiver or Estop-pel. Where the constitution and laws of a benefit insurance society provided that any member who should remain away from his last place of residence for one year should forfeit his membership; that the secretary should not receive assessments, dues, or fines on his account, but should notify the person offering them that proof of the member’s location or residence was necessary, suspend the member, and report his action to the supreme secretary, but, though a member’s disapearance was known to the local secretary and reported by him to the society, no notice was given to a person paying the dues and assessments that proof of the member’s location or residence was necessary, and, on the contrary, such payments were accepted and no attempt made to suspend the member, the society waived its right to suspend him, and was estopped from asserting a suspension to defeat a recovery on the certificate after he had been absent for seven years. [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1907-1916; Dec. Dig. § 755.*] 4. Death (§ 2*) —Presumption from Absence — Statutory Provisions — ‘ ‘Elsewhere.” ’ “Elsewhere” in Rev. St. 1911, art. 5707, providing that any person absenting himself beyond sea, or elsewhere, for seven successive years, shall be presumed to be dead, does not, as claimed, mean outside the state. [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. § 2.* For other definitions, see Words and Phrases, First and Second Series, Elsewhere.]
171 S.W. 815International & G. N. Ry. Co. v. J. B. Bryant & Co. (1914)Affirmed
Appeal and Erp.op. (§ 1042*) — Pleadings— Answer — Exceptions—Prejudice. Where berries were damaged by the negligence of the initial carrier in furnishing an improper car, such carrier was not prejudiced by sustaining an exception to its answer pleading a stipulation that the carrier’s liability should terminate on delivery to the connecting carrier. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. § 1042.*]
171 S.W. 816Smith v. Tipps (1914)Reversed and remanded for new trial
Appeal from District Court, Rusk County; W. C. Buford, Judge. Action by John M. Tipps against Clem Smith and another. From a judgment for plaintiff, defendants appeal. By their deed dated November 1, 1906, J. E. Watkins and R. I-I. Hightower, in consideration of the execution and delivery to them by appellant Clem Smith of his three promissory notes for $100, interest, and attorney’s fees, each payable, respectively, November 1, 1907, 190S, and 1909, conveyed the SO acres of land in controversy to said Smith. By the terms of both the deed and the notes the vendors’ lien was retained on the land to secure the payment of the latter. November 7, 1908, Watjdns and Hightower transferred the notes to B. K. Johnson, who, joined by one Moore, on December 14, 1912, assigned same to appellee. Before the notes were assigned to Johnson, Smith made a payment of $10 on same, and while Johnson owned them made a payment of $30 thereon. No other payment was ever made on the notes. By an instrument dated January 25, 1912, Hightower conveyed the superior title remaining in him as one of the vendors of the land to appellee. Watkins refused to make such a conveyance to appellee. This suit was commenced by appellee by a petition filed May 1, 1913. As so commenced, it was to recover on the notes and to foreclose tlie vendors’ lien to secure their payment. Neither appellee’s original petition nor the original answer of Smith thereto is a part of the record on this appeal, but it seems Smith interposed as a defense to the suit a plea that the notes were barred by the four-year statute of limitations, and that appellee thereupon filed his “first amended origina) petition,” in which be alleged that while it was true that the notes which matured in 1907 and 190S were barred, the one which matured in 1909 was not barred at the time he commenced his suit. In this amended petition he undertook to adopt “each and every allegation set out in his original petition,” and prayed the court, “as in his original petition, for a foreclosure of his vendors’ lien notes and for a sale of said property to satisfy same, and if the court should hold that the notes due November 1, 1907, and November 1, 1908 are barred by the statute of limitations, that he have judgment against the defendants as prayed for in his original petition on the $100 note due November 1, 1909, and that after the satisfaction of said note the balance of said premises be appropriated and the title to same be declared in this plaintiff, or so much thereof as the court may hold plaintiff is justly entitled to, * * * . and that plaintiff would further ask that the title to the entire SO acres of land described in plaintiff’s original petition be declared to be in plaintiff herein, or so much thereof as the court may see proper to render, and that plaintiff have judgment against the defendants, and each of them, for his debt, for the possession of said land and premises, interest, and attorney’s fees as prayed for in hi's original petition,” etc. Afterwards ap-pellee sought by a plea filed for that purpose to make Watkins a party defendant in the suit, and for judgment devesting title out of him and vesting same in appellee, and then filed a “second amended petition,” in which, without alleging any facts entitling him to such relief, or any relief, he asked “that the deed conveying the land for which the notes herein sued on were given * * * be canceled, and the title to the said 80 acres of land described in plaintiff’s original petition, to which reference is here made, be declared to be in plaintiff herein in fee simple.” In neither of the amended petitions was the land in controversy .described otherwise than by reference to the original petition, which, as before stated, is not a part of the record here. This appeal is by Smith alone from a judgment awarding the land to ap-pellee as against him and as against Watkins.
171 S.W. 818Findlay v. Lumsden (1914)Reformed and affirmed
Error from District Court, Morris County; W. T. Armistead, Judge. Action by C. A. Lumsden against J. H. Findlay. There was a judgment for plaintiff, and defendant brings error. Defendant in error was the plaintiff in the court below, and hereinafter will be so designated. Plis suit was on promissory notes in his favor made by plaintiff in error, who hereinafter will be referred to as defendant, for sums amounting to $500, besides interest.
171 S.W. 819Fidelity & Deposit Co. of Maryland v. Albrecht (1914)Affirmed
Appeal from District Court, Harris County; N. G. Kittrell, Judge. A suit to foreclose a mortgage by the Fidelity & Deposit Company of Maryland against Henry Albrecht and others. From a decree for defendants, complainant appeals.
171 S.W. 822Smith v. Moore (1914)Reversed and rendered
1. Habeas Corpus (§ 99*) — Custody of Infants— EItness of Parents — Sufficiency of Evidence. In habeas corpus by the parents of a child born prior to their marriage to recover its custody from the father’s sister, _ evidence held, insufficient to support a finding that the father was not a fit person to have the custody of the child, and, on the contrary, to show that the fitness of the parents to rear the child was equal to that of the sister and her husband. [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.*] 2. Habeas Corpus (§ 99*) — Custody of Infants — Giving Preference to Parents. Where a child born shortly before the marriage of its father and mother was given to the latter’s sister to prevent the facts becoming known to other members of his family, but shortly after the marriage the parents abandoned their efforts to conceal the facts and sought to recover the custody of the child, and their fitness to rear it was fully equal to that of the sister and her husband, the father being better able financially to support the child than the sister’s husband, the court in Rabeas corpus erred in awarding the custody to the sister, since, while the welfare of the child will be considered in disposing of its custody, where other things are equal, the natural parents, though they have voluntarily parted with the child, should be given its custody. [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.*] 3. Habeas Corpus (§ 99*) — Custody of Infants — Sufficiency uf Evidence. In habeas corpus by the parents of a child born out of wedlock to recover its custody from the father’s sister to whom the parents had delivered it for the purpose of concealing the facts from other members of the father’s family, and with the intention of selling out and moving to some part of the country where its illegitimacy would not be known, evidence held insufficient to support a finding that the child was virtually abandoned by its parents when turned over to the sister and her husband. [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.*]
171 S.W. 826Prince v. Taylor (1914)Affirmed, and motion for rehearing overruled
Appeal from District Court, Harris County ; N. G. -Kittrell, Judge. Suit by Joe H. Taylor against H. Prince and another. From a judgment for plaintiff, defendants appeal.
171 S.W. 831City of Kaufman v. French (1914)Reversed and remanded
1. Dedication (§ 1*) — Acts Constituting— Expbess and Implied Dedication. Common-law dedications are divided into express and implied dedications, and in both there must be an appropriation of land by the owner to public uses, in the one case by some express manifestation of such purpose, and in the other by some act or course of conduct from which the law will imply such an intent. [Ed. Note. — For other eases, see Dedication, Cent. Dig. §§ 8, 10-12; Dec. Dig. § 1.*] 2. Dedication (§ 15*) — Requisites—Intent. To constitute a dedication it is essential that the donor should intend to set apart and appropriate the land to a public use, which intent must not be a secret one, but expressed by the visible conduct and open acts of the owner inducing the belief that he 'intends to dedicate it to a public use, and where action is taken by the public or individuals, as if there had been in fact a dedication,_ the law will not permit the donor to deny the intent to dedicate. [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 13; Dec. Dig. § 15.* For other definitions, see Words and Phrases, First and Second Series, Dedication.] 3. Dedication (§ 19*) — Acts Constituting —Designation on Maps and Plats. A dedication may be established against the owner of land by showing that he has platted it as an addition to a city by a map placed on the public records, and has sold lots by deeds referring to the map in the description thereof, or that he has adopted a map or plat made by another person, the rule of construction in such case being to give effect to the intention manifested by such acts. [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*] 4. Dedication (§ 15*) — Evidence—Presumptions. The doctrine of a presumed dedication from unequivocal acts or declarations upon which the public or those interested in the dedication have acted, rests upon the principle that a man is presumed to intend the usual and natural consequence of his acts; but where a dedication was not manifested by acts and declarations which would lead an ordinarily prudent man to infer an intent to dedicate, or where the donor’s acts and declarations forbade the inference of such intent and he was without negligence, he might show his mistake and avoid the dedication. [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 13; Dec. Dig. § 15.*] 5. Dedication (§ 19*) — Acts Oonstituting —Reference to Maps and Plats. Where a map and plat of land showing streets was made by one other than the owner and filed as a public record, the owner’s subsequent deeds caEing for and referring to the map for the description of the land, in the absence of evidence rebutting the presumption that he intended what his acts indicated, constituted a dedication of the land to public use, which, if acted upon by the city or by the grantees, made the owner’s intent immaterial. [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*] 6. Dedication (§ 15*) — .Reference to Plat-Knowledge op Grantees — Estoppel. Where the owner of land, of which a third person had made a map or plat showing streets and filed it as a public record, did not intend by her conveyances referring to the map for description to dedicate the land to a public use, and the grantees were so informed or necessarily must have known when they purchased that she did not intend a dedication to public use, there was no dedication, since if the person against whom dedication is asserted was ignorant of his rights and free from negligence there would be no implied dedication; but even if ignorant of his rights the owner, if guilty of culpable negligence, would be estopped against those misled thereby. [Ed. Note. — For other cases, see Dedication, Cent. Dig.. § 13; Dec. Dig. § 15.*] 7. Judgment (§ 256*) — Conformity to Verdict. In an action to enjoin a city from claiming land for a street under a dedication by plaintiff’s mother, a finding that she intended to dedicate the land in controversy to public use could not be ignored by the trial court, and judgment ■ rendered for the plaintiff; but the court, if of opinion that the evidence showed that she did not intend to dedicate the land, should have granted a new trial. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dee. Dig. § 256.*] 8. Limitation op Actions (§ 6*) — Retroactive Operation op Statute. In an action to enjoin a city’s use of land for a street, where the asserted dedication, if any, was made by deeds of plaintiff's ancestor executed in 1883, referring to a map or plat showing streets, limitations in favor of the plaintiff could not run after the statute of 1887 (Acts 20th Leg. c. 41) exempting municipalities from limitations, and where less than five years elapsed between the aUeged dedication and the statute, the city’s claim of right to open the street was not barred. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 16-31; Dec. Dig. § 6.*] 9. Dedication (§ 31*) — Requisites—Acceptance. Proof of a city’s acceptance of land dedicated by a map or plat and by reference thereto in deeds was not necessary. [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 64, 65; Dec. Dig. § 31.*] 10. Trial (§ 398*) — Findings—Conflict. In an action to enjoin a city’s claim to land for a public street under an alleged dedication by plaintiff’s mother, a finding that her grantees did not know of her intention that the land should not be opened for street purposes was in conflict with a finding that plaintiff at the time of such deeds informed the grantees that he reserved the land as a part of his home place. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 946, 9Í7; Dec. Dig. § 398.*] 11. Dedication (§ 44*) — Sufficiency oe Evidence-Reservation by Grantor. In an action to enjoin a city’s claim to a street under an alleged dedication, evidence held insufficient to sustain a finding that plaintiff had informed all the purchasers, by deeds referring for description to a map and plat of the land filed as a public record, that the land in controversy was reserved. [Ed. Note. — For other cases, see Dedication, Gent. Dig. §§ 85-87; Dec. Dig. § 44.*]
171 S.W. 836Martin v. Stires (1914)Reversed and remanded, and motion for rehearing overruled
1. Appeal and Error (§ 759*) — Questions. Reviewable — Assignments oe Error. Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1612), providing that errors assigned in the motion for new trial shall constitute assignments and need not be repeated by the filing of assignments of errors, and that an assignment directing the attention of the court to the error complained of is sufficient, does not require the Courts of Civil Appeals to consider an assignment not copied in tlie brief. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*] 2. Appeal and Error (§ 724*) — Questions Reviewable — Assignments oe Error. An assignment of error failing to direct the court’s attention to any error will not lie considered in view of Acts 33d Leg. e. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1612), which declares that an assignment directing the court’s attention to the error complained of is sufficient. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dee. Dig. § 724.*] 3. Appeal and Error (§ 722*) — Questions Reviewable — Assignments oe Error. An assignment of error predicated on the admission of evidence of an assignee of a lessee in an action for rent, which is followed by an excerpt from the testimony and the objection thereto, is not a proposition of law, but will be considered in view of Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1612), providing that an assignment directing the attention of the court to the error complained of is sufficient. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*] 4. Landlord and Tenant (§ 208*) — Assignment of Leasehold — Rights and Liabilities of Assignee. An assignee of a leasehold interest takes the place of the lessee with all his rights and subject to his liabilities, and must pay the stipulated rent. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 737, 821-831; Dec. Dig. § 208.*] 5. Words and Phrases — “Assets.” The “assets” of a company occupying premises as a tenant include the leasehold interest. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assets.] On Motion for Rehearing. 6. Landlord and Tenant (§ 79*) — Assignment of Leasehold Interest — Liability of Assignee. Where a lease terminable at the end of any quarter was assigned, the assignees could terminate the lease at the end of any quarter, and thereby escape liability for rent, though unable by the act of the landlord to remove their property. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 235, 244-253; Dec. Dig. § 79.*] 7. Trial (§ 250*) — Issues — Submission to Jury. A case should be submitted to the jury on the issues raised by the pleadings and evidence, and the jury should not be permitted to dispose of a case on pleadings unsupported by evidence or evidence not supported by pleadings. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584^586; Dec, Dig. § 250.*]
171 S.W. 838Andrews v. Jeter & Co. (1914)Reversed, and cause ordered dismissed
Appeal from Refugio County Court; Leslie Adkins, Judge. Action by Jeter & Co. against Prank Andrews, receiver. Judgment for plaintiff in justice’s court was affirmed on appeal to the county court, and defendant appeals.
171 S.W. 839Bailey v. Western Union Telegraph Co. (1914)Reversed and remanded
Appeal from District Court, Bowie County; W. T. Armsted, Special Judge. Action by T. C. Bailey against the Western Union Telegraph Company. From a judgment granting insufficient relief, plaintiff appeals.
171 S.W. 1016Baldwin v. Jordan (1914)Affirmed
Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by 6. W. Jordan and wife against J. C. Baldwin and others. Judgment for plaintiffs, and defendants appeal.
171 S.W. 1017Winkie v. Conatser (1914)Affirmed
Appeal, from District Court, Hemphill County; F. P. Greever, Judge. Action by W. J. Conatser against H. J. Winkie and another. From a judgment perpetuating the injunction, defendant named appeals.
171 S.W. 1019San Antonio & A. P. Ry. Co. v. Grady (1914)Reversed and remanded
1. Teial (§ 191*) — Instructions—Evidence. Where, in an action against the initial carrier for negligent handling and delay in transportation, the shipper testified that he made a contract for through shipment, while the carrier introduced a bill of lading limiting its liability to damages accruing on its own line and showed no damage or delay occurred on its line, a charge that the contract was for through shipment was on a material issue and assumed a controverted fact. [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*] ■ 2. Carriers (§ 180*) — Intrastate Shipment —Initial Carrier — Limitation op Liability. An initial carrier of an intrastate shipment may limit its liability for damages occurring on its own line and in tendering the shipment' to the connecting carrier for transportation to the point of destination. [•Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*] 3. Evidence' (§ 178*) — Secondary Evidence-Loss of Primary Evidence. Where a carrier did not contend that it did not issue contracts for return transportation of a shipper who lost the contracts, the shipper could testify as to their contents. [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 5S0-594; Dec. Dig. § 178.*]
171 S.W. 1021Allison v. Richardson (1914)Reversed and rendered
Appeal from District Court, Henderson-County; John S. Prince, Judge. Trespass to try title by B. M. Richardson against G. W. Allison, in which James Gar-rity and others intervened. From a judgment for plaintiff and the interveners, defendant appeals.
171 S.W. 1023Horton v. Texas Midland R. R. (1914)Affirmed
Appeal from District Court, Hunt County; A. P. Dohoney, Judge. Action by Maggie Horton against the .Texas Midland Railroad. From a judgment for defendant, plaintiff appeals.
171 S.W. 1024Texas Midland R. R. v. Becker & Cole (1914)Affirmed
1. Appeal and Error (§ 499*) — Record — Matters Presented fob Review. That objections to the charge were presented before it wás read to the jury, and that exceptions were taken to the refusal of special charges as required by Act March 29, 1918 (Acts 33d Leg. c. 59) must be shown by a bill of exceptions taken and incorporated into the record, and was not sufficiently shown by a purported transcript of the objections and exceptions, signed by counsel for the appellants and filed with the clerk without presentation to, and approval by, the trial judge, nor by affidavits of the trial judge made long after the perfecting of the appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.*] 2. Carriers (§ 213*) — Transportation oe Live Stock — Performance of Contract. A carrier’s agreement to deliver cattle at a market on a particular day was not complied with by delivering them before' the market closed, but too late to unload them and get them on the market before its close. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.*] 3. Carriers (§ 228*) — Transportation of Live Stock — Actions fob Damages — Evidence. In an action for damages to a shipment of live stock from delay in transportation and rough handling, the testimony of witnesses for plaintiffs that the delay and rough handling complained of was all along the route was properly admitted. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dee. Dig. § 22S.*] 4. Appeal and Error (§ 750*) — Assignments of Error Bad in Part. In an action for damages from delay in transportation and rough handling of a shipment of cattle, assignments of error that there was no evidence of delay or rough handling, and that the evidence showed by its groat preponderance that there was no delay or rough handling on the line of either defendant, would be overruled, where the evidence supported a jury finding of unnecessary delay and rough handling on the line of one of the defendants. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074r-3083; Dec. Dig. § 750.*] 5. Carriers (§ 219*) — Damages—Liability of Initial Carrier. Under Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. 1913, § 8592), providing that any common carrier receiving property for interstate transportation shall issue a receipt or bill of lading and shall be liable to the lawful holder thereof for any loss, damage, or injury to the property caused by it, or by any common carrier to which such property may be delivered or over whose lines it may pass, an initial carrier was liable for the damages 'to an interstate shipment of cattle, due to delay in transportation and rough handling while on the line of a connecting carrier. [Ed. Note. — For other cases, see Carriers', Cent. Dig. §§ 950, 951; Dec. Dig. § 219.*] 6. Damages (§ 139*) — Excessiveness—Inju-ries to Shipment of Cattle. That, in an action for damages to a shipment of cattle from delay in transportation and rough handling, the verdict was for a greater amount than the damages as estimated by one of plaintiff’s witnesses who it was claimed was their agent, was not conclusive that the verdict was excessive, whére the testimony of other witnesses supported the verdict. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 400-403; Dec. Dig. § 139.*] 7. Appeal and Error (§ 1004*) — Review— Questions oe Fact. A verdict supported by the testimony of some of the witnesses should not be disturbed as excessive, though an appellate court might, upon the whole testimony or the testimony of a particular witness, have found differently if the matter had been submitted to it as an original proposition. TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 394L-3947; Dee. Dig. § 1004.*]
171 S.W. 1027Muldoon v. J. E. Bray Land Co. (1914)Affirmed
W. Staton, Judge. Action by the J. E. Bray Land Company against Mathew Muldoon. From a judgment denying new trial after verdict for plaintiff, defendant appeals.
171 S.W. 1028Atchison, T. & S. E. Ry. Co. v. Hill (1914)Affirmed
L. Mobley, Judge. Action by J. E. Hill and another against the Atchison, Topeka & Santa Fé Railway Company and others. From a judgment for plaintiffs against defendant named, it appeals.
171 S.W. 1031Kirkland v. Rutherford (1914)Affirmed
Appeal from District Court, Nolan County; Thomas L. Blanton, Special Judge. Action by R. C. Kirkland against Mabel M. Rutherford and another. From a judgment for defendants, plaintiff appeals.
171 S.W. 1033McManus v. Southern Fruit Julep Co. (1914)Affirmed
Process (§ 31*) — Name of Plaintiff — Trade - Name, Where a petition alleges that plaintiff was doing business in a trade-name, giving both his individual and the trade name, a citation issued only in the trade-name is not invalid, especially where a certified copy of the petition is served on the defendant, and hence a default judgment against defendant is properly entered on the petition. [Ed. Note. — For other cases, see Process, Cent. Dig. § 25; Dec. Dig. § 31.*]
171 S.W. 1034Moore v. Cooper Mfg. Co. (1914)Affirmed
1. Appeal and Error (§ 731*) — Assignments of Error — Sufficiency. An assignment of error in that the verdict was contrary to the law and the evidence, because it should have been for the full amount of plaintiff’s claim, was too general, and violated the rules of practice, and would be considered as waived. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.*] 2. Appeal and Error (§ 1068*) — Harmless Error — Instructions. In an action for services as a salesman and collector, error, if any, in charge on the question of damages raised by the defendant was without prejudice to plaintiff, where the verdict found against defendant on its plea for damages. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig..§§ 4225-4228, 4230; Uec. Dig. § 1068.*] 3. Appeal and Error (§ 272*) — Instructions ■--Objection. Under Rev. St. 1911, §§ 1971-1973, 2061, as amended by Acts 33d Leg. c. 59, providing that, where a party fails to object to the charge before it is given, it is to b.e regarded as approved by him, plaintiff, who did not except to the refusal of his requested special charges, and whose only objection to the charge was filed after judgment, without any showing that it was ever known to the court, will be held to have approved the charge. [Ed. Note. — For other cases, Appeal and Error, Cent. Dig. §§ 1611-1619; Dec. Dig. § 272.*] 4. Appeal and Error (§ 742*) — Assignments of Error — Indefiniteness. An assignment of error in that “the court erred in overruling plaintiff’s motion for a new trial, because said errors were pointed out in said motion,” submitted as a proposition, was too general to be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] Appeal from Navarro County Court; R. R. Owen,' Judge.
171 S.W. 1035Martinez v. Medina Valley Irr. Co. (1914)Affirmed
1. Appeal ahd Error (§ 218*) — Presentation Below — Instructions—Special Verdict. Where no objection was made to an instruction that, if the jury answered a certain question in the negative, they need not answer the questions which followed, error could not be predicated on the jury’s failure, after returning a negative answer, to answer such other questions. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1321,1323 ; Dec. Dig. § 218.*] 2. Trial (§ 356*) — Special Verdict — Negligence. Where, in an action for negligent personal injuries, the jury specially found that defendant was not negligent, they need not answer other questions which relate solely to defenses pleaded. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 849-854; Dec. Dig. § 356.*] 3. Appeal and Error (§ 213*) — Objections at Trial — Submission op Issues. Where, in an action for injuries to plaintiff’s wife from being thrown from defendant’s wagon, no objection was made to the submission of the issue of the driver’s negligence, and no request was made for the submission of any other theory of negligence pleaded by plaintiff, error could not be predicated on the fact that the judgment was based on the finding on the issue submitted. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1304-1308; Dec. Dig. § 213.*] 4. Appeal and Error (§ 707*) — Presentation for Review — Submission op Issues. A contention, that the judgment for defendant was erroneous, because based on the jury’s finding on only one theory of negligence, could not be considered on appeal, where the absence of any statement of facts rendered it impossible to determine whether there was evidence to support any theory of negligence other than that submitted. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2942; Dec. Dig. § 707.*] 5. Negligence (§ 142*)— Special Verdict-Judgment. In an action for injuries to plaintiff’s wife from being thrown from defendant’s wagon, a negative reply by the jury to a question whether or not defendant’s driver was negligent, and such negligence was the proximate cause of the accident, authorized a judgment for defendant. [Ed. Note. — For other cases, -see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. § 142.*]
171 S.W. 1037Jameson v. Board (1914)Affirmed
Appeal from District Court, Hutchinson County; F. P. Greever, Judge. Action by S. J. Board against W. F. Jame-son. From judgment for plaintiff, defendant appeals.
171 S.W. 1038Paul Stone Co. v. Saucedo (1914)Affirmed
Appeal from District Court, Bexar County; S. G. Tayloe, Judge. Action by Reynaldo Saucedo against the Paul Stone Company. From a judgment for plaintiff, defendant appeals.
171 S.W. 1039Vick v. Park (1914)Affirmed
Appeal from District Court, Young County; Edgar Scurry, Judge. Action by D. G. Vick and others against J. J. Park and another. From a judgment for defendants, plaintiffs appeal.
171 S.W. 1041Wilkerson v. Ft. Worth & D. C. Ry. Co. (1915)Reversed and remanded
Action by Mrs. Nellie Wilkerson against the Ft. Worth & Denver City Railway Company. Judgment dismissing the suit, and plaintiff brings error.
171 S.W. 1043Commonwealth Bonding & Casualty Ins. Co. v. Weight (1914)Affirmed
Appeal from Nolan County Court; John H. Cochran, Jr., Judge. Action by Isham Wright against the Commonwealth Bonding & Casualty Insurance Company. From a judgment for plaintiff, defendant appeals.
171 S.W. 1043E. G. Rall Grain Co. v. Burks-Simmons Co. (1914)Affirmed
Appeal from Comanche County Court; J. H. McMillan, Judge. Action by the Burks-Simmons Company against the E. G. Ball Grain Company. From a judgment for plaintiff, defendant appeals.
171 S.W. 1044Martin v. Burr (1914)Affirmed
C. Douglas, Judge. Suit by J. K. Burr and Mrs. Elizabeth Moore, as guardian for G. Bedell Moore, against T. J. Martin and others. From the decree rendered, part of the defendants appeal.
171 S.W. 1049Scarborough v. Darnell & Stagner (1914)Affirmed
1. Bbokebs (§ 65*) — Liability—Action eob Negligence — Estoppel. Where a broker represented to a purchaser that the owner’s lot was larger by about one-seventh than it really was, so that the purchaser refused to perform except at a reduced price and the owner’s son represented her in signing the contract with the purchaser, the owner could not complain that she had been prejudiced by the misrepresentations of the broker. [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.*] 2. Bbokebs (§ 38*) — Liability—Action eob Negligence. An. owner, the dimensions of whose lot had been misrepresented by his broker, so that the purchaser, on discovering that the actual dimensions were less, required the owner to remit part of the purchase price, could not recover that amount from the broker, since such misrepresentation did not damage him in any sense. [Ed. Note. — For other c'ases, see Brokers, Cent. Dig. §§ 31-36; Dec. Dig. § 38.*] 3. Bbokebs (§ 65*) — 'Compensation—Acting eob Both PARTIES. A broker, who represented an owner and effected an exchange of his property upon terms finally satisfactory to him, and who in no way represented the purchaser, was entitled to his commission; the fact that a third person represented both the broker and the purchaser being a matter of which the owner could not complain. [Ed. Note.- — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dee. Dig. § 65.*]
171 S.W. 1050Tannehill v. Tannehill (1914)Affirmed
Court, Comanche County; J. H. Arnold, Judge. Action by Harriet Tannehill and others against Della Tannehill and others. From a judgment in favor of plaintiffs, the defendant named appeals.
171 S.W. 1052Elser v. Putnam Land & Development Co. (1914)Affirmed
1. Appeal and Error (§ 263*) — Presentation Below — Issue—Evidence. Under Acts 33d Leg. c. 59, providing that rulings on instructions shall be regarded as approved unless excepted to, an objection that the undisputed evidence rendered erroneous the submission of a special defense that the plaintiff broker had failed to comply with his contract could not be considered by the appellate court, where defendant did not except below to the submission of such defense, or request an instructed verdict. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*] 2. Appeal and Error (§ 263*) — “Invited Error” — Instructions Not Excepted to. Since under the express provisions of Acts 33d Leg. c. 59, an instruction not excepted to is deemed approved, error in giving same when not authorized by the evidence is an “invited error” of which no advantage can be taken on appeal. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.* For other definitions, see Words and Phrases, First and Second Series, Invited Error.] 3. Brokers (§ 88*) — Action for Commission —Submission of Issues — Sufficiency of Evidence. In a broker’s action for a commission, a witness’ testimony that he was pretty certain that plaintiff never sold, or caused to be sold, one lot, and that he did not work at his contract any, but took up a line of development work for another company, authorized submitting to the jury whether plaintiff had abandoned his contract before any sales had been made. [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.*]
171 S.W. 1053Hancock v. Haile (1914)Affirmed
1. Insane Persons (§ 79s’)— Contracts — Recovery of Property — Conversion. Where plaintiff, while insane, conveyed personal property to defendant in consideration of care, etc., and, after having been restored to capacity, alleged that defendant, as soon as the contract was delivered, appropriated the property, and that the necessaries furnished by defendant were much less in value than the property, plaintiff was entitled to recover the difference, though defendant’s appropriation did not amount to a technical conversion. [Ed. Note. — Eor other cases,- see Insane Persons, Cent. Dig. §§ 138, 141; Dec. Dig. § 79.*] 2. Insane Persons (§ 73*) — Contracts — Voidable ness. A contract by an insane person transferring all his personal property to defendant in consideration of care, etc., was voidable only. [Ed. Note. — For other, cases, see Insane Persons, Cent. Dig. §§ 125, 132-138, 153; Dec. Dig. § 73.*] 3. Insane Persons (§ 75*) — Contracts—Necessaries — Extent oi' Liability. The extent of an insane person’s liability for necessaries is their reasonable value, regardless of the price he agreed to pay. [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 89, 128, 129; Dec. Dig. § 75.*] 4. Insane Persons (§ 79*) — Liability eor Necessaries — Reasonable Value. Where plaintiff, while insane, transferred his personal property to defendant in consideration of the latter’s agreement to care for him, and the property transferred was worth much more than the necessaries furnished, plaintiff was not required to prove an actual tender of the value of the necessaries in order to recover the difference between their value and that of the property. [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 138, 141; Dec. Dig. § 79.*] 5. Judgment (§ 256*) — Form—Verdict. A judgment must follow the verdict, though there be good grounds to set the verdict aside on a motion for new trial. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.*] 6. Trover and Conversion (§ 53*) — Damages — Interest. Where plaintiff was entitled to recover the value of certain animals as damages for defendant’s wrongful appropriation thereof, he was entitled also to interest, as a part of such damages, from the date of the conversion. [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 254; Dec. Dig. § 53.*] 7. Interest (§ 66*) — Pleading. Plaintiff, in a suit for conversion, in his original petition prayed for general relief, but limited his claim for interest to the time beginning January 8, 1900, and ending December 1, 1913. Defendant’s answer, however, alleged that the property was delivered to him under contract March 21, 1898, and asserted title thereto by virtue of the contract, whereupon, plaintiff replied by supplemental petition, alleging that, after the execution of the contract, defendant took possession of the property and converted it to his own use. Held, that the pleadings justified an award of interest from March 21, 1898, and that plaintiff was not limited to interest from January 8, 1900. [Ed. Note. — For other cases, see Interest, Cent. Dig. § 147; Dec. Dig. § 66.*] 8. Trover and Conversion (§ 46*) —Value of Property. Where, in trover for certain horses, the jury found that the conversion took place March 21, 1898, at which time the horses were worth $10 a head, plaintiff was not entitled to recover at the rate of $15 a head, because of proof that they were worth that amount in January, 1900. [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 263; Dec. Dig. § 46.*]
171 S.W. 1056Lee v. White (1914)Affirmed
1. Usury (§ 22*) — -Payment of Usury — Evidence. Whore a note dated February 22, 1913, for $594, represented an indebtedness of $248.19 and a further sum of $200 with interest at 10 per cent, to be furnished during the year, and the maker paid during the year on the indebtedness sums aggregating $761.82, he paid usurious interest at least amounting to $125, for which judgment in double that amount could be rendered as authorized by Vernon's Sayles’ Ann. Civ. St. 1914, art. 4982. TEd. Note. — For other cases, see Usury, Cent. Dig. §§ 41, 58-61, 63-65; Dec. Dig. § 22.*] 2. Appeal and Error (§ 747*)— Cross-Assignment — Review. A cross-assignment, wherein appellee insists that the judgment awarded him should have been for a greater amount, will not be considered where no statement was submitted under the assignment. [Tfid Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dee. Dig. § 747.*]
171 S.W. 1057First State Bank of Amarillo v. Jones (1914)Affirmed
Appeal from District Court, Clay County; P. A. Martin, Judge. ' Action by T. K. Jones against W. S. Roberts and the First State Bank of Amarillo. From a judgment for plaintiff, the First State Bank of Amarillo appeals.
171 S.W. 1060Exline-Reimers Co. v. Lone Star Life Ins. Co. (1914)Affirmed
Appeal from District Court, Dallas County; E. B. Muse, Judge. ■ Action by the M. P. Exline Company, prosecuted by the Exline-Reimers Company, against the Lone Star Life Insurance Company. From a judgment for defendant, plaintiff appeals.
171 S.W. 1064Fleming & Roberson v. Fred Miller Brewing Co. (1914)Affirmed
Error from District Court, Tarrant County; Marvin II. Brown, Judge. - Action by Fleming & Roberson against the Fred Miler Brewing Company. From a judgment for defendant, plaintiff brings error.
171 S.W. 1065Killman v. Young (1914)Reversed and remanded for new trial
Appeal from Johnson County Court; J. B. Haynes, Judge. Action by Mrs. Nora Killman against L. B. Young. From a judgment for defendant, plaintiff appeals.
171 S.W. 1067Watson v. Cochran (1914)
171 S.W. 1069Texas & P. Ry. Co. v. Miller (1914)Reversed, and remanded
Appeal from Ward County Court; Burch Carson, Judge. Suit by the Texas & Pacific Railway Company against Ed Miller and another, to restrain the enforcement of a judgment against the railway company. From an order dis- • solving a preliminary injunction, plaintiff appeals.
171 S.W. 1071Thomas v. Barthold (1914)Affirmed
Error from District Court, Parker County; F. O. McKinsey, Judge. Action by H. D. Thomas and others against C. C. Barthold and others. There was a judgment awarding plaintiffs partial relief, and plaintiffs bring error.
171 S.W. 1074Chilson v. Oheim (1914)Affirmed
Appeal from Clay County Court; W. T. Allen, Judge. Action by H. Oheim against W. H. Chilson. From a judgment for plaintiff, defendant appeals.
171 S.W. 1075Holland v. Pierce-Fordyce Oil Ass'n (1914)Affirmed
Sales (§ 71*) — Conteact—Construction. * Where defendant agreed to sell 15,000 gallons or such additional quantities of gasoline, not exceeding 25,000 gallons, as plaintiff might order for his own consumption during a year, defendant cannot be required to supply gasoline beyond the minimum amount, except for plaintiff’s own use during the term of the contract. [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 189-196; Dec. Dig. § 71.*]
171 S.W. 1076Connellee v. Chas. C. Thompson Co. (1914)Affirmed
Appeal from Eastland County Court; E. A. Hill, Judge. Action by the Charles C. Thompson Company against C. U. and R. S. Connellee, who counterclaimed. From a judgment for plaintiff, defendants appeal.
171 S.W. 1076Ft. Worth Horse & Mule Co. v. Burnett (1914)Affirmed
Appeal from District Court, Tarrant County; R. H. Buck, Judge. Action by the Ft. Worth Horse & Mule Company against S. Q. Burnett. Judgment for defendant, and plaintiff appeals.
171 S.W. 1077Ford v. Simmons (1914)
171 S.W. 1078Ridenhower v. Collins (1914)Affirmed
Appeal from Comanche County Court; J. H. Milam, Judge. Action by Ray Ridenhower against J. S. Collins. From a judgment for defendant, plaintiff appeals.
171 S.W. 1079Molloy v. Brower (1914)Affirmed
I-I. Buck, Judge. 'Injunction by Mrs. L. M. Brower and her husband against A. W. Molloy and another. From judgment for plaintiffs, the defendant named appeals.
171 S.W. 1080St. Louis & S. F. Ry. Co. v. Stapp (1914)Writ of error dismissed
Appeal and Error (§ 345*) — Time tor Appeal-New Trial. Under Rev. Civ. St. 1911, art. 2086, requiring that a writ of error be sued out within 12 months after rendition of final judgment, where a judgment was rendered December 11, 1912, and a motion for new trial was overruled January 21, Í913, a writ of error filed January 19, 1914, was not filed in time; the time of the commencement of the 12-month period not being changed by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612) effective April 4, 1913, which amends article 1612, and Supreme Court rule 24 (142 S. W. xii), making the filing of a motion for new trial a condition precedent to the taking of a writ of error. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 345.*]
171 S.W. 1081Rhome Milling Co. v. Cunningham (1914)Affirmed
H. McMillan, Judge. Action by W. B. Cunningham and others against the Rhome Milling Company and another. Judgment for plaintiffs in justice’s court was affirmed on appeal, and defendant company appeals.
171 S.W. 1082Memphis Cotton Oil Co. v. Gardner (1914)Affirmed
1. Master and Servant (§ 278*) — Injury to Servant — Negligence—Question for-Jury. In an action for injuries to an employé by the falling on him of sacks of meal stacked in a room where he was required to work, evidence held to sustain a finding of negligent failure to provide a reasonably safe place in which to work. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*] 2. Master and Servant (§§ 288, 289*) — Injury to Servant — Contributory Negligence-Assumption of Risk. ' Whether an employé, injured by the falling of sacks of meal, assumed the risk or was guilty of contributory negligence held!, under the evidence, for the jury. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1090, 1092-1132; Dee. Dig. §§ 288, 2S9.*] 3. Appeal and Error (§ 1002*) — Verdict— Conclusiveness. A verdict on conflicting evidence will not be disturbed on appeal. [Ed.- Note — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. § 1002.*] 4. Master and Servant (§ 103*) — Injury to Servant — Nondelegable Duty. Where sacks of meal were negligently stacked, so as to render the place unsafe for an em-ployé to work, the employer was liable for injury to the employé, though the duty to stack the sacks had been delegated to another, for the duty to provide a reasonably safe place is nondelegable. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*] 5. Master and Servant (§ 125*) — Injury to Servant-Sake Place to Work. An employer is not liable for a mere temporary unsafe condition of place of work of which he has no notice or of which the exercise of ordinary diligence would not have informed him, but is liable where he could have known of the condition by the exercise of ordinary care. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*] 6. Master and Servant (§ 107*) — Injury to Servant — Liability. Mere temporary dangers created by fellow employés, due to no fault of the plan or construction, are not within the rule imposing on an employer the duty to provide a safe place for employés in which to work. TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*] 7. Master and Servant (§ 107*) — Injury to Servant — Liability. Where a working place is made unsafe by the material therein or the construction thereof, and is in that condition when an employé is directed to work thereat, the employer, negligent in permitting it to remain in that condition, is liable for injuries received by the em-ployé. TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212; 254, 255; Dec. Dig. § 107.*] 8. Master and Servant (§ 125*) — Injury to Servant — Safe Place to Work. Where the employer’s vice president and the general foreman frequently passed through a room when the work of stacking sacks of meal was being negligently done, the employer was chargeable with notice of the danger, and was liable for subsequent injury thereby to an employé, not assisting in the work and knowing nothing of the conditions and not warned. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*] 9. Master and Servant (§ 201*) — Injury to Servant — Negligence—Liability. Where the negligence of an employer concurred with the negligence of fellow servants in stacking sacks of meal in a room, an employé injured by the falling of the stack while at work could recover. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.*] 10. Master and Servant (§ 201*) — Injury to Servant — Negligence oe Employer and Fellow Servant. Where the negligence of fellow _ servants in removing sacks of meal stacked in a room, where an employé was injured by the falling of the stack, concurred with the negligence of the employer in the construction of the stack, the negligence of the fellow servants would not defeat a recovery. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.*]
171 S.W. 1086Kynard v. Tucker (1914)Affirmed
1. Vendor and Purchaser (§ 269*) — Vendor's Lien — Enforcement — Equities of Adverse Party. If a vendor can have foreclosure, he is limited to that remedy, and is not permitted to assert his superior title against his vendee or those claiming under him, when the equities of such persons so require. [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent.Dig. § 759-763; Dec.Dig. § 269.*] 2. Vendor and Purchaser (§ 260*) — Vendor’s Lien — Enforcement — Equities of Adverse Party. A vendor of a section of land retained a vendor’s lien, as shown by vendor’s lien notes and stipulation in the deed. A remote purchaser, assuming the payment of the notes, recon-veyed the south half to his grantor, who assumed the payment of the notes, and conveyed to plaintiff the north half for a' valuable consideration, without assumption of payment of the notes. Plaintiff had notice of the lien. Subsequently defendant obtained title to the south half by quitclaim, and also the vendor’s lien notes, and obtained a judgment removing clouds on his title on the entire section, but plaintiff was not a party to the action. Held, that plaintiff had such equities as against the enforcement of the vendor’s lien as to require satisfaction first out of the south half and a sale of his half for any balance. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. § 260.*] 3. Vendor and Purchaser (§ 285*) — Purchasers of Incumbered Property — Personal Liability. Where a purchaser of a part of a tract subject to a vendor’s lien for the price did not assume to pay the debt or any part thereof, the holder of the vendor’s lien notes could not recover a personal judgment against him. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. § 285.*] 4. VENDOR AND PURCHASER (§ 260*) — VENDOR’S Lien — Enforcement. "Where defendant acquired vendor’s lien notes for a section and a quitclaim deed of the south half and a judgment for the whole section, the north half of which had been previously purchased for a valuable consideration by plaintiff, who had notice of the lien, but who did not assume to pay it, and who was not a party to the action in which the judgment was rendered, defendant must first ascertain the value of the south half, and, if that be less than the debt, he could foreclose for the balance against the north half. [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. § 260.*]
171 S.W. 1089Anderson & Day v. Darsey (1914)Reversed and remanded
Error from District Court, Culberson County ; Dan M. Jackson, Judge. Action by J. R. Day and Levi Anderson against G. E. Darsey. From a judgment for defendant, plaintiffs bring error.
171 S.W. 1090Ft. Worth & R. G. Ry. Co. v. Dubose (1914)Affirmed
1. Carriers (§ 247*) — Who abe Passengers —Person Taking Wrong Train. Where a passenger at a transfer point is told that her train would arrive at 1:30 a. m., and she at that time, in the absence of a watchman and sufficient light, boarded an excursion train of another road using the depot, from which train she was evicted, she was a passenger on the excursion train, and such carrier was bound to use a high degree of care. [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.*] 2. Carriers (§ 382*) — Eviction or Passenger-Excessive Damages. Seven hundred and fifty dollars held not excessive damages for wrongful eviction from a passenger train of a woman 67 years of age and infirm, where she was accompanied by her daughter and five grandchildren, two of whom were sick, and the eviction took place five or six miles from the starting place, and the return course led through a squalid part of the city inhabited by negroes, and they were incumbered with baggage and compelled to carry some of the children, all of which made plaintiff sick for over a month afterwards. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1478, 1483-1491; Dec. Dig. § 382.*]
171 S.W. 1091Gulf, C. & S. F. Ry. Co. v. McKinnell (1914)Reversed and remanded
1. New Teial (§ 44*) — Misconduct or Jueoes —Impeopee Abqument. A showing that certain jurors in a personal injury action agreed to a verdict for a larger amount than they thought necessary to compensate plaintiff for the injury sustained because of the argument of other jurors that he would have to pay from $1,500 to §2,500 for attorney’s fees was sufficient to entitle defendant to a new trial. [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85, 105; Dec. Dig. § 44.*) 2. Evidence (§ 477*) — Opinion Evidence-Physical Condition — Foundation. Testimony by a physician that if plaintiff had a partial dislocation of his hip witness could make a rational guess as to what was the matter with him, and he doubted whether he could be cured of the pain in his hip, was improper, where there was no evidence that plaintiff had a partial dislocation of the hip. [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2237-2241; Dec. Dig. § 477.*] 3. Damages (§ 168*) — Evidence — Physical Condition. In an action for personal injuries, where plaintiff testified that after a wreck he suffered pain in his hip and that his ability to walk had been greatly impaired, it was proper to permit other witnesses to testify that after the injury they observed that plaintiff walked with a limp. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 480, 482-486; Dec. Dig. § 168.*] 4. Evidence (§ 127*) — Declabations—Physical Pain. In an action for personal injuries, declarations of plaintiff to his physician that he became tired when standing and could not work as long as formerly, and did not sleep as well, were not admissible as complaints of present pain and suffering. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 377-382; Dec. Dig. § 127.*] 5. Damages (§ 166*) — Evidence — Physical Condition — Opebation. In an action for personal injuries, testimony concerning an operation performed on plaintiff was inadmissible, where there was no evidence that it was made necessary by the injury sustained in an accident. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.*] 6. Teial (§’ 194*) — Insteuctions—Weight oe Evidence. In an instruction on the measure of damages for personal injuries, a statement, that the jury might consider the earning capacity of plaintiff before and since the accident if from a preponderance of the evidence in the case they found a difference therein, was not objectionable as a charge upon the weight of the evidence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*] 7. Damages (§ 38*) — Pebsonal Injuries — Diminished Eaening Capacity. A railway mail clerk, whose earning capacity in certain line» of business had been diminished as a result of personal injuries, can recover for such diminished earning capacity, though he received his regular compensation while unable to wort, and since then had been receiving-a greater compensation than before the accident. [Ed. Note. — For other cases, see Damages, Cent. Dig. II 237-241; Dec. Dig. § 38.*]
171 S.W. 1093Mahaney v. Lee (1914)Affirmed
1. Appeal and Errob (§ 51*) — Jurisdiction —Amount in Controversy. Where a petition alleged that plaintiffs sold defendant a horse for $75, that defendant, having failed to pay for the horse, agreed to either return it in satisfaction of the debt or give a secured note for $116, covering the price of the horse and another debt due from defendant to plaintiffs, and that defendant had failed to return the horse or execute the note and mortgage, and prayed judgment for possession of the horse or $75, the value thereof, and for the $41 due on the other debt, it was sufficient to authorize a recovery of $116 and give the Court of Civil Appeals jurisdiction of defendant’s appeal from an adverse judgment, especially where defendant urged a counterclaim for $154. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 237, 267; Dec. Dig. § 51.*] 2. Sales (§§ 19, 20*) — Beptjrchase — ConTRACT^CONSIDERATION— SUFJTCIENCY. A seller’s agreement to repurchase, not being an obligation growing out of the original sale, was a sufficient consideration for a new contract obligating the buyer to either return the horse bought or give a secured note for the price and another debt, though the buyer’s debt for the horse was barred by limitations. [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 31, 32; Dee. Dig. §§ 19, 20.*] 3. Sales (§ 377*) — Pleading Conclusions op Law prom Facts Alleged. Where the petition in a seller’s action alleges a breach of a new contract obligating the buyer to either return the horse bought or give a secured note for the price and another debt and prays judgment for the agreed face of the note, it is not demurrable for failure to specifically allege an agreement that the old contract should be merged in the new; such being the necessary effect of the new contract. [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1092; Dee. Dig. § 377.*]
171 S.W. 1094Atchison, T. & S. F. Ry. Co. v. Boyce (1914)Affirmed
S. Mills, Judge. Action by J. H. and D. H. Boyce, partners as Boyce- Bros., against the Atchison, Topeka & Santa Fé Railway Company and others. From a judgment for plaintiffs, certain defendants appeal.
171 S.W. 1097Gulf, T. & W. Ry. Co. v. Dickey (1914)Affirmed conditionally
1. Appeal and Error (§§ 1040, 1050*) — Harmless Error — Pleading—Evidence. Where, in an action for injuries to plaintiff’s eight year old son from being scalded while on a locomotive in charge of a hostler, the uneontradicted evidence showed that the boy’s presence was known to the hostler, error, if any, in overruling- exceptions to the allegations of the petition that defendant made a practice of permitting children of tender years to enter and ride upon its engines and in admitting testimony to sustain such allegations was harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ’ §§ 1068, 1069, 4089-4105, 4153-4157, 4166; Dec. Dig. §§ 1040, 1050.*] 2. Appeal and Error (§ 1050*) — Harmless Error — Admission oe Evidence. Where, in an action for injuries to plaintiff’s son from being scalded while on a locomotive in charge of a hostler, the uncontradicted evidence showed that the presence of the boy was known to the hostler, the admission of evidence of statements by the hostler to the boy’s grandmother that he liked to have children talk to him while he was at work and the grandmother’s reply that she could not understand what manner of man the hostler was that he would allow a child around the engine, if error, was harmless. [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] 3. Appeal and Error (§ 547*) — Presentation Below — Instructions. Assignments of error complaining of instructions to which no proper bills of exception were reserved below will be overruled. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dee. Dig. § 547.*] 4. Appeal and Error (§ 553*) — Bill oe Exceptions — Objections and Order. A statement of facts contained exceptions to the court’s charge, which were signed by attorneys for defendant and marked -filed by the clerk. It also appeared that an order reading, “On this day came on to be heard the objections and the exceptions of the defendant to the court’s general charge, * * * and the court * * * is of the opinion that the law is against said objections and exceptions, and it is * * * ordered * * * that * * * same are hereby in all things overruled, to which the defendant excepted,” was entered on the minutes, dated the same as the date of the filing of the exceptions to the charge, and of the court’s general charge. Held, that the purported objections and the order of the court so entered did not constitute a bill of exceptions to the charge given. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2461, 2462, 2465-2471; Dee. Dig. § 553.*] 5. Negligence (§ 138*) — Refusal of Instruction — Evidence. Where, in an action for injuries to plaintiff’s son from being scalded while on a locomotive in charge of a hostler, the hostler admitted that he knew the boy was on the engine when he turned on the hot water and scalded him and made no previous effort to exclude him from the engine, it was not error to refuse an instruction that the uneontradicted evidence showed that the boy was on defendant’s engine without invitation, and that defendant owed him no duty except not to willfully or wantonly injure him. [Ed. Note. — Eor other cases, see Negligence, Cent. Dig. §§ 354^370; Dec. Dig. § 138.*] 6. Trial (§ 194*) — InsTRUCTioN—Province of Jury — Negligence. A requested instruction that, if the hostler cut off the valve through which the hot water escaped, and thereafter some person, unknown to the hostler, opened the valve, the verdict should be for defendant was properly refused; it being, in effect, a peremptory instruction that the hostler was not negligent in allowing the boy on the engine and in turning on the injector without investigating to discover whether the valve connecting the hose with the injector was closed. [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*] 7. Negligence (§ 139*) — Refusal of Instruction-Injury to Child. In such action an instruction that the hostler was not negligent unless he knew the valve was open when he turned on the injector or, unless he intentionally and wantonly inflicted the injury, was properly refused. [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 371-377; Dec. Dig. § 139.*] 8. Appeal and Error (§ 547*) — Presentation Below — Instructions. Error in such case could not be predicated on the refusal of instructions submitting the issue of the hostler’s negligence in turning on the water and making defendant’s liability hinge on an affirmative finding on that issue, where no proper bill of exceptions was taken to the court’s charge on the issue of liability. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.*] 9. Damages (§ 177*) — Personal Injuries— Measure of Damages — Admission of Evidence. Plaintiff’s testimony as to the amount he was earning was inadmissible in such case to show, as an element of the damages recoverable, the value of the time lost by him while engaged in nursing the injured boy. [Ed. Note. — For other cases, see Damages, Cent. Djg. §§ 466, 494; Dec. Dig. § 177.*]
171 S.W. 1100Williams v. Phelps (1914)Affirmed, and rehearing denied
1. Brokers (§ 49*) — Right to Commission-Performance oe Contbact. Where a broker procures the execution of an enforceable written contract of purchase on the terms authorized by the principal, he has earned his commissions. [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 70-72; Dee. Dig. § 49.*] 2. Brokers (§ 84*) — Action for Commission —Burden of Proof. Where a broker's written employment contract authorized only a sale, the burden was on the broker, in an action for commissions on an exchange, to show that his principal and the other party to the exchange had reached a definite agreement. [Ed. .Note. — For other cases, see Brokers, Cent. Dig. §§ ,104, 105; Dec. Dig. § 84.*] 3. Evidence (§ 445*) — Parol Evidence — Broker’s Employment Contract. Where, in a broker’s action for commission on an exchange of properties, it appeared that plaintiff’s employment contract authorized him only to sell, evidence of a parol agreement between plaintiff and defendant that defendant would pay no commission on an exchange of properties, unless the exchange should be fully consummated, was properly admitted. [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.*] 4. Appeal and Error (§ 1040*) — Harmless Error — Pleading-. In a broker’s action for commission on an exchange of properties, the overruling of an exception to a paragraph of the answer alleging that the value of the property for--which defendant agreed to ■ trade was falsely represented to him, if error, was harmless, where no such issue was submitted to the jury, and no- assignment was presented to the admission of any testimony thereon. [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4089-4105; Dee. Dig. § 1040.*] 5. Appeal and Error (§ 1040*) — Pleading— Harmless Error. In a broker’s action for a commission on an exchange of property, error could not be assigned to the overruling of exceptions to allegations of the answer alleging that the contract of exchange was invalid, where no Bill of exceptions was taken to the court’s instruction that such contract was nonenforceable for uncertainty. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*] 6. Brokers (§ 85*) — Action for Commissions — Execution of Oral Contract — Evidence. Where, in a broker’s action for commission on an exchange of properties, the evidence was conflicting whether any definite oral agreement of exchange was made, evidence of the market values of the respective properties was properly admitted. [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.*] 7. Appeal and Error (§ 1052*) — Harmless Error — Admission of Testimony. Under Rules of Courts of Civil Appeals, rule 62a (149 S. W. x), providing that no judg ment shall be reversed for immaterial errors, any error in admitting testimony as to value over an objection that the witnesses were not properly qualified was not ground for reversal, where such testimony related only to a collateral circumstance and other witnesses, who were qualified, testified to the same effect. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*] 8. Trial (§ 36*) — Best Evidence — Facts Not Controverted. Where, in a broker’s action for commission, the execution of the written, contract of employment was not disputed, the exclusion of another instrument offered by plaintiff to prove such employment was not error. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 89; Dec. Dig. § 36.*] 9. Appeal and Error (§ 547*) — Presentation Below — Instructions, Assignments of error complaining of instructions to which no proper bills of exceptions have been taken will he overruled. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.*] 110. Appeal and Error (§ 553*) — Bill of Exceptions — Objections Below — Instructions. Objections to the charge which, do not show that they were presented before the charge was read, or that they were overruled and exception taken, will not be considered on appeal, though they are signed by plaintiff and marked “Approved” by the trial judge. [Ed. Note. — For other cases, see Appeal and 'Error, Cent. Dig. §§ 2461, 2462, 2465-2471; Dec- Dhr. § 553.*] 11. Brokers (§ 86*) — Action fob Commission —Sufficiency of Evidence. Evidence, in a broker’s action for commissions on an exchange of properties, held to sustain a verdict for defendant based on a finding that no definite contract of exchange was made. [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.*] 12. Thial (§ 317*) — Misconduct of Jurors— Waiver of Objection. The right to object that; jurors were guilty of misconduct in engaging in social games with defendant’s wife at the hotel was waived, where plaintiff and his counsel were present and saw the games, and failed to call the matter to the court’s attention prior to filing a motion for new trial. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 751, 752; Dec. Dig. § 317.*]
171 S.W. 1103Pecos & N. T. Ry. Co. v. Amarillo St. Ry. Co. (1914)Reversed
Appeal from District Court, Potter County; Jas. N. Browning, Judge. Action by the Pecos & Northern Texas Railway Company against the Amarillo Street Railway Company and others. Judgment for defendants, and plaintiff appeals.
171 S.W. 1109Neville v. Miller (1914)Affirmed
Appeal from Hartley ■ County Court; R. B. Elkin, Judge. Action by B. F. Neville against J. N. Miller and others. Judgment for defendants, and plaintiff appeals.
171 S.W. 1114Wichita Falls W. Ry. of Texas v. Asher (1914)Reversed and remanded, and motion for rehearing overruled
1. Commerces (§ 33*) — “Interstate Commerce.” A shipment of goods which traverses another state, though the points of origin and destination are in the same state, is interstate commerce. [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. § 33.* For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 2. Carriers (§ 91*) — Carriage oe Goods— Rates — Erroneous Quotation. A wrong quotation by a railway agent as to the freight rate to be charged on an interstate shipment gives no right of action to the shipper for injuries on account of the misquoted rate, though the tariff is not posted at the carrier’s local station. [Ed. Note. — For other- cases, see Carriers, Cent. Dig. §§ 338-355; Dec. Dig. § 91.*] 3. Trial (§ 105*) — Reception oe Evidence-Admission Without Objection. The uncontradicted testimony of a railway freight agent, admitted without objection, that certain rates were in effect on the day of a shipment, though subject to objection as a conclusion, is sufficient proof of that fact. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. § 105.*] 4. Carriers (§ 104*) — Carriage oe Goods— Action eor Detention — Admissibility oe Evidence. In an action against carriers for the detention of goods until the owner paid the lawful rate thereon, which was more than the rate quoted by the agent at the time of the shipment, testimony by plaintiff that he did not have enough money to pay the additional charges, and knew no one from whom he could borrow it, was immaterial, since the law requires a carrier to collect and a shipper to pay the legal rate. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 439-447, 459-461; Dec. Dig. § 104.*] 5. Appeal and Error (§ 1050*) — Prejudicial Error — Admission oe Evidence. The admission of such testimony was prejudicial under Court of Civil Appeals rule 62a (149 S. W. x), forbidding reversals unless the error probably caused an improper judgment, where the jury awarded plaintiff $300 damages for the detention of the goods for 100 days. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] 6. Carriers (§ 177*) — Carriage oe Goods— Liability — Connecting Carriers. Where goods are shipped over the lines of connecting carriers, the common-law liability of each is limited to damages accruing on its own line, but any one of them may, by special contract, make itself liable for the entire carriage. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.*] 7. Carriers (§ 187*) — Carriage oe Goods— Liability — Question eor Jury. Where a shipper claimed a contract by an initial carrier, rendering it liable for the entire carriage, it was a question for the jury whether the oral negotiations between the shipper and the carrier’s agent amounted to such a contract. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 851, 852; Dec. Dig. § 187.*]. 8. Carriers (§ 177*) — Carriage oe Goods— Liability — Carmack Amendment. " The Carmack amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]) to Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386, requiring every common carrier receiving property for transportation from a point in one state to a point in another state to give a bill of lading therefor, and making it liable for all damages to the goods caused by it or any connecting carrier, when strictly construed as a penal law, does not apply to a shipment through another state to a point in the same state as the point of origin, though the evil is the same in such a case as in the cases covered by the express terms of the amendment. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.*] 9. Carriers (§ 139*) — Liability as Warehouseman — Reeusal to Pay Charges. Where the agent of an initial carrier quoted an incorrect rate to a shipper, and the latter refused to pay the legal rate, the liability of the carrier for the safe-keeping of the goods thereafter would be as warehouseman and not as common carrier. [Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 617-619; Dec. Dig. § 139.*] On Motion for Rehearing. 10. Carriers (§ 189*) — Carriage oe Goods— Rates — Published Tariee. The filed and published freight rates for an interstate shipment, whatever they may be, are conclusive as to the rate to be charged. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. § 189.*] 11. Carriers (§ 193*) — Carriage oe Goods— Rates — Published Tariee. Where published tariffs, establishing the rates for shipments between certain places, excepted therefrom the lines of a certain carrier which had not subscribed to the tariffs, in determining the rate on an interstate shipment originating on the lines of that carrier the tariff might be used to determine the rate on the other lines, which, in combination with the local rate of the initial carrier, would make the through rate. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 348, 868-869; Dec. Dig. § 193.*]
171 S.W. 1122Tyler Building & Loan Ass'n v. Biard & Scales (1914)
171 S.W. 1200Elser v. Putnam Land Development (1914)