187 S.W.

Volume 187 — South Western Reporter

141 opinions

187 S.W. 215Sovereign Camp of Woodmen of the World v. Robinson (1916)
1. Constitutional Law <&wkey;175 — Vested Rights—Rules of Evidence. No person has a vested right- in the rules of evidence, which may be changed by the state, if its action relates only to evidence, without violating the contract clause of the Constitution. [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 519, 520; Dec. Dig. <&wkey;> 175.] 2. Insurance <&wkey;693 — Fraternal Insurance — Disappearance Clause — Validity. A subsequently adopted by-law of a fraternal society, as to a certificate holder, who, in his application, had agreed that all existing or subsequent by-laws should form a part of his certificate, providing that a member’s absence or disappearance from his last place of residence should not be any evidence of his death, nor create any right to recover on any certificate, without proof of his actual death, until the full term of his life expectancy at his entry had expired, and that it should be construed as a waiver of any statute or rule of the common law to the contrary, contravened Rev. St. 1911, art. 5707, providing that absence for seven years shall raise a presumption of death and was invalid. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. <§=>693.] 3. Contracts <§=>127(1) — Fraternal Beneficiary Insurance — Disappearance Clause —Rules of Evidence — Ousting Court of Jurisdiction. Such by-law, in effect stipulating that certain evidence only should be admissible in ease of litigation subsequently arising under the contract, could not be allowed to control the action of the court in the admission of or the effect to be given the evidence, as courts will not permit the course of justice to be affected by stipulations so as to defeat the ends to be subserved by such litigation, or allow the parties to a contract to agree to oust the court’s jurisdiction over such contracts. [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 608-610, 613-616; Dec. Dig. &wkey; 127(1).] 4. Insurance <&wkey;693 — Fraternal Beneficiary Insurance — By-Laws—Reasonableness. A by-law of a fraternal beneficiai’y association, to be valid, must be reasonable. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. <§=>693.] 5. Death <&wkey;2(l) — Presumption from Absence. The law or rule of evidence embodied in Rev. St. 1911, art. 5707, that the presumption of the duration of life ceases at the end of seven years’ unexplained absence, does not limit the presumption of death to an absence for the space of seven years, but, on proper evidence, death before the expiration of such time may be inferred. [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1, 2; Dec. Dig. <&wkey;2(l).] 6. Death <&wkey;2(l) — Presumption from Absence-Evidence. Evidence of character, habits, domestic relations, etc., making the abandonment of home and family improbable, and showing the want of all the motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which, the death of one absent and unheard of may be inferred without regard to the duration of such absence, even though he was not shown to have been exposed to any peril likely to shorten his life. [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1, 2; Dec. Dig. &wkey;2(l).] | 7. Death <&wkey;2(2) — Presumption from Absence — Time. Where one has been absent and unheard of for seven years, the presumption arises that he is then dead, but not that he died at any particular time theretofore, and, if important to establish death at any pax-ticular time, it must be done by evidence. 1 [Ed. Note. — For ot-Ker cases, see Death, Cent. Dig. § 3; Dec. Dig. &wkey;2(2).] 8. Death <&wkey;4 — Absence — Sufficiency of Evidence. In a widow’s action upon a certificate of insurance issued upon life of her husband, evidence held to sustain the finding that the insured was dead, and that he died at or about the time of his disappearance from home after which time nothing was heard or known of him. [Ed. Note. — For other cases, see Death, Cfent. Dig. §§ 5, 6; Dee. Dig. <&wkey;4.] Appeal from District Court, Dallas County ; Murphy W. Townsend, Special Judge. Action by Mrs. Carrie Robinson against the Sovereign Camp of the Woodmen of the World. Judgment for plaintiff, and defendant appeals. Affirmed.
187 S.W. 220Altgelt v. Gutzeit (1916)Affirmed
Appeal from District Oourt, Besar County; W. S. Anderson, Judge. Action for injunction by George O. Alt-gelt against Cbas. X. Gutzeit and another. Judgment for defendants, and plaintiff appeals.
187 S.W. 225Texas Power & Light Co. v. Roberts (1916)Reversed and remanded
1. Damages <&wkey;147 — Pleading — Special Damages. The petition of plaintiff seeking to recover special damages for defendant’s failure to put in a partition to inclose office space rented to plaintiff must allege facts showing that at the time of the making of the contract defendant should have contemplated such damages would result from breach. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 412; Dec. Dig. <@=>147.] 2. Pleading <&wkey;228 — Petition — Breach of Conteaot — Motive of Defendant. Where no punitive damages were sought, and the petition averred that defendant maliciously breached its contract, special exception thereto should have been sustained, as defendant’s motive was immaterial. [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;>228.] 3. Damages <&wkey;37 — Recovery—Double Recovery. Defendant demised a portion of an office to plaintiff, agreeing to erect a partition inclosing it. Plaintiff intended to carry on a millinery business in the demised space, but defendant’s failure to build the partition delayed the opening of plaintiff’s shop to her damage. Soli, that she could not recover for loss of profits of her business and at the same time for loss of time which she would have devoted to the business, for that would allow double recovery. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 237-241; Dec. Dig. &wkey;>37.] 4. Damages <@=>40(2) — Speculative Damages —Profits. In such case, as plaintiff’s business had not yet been started, her claim for lost profits occasioned by defendant’s breach of contract is too remote, and cannot be sustained, but she may, upon showing that defendant knew injury would result to her from its failure to erect the partition pursuant to agreement, recover the net loss on her stock of millinery which she was unable to dispose of because of delay in opening; it appearing that such goods quickly depreciated in value due to change in styles. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 74-78; Dec. Dig. <@=>40(2).] 5. Evidence <&wkey;498 — Opinion Evidence — Admissibility. In such case, opinion evidence as to the amount for which plaintiff’s millinery could have been sold, and its value after change in stylos, is admissible; but plaintiff cannot give opinion evidence as to the probable damage to her business. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2289; Dec. Dig. &wkey;>498.]
187 S.W. 228Hagood v. Hagood (1916)
Dissenting Opinion.
187 S.W. 233Smith v. First Nat. Bank of Waco (1916)
1. Appbakancb <&wkey;4 — Filins Plea — Waives of Time of Answering. Where suit is brought to a term too late for service at that term, defendant waives his right not to answer at that term by filing a plea of privilege before adjournment of the term, under Rev. St. 1911, art. 1882, providing that filing answer shall constitute an appearance of a defendant so as to dispense with necessity for the issuance or service of citation upon him. [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 12-14; Dec. Dig. <&wkey;4.j 2. Venue <&wkey;32(2) — Residence—Waiver. Where defendant, through no fault of the clerk or plaintiff or his attorneys, fails to call the court’s attention to a plea of privilege at the term at which filed, and it appears there was time for the court to have passed on it if presented, and the case is not continued without prejudice to such plea, he waives his right to have the plea passed on by the court at a subsequent term, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1910, providing that pleas to the jurisdiction and other dilatory pleas not involving the merits shall be determined at the term at which filed, if the business of the court permits, and rule 24 for the government of district and county courts (142 S. W. xix) that such pleas shall be tried at the first term at which the attention of the court shall be called to them, unless passed by agreement of parties with consent of the court. [Ed. Note. — For other cases, see Venue, Cent. Dig. § 49; Dec. Dig. @^?32(2).] 3. Venue &wkey;>32(2) — Residence—Waiver. In such case an amended plea of privilege cannot be filed at a subsequent term to which the ease has been continued. [Ed. Note. — For other cases, see Venue, Cent. Dig. § 49; Dec. Dig. <&wkey;>32(2).]
187 S.W. 234Brazos Valley Telegraph & Telephone Co. v. Wilson (1916)
187 S.W. 243Shear v. Bruyere (1916)Affirmed
1. CONTRACTS <&wkey;332(1)- — ACTION—SUFFICIEN-cv or Petition — Definiteness. In action for extra services in superintending building, petition alleging it would have taken 8 or 9 months to perform the work as originally planned and specified, whereas it required 18 to 19 months because of the alterations, held sufficiently specific. [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1616-1618, 1619%, 1620; Dec. Dig. &wkey;332(l).] 2. Conte acts <&wkey;232(3) — Extea Woek — Buildings — Contbacts to Supebintend. In such action plaintiff could recover reasonable compensation for extra services in superintending the building and additional improvements, performed at defendant’s assistance, if such extra services were not provided for by his contract. [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1075%, 1077, 1087, 1088, 1092; Dec. Dig. &wkey;232(3).] 3. Conteacts @=3346(3) — Building Conteact —Action—Issues, Peoof, and Yabiance. In an action for extra services in superintending building, where plaintiff sues therefor in the alternative upon either express or implied contract, evidence as to reasonable value of such services is admissible. [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1719; Dec. Dig. <&wkey;>346(3).]
187 S.W. 245Rice v. Schertz (1916)Affirmed
1. LANDLOBD AND TENANT <&wkey;lll — FOBXEI-tube oe Tenancy — Assertion ox Advebse Title. A tenant who disavows his landlord’s title and asserts title in himself forfeits his rights as a tenant and becomes a mere trespasser. [Ed. Note. — For other oases, see Landlord and Tenant, Cent. Dig. § 336; Dec. Dig. <@r=»lll.] 2. Trespass to Tby Title <&wkey;41(l) — Defenses— Sufficiency. In trespass to try title, evidence held sufficient to sustain a verdict for plaintiff, where defendant had repudiated the contract of tenancy under which he claimed lawful possession, and thereafter had asserted adverse title. [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. <&wkey; 41(1).]
187 S.W. 247Jacobe v. Houston Electric Co. (1916)Affirmed
1. STREET Railroads <&wkey;112(3) — Actions for Injuries — Burden op Proof — Negligence. In an action for personal injuries caused by defendant’s street ear striking plaintiff’s automobile, where the only act of negligence charged was discovered peril, the burden of proof was on the plaintiff to establish that the employes of the company actually had knowledge of plaintiff’s peril and that they did not exercise reasonable care to prevent the injury. [Ed. Note. — For other cases, see Street Railroads. Cent. Dig. §§ 227, 228; Dec. Dig. <&wkey; 112(35.] 2. Trial <&wkey;139(l) — Instructed Verdict. In an action for personal injuries caused by defendant’s street car striking plaintiff’s automobile, where there was no evidence tending to prove the only issue to be submitted to the jury, the court did not err in instructing a verdict. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. &wkey;139(l).]
187 S.W. 247Gensberg v. Neely (1916)Affirmed
1. Pleading <&wkey;104(2) — Plea of Privilege-Sufficiency. Defendant’s plea of privilege to be sued in the county of his residence, complying in all respects with Rev. St. 1911, art. 1903, was sufficient, though it did not allege that the allegation of plaintiff’s petition that the suit was based upon a written contract to be performed in the county of suit was fraudulently made to confer jurisdiction upon the court, as the privilege to be sued in the county of one’s residence is dependent solely upon the facts, and not upon whether plaintiff acted in good faith in stating the facts. [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 215; Dec. Dig. <&wkey; 104(2).] 2. Venue <&wkey;7 — Residence of Party — Plea of Privilege. Where a written contract was made for the delivery of apples in Hays county, where the seller did not reside, and, after inspecting, the buyer found that the apples were defective, whereupon he called the seller over the telephone, who agreed to make good the damage if th'e buyer would accept the shipment, which the buyer did, in the buyer’s action for breach of the agreement to make good the damage, brought in Hays county, the seller’s plea of privilege was properly sustained. [Ed. Note. — For other cases, see Venue, Cent Dig. §§ 13-16; Dec. Dig. <&wkey;7.]
187 S.W. 249Pullman Co. v. Moise (1916)Reversed, and cause remanded
1. CARRIERS <&wkey;417— Sleeping Car — Loss o» Wearing Apparel — Question for Jury — Negligence. In an action for the loss of wearing apparel stolen from a sleeping car berth, and for consequent mental anguish and embarrassment, evidence held to make defendant’s exercise of reasonable care in guarding the property a question of fact for the jury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. &wkey;417.] 2. Trial c&wkey; 194(15) — Instructions — Province of Jury — Weight of Evidence. In an action for damages for the loss of wearing apparel stolen from a sleeping car berth, and for consequent mental anguish and embarrassment, an instruction, after defining negligence, that if the jury found and believed that defendant was guilty of negligence in failing to properly watch and guard the plaintiff’s property against theft, and such negligence was the proximate cause of plaintiff’s loss, to find for plaintiff, indicated the court’s opinion that the evidence showed a failure to properly guard the property against theft, and was an instruction on the weight of the evidence, contrary to the mandatory provision of the statute, and reversible error. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 465; Dec. Dig. &wkey;194(15).] 3. Carriers <&wkey;413(2) — Sleeping Car Companies — Care Required. Sleeping car companies are required to use only reasonable or ordinary care to guard the property of passengers from theft, and are not held to that high degree of care applicable to common carriers generally. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1584, 15S5; Dec. Dig. &wkey;3413(2).] 4. Trial <&wkey;203(l) — Instruction—Theory of Case. In an action against a sleeping car company for the loss of wearing apparel stolen from a berth, and for consequent mental anguish and embarrassment, the defendant was entitled to an instruction as to its exercise of reasonable care to guard the property against theft applying the law to his theory of the facts as disclosed by the evidence. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. &wkey;203(l).] 5. Trial <&wkey;256(3) — Instructions—Request. In such case and on the court’s failure to so instruct in its general charge, the defendant had the right to prepare and have given a special charge supplying the omission in the general charge. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 630; Dec. Dig. <@=^256(3).] 6. Carriers <&wkey;417 — Sleeping Car Companies — Loss of Wearing Apparel — Damages — Humiliation. A woman passenger, whose clothes were stolen from her sleeping car berth by cutting the screen from an open window, and who in consequence clad in a nightgown and kimona had to walk through the train, including another sleeper, several day coaches, and one or more smoking rooms to reach her trunk in the baggage car, from defendant’s failure to exercise reasonable care to guard her clothes from theft, might recover for such humiliation and embarrassment. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. &wkey;417.] 7. Carriers <&wkey;>417 — Loss of Baggage — Mental Suffering — Fear and Apprehension. In such case, the admission of plaintiff’s testimony that she did not know what to do, did not know whether she would be without clothes the next evening when she arrived, and was in an awful predicament, and did not know what to do, was erroneous, as damages are not recoverable for mental anxiety or fear of some contingency, when the anxiety is unfounded and the contingency never comes to pass. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dee. Dig. &wkey;417.]
187 S.W. 254Alexander v. Conley (1916)Affirmed
Appeal from District Court, Kaufman County; F. L. Hawkins, Judge. Action by W. N. Alexander against B. K. Conley and others. Judgment for defendants, and plaintiff appeals.
187 S.W. 343Derry v. Harty (1916)Affirmed
1. Appeal and Error @=>994(3), 995 — Review — Findings. On trial by court without a jury, the court is the sole judge of the credibility of witnesses and weight of the testimony. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3904 — 3905[4, 3907; Dec. Dig. <@=>994(3), 995.] 2. Homestead @=>181(3) — Abandonment — Evidence — Weight. In an action by a widow to recover title and possession of a lot as a homestead, evidence of removal and declarations held to support a finding of abandonment. [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 353; Dec. Dig. <§==>181(3).] 3. Homestead <§=>164 — Abandonment — Acquiring Another Homestead. A homestead may be abandoned notwithstanding another has not been acquired. [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 327, 328; Dec. Dig. <@=>164.] 4. Homestead <@=>163 — Abandonment — Removal — Intent to Return. Removal coupled with intent never to return constitutes abandonment of a homestead. [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 320-326; Dec. Dig. <@=>163.] 5. Homestead <@=>181% — Abandonment—Intent-^Question fob Juey. In an action raising issue of homestead abandonment, the intent to abandon is a question of fact for the jury or court trying the case. [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 401; Dec. Dig. <@=>181%.]
187 S.W. 345Cross v. Wilkinson (1916)
Error from District Court, Travis County; Geo. Calhoun, Judge. Action by Ed Wilkinson and others against Jesse F. Cross and others. From a judgment for plaintiffs against the named defendant and certain others, they bring error. Reversed as to them, and affirmed as to defendant La Salle County, as to which plaintiffs were denied relief.
187 S.W. 348Western Union Telegraph Co. v. Griffis (1916)Reversed and rendered
Telegraphs and Telephones ,<@=>67(2) — Damages for Mental Suffering — Delay in Delivery. A telegraph message, worded, “Tour father died this afternoon at four o’clock” being insufficient to charge the telegraph company with notice that the addressee of the message would request a postponement of the funeral until he could arrive, the damages suffered by addressee by delay in delivery of the message preventing him from attending his father’s funeral were too remote. [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dee. Dig. 67(2).]
187 S.W. 350Farmers' & Ginners' Cotton Oil Co. v. Cleburne Oil Mill Co. (1916)Reversed, and cause remanded
Appeal from Travis County Court; Wm. Yon Rosenberg, Jr., Judge. Action by the Cleburne Oil Mill Company against the Farmers’ & Ginners’ Cotton Oil Company. Judgment for plaintiff, and defendant appeals.
187 S.W. 351Hartford Life Ins. Co. v. Benson (1916)Reversed and rendered in part, and in part reformed and…
Error from District Court, Tom Green County; J. W. Timmins, Judge. Action by Mrs. Ora Benson against the Hartford Life Insurance Company and another. Judgment for plaintiff, and defendants bring error.
187 S.W. 354Texas & P. Ry. Co. v. R. W. Williamson & Co. (1916)Affirmed
Appeal from District Court, Dallas County; Kenneth Foree,' Judge. Action hy R. W. AYilliamson & Co. against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
187 S.W. 356New Jersey Fire Ins. Co. v. Baird (1916)Affirmed
F. Whitehurst, Judge. Action by. Emma C. Baird and others against the New Jersey Fire Insurance Company, in which W. T. Henry and another were made parties. From a judgment for plaintiffs, and W. T. Henry and another, defendant appeals.
187 S.W. 358St. Louis, I. M. & S. Ry. Co. v. Landa & Storey (1916)Reversed and dismissed
Error from District Court, Hays County; Frank S. Roberts, Judge. Action by Landa & Storey against' the St. Louis, Iron Mountain & Southern Railway Company and others. There was judgment against the named defendant, and it brings error.
187 S.W. 361Crawford v. Spruill (1916)
187 S.W. 365A. Harris & Co. v. Campbell (1916)Affirmed
1. LANDLORD AND TENANT &wkey;>79(2) — PROVISION for Subletting — Breach-Parties. Where a partnership leased premises under a lease stipulating that the lessee might sublet the premises upon the lessor’s written consent, and the partnership subsequently incorporated under the same name, without notice of the change to the lessor or Ms consent to the assignment of the lease by the partnership to the corporation, there was no such privity to the lease contract as entitled the corporation to sue for damages from the lessor’s refusal to allow a subletting. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 249, 250; Dec. Dig. &wkey;> 79(2).] 2. Landlord and Tenant <&wkey;76(4) — Provision for Subletting — Breach—Sufficiency of Evidence. In a lessee’s action for damages from the lessor’s refusal to consent to a subletting for an unexpired term, evidence held to sustain.a finding that the lessor did not wrongfully, arbitrarily, and without cause refuse to consent to the occupancy of the premises by the subtenant, either as assignee of the lease or as subtenant. [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 229; Dec. Dig, &wkey;376(4).] 3. Witnesses <&wkey;410 — Examination — Impeachment. In a lessee’s action for damages from the lessor’s wrongful refusal to consent to a subletting, where the cross-examination of the defendant showed an attempt to discredit his testimony, testimony, corroborating the defendant’s statement that if the lessee would turn over the premises he would release him, was admissible. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. <®=>410.] 4. Witnesses <&wkey;361(l) — Impeachment — Reputation. In such action, where the lessee attempted to impeach the lessor’s credibility and standing as a man of integrity, testimony that a witness had known the lessor for 35 years, that he had always promptly paid his debts and had a good reputation for truth and fair dealing, was admissible. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167, 1171-1175; Dec. Dig. &wkey; 361(1).]
187 S.W. 367Terrell v. Middleton (1916)Affirmed
Appeal from District Court, Travis County; Geo. Callioun, Judge. Suit for injunction by W. C. Middleton against H. B. 'Terrell, Comptroller of Public Accounts of Texas. Judgment for plaintiff, and defendant appeals.
187 S.W. 374Weller v. Missouri, K. & T. Ry. Co. (1916)Affirmed
1. Appeal and Error i&wkey;742(l) — Assignments op Error — Sufficiency. In an action against a railroad company for damages for placing white passengers in a coach also occupied by negroes, assignments of error that the verdict and judgment were contrary to the testimony, in that it showed that the white passengers purchased tickets entitling them to transportation in a coach set apart for white persons, cannot be extended by propositions to raise the point that they suffered men= tal anguish by reason of the proximity of ne-.groes. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Doc. Dig. &wkey;j742(l).] 2. Railroads <&wkey;253 — Carriage op Passengers — Actions—Damages. A passenger cannot recover even nominal damages against a carrier for an infraction of the separate coach law without showing that he was injured. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 732, 733; Dec. Dig. &wkey;253.] 8. Appeal and Error <&wkey;215(l) — Presentation op Grounds op Review in Court Below — Instructions—Objections. White passengers suing because forced to ride .in a coach partly occupied by negroes, not having objected below to instructions which made recovery contingent upon the suffering of actual damages, cannot assert on appeal that they should have been allowed nominal damages in any event. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Dec. Dig. &wkey;> 215(1); Trial, Cent. Dig. § 083.] 4. Appeal and Error &wkey;>1050(3) — Harmless Error — Carriage op Passengers — Evidence — Admissibility. Where white passengers were suing because compelled to ride in a coach partly, occupied by negroes, evidence that the two races were commingled because the negro coach was disabled, that they were separated by large signs, one portion of the coach being set off for the negroes, and that many of the white passengers were soon placed in Pullman and chair cars, has such a bearing on the question as to whether white passengers suffered shame and humiliation that, if erroneously admitted, the error does not necessitate a reversal. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4155; Dec. Dig. t&wkey;> 1050(3).]
187 S.W. 376Missouri, K. & T. Ry. Co. of Texas v. Harrell Gin Co. (1916)Reversed and rendered
Appeal from Caldwell County Court; J. T. Ellis, Judge. . Action by the Harrell Gin Company against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
187 S.W. 376Connally v. Missouri, K. & T. Ry. Co. of Texas (1916)Affirmed
Appeal from District Court, Travis County; George Calhoun, Judge. Action by C. W. Connally and another against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for defendant, plaintiffs appeal.
187 S.W. 378Commissioners' Court of Trinity County v. Miles (1916)Affirmed
W. Dean, Judge. Injunction by W. S. Miles and others against the Commissioners’ Court of Trinity County and others. From an order granting a temporary injunction, certain defendants appeal.
187 S.W. 379Uhr v. Lancaster (1916)Affirmed
1. Municipal Corporations <&wkey;180(3) — Ordinances — Construction. An ordinance providing that the police force of the city of San Antonio shall consist of a chief marshal, assistant marshals, and patrolmen, although not establishing a police force, created the office of marshal, because specially named. [Ed. Note. — For other cases, see Municipal Corporations,' Cent. Dig. §§ 452, 453, 455, 466; Dec. Dig. &wkey;3l80(3).] 2. Municipal 'Corporations <&wkey;183 (2) — Municipal Officers — Term op Office. Under San Antonio City Charter, amendment of 1915, § 16, par. 2, providing that appointive officers shall hold office until the appointment and qualification of their successors, when plaintiff admits that defendant had been appointed in 1913 in accordance with an ordinance creating the position of marshal, and does not allege that a successor has been appointed and qualified, a writ of injunction restraining defendant from exercising the duties of the position of marshal will not be allowed. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 476; Dec. Dig. &wkey;> 1S3(2).] 3. Municipal Corporations <&wkey;183(l) — City Charter— “Emp lo yé. ” Under the City Charter of San Antonio as amended in 1915, enumerating the elective and appointive officers of the city and providing that officers and employes hold office for two years, the city marshal not being enumerated, ah though an officer contemplated by Const, art. 16, § 17, providing that all officers of the state shall continue to perform their duties until their successors are duly qualified, is an employé, and not an appointive officer appointed by the mayor. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 473; Dec. Dig. <&wkey;> 183(1). For other definitions, see Words and Phrases. First and Second Series, Employé.]
187 S.W. 381Brown v. Uhr (1916)Affirmed
1. Municipal Corporations <&wkey;183(l) — City Charter — 1 ‘Employé. ’ ’ Under the City Charter of San Antonio, as amended in 1915, enumerating the appointive and elective officers of the city and providing that officers and employes shall hold office for two years, the city marshal, not being enumerated as an officer, is an “employé” as the word is used in the charter, and not an appointive officer appointed by the mayor. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 473; Dec. Dig. <&wkey;> 183(1). For other definitions, see Words and Phrases, First and Second Series, Employé.] 2. Municipal Coeporations <&wkey;131 — City Charter — Construction. In San Antonio City Charter, § 16, pars. 1, 2, touching appointive officers, the words “unless otherwise provided” refer to other provisions made in the charter, and not to ordinances that may be passed. TEd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 305, 878; Dec. Dig. &wkey;131.] 3. Municipal Corporations &wkey;>126 — Construction-City Charter — “Offices or Employment.” Under San Antonio City Charter, § 16, par. 3, providing for the creation by the commission of “offices and employments,” reference is not had to elective and appointive offices already enumerated and limited in the charter, but the words “offices or employment” are necessarily synonymous. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 298-300; Dec. Dig. <&wkey;>126. For other definitions, see Words and Phrases, First and ■ Second Series, Employment; Office.] 4. Municipal Corporations &wkey;>168 — Construction — City Charter. Under the City Charter of San Antonio, the provisions giving the mayor “all powers and duties not distributed or assigned to another department,” being a general provision, will not affect a special provision, Section 16, enumerating and defining the nominating powers of the mayor. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 376; Dec. Dig. •§=> 168.] 5. Appeal and Error <&wkey;839(l) — Review-Matters Not in Record. The appellate court will not go outside of the pleadings to inquire into matters not properly before the court, and which cannot affect the questions involved. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3279; Dec. Dig. <@^839(1).]
187 S.W. 386Kuehn v. Meredith (1916)Affirmed
Appeal from District Court, Wichita County; E. W. Nicholson, Judge. Action by A. A. Kuehn against J. D. Meredith. Judgment for defendant, and plaintiff appeals.
187 S.W. 388Nevill v. Gulf, C. & S. F. Ry. Co. (1916)Affirmed
1. CARRIERS <&wkey;2S4(l) — Carriage of Passengers — Care Required — Injury from Fellow Passenger. It is the absolute duty of a carrier of passengers to protect them, in so far as it can be done by the exercise of the highest degree of care, from the willful misconduct and violence of their fellow passengers and strangers. [Ed. Note. — Fbr other cases, see Carriers, Cent. Dig. §§ 1125, 1127; Dec. Dig. &wkey;284(l).] 2. Carriers <&wkey;320(6) — News Agent — Injury by Passenger. Considering a news agent as a passenger, and unless his right of recovery had been taken away by virtue of a release executed to Ms employer and for the benefit of the defendant road, evidence in his action for damages for injury by a passenger held to make the conductor’s negligence, in failing to protect him therefrom, a question for the jury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1126, 1324; Dec. Dig. &wkey;320(6).] 3. Trial <@=348 — Reception of Evidence — Evidence Inadmissible in Part. Where certain parts of the excluded testimony wore subject to the objection that jt was hearsay and inadmissible, it could not be held that the court erred in excluding it as a whole. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 120; Dec. Dig. <@=348.] 4. Carriers <&wkey;320(6) — Action for Injury-Taking Case from Jury. Where the evidence bearing upon a railroad’s negligenco favorable to the plaintiff suing for injury by a passenger, discarding all evidence favorable to the defendant, was sufficient to support a verdict for the plaintiff, the issue of defendant’s liability was for the jury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1126, 1324; Dec. Dig. &wkey;320(6)J 5. Carriers <&wkey;241 — Passenger—Relation-News Agent. Under the state or local law, a news agent employed by a news service and entitled under a contract between his employer and the road to free transportation upon passenger trains, was entitled to the rights, privileges, and protection of a passenger. [Ed. Note. — For other cases, see Gamers, Cent. Dig. §§ 977-979; Dee. Dig. &wkey;241.] 6. Carriers &wkey;>307(5) — Passengers—Exemption from Liability — Validity. A news agent entitled under state law to the right of a passenger, even though riding on a pass or accepting free transportation under an arrangement between his employer and defendant road, «pon the condition that it would he relieved from liability for injury from its negligence, was not precluded under the state law from recovering damages for such injury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1256; Dec. Dig. <&wkey;>307(5).] 7. CaRbiebs &wkey;234 — Contract oe Transportation — Wi-iat Law Governs — Evidence. A contract or agreement of release by a news agent to his employer and inuring to railroads, made in Texas where both the agent and the defendant road resided, relating to the agent’s transportation on defendant’s trains, to be performed partly in that state and partly in other states, would be assumed to be intended to be performed, in part at least, under circumstances involving interstate transportation. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 965, 1263, 1538; Dec. Dig. &wkey; 234.] 8. Carriers (&wkey;234^-PASSENGERS — Existence oe Relation — Wi-iat Law Governs. Whether agreement of a news agent, traveling under a contract of interstate carriage, with defendant road releasing claims for injury executed to his employer, inured to the roads over whose lines he might travel under his employment, was to he determined by the federal law. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 965, 1263, 1538; Dec. Dig. &wkey; 234.] 9. Carriers <&wkey;307(l) —Negligence — Contract Exemptions — News Agent — “Passenger.” A news agent in the employ of a news service, under whose contracts he had a right to transportation on defendant’s passenger trains engaged in interstate commerce, and who, on entering into such service, executed a release of liability for personal injuries of all kinds sustained in the course of his employment, whether the result of the negligence of any railroad or not, inuring to the benefit of such roads, was not a passenger, and hence not entitled to the benefit of the inhibition against stipulations of special contracts limiting the liability of carriers for damages arising out of negligence of their employés. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1252; Dec. Dig. &wkey;307(l). For other definitions, see Words and Phrases, First and Second Series, Passenger.] Buck, J., dissenting in part.
187 S.W. 396Carter-Mullaly Transfer Co. v. Bustos (1916)Affirmed
F. Ezell, Judge. Action by Adolfo Bustos, by his father and next friend, Joseph Bustos, against the Carter-Mullaly Transfer Company. From a judgment for plaintiff Adolfo Bustos and against plaintiff Joseph Bustos, defendant appeals.
187 S.W. 399Hughes v. Underwood Typewriter Co. (1916)Affirmed
Action by the Underwood Typewriter Company against J. R. Hughes. From a judgment of the county court refusing application of defendant by next friend for cer-tiorari to review judgment for plaintiff in justice court, defendant appeals.
187 S.W. 400Clopton v. Caldwell County (1916)Affirmed
1. Accobd and Satisfaction &wkey;>ll(l) — Acceptance as Full Payment — Effect of PROTEST. A contractor’s acceptance and cashing, under protest, of a road warrant, stated to be in final settlement of his claim, operated as an accord and satisfaction. LEd. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75, 79-82; Dec. Dig. &wkey;ll(l).3 2. Accord and Satisfaction <&wkey;10(l) — Un-liquidated Claims — What Constitutes. A road contractor’s claim for work done, including an additional item, for supervision, is unliquidated where the supervising item is without basis. [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 67-72; Dec. Dig. &wkey;10(l).] 3. Accord and Satisfaction <&wkey;26(3) — Evidence — Sufficiency. A finding that a road contractor knew that certain warrants were given him in full payment is sustained, where he appeared before the authorities and protested against such limitation before cashing the warrants. [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 164, 165; Dec. Dig. &wkey;26(3).3 4. Accord and Satisfaction <&wkey;5 — Consideration. The compromise of an amount due a road contractor is sufficient consideration to support an accord and satisfaction. [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 40-45; Dec. Dig. <&wkey;5.]
187 S.W. 401King v. Hardin Lumber Co. (1916)Affirmed
Appeal from Harris County Court; Clark C. Wren, Judge. Action by the Hardin Lumber Company against I. H. King and others. From a judgment for plaintiff, defendants appeal.
187 S.W. 404Texas Bldg. Co. v. Collins (1916)Affirmed as modified
Brown, Judge. Action by J. E. Collins and others against the Texas Building Company and others. Judgment for plaintiffs, and certain defendants appeal.
187 S.W. 410Gazell v. Garcia (1916)
187 S.W. 413Ralston v. Stainbrook (1916)Reversed, and cause dismissed
Error from District Court, Matagorda County; Samuel J. Styles, Judge. Suit by Joseph- Stainbrook and others against John Ralston, administrator of the estate of Lyda L. Williams, deceased, in which A. M. Walker intervened. Judgment for plaintiff and for intervener with a foreclosure of their respective liens, directing that an order of sale might issue, and the administrator brings error.
187 S.W. 415Wichita Falls Traction Co. v. Berry (1916)Affirmed
Appeal from District Court, Wichita County; E. W. Nicholson, Judge. Action by C. W. Berry and wife against the Wichita Falls Traction Company. Judgment for plaintiffs, and defendant appeals.
187 S.W. 422Birchfield v. Bourland (1916)Reversed, and injunction dissolved
W. Swayne, Judge. Suit by John Bourland against G. W. Birchfield and another. From an order granting a temporary injunction, defendants appeal. After reversal, plaintiff presented an amended petition to the district judge, wlio again ordered a writ of injunction, which was issued, and defendants apply for a writ of prohibition against plaintiff and the judge of the district court to restrain further action until the original action can he heard on its merits.
187 S.W. 426Pickett v. Michael (1916)
Bead, Judge, and W. J. Howard, Special Judge. Action between A. B'. Pickett and others and Charles L. Michael. Judgment for Michael, and Pickett and others appeal. Reversed and remanded. ■Stanley Thompson, of Houston, for appellants.
187 S.W. 427Kansas City, M. & O. Ry. Co. of Texas v. Durrett (1916)Affirmed
Appeal from District Court, Pecos County; W. C. Douglas, Judge. Action by R. T. Durrett against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
187 S.W. 430Houston Transp. Co. v. Texas Co. (1916)
Action by the Texas Company against the Houston Transportation Company and others, in which the defendant files a counterclaim. From a judgment for plaintiff, defendants bring error.
187 S.W. 431Roaring Springs Independent School Dist. v. McAbee (1916)Reversed and remanded, with directions
Action by W. H. McAbee against the Roaring Springs Independent School District. Order denying defendant’s plea of privilege and judgment for plaintiff, and defendant appeals.
187 S.W. 485De Leon v. State (1916)Affirmed
Appeal from District Court, El Paso County; W. D. Howe, Special Judge. Mateo De Leon was convicted of hog theft, and he appeals.
187 S.W. 488San Antonio A. P. Ry. v. Jackson Allen (1916)Affirmed,
Appeal from Caldwell County Court; J. T. Ellis, Judge. Action by Jackson & Allen against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiffs, defendant appeals.
187 S.W. 489First Nat. Bank of Roswell, N. M. v. Browne Grain Co. (1916)Affirmed in part, and in part reversed and remanded
1. Judgment <S=18(1) — Trial <$^39G(1) — Findings of Court — Plea Eliminated. A plea having been eliminated, by the sustaining of exceptions thereto, will not sustain a finding, and the judgment thereon, for defendant. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 34, 35; Dec. Dig. <3^18(1); Trial, Cent. Dig. § 935; Dec. Dig. <®=>396(1)J 2. Trial <§^396(2) — Findings of Court — Absence of Plea. A finding for a drawee of a draft, sued by the payee, who had cashed it for the drawer, that the drawer had a deposit with the payee, sufficient to repay it, is unauthorized, in the absence of plea of such fact. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 935; Dec. Dig. @=3396(2).] 3. Banks and Banking @=3175(3) — Collecting Deaet — Negligence—Evidence. Evidence in an action against a bank for negligence in not collecting a draft, sent to it with bill of lading attached, held sufficient to exonerate it of negligence, on the ground that the drawee obtained possession of the goods shipped on an order from the consignor and drawer. [Ed. Note. — For other cases, see Banks and Banking-, Cent. Dig. §§ 635, 640-646; Dec. Dig. @=3175(3).]
187 S.W. 491Galveston, H. H.R. Co. v. Anderson (1916)Reversed and remanded
Error from District Court, Galveston County; Robt. G. Street, Judge. Action by James Anderson, by his next friend, against the Galveston, Houston & Henderson Railroad Company. There was a judgment for plaintiff, and defendant brings error.
187 S.W. 493Black v. Wilson (1916)Affirmed
Appeal from District Court, La Salle County; J. F. Mullally, Judge. Suit by Lula Wilson against J. R. Black. From a judgment for plaintiff, defendant appeals.
187 S.W. 497American Nat. Ins. Co. v. Nuckols (1916)Affirmed
1. Insurance @=556(2) — Line Insurance— Proof of Loss — Estoppel — Power of Agent. Where the company agent was notified of death and viewed the body and said he was satisfied and that loss would be paid, and the adjuster recognized his authority until suit was brought, and then denied it, the company was estopped to deny the agency. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1375; Dee. Dig. @=556(2).] 2. Insurance @=3549 — Life Insurance — Proof of Loss — Autopsy—Time. Where the policy gave the insurer the right to an autopsy, but it was not demanded at the time of death, the insurer could not, six weeks after interment, insist on such right, especially where it was undisputed that the insured died by an accident covered by the policy and the only dispute was whether his neck was broken or dislocated. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. @=549.] 3. Insurance @=549 — Life Insurance — Proof of Loss — Autopsy—Time—Exhumation. To give the insurer the right of exhumation of the insured’s body, such right must be clearly expressed in no uncertain words in the policy. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. @=549.] 4. Insurance @=549 — Life Insurance — Proof of Loss — Autopsy—Time—Exhumation. Insurer’s right to exhume insured’s body, if covered by right to autopsy, can be exercised only at once and upon showing that it will show fraud or mistake. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. @=549.] 5. Insurance @=549 — Life Insurance — Proof of Loss — Autopsy—Time—Exhumation. Where insurer pleaded that doctors’ conflicting statements that insured died from broken neck, and from dislocated neck, meant the same thing, it could not base its right to an autopsy on such conflicting statements. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1356; Dec. Digl @=549.]
187 S.W. 501Pullman Co. v. Franks (1916)Reversed and remanded
Action by Mrs. Chas. T. Pranks and another against the Pullman Company. Prom a verdict for plaintiffs, defendant appeals.
187 S.W. 503Abernathy Rigby Co. v. McDougle, Cameron & Webster Co. (1916)Afiirmed
Appeal from Dallas County Court at Law; T. A. Work, Judge. Suit by the McDougle, Cameron & Webster Company against the Abernathy Rigby Company. Judgment for plaintiff, and defendant appeals.
187 S.W. 505Martin v. Blair & Hughes Co. (1916)Reformed and affirmed
1. Guaranty <@^30 — Requisites — Written Guaranty — Form. Where defendant wrote to the president of a corporation guaranteeing a third party’s debt he knew was due the corporation, the guaranty was available to the corporation. [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 30-32; Dec. Dig. <§r=>30.] 2. Guaranty <@=^36(2) — -Operation—Extent oe Liability. Where defendant guaranteed a third party’s debt due plaintiff, he was liable only for the then existing debt with legal interest, and not for the interest and attorney’s fees stipulated in notes subsequently made by the debtor to plaintiff for the debt in question. [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 38; Dec. Dig. <§=»36(2)J
187 S.W. 506Little v. Nicholson (1916)Judgment affirmed
Appeal from District Court, Harris County; Chas. E. Ashe, Judge. Suit by Carrie E. Nicholson against R. N. Little. From a judgment for plaintiff, defendant appeals.
187 S.W. 508Brady v. Richey & Casey (1916)Reversed, and cause remanded
1. Brokers <&wkey;88(l) — Action eor Commission —Sufficiency oe Evidence. In an action for a commission for effecting a lease of defendant’s theater property through negotiations carried on by plaintiff and its employe at defendant’s solicitation, and with defendant’s acquiescence and acceptance of benefits, evidence held to sustain a verdict for the plaintiff. [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 117, 118; Dec. Dig. &wkey;86(l).] 2. Brokers <&wkey;82(4) — Action for Commission —Pleading—'Variance. In a broker’s action for a commission for effecting a lease of defendant’s property for a term of 15 years, the failure of the petition to show that the lease contained a provision under which it might be canceled by the lessee on the forfeiture of a certain amount did not prevent a recovery on a ground of a variance between the allegation and proof. [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 103; Dec. Dig. <í&wkey;82(4); Pleading, Cent. Dig. § 1334.] 3. Brokers Commission — Amount. Under an express agreement that a broker’s services should be rendered to an owner directly soliciting such services to effect a lease, or under an implied agreement showing the owner’s appropriation of such services, and where the compensation was not agreed upon, the law implied a promise to pay a reasonable amount. [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 55; Dec. Dig. &wkey;?69.] 4. Brokers &wkey;>8(3) — Action eor Commission —Authority from Owner. In a broker’s action for a commission for effecting a lease of defendant’s property, evidence held to show the defendant’s express authority to secure a contract to rent to a certain party on the terms finally embraced in the contract. [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 9; Dec. Dig. <S&wkey;8(3).] 5. Brokers <&wkey;82(4) — Action for Commission — Commission—Evidence. A pleading that defendant became liable to pay the fair and usual commission for a broker’s services in effecting a lease was sufficient to authorize proof of what was the reasonable value of the services performed. [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 103; Dec. Dig. &wkey;>82(4); Pleading, Cent. Dig. § 1334.] 6. Customs and Usages &wkey;>18 — Pleading and Proof — Knowledge—Broker’s Commission. In a broker’s action for a commission for effecting a lease, where it was not alleged that the defendant knew of any custom as to the commission for such services, or that any custom prevailed -which was so commonly known that he was legally chargeable with notice thereof, the custom of the real estate business would not be binding upon him and enter into the contract alleged to be made by him, so that proof of such custom was inadmissible. [Ed. Note. — Eor other cases, see Customs and Usages, Cent. Dig. § 40; Dee. Dig. &wkey;sl8.] 7. Customs and Usages <&wkey;ll — Pleading-Effect. Where it is pleaded and proved that there is a custom as to the commission for effecting a lease of which a party defendant had knowledge, or that there was a custom so notorious as to charge him with‘knowledge thereof, the law implies a promise to pay the compensation fixed by such custom. [Ed. Note. — Eor other cases, see Customs and Usages, Cent. Dig. § 22; Dec. Dig. <@=^>11.] 8. Brokers <&wkey;69 — Compensation—Amount. Where no custom binding on the parties is pleaded and proven, a broker is entitled to reasonable compensation in tbe absence of an agreement as to tbe amount. [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 55; Dec. Dig. <5&wkey;69.] 9. Brokers <&wkey;85(10) — Action for Commission — Evidence—Custom. In a broker’s action for commission for effecting a lease for a term, where no custom as to tbe amount of the commission was pleaded and proven, tbe end accomplished, as well as tbe time and effort expended, were to be considered, though evidence that there was a customary rate for renting property for a term, and that there was a custom for the landlord to pay the commission for leasing property, was inadmissible. [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 114; Dec. Dig. <5&wkey;85(10).] 10. Appeal and Error <&wkey;92G(7) — Review-Presumption— Qualification of Witness. Under an assignment of error in the admission of testimony of a witness as to a reasonable commission for effecting a lease, not objecting that the witness had not qualified himself to state his opinion on that matter, it would be assumed that he was duly qualified. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3745, 3746; Dec. Dig. <&wkey; 926(7).] 11. Evidence <&wkey;472(16) — Matters Directly in Issue — Amount of Commission. In such action, testimony of a witness that he considered 2 or 3 per cent, to be a reasonable commission for effecting a lease for a term, relating to the direct issue in the case, was inadmissible. [Ed. Note. — Eor other eases, see Evidence, Cent. Dig. §§ 2186, 2187; Dec. Dig. &wkey;472(10).] 12. Appeal and Error <&wkey;728(l) — Assignment of Error — Sufficiency of Objection. An assignment that there was no basis for a question as to what was a reasonable commission for a broker’s services on the ground that the services alleged to have been rendered were different from those stated in the hypothetical question submitted was too general, because not pointing out just what should have have been changed in the question. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3010; Dec. Dig. <&wkey;728(l).] 13. Evidence <&wkey;533(3) — Examination of Expert — Hypothetical Question. In a broker’s action for a commission for effecting a lease for a term, it was not error to permit him to embrace in a question as to what was a reasonable commission for such services his own construction of the terms of the lease, especially in the absence of a construction thereof by the court; as, where the terms of an instrument are ambiguous and the question as to what the parties intended is for the jury, it is proper to ask a witness to state his opinion based upon the construction contended for by a party, upon which the other party may inquire thereon, taking into view his construction of the contract. [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 2371; Dec. Dig. <¿=3553(3).] 14. Trial <&wkey;136(3) — Question for Jury-Construction of Contract. If a contract is not ambiguous it is proper to ask the court to construe it and to require it to be described in all questions in accordance with the court’s construction, and if it is ambiguous, but the evidence makes its intention clear beyond dispute, it is proper for the court to construe the contract for the jury and require them to accept such construction in estimating the value of the services. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 326; Dec. Dig. <í&wkey;136(3); Pleading, Cent. Dig. § 75; Witnesses, Cent. Dig. § 851.] 15. Evidence <&wkey;543(2) — Opinion Evidence-Value of Services. A skilled witness, who is familiar with services connected with some particular profession, trade, or calling, may estimate their value, and it is not required that he should be intimately acquainted with the nature of the services which he is appraising, but he may know them in a very general way. [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. | 2356%; Dec. Dig. <&wkey;543(2)J 16. Evidence <&wkey;317(l) — Declarations — Conversations between Third Persons. In a broker’s action for a commission for effecting a lease for a term, evidence of a conversation, between the broker’s employs and the lessee, not in the presence of the lessor, to the effect that the lessee had made a bad lease and the lessor a good one, was inadmissible. [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 1174; Dec. Dig. &wkey;317(l).] 17. Evidence &wkey;>471(6) — Facts or Conclusions. In such case, the lessee should be required to testify to the facts with regard to what occurred between himself and the -broker’s employs, instead of his conclusion. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2154; Dec. Dig. <&wkey;471(6); Witnesses, Cent. Dig. § 833.] 18. Brokers <&wkey;85(10) — Action for Commission-Evidence. The fact that plaintiff’s services had procured a lessee who had paid seven months’ rent might be considered by the jury in estimating the reasonable value of the services. [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 114; Dec. Dig. &wkey;85(10).] 19. Brokers <&wkey;54^ — Action for Commission —Responsibility of Lessee — Estoppel. Where a broker alleged a contract to procure a responsible lessee, the defendant, who accepted the lessee, procured and entered into a lease with him, was estopped from alleging anything against the lessee’s responsibility, except fraud on the part of broker’s employé, inducing his acceptance. [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. &wkey;54.] 20. Brokers <&wkey;85C3) — Action for Commission — Evidence—Relevancy. Where the lessor did not allege fraud on the part of the broker’s agent in inducing his acceptance of the lessee, testimony of the lessee that he was able to carry out the lease contract was irrelevant, and it was also irrelevant in view of the trial court’s construction of the contract, so that the lessee could comply with it by failing to pay rent, thereby forfeiting a certain amount on deposit with the lessor. [Ed. Note. — For other cases, see' Brokers, Cent. Dig. § 106; Doc. Dig. <&wkey;>85(3).] 21. Appeal and Error &wkey;>1030(2) — Harmless Error — Admission of Evidence. Such evidence was calculated to impress the jury with the idea that it was the lessee’s intention to keep the property and pay on the lease promptly during the term and to cause them to allow compensation on the theory that the lease would continue for the entire time. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. &wkey;>1050(2).]
187 S.W. 514Jeffress v. Western Union Telegraph Co. (1916)Reversed and remanded
Limitation of Actions <&wkey;>124 — Amendment of Pleadings — Joinder of New Paiw-ies. Where two individuals are jointly interested in a contract, but action for breach thereof was begun by only one of them, an amended petition joining the other as coplaintiff in the same cause ■ of action is not the commencement of a new suit within the statute of limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 541; Dec. Dig. 124.]
187 S.W. 516Pierce-Fordyce Oil Ass'n v. Warner Drilling Co. (1916)Affirmed
Appeal from District Court, Wichita County ; J. W. Akin, Judge. Action by the Warner Drilling Company against the Pierce-Fordyce Oil Association. Judgment for plaintiff, and defendant appeals.
187 S.W. 517Kaker v. Parrish (1916)Affirmed
1. Bbeach of Maebiage Peomise <&wkey;23 — Sufficiency of Evidence. Evidence in a suit for damages for the breach of a promise of marriage held to sustain a finding that there had been a contract of marriage as alleged. [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 31, 37; Dec. Dig. <&wkey;>23.] 2. Bbeach oe Maebiage Peomise ¡&wkey;23 — Sufficiency of Evidence — Rescission ob Abandonment. Evidence in a suit for damages for the breach of a promise of marriage held to sustain a finding that the contract had not been mutually rescinded or abandoned. [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 31, 37; Dee. Dig. <§=323.] 3. Beeach of Maebiage Promise <&wkey;34 — Release — Words. The' fact that plaintiff in. a suit for the breach of a promise to marry, in answer to the defendant’s statements that he did not know that he would “ever marry,” and “that his affection for the plaintiff was not what it had been formerly,” had replied, “Well, we just as well quit then,” did not, as matter of law, amount to a waiver or surrender of her rights under the promise; as she was not required, in order to preserve such rights, to then insist on its performance and again express her willingness to perform her part of the contract. [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. § 50; Dec. Dig. &wkey;>34.] 4. New Teial- <&wkey;44(3) — Misconduct of Ju-bob — Statement as to Defendant. In an action for damages for breach of a promise to marry, where it appeared that defendant had told plaintiff that he wanted to leave the country, that he was afraid to marry her, and that he had been intimate with two other women, the statement of a juror to the jury that he thought that defendant was the man who had ruined a girl and had been forced to marry her was not so prejudicial as to make the refusal of a new trial on that ground an abuse of its discretion, especially when made after the jury had agreed to find for the plaintiff on the issue of the breach, and where the verdict was not attacked as being excessive. [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84; Dec. Dig. <&wkey;>44(3).] 5. New Trial <&wkey;52 — Misconduct of Juey— Verdict by Lot. The fact that it was suggested by a juror that they find the amount of damages against defendant by dividing the amount which each juror was in favor of assessing by 12, resulting in a verdict substantially for the amount awarded, where there had been no agreement to abide by such verdict, and the calculation was several hours before the final verdict was agreed upon, was not such misconduct as to make a denial of a new trial on that ground an abuse of discretion. [Ed. Note. — For other cases, see New Trial, Oent. Dig. § 101; Dec. Dig. <S=>52.] 6. New Trial &wkey;>44(3) — Misconduct o» Jury — Damages-—Attorney’s Fees. In an action for breach of promise to marry, where defendant’s counsel had stated that the plaintiff’s lawyers would doubtless get a large share of the damages, that the jury discussed how much plaintiff would have to pay as lawyer’s fees and expenses, in the absence of anything to show that such items were included in the damages, and the fact that a juror followed the law of another state in assessing damages, though he was not ultimately controlled by it and did not communicate it to the other jurors, was not such misconduct as made the trial court’s refusal of a new trial an abuse of its discretion. [Ed. Note. — For other eases, see New Trial, Oent. Dig. §§ 82-84; Dec. Dig. <&wkey;44(3)J 7. New Trial <&wkey; 143(2) — Misconduct of Jurors — Statute—Burden of Proof. Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2021, which, contrary to the rule of the common law, authorizes a consideration of the testimony of jurors for the purpose of impeaching their verdict, a litigant, seeking to disturb a verdict against him, has the burden of showing, not only that the matters of-which he complains amount to misconduct on the part of the jury, but also that they operated to his prejudice. [Ed. Note. — For other cases, see New Trial, Oent. Dig. §§ 292, 293; Dec. Dig. &wkey;143(2).] 8. Appeal and Error <&wkey;97S(3) — Discretion of Trial Court — Impeachment of Víerdiot. Under such statute expressly committing the determination of questions .as to the misconduct of jurors to the discretion of the trial court, its discretion is reviewable on appeal, but its action in overruling the motion for new trial on the ground of the jury’s misconduct will not be disturbed where it seems that it acted fairly in its investigation. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3870; Dec. Dig. <i&wkey;978(3).] 9. Breach of Marriage Promise <&wkey;22 — Evi- • dence — Character. In an action for damages for breach of promise, where there was no attack upon the character of the defendant’s present wife, evidence for defendant that her general character was above suspicion was inadmissible. [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 31-36; Dec. Dig. <®=»22.J
187 S.W. 523Huth v. Huth (1916)Judgment refusing the injunction in part affirmed, and…
F. Ezell, Special Judge. Suit by John L. Huth for injunction against C. J. Huth and. others. From the action of the court in denying the injunction in part and requiring plaintiff to give bond, plaintiff appeals, and, from the action of the court in granting temporary injunction in part, defendants appeal.
187 S.W. 528Oliver v. Smith (1916)Affirmed
1. Schools aeb School Districts <&wkey;36— Reducing Area — Power’ of Trustees'. That a maintenance tax has been voted in a common school district does not affect the power of the county school trustees to reduce the district’s area. [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. § 5914; Dec. Dig. <&wkey;36.] 2. Schools and School Districts <&wkey;36 — Change of Boundaries — Quo Warranto. Any power of the district court to correct any abuse of discretion of county school trustees, in taking territory from one common school district and adding it to another, can be exercised only in a quo warranto proceeding instituted in the name of the state, or by some individual, under the authority of the state, who has a special interest affected by the change. [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 59[4 ; Dee. Dig. <&wkey;>36.] 3. Injunction &wkey;5ll4(l) — Proceeding to Declare School District Invalid — Parties. To proceedings to declare invalid common school districts, as established by county school trustees through change of boundary, the trustees of the districts, by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2822, constituted bodies corporate, are necessary parties. [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 202; Dec. Dig. <&wkey;114(l).] 4. Parties <§=^84(4) — -Defect—Demurrer. Omission of necessary parties is a defect rendering a petition subject to general demurrer. [Ed. Note. — -For other cases, see Parties, Cent. Dig. §§ 186-138, 141, 142; Dec. Dig. &wkey; 84(4); Pleading, Cent. Dig. § 494.] 5. Schools and School Districts <&wkey;30 — Territorial Limits. A common school district, as established by the county school trustees, by adding territory so that the farthest line thereof is more than four miles from its center, contrary to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2815, can have no legal existence. [Ed. Note. — For other cases, see 'Schools and School Districts, Cent. Dig. § 50; Dec. Dig. &wkey;30.]
187 S.W. 532Myers v. Grantham (1916)Affirmed
Appeal from Caldwell County Court; J. T. Ellis, Judge. Action by J. R. Grantham against A. E. Myers. Judgment for plaintiff, and defendant appeals.
187 S.W. 533Galveston Electric Co. v. Hanson (1916)Judgment affirmed
1. Tkial <&wkey;191(9), 253(4) — Instructions — Assumption as to Facts — Ignoring Issues. In an action for injuries to a woman alighting from a street car, the charges that, if the injuries were caused by the conductor’s failure to use the care of a competent and prudent man in'starting the car, verdict should be for plaintiff, but if he used such care in starting the car, or the woman caused or contributed to cause her fall by failure to use the care of a woman of ordinary prudence, verdict should be for defendant, were not erroneous as assuming the conductor’s failure to exercise proper care, and as authorizing finding for plaintiff, though the jury should find the woman was guilty of contributory negligence. [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 420, 430, 613, 615; Dee. Dig. &wkey;191(9), 253(4); Carriers, Cent. Dig. § 1337.] 2. Appeal and Error <&wkey;1064(l) — Harmless Error. Where no harm resulted to defendant by unnecessary correction of a proper charge and re-reading it to the jury, there was no error. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. &wkey;5l064(l); Trial, Cent. Dig. §§ 475, 525, 528.] 3. Appeal and Error <&wkey;742(5) — Assignment oe Error — Compliance with Rules. Under Rules for the Courts of Civil Appeals 29, 30, 31 (142 S. W. xii, xiii), an assignment of error to the refusal to give a charge will not be reviewed, when not followed by any proposition or statement of facts which would call for such a charge; the testimony of no witness being set out, and the Court of Civil Appeals not being referred to the page or pages of the record where such testimony might be found, no proposition following the assignment, and the only statement thereunder being a copy of appellant’s bill of exceptions to the refusal of the charge. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000 ; Dec. Dig'. @=>742(5).] 4. New Trial &wkey;>56 — Misconduct of Jury-Harmless Error. That a juror stated that he had never been represented by an attorney for plaintiff, when in fact he had been so represented when charged with a misdemeanor, was not ground for setting aside the verdict for plaintiff, or for granting new trial, in the absence of some showing that defendant was injured by accepting the juror, or that the latter was in some manner influenced against defendant; improper conduct of the jury not being ground for reversal, unless shown to be injurious to the party complaining. [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 116-119; Dec. Dig. i&wkey;>56.] 5. Appeal and Error &wkey;>978(3) — Review — Overruling Motion eor New Trial eor Misconduct of Jury. Where the trial court makes full investigation of the alleged misconduct of the jury, and finds that it was not such as influenced the jurv in returning their verdict, his action in overruling motion for new trial based on such alleged misconduct will not be disturbed. [Ed. Note. — Eor other cases, see Appeal and Error, Oent. Dig. § 3870; Dec. Dig. &wkey;>978(3).]
187 S.W. 536Southern Traction Co. v. Wilson (1916)Reversed and remanded for new trial
1. Appeal and Error <&wkey;930(4) — Review— Presumption — Verdict. Where no special issues are submitted and the jury returns a general verdict, on appeal it is presumed that the jury found in favor of appellee on every issue necessary to sustain the judgment. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3760, 3761; Dec. Dig. &wkey;» 930(4).] 2. Street Railroads c&wkey;113(7) — Accidents —Actions—Evidence—Company’s Rules. In an action against street railway company for injuries to the driver of a laundry wagon, evidence that the motorman was violating the company’s rules in not running slowly at the place of the accident was admissible as tending to show absence of negligence by plaintiff, it appearing plaintiff knew of the rule, since he might have relied upon its observance until he discovered the contrary. [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 238; Dee. Dig. &wkey;>113(7).] 3. Street Railroads <&wkey;93(2) — Collision with Vehicles — Wiiat Constitutes Negligence-Violation oe Own Rules. The violation by motorman of a street railway company of its rule to run slowly at a certain point does not of itself give an injured person a right of action. [Ed. Note. — For other eases, see Street Railroads, Cent. Dig. §§ 196, 200; Dec. Dig. (&wkey;> 93(2).] 4. Negligence <&wkey;83 — Discovered Peril — Continuing Contributory Negligence. The “last clear chance’’ or “discovered peril” rule applies only where the operation of the injured person’s negligence in getting into a position of peril has come to an end, as by his ignorance of, or inability to escape from, such place of danger, and does not apply when Ms contributory negligence continues to the time of the injury — as by his persistence in remaining in or going on to occupy the position of danger — since in such case the negligence of the person charged cannot be said to intervene so as to become the sole proximate cause; but the negligence of both parties concurs, thus rendering the injured person’s contributory negligence a bar uiider the usual rule as to concurring contributory negligence. [Ed. Note.-rFor other cases, see Negligence, Gent. Dig. § 115; Dec. Dig. <@=^S3.] 5. Damages <&wkey;62(2) — Duty oe Injured to Prevent Damage — Injuries to Person. One injured by another’s fault is required to use only ordinary _ care to prevent the aggravation of his injuries. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 120-123; Dec. Dig. &wkey;62(2).] On Motion for Rehearing. 6. Street Railroads &wkey;>110(2) — Accidents —Actions—Pleading Contributory Negligence. In action against a street railway company for injuries by collision, an answer alleging that plaintiff was in plain view of the car, and that he negligently drove his wagon upon the track without making any effort to avoid collision, was a good plea of contributory negligence after discovered peril on the part of plaintiff, at least where no exception was taken. [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 224; Dec. Dig. <&wkey;>110(2).] Key, C. J., dissenting.
187 S.W. 548Yates v. Watson (1916)Reformed and affirmed
1. GUARDIAN AND WARD &wkey;>165 — ACCOUNTING and Settlement — Review. Under Rev. St. 1911, art. 4300, a bill of review is proper to correct errors in orders of county court approving guardian’s final report and account on his application for discharge and may be entertained at any time after final order of discharge until barred by statute. [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 531-537; Dec. Dig. 165.] 2. Guardian and Ward @=58 — Charges Against Estate — Expenses Paid by Guardian Prior to Appointment. Under Rev. St. 1911, art. 4131, requiring authorization for payments out of the principal of a ward’s estate, a guardian cannot recover expenses paid by him prior to his appointment and never filed and approved by the court, although allowed and approved on his final account. [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 264-282; Dec. Dig. <&wkey; 58.] 3. Guardian and Ward <&wkey;58 — Expenses Chargeable to Estate — Burial Expenses oe Father. The estate of a minor ward is not chargeable with burial expenses of the father of such ward. [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 264-282; Dec. Dig. @=58.] 4. Appeal and Error @=1011(1) — Findings oe Court — Claims Allowed Against Minor’s Estate. The finding of the trial court under conflicting evidence on disputed claims allowed the guardian of a minor’s estate is conclusive. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. @= 1011(1).] 5. Guardian and Ward <&wkey;54 — Duty oe Guardian to Invest Money — Liability eor Interest. Under the statute, where the guardian of a minor’s estate by the exercise of due diligence could have loaned funds and failed to do so, he is chargeable with interest thereon at the highest legal rate. [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 242-253; Dec. Dig. @= 54.] 6. Appeal and Error @=597(1) — Cross-Assignments oe Error — Objections — Sue- . eiciency. Under rule 101, District and County Courts (159 S. W. xi), cross-assignments of error need not be copied in the transcript, and an objection that they were not filed in the trial court, without other showing, is not sufficient to prevent their consideration. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2627-2631, 2635-2638; Dec. Dig. @=597(1).] 7. Guardian and Ward @=58 — Liability oe Guardian — Attorney’s Fees Paid Without Authority. Whore the guardian upon appointment paid a reasonable attorney’s fee due for collection of personal injury compensation constituting the estate, which amount was never inventoried as part of the estate, he was not liable therefor, although such payment was never approved by the court. [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 264-282; Dec. Dig. @=58.] 8. Guardian and Ward <&wkey;58 — Expenses' Chargeable Against Estate — Claims Not Filed and Approved. Traveling expenses of the guardian, not verified, filed, and approved by the county court, are not chargeable against the minor’s estate. [Ed. Note. — For other cases* see Guardian and Ward, Cent. Dig. §§ 264-282; Dec. Dig. @=58.] 9. Guardian and Ward @=358 — Expenses Chargeable Against Estate — Costs in Other Courts. Court fees and costs in other courts retained out of money belonging to ward’s estate are properly chargeable by the guardian against the estate of- the ward, though not filed nor approved. [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 264-282; Dec. Dig. @=58.] Walthall, J., dissenting in part.
187 S.W. 676Jackson v. Walls (1916)Affirmed
1. Judgment &wkey;256(2) — Conformity to Special Yerdict. Judgment must conform to the jury’s findings on special’ issues, though the court can afterwards set it aside, as contrary to the evidence. [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 447; Dec. Dig. <&wkey;256(2).] 2. Husband and Wife &wkey;>235 (2) — Separate Property — Agency of Husband — Evidence. Evidence held sufficient to go to the jury on the question of a husband being his wife’s agent to rent her separate property. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 589, 850, 982; Dec. Dig. &wkey;235(2).] 3. Vendor and Purchaser <&wkey;232(9) — Bona Fide Purchaser! — Notice of Lease. Possession of a tenant, though under a lease for the year, is notice to a purchaser, putting him on inquiry as to his having an oral lease for the next year. [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 556-558; Dec. Dig. &wkey;232(9).] On Rehearing. 4. Principal and Agent &wkey;>23(3) — Proof of Agency — Course of Dealing. Agency may be proved by acquiescence of the principal in other similar acts of the agent, so connected with that in question as to constitute a course of dealing. [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. &wkey;323(3).] 5. Principal and Agent <&wkey;23(2) — Agency-Circumstantial Evidence. The fact or extent of ag;ency may be established by circumstantial evidence. [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. <&wkey;23(2).]
187 S.W. 678Brady v. Cope (1916)Affirmed
W. Dean, Judge. Suit by J. C. Cope and others against Sadie B. Brady and others, wherein, after E. E. Weaver and others sued J. C. Cope and another, and after various dismissals were entered, J. C. Cope finally sued Sadie Brady and others. From a judgment for plaintiffs defendants appeal.
187 S.W. 681Commonwealth Bonding & Casualty Ins. Co. v. Meeks (1916)Affirmed
Action by M. M. Meeks against the Commonwealth Bonding & Casualty Insurance Company, R. T. Stuart and Coke W. Hark-rider, as individuals, acting under the firm names of Stuart, Harkrider & Co., and the Commonwealth Organization Company, and others, with cross-action by the Commonwealth Bonding & Casualty Insurance Company.
187 S.W. 686Great Eastern Casualty Co. v. Boli (1916)Affirmed
Insurance <&wkey;425 — Laecent Insurance — Proof of Thefo^“Mere Disappearance.” Within a policy against loss by theft, though providing that mere disappearance of property shall not be deemed sufficient evidence of theft, insured’s testimony that on a certain night, according to his custom, he took Ms diamond stud out of his tie, placed it on the dresser in his room, and the next morning discovered its loss, on search, and that for stated reasons he remembered distinctly such disposition thereof by him, is sufficient evidence to go to the jury; the facts testified to constituting more than “mere disappearance.” [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1129, 1135, 1143; Dec. Dig. &wkey;-425.]
187 S.W. 688Ball v. Miller (1916)Affirmed
Appeal from District Court, Collin County; W. I-I. Garnett, Judge. Suit by L. L. Miller against T. E. Ball. Judgment for plaintiff, and defendant appeals.
187 S.W. 689Martin v. Goodman (1916)Reversed and dismissed
Appeal from District Court, Dallas County ; E. B. Muse, Judge. Action by Anna Goodman against J. B. Martin and others. From judgment for plaintiff, the named defendant appeals.
187 S.W. 691Fireman's Ins. Co. v. Jesse French Piano & Organ Co. (1916)Affirmed
Error from Dallas County Court, at Law; W. F. Whitehurst, Judge. Suit by the Jesse French Piano & Organ Company and another against the Fireman’s Insurance Company. Judgment for plaintiffs, and defendant brings error.
187 S.W. 692O'Hanlon v. Morrison (1916)Reversed and remanded
M. Peck, Judge. Action by F. L. O’Hanlon against W. A. Morrison and others. From a judgment for the named defendant, the plaintiff and other defendants appeal.
187 S.W. 697Tyler v. Smith (1916)affirmed
Appeal from District Court, Beeves County; S. J. Isaacks, Judge. Action between J. L. Tyler and Brooke Smith. From the judgment, J. L. Tyler appeals. On motion to affirm on certificate. Motion granted, and cause
187 S.W. 697Kalmans v. Baumbush (1916)Affirmed
Appeal from Harris County Court; Clark 0. Wren, Judge. Suit for injunction by L. Kalmans against Gus Baumbush and another. From an order refusing temporary injunction, plaintiff appeals.
187 S.W. 698Commonwealth Bonding & Casualty Ins. Co. v. Hendricks (1916)Affirmed
1. Appeal and Error <&wkey;756 — Briefs—Sufficiency. Where appellant’s brief contains no statement of the nature and result of the suit, nor any assignment of error, proposition of law, or statement of fact, no issue is presented for consideration. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. <&wkey;756.] 2. Trial &wkey;>350(4) — Special Interrogatories — Applicability. In action on policy insuring against death “from the effect of bodily injury sustained solely through external, violent and accidental means,” where the sole issue of fact was whether insured’s death resulted from the effects of sticking a nail in his foot, it was proper to refuse to submit an issue whether insured died because “he stuck a nail in His foot and was said injury the sole cause of his death,” in lieu of an issue actually submitted whether it was “caused solely through external, violent and accidental means,” since the jury may have believed that his death did not result from sticking the nail in his foot, but from the “effects” therefrom ; and the evidence being undisputed that insured stuck the nail in his foot by external, violent, and accidental means, the use of the exact words of the policy, instead of the term employed in the refused charge, was immaterial, since both conveyed the same meaning. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 829; Dec. Dig. <&wkey;>850(4).] 3. Costs <&wkey;260(4) — Damages for Delay-Grounds. Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1629, allowing appellee 10 per cent, additional on the amount in dispute as damages upon affirmance, where appeal is taken for delay by defendant, damages will not be allowed unless it appears that the grounds of alleged error are so frivolous that there could have been no reasonable expectation that the judgment would be reversed. [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 986-991, 996; Dec. Dig. &wkey;260(4)J
187 S.W. 699Camden Fire Ins. Ass'n v. Baird (1916)Affirmed
A. Work, Judge. Action by Emma C. Baird against the Camden Fire Insurance Association and another. Judgment on directed verdict for plaintiff, and for C. H. Versckoyle, defendant, for costs, and defendant Insurance Company appeals.
187 S.W. 701Harris County v. Smith (1916)Affirmed
1. Sheriffs and Constables <®=28 — Condensation — “Next Preceding City Election” — Statutory Provisions. In Acts 25th Leg. Sp. Soss. c. 15 (10 Gam-mel’s Laws, pp. 1482-1484), amending 10 Gam-mel’s Laws, pp. 1445-1453, § 10, limiting fees to be retained as compensation by constables to $1,200 per annum in cities of more than 15,000 inhabitants, “to be determined by the next preceding city election on the basis of five inhabitants for each vote cast,” the words “next preceding city election” do not mean the election next preceding the passage of the law, but the election next preceding the date upon which the constable assumed the duties of his office; the purpose of the Legislature being to provide a flexible test from election to election following the changes in population of cities. [Ed. Note. — For other eases, see Sheriffs and Constables, Cent. Dig. §§ 45, 49, 51, 54^56, 58; Dec. Dig. <®=28. For other definitions, see Words and Phrases, Second Series, Next Preceding.] 2. Sheriffs and Constables <$=28 — Compensation — “Next Preceding City Election” — Statutory Provisions. Such words refer to regular or general elections for the election of city officers, held at fixed intervals, and not to special elections. [Ed. Note. — For other eases, see Sheriffs and Constables, Cent. Dig. §§ 45, 49, 51, 54-56, 58; Dec. Dig. <S=28.j 3. Sheriffs and Constables <s=28 — Compensation — Statutory Provisions. The power of the Legislature to fix fees or compensation of constables, or methods of ascertaining fees, is not limited by the Constitution. [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 45, 49, 51, 54r-56, 58; Dec. Dig. <§=28.] 4. Statutes <§=188.— Construction — Language Used. The intention of the Legislature as to a law is to be determined primarily from the plain and ordinary import of the language used. [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 266,’ 267, 276; Dec. Dig. <S=.
187 S.W. 704Channell Chemical Co. v. Hall (1916)Affirmed
1. Principal and Agent <@=>89(5) — Commissions — Actions—Pleading. A petition setting out the contract between plaintiff and defendant for commission agency, the amount of goods sold, the amount of commissions due, defendant’s promise to pay, and that the sum is past due and unpaid, and had been demanded and refused, to which an exhibit of sales, amounts, purchases, etc., is attached, is sufficient as against demurrer. [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 233, 234; Dec. Dig. <@=> 80(5).] 2. Corporations <@=^308(11) — Commissions— Questions for Jury. Where the commission agent testified that the president of the corporation principal orally authorized departure from terms of written contract, that question was for the jury. [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1347, 1348, 1349; Dec. Dig. <@=> 308(11).] 3. Corporations <@=3432(12) — Powers of Agent — Evidence. A corporation president, who signed a written contract of employment of plaintiff, is sufficiently shown to be the agent of the corporation. [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762; Dec. Dig. <@=>432(12).] 4. Damages <@=>228 — Excessive Verdict — Remittitur. Error in awarding an agent an excessive judgment for commissions is cured by requiring him to file a remittitur of the excess. [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 576-579 ; Dec. Dig. <@=>228.]
187 S.W. 705Smith v. Wise County (1916)Reformed and affirmed
1. Counties @^74(3) — Oeetoeks—Estoppel. That plaintiff knew when he became a candidate for the office of county treasurer and when he qualified that the commissioners’ court did not intend to allow him the maximum compensation fixed by statute does not estop him from claiming such compensation, so long as the commissioners’ court failed to give legal effect to its intention by passing an order fixing his commissions, as directed by statute, and thus reducing compensation. [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dec. Dig. ®=»74(3).] 2. Counties <@^>74(3) — County Treasurer — Salary of — Orders. By an order of February 26, 1907, the commissioners’ court directed that the county treasurer should receive, for his services for the year ending November 28, 1907, such commissions on the amount of funds he might receive and disburse as when added to the commissions received on the school funds and the commissions already received would aggregate a total of $1,600. The same order likewise declared that from November 2Sth, until the commissioners’ court might change it, the treasurer should receive 1% per cent, for receiving and the same for disbursing county funds. By orders of 1909 and 1911, it was directed that the treasurer should receive the same compensation as he had the previous years, being $1,600, while by order of 1913, the commissioners’ court directed that the county treasurer should receive a salary not to exceed $1,400 per year. Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 3873, declares, that the county treasurer shall receive commissions on money received and paid out by him, said commissions to be fixed by orders of the commissioners’ court, and not to exceed 2% per cent., while article 3875 fixes the maximum compensation which a treasurer can receive at $2,000 per annum. Held, that as the commissioners’ court has no power to fix the compensation of the county treasurer at a designated salary, and as the orders subsequent to 1907, made no attempt to fix the rate of commission, the treasurer was entitled to commissions at the rate of 1% per cent, on moneys received and disbursed until they equaled the sum of $2,000 per annum. [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dee. Dig. <©^74(3).] 3. Limitation of Actions <@=566(3) — Running oir Statute — Period of Statute. While Rev. St. 1911, art. 1366, declares that no county shall be sued unless the claim upon which suit is founded shall have first been presented to the county commissioners’ court for allowance and such court shall have neglected or refused to allow it, a county treasurer can, after expiration of his term of office, recover commissions accruing and due only for a period of two years before institution of suit; for as, despite the statute, suit may be maintained against a county within a reasonable time after presentation of the claim, the county treasurer by delay in presenting his claim cannot stop the running of limitations. [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 355, 356; Dee. Dig. <@=^ 66(3).] On Motion for Rehearing. 4. Counties <@^74(3) — Officers — Treasurer-Salary. An order fixing the salary of the county treasurer at a stated sum per annum cannot be maintained under Rev. Civ. St. art. 3873, as one fixing a rate of commissions on moneys received and disbursed; for, until the expiration of the year, the rate of commissions could not be determined. [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dec. Dig. <@=574(3).] 5. Counties <@=574(3) — Treasurers — Salary. Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3873-3S75, declaring 'that the county treasurer shall receive commissions on moneys received and disbursed, to be fixed by the commissioners’ court, not exceeding 2y2 per cent., and that ho shall not receive fees in excess of $2,000, the commissioners’ court cannot fix a county treasurer’s total compensation as such at a sum less than the $2,000 specified by statute, though it may fix any commission it desires. . [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dec. Dig. <@=574(3).]
187 S.W. 710Dallas Fair Park Amusement Ass'n v. Barrentine (1916)Reversed and remanded for a new trial
Appeal from District Court, Dallas County; W. F. Whitehurst, Judge. Action by Thomas Barrentine against the Dallas Fair Park Amusement Association. Judgment for plaintiff, and defendant appeals.
187 S.W. 714Missouri, K. & T. Ry. Co. v. Gilcrease (1916)
187 S.W. 717Texas N. O. R. Co. v. Jones (1916)Reversed and remanded
Appeal from District Court, Collin County; M. H. Garnett, Judge. Action by A. J. Jones against the Texas & New Orleans Railroad Company and another. From a judgment for plaintiff, defendants appeal.
187 S.W. 721Texas Glass & Paint Co. v. Reese (1916)Affirmed
1. Master and Servant &wkey;>297(l) — In Jury-Negligence — Place to Work — Findings. Findings on special issues in an action for injuries to plaintiff, a night watchman, thrown down an elevator shaft, through striking his head on a plank of a scaffolding projecting into a doorway, through which his duties required Mm to pass, that the plank caused the accident, and that defendant proprietor by the exercise of ordinary care should have known of its existence, sufficiently finds that defendant was negligent in its duty of providing plaintiff a reasonably safe place to perform his services. [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1195; Dec. Dig. <&wkey;> 297(1).] 2. Evidence &wkey;sS14(l) — Hearsay — Watchman’s Record. A watchman’s record made by his punching or pulling boxes resulting in marks on a tape, in a central office, against which an operator puts down the time they came in, is not admissible on the question of such time, without testimony of the operator as to the accuracy of time put down by him, being hearsay. [Ed. Note. — For other cases, see Evidence, Cent. Big. § 1168; Dec. Dig. &wkey;314(l).] On Rehearing. 3. Master and Servant <&wkey;217(l) — Assumption of Risk — Master’s Negligence. An employe does not assume the negligence of the master unless he knows or should have known thereof. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 574; Dec. Dig. <S&wkey; 217(1).] 4. Master and Servant &wkey;280 — Assumption of Risk — Knowledge—Evidence. That a night watchman, before hitting his head on a plank negligently left projecting into a doorway, passed through several times in safety, is not conclusive that he knew or ought to have known of it relative to assumption of risk. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986 ; Dee. Dig. <&wkey;> 280.]
187 S.W. 724First State Bank & Trust Co. of Abilene v. Walker (1916)Affirmed
Appeal from District Court, Taylor County; Thos. L. Blanton, Judge. Suit by Mrs. Alice G. Walker against the First State Bank & Trust Company of Abilene and others. From a judgment for plaintiff, defendants appeal.
187 S.W. 728Modern Woodmen of America v. Yanowsky (1916)Reversed in so far as tbe judgment affects tbe interest…
Error from District Court, Bexar County; R. B. Minor, Judge. Action by Minnie Yanowsky, as assignee of Rosie Yanowsky and of tbe beirs of Shop-sy Yanowsky, tbe beneficiaries named in a policy of insurance, against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error.
187 S.W. 733Bigham v. Stamps (1916)Beversed and remanded
Appeal from District Court, Freestone County; A. M. Blackman, Judge. Action by A. D. Stamps against E. V. Big-ham. From judgment for plaintiff, defendant appeals.
187 S.W. 735Bender v. Bender (1916)Reversed and rendered
Error from District Court, Harris County; Chas. E. Ashe, Judge. Suit by W. F. Bender against Bouis Bender, in which Peter Borgstadt intervened and answered. Judgment for defendant and in-tervener in district court on appeal by inter-vener from judgment for plaintiff in county court, aDd plaintiff brings error.
187 S.W. 743Reliance Life Ins. Co. v. Beaton (1916)Affirmed
Appeal from District Court, Dallas County; E. B. Muse, Judge. Action 'by Ralph A. Beaton against tbe Reliance Life Insurance Company. From a judgment for plaintiff, defendant appeals.
187 S.W. 747Texas Seed & Floral Co. v. Chicago Set & Seed Co. (1916)Affirmed
Error from District Court, Dallas County; J. C. Roberts, Judge. Action by the Chicago Set & Seed. Company against the Texas Seed & Eloral Company and others. From a judgment for plaintiff and other defendants, the named' defendant brings error.
187 S.W. 753A. Harris & Co. v. Grinnell Willis & Co. (1916)
187 S.W. 754Haley v. State (1916)Affirmed
Appeal from Tarrant County Court; Jesse M. Brown, Judge. Jim Haley was convicted of aggravated assault, and he appeals.
187 S.W. 754Young v. State (1916)Affirmed
Criminal Law <&wkey;1192 — Appeal—Stipulations — Effect. Where there is an agreement on file between attorneys that no motion for rehearing would be filed, requesting immediate issuance of mandate, as accused was confined in the county jail, the mandate will be issued immediately on affirmance. [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3231-3240, 3243; Dec. Dig. •&wkey;>1192.]
187 S.W. 964Clark v. Hallam (1916)Reversed and remanded
Appeal from District Court, Young County; Wm. N. Bonner, Judge. Suit by J. A. Clark and others against R. G. Hallam and others. From an order of dismissal, complainants appeal.
187 S.W. 966City of Terrell v. Terrell Electric Light Co. (1916)Affirmed
1. Municipal Corporations &wkey;j680, 681(1)— Granting Licenses — Power to Begulate. Municipalities may not, under the grant of exclusive control of streets under direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 854, legislate on everything connected with the subject over which they possess limited authority, such as the manner and means of the business permitted the use of the streets. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1459; Dec. Dig. <&wkey;> 680, 681(1).] 2. Municipal Corporations <&wkey;6S2(4) — Granting Licenses — Conditions. If a municipality, although without power to do so, annexes a condition to a grant to enter upon its streets, a grantee, voluntarily accepting the grant, cannot thereafter refuse to be hound by the condition. [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1470; Dec. Dig. &wkey;3 682(4).] 3. Electricity >&wkey;4 — Franchises — Forfeiture — “Condition”—“Manufacture.” In an ordinance, granting to an electric company the “right to manufacture and vend” electricity to the city and the citizens, “subject to the provisions and conditions hereinafter contained,” which conditions were to furnish certain lights and not to erect an ice plant on a certain lot, it was not a “condition” that the company “manufacture” its own electricity rather than purchase it from another, since the grant should be construed according to Vernon's Sayles’ Ann. Civ. St. 1914, art. 5502, providing that the ordinary signification should be applied to words not technical, and since a condition ordinarily is any qualification, restriction, or limitation modifying or destroying the full enjoyment or use of a right, and under the maxim that the “expression of one thing is the exclusion of another,” the word “manufacture” cannot be construed as more than mere description of the extent of the permit. [Ed. Note. — For other cases, see Electricity, Cent. -Dig. § 1; Dec. Dig. <&wkey;>4. For other definitions, see Words and Phrases, First and Second Series, Condition.]
187 S.W. 969St. Paul Fire & Marine Ins. Co. v. Laster (1916)Affirmed
Error from District Court, Freestone County ; A. M. Rlackman, Judge. Action by G. W. Laster against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.
187 S.W. 971&198tna Club v. Jackson (1916)Application granted
1. Mandamus <&wkey;l — Purpose. The purpose» of mandamus is to require some inferior court or officer, etc., to do some particular thing specified in the writ which appertains to their office or duty, in aid of the jurisdiction of the court issuing the writ. [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 1-3; Dec. Dig. &wkey;l; Action, Cent. Dig. § 115.] 2. Appeal and Eeeoe &wkey;>458(3) — Supersede-as — Injunction. „ „„„„ „ „„„„ Under Rev. St. 1911, arts. 2078, 2084, 2097-2101, providing for appeal to the Court of Civil Appeals from every final judgment of the district court in civil cases, stating how appeal may be perfected, and providing for appeal bonds or affidavits and supersedeas bonds,_ a prohibitory injunction may be suspended during appeal by supersedeas bond. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2223; Doc. Dig. <&wkey;458(3); Injunction, Cent. Dig. § 413.] 3. Mandamus &wkey;>35 — Judicial Acts — Fixing Supersedeas Bond. Under such statutes, it is the duty of the trial court to fix the amount of such supersede-as bond, and it may be enforced by mandamus. [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 67; Dee. Dig. <&wkey;35J
187 S.W. 972Wigwam Bowling & Athletic Club v. Escajeda (1916)Application granted in part, and denied in part
Original application for mandamus by the Wigwam Bowling & Athletic Club against J. A. Escajeda and another.
187 S.W. 973Hope v. Shirley (1916)Reversed, and cause remanded for another trial
1. Fraud <&wkey;47 — Action eor Damages — Pleading — Damages. A petition in an action for damages for fraud and deceit alleging that plaintiff employed a broker to sell land for $35 an acre and agreed to pay 5 per cent, of the amount to be realized on a sale at that price; that the broker negotiated with defendant regarding a sale of the land at such price; that defendant? then knew of the broker’s employment and the price at which the land had been listed for sale and the commission to be paid, and conspired with his codefendants to defraud the broker of his commission and buy the land for a price less than the listed price, and offered plaintiff $32.50 per aere net, which offer plaintiff accepted, and that the land was sold at that price; that plaintiff at the execution of his deed had no knowledge that the broker was the proouring cause of the sale and was compelled to pay the broker’s commission, and that but for defendant’s representations he would have demanded $35 per acre in order to pay the commission, but not alleging that defendants, in addition to the price, would pay any money which plaintiff might be liable to pay the broker, or that defendants would have purchased the land for $35 per acre, or that the price was less than its full market value, did not show that plaintiff sustained any damage from the defendants’ acts, and hence stated no cause of action. [Ed. Note. — For other cases, see Fraud, Gent. Dig. § 42; Dec. Dig. <&wkey;47.] 2. Fraud <&wkey;25 — Damage as Element — Necessity. No action for fraud arises unless damage results therefrom. [Ed. Note. — For other cases, see Fraud, Gent. Dig. § 24; Dec. Dig. <i&wkey;25.]
187 S.W. 973Southwestern Oil & Gas Co. v. Denny (1916)
187 S.W. 975Gulf Coast Transp. Co. v. Dillard (1916)Affirmed
Courts <&wkey;170 — Jurisdiction — County Court — Amount Claimed — Interest. While interest prayed for in a suit for damages is a part of the cause of action and included in determining the amount in controversy, where the county court properly acquired jurisdiction by the filing of the original petition in which the damages prayed for including interest was less than $1,000, the maximum jurisdiction of the court, it retained jurisdiction over an amended petition on remand of the case, although the amended petition asked for an amount, including interest, in excess of $1,-000, because it is the same causo of action originally filed. [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dee. Dig. <&wkey;170.]
187 S.W. 976Roberts v. McKinney (1916)Affirmed
Appeal from Jefferson County Court; D. P. Wheat, Judge. Action by Prank H. McKinney against I. D. Roberts and others. Prom a judgment for plaintiff, defendants appeal.
187 S.W. 978Santa F&201 Town-Site Co. v. Norvell (1916)Reversed and remanded
B. Hightower, Judge. Action by W. J. Norvell against the Santa Fé Town-Site Company and others. From adverse orders, the named defendant and another appeal.
187 S.W. 981Texas Cent. R. Co. v. Driver (1916)Reversed and remanded
1. TRIAL i&wkey;3'50(0) — Injuries to Passengers —Special Issues. Where the railroad offered evidence that its train stopped a few hundred feet from the station for an intersecting train, and that the conductor told all passengers to keep their seats unless they were changing to such train, and put down the step and assisted such passengers to alight, and waited ten minutes for others to do so, and then removed the step and went up to talk to the engineer, whereupon plaintiff tried to alight and was injured, the railroad was entitled to submission of the special issue whether a very prudent person under the circumstances would have foreseen the plaintiff’s act and her injury, since if the road einployés exercising the highest degree of care could not have foreseen the result, the road was not liable. [Ed. Note. — For other cases, see Trial, Cent. Dig. § S30; Dee. Dig. &wkey;350(6).] 2. Trial <&wkey;314(l) — Conduct of Court — Comments. Where the jury in a civil case announced that it was divided nine to three and could not agree, it was improper for the court to emphasize the difference between civil and criminal cases, as to deprivation of liberty and money judgments, thus minimizing the importance of the case on trial. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 472, 473, 747; Dec. Dig. &wkey;314(l).]
187 S.W. 982Self v. Albany Nat. Bank of Albany (1916)Affirmed
1. GuaRanty &wkey;j3G(3) —■ Construction — Scope of Liability — Guaranty of Draft. Where one Strong checked on defendant banker in favor of Williams, who indorsed the check to plaintiff, held that defendant was liable for the amount under a letter to plaintiff, promising to take care of Williams’ drafts on Strong up to $1,800. [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 39; Dec. Dig. <&wkey;>36(3).] 2. Evidence <&wkey;461(l) — Surrounding Circumstances — Parol Evidence. Parol evidence of surrounding circumstances is admissible in determining whether a written guaranty is continuing or affects merely a single credit. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2129; Dec. Dig. <&wkey;461(l).] 3. Guaranty <&wkey;38(l) — Construction—Continuing Guaranty. A banker’s letter that he would take care of one Williams’ drafts on Strong up to $1,800 held to be a continuing guaranty, where he had financed Strong’s business for several years. [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 47; Dec. Dig. <S&wkey;3S(l).]
187 S.W. 985Tankersley v. Jackson (1916)
187 S.W. 986Friend v. Thomas (1916)Reversed, and cause remanded
Error from Wichita County Court, Harvey Harris, Judge. Suit by J. T. Thomas against E. M. Friend and T. F. Morrow, with answer by defendant Morrow praying that, if plaintiff had judgment, he have judgment over against his co-defendant. Judgment by default against defendant Friend, and he brings error.
187 S.W. 988Davenport v. Rutledge (1916)Reversed and remanded, with instructions
Steed, Judge. Action by W. C. Rutledge against Mrs. Lona Davenport. From judgment for plaintiff in the county court, declaring void a judgment for plaintiff by default in justice court, but rendering judgment for plaintiff on the merits, defendant appeals. ‘
187 S.W. 990Blount, Price & Co. v. Payne (1916)Affirmed
H. Downs, Judge. Action by J. O. Payne against John McCoy, Blount, Price & Co., and Lamar Blount. Blount disclaimed, and the suit was dismissed as to him. Judgment for plaintiff, and Blount, Price & Co. appeals.
187 S.W. 992Sulzberger & Sons Co. of America v. Hille (1916)Affirmed
Justices oe the Peace <&wkey;54(l) — Jurisdiction — Amount in Controversy. Where a cause of action is such that damages may accrue pending the action, as in actions for property detained, if suit primarily is for an amount within the jurisdiction of a justice’s court, the court retains jurisdiction to render judgment for an amount within its original jurisdiction, although damages accrue beyond that amount. [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 190, 198; Dec. Dig. &wkey;54(l).]
187 S.W. 995Arden v. Boone (1916)Affirmed
1. Reformation of Instruments <&wkey;16 — Grounds. Before equity will interpose to change the terms of a written instrument as not expressing the real agreement, it must appear that the terms sought to bo changed were inserted through accident, fraud, or mutual mistake, or, if the mistake is unilateral, it must be material, going to the substance of the contract, and not the result of negligence. LEd. Note.—For other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. <§= 16.] 2. Reformation of Instruments &wkey;>25—De-fense—Want of Diligence. Equity will relieve from the terms of a contract for unilateral mistake only if it arises through no want of ordinary care or diligence on complainant’s part. LEd. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 84-90; Dec. Dig. &wkey;25.] 3. Reformation of Instruments <&wkey;25 — Defenses—Negligence. Where a party executed a preliminary contract and accepted a deed providing for his keeping open a permanent roadway on land convoyed in the absence of showing of fraud or expense for failure to read the two instruments, reformation thereof could not be had on the ground of accident, fraud, or mistake. LEd. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 8íG90; Dec. Dig. <§=u>25.] 4. Deeds &wkey;>90 — Construction — Favoring Grantee. Where there is doubt as to the meaning or purport of the terms used in a deed, the construction most favorable to grantee should be applied. [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 234-237, 247, 248; Dec. Dig. &wkey;90.] 5. Deeds <&wkey;139 — Construction — Repúg-nanos. The exception of land required to make the full acreage conveyed under general warranty deed will be rejected as repugnant to the grant. [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 458, 459; Dec. Dig. &wkey;139J 6. Easements &wkey;>14(2) — Reservation of Roadway — “Reservation” — “Exception.” Where a certain acreage is conveyed with stipulation that grantees should keep open a immanent roadway 15 feet wide on the side of the tract conveyed, the strip of roadway being necessary to make the full acreage conveyed, the stipulation should be construed as a reservation of an easement, and not as an exception of an open lane, since a reservation is the creation in behalf of the grantor of a new right issuing out of a thing granted, something which did not exist as an independent right before the grant, while an exception operates to withdraw some part of the thing granted which would otherwise have passed to the grantee under the general description. [Ed. Note.—For other cases, see Easements, Cent. Dig. § 40; Dec. Dig. <§=>14(2). For other definitions, see Words and Phrases, First and Second Series, Exception^ Reservation.] 7. Deeds <&wkey;120—Construction—Favoring Grantee. A deed will be construed to give the lai-gest estate under the terms of the grant. [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dec. Dig. &wkey;?120.] 8. Easements <&wkey;61(9)—Action to Establish—Evidence—“Keep. ’ ’ In a suit to require grantee to remove gates on a roadway, the deed stipulating that grantee was “to keep open for a permanent roadway 15 feet wide on the extreme east of” the tract conveyed “so that the said” grantor “may have access to the public road,” evidence that gates were, for a long time prior to the sale, used at both ends of the strip as means of affording the grantor access to the public road, and that the land was in the country, warranted a decree for defendant, since under the circumstances disclosed the grantee would “keep open” such pass-way, although maintaining gates, since the word “keep” is properly defined “to maintain; to cause to continue without essential change of condition.” [Ed. Note.—For other cases, see Easements, Cent. Dig. § 143; Dec. Dig. &wkey;61(9). For other definitions, see Words and Phrases, First and Second Series, Keep.]
187 S.W. 998Chicago, R. I. & G. Ry. Co. v. Pavillard (1916)Reversed, and cause remanded
1. Carriers <&wkey;232, 218(6) —Dive Stock-Cabe — Construction oe Contract. A shipping contract, providing that the shipper should take care of the stock and should unload it and should save the carrier harmless except as to damages resulting from the carrier’s negligence, did not on its face exempt the carrier from damages which might result from its negligence, contrary to statute, and, when it found that the shipper was not at destination to unload his stock, it was bound to exercise at least ordinary care to preserve it from injury until he could be notified of its arrival, and if, under all the circumstances, ordinary care would have required that it be unloaded, the carrier’s failure to do so would be negligence. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 918, 919, 940-945, 949; Dec. Dig. <&wkey;>212, 218(6).] 2. Carriers <&wkey;230(l) — Live Stock — Question eor Jury— Care oe Stock. In an action for damages to a shipment of live stock resulting from the carrier’s failure to unload it or to notify the shipper of its arrival so that he might unload it, held, that whether the shipper, in the exercise of ordinary care, should have been present to receive and unload it, was for the jury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 962; Dec. Dig. &wkey;3230(l).] 3. Carriers &wkey;>217(l) — Live Stock — Recovery eor Injury — Contributory Negligence. Where a shipper of live stock was negligent in failing to unload it on arrival so that it was injured, he could not recover for such injury. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 931; Dec. Dig. <©¿3217(1).] 4. Evidence <&wkey;67(l)— Presumption —Continuance oe Custom. Ordinarily, a custom once shown to exist is, in the absence of testimony showing its abrogation, presumed to continue. [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 87; Dec. Dig. <&wkey;67(l).] 5. Customs and Usages <&wkey;17 — Paeol Evidence— Contract foe Cakkiage oe Live Stock. In an action for damages to a shipment of live stock by the carrier’s failure to unload it on arrival, evidence of a former custom to unload stock shipped to that point when unaccompanied by caretakers was incompetent to abrogate the express terms of a shipping contract requiring the shipper to unload it, if the shipper upon a sufficient consideration executed such contract. [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 34; Dec. Dig. ; Evidence, Cent. Dig. § 1951.] 6. Caeeieks <&wkey;228(3) — Live Stock — Negligence — Evidence. Such testimony was also incompetent as against the defendant on the issue of its negligence in failing to unload the stock on arrival, where the issue was as to what, under all the circumstances of the shipment, was required of the carrier in the exercise of due care. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. i§=^228(3).]
187 S.W. 1001Osvald v. Williams (1916)Affirmed
Appeal from Sabine County Court; J. B. Lewis, Judge. Action by M H. Williams against George Osvald. From a judgment for plaintiff, defendant appeals.
187 S.W. 1004Hamlet v. Leicht (1916)Reversed and remanded
Error from Jefferson County Court; D. P. Wheat, Judge. Action by George H. Leicht against Mrs. Pauline Hamlet. From a personal judgment by default against defendant, she brings error.
187 S.W. 1005McDonald v. Ætna Life Ins. Co. of Hartford (1916)Affirmed
1. Appeal and Error <&wkey;1066 — Harmless Error — Instructions. Where the beneficiary gave a receipt in full of two life policies which recited that she voluntarily made and understood the settlement for one-half their face value, the question whether her relatives, who negotiated the compromise, were her authorized agents, is immaterial, so that an instruction that they were her agents, oven if erroneous, is harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <&wkey;>1066.] 2. Insurance &wkey;>579 — Liee Insurance — Compromise — Good-Faith Controversy. All that is required to validate a compromise on a life policy is that the beneficiary understand the settlement and that the insurer act in good faith in disputing the claim, and the ground of dispute need not be brought home to the beneficiary. [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1417, 1419; Dec. Dig. &wkey;>579.] 3. Appeal and Error &wkey;H066 — Harmless Err or — Instruction s . Where the beneficiary gave a receipt in full of two life policies which recited that she voluntarily made and understood the settlement for one-half their face value, the question whether the controversy between the insurer and her relatives as to the cause of insured’s death was to be considered as if between herself and the insurer was immaterial, and an instruction that it should be so considered was without prejudice. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@u^lOG6J
187 S.W. 1008Keels v. Ashworth (1916)Affirmed
W. Dean, Judge. Action by the First National Bank of Groveton against J. C. Keels and another. Defendant R. Ashworth answered and set up a cross-action against the named defendant. From a judgment for defendant Ash-worth on his cross-action, the named defendant appeals.
187 S.W. 1009Pevito v. Southern Gas & Gasoline Engine Co. (1916)Judgment affirmed
Appeal from District Court, Orange County; A. E. Davis, Judge. Action by S. H. Pevito against the Southern Gas & Gasoline Engine Company. From a judgment dismissing and refusing to reinstate the action, plaintiff appeals.
187 S.W. 1012League v. Brazoria County Road Dist. No. 13 (1916)Affirmed
J. Styles, Judge. Action by J. C. League and others against the Brazoria County Road District No. 13 and others. Judgment for the defendants, and plaintiffs appeal.
187 S.W. 1014Spiller v. W. J. Mann & Co. (1916)Affirmed
1. Chattel Mortgages <&wkey;117— Crops — Interest in Rents. A mortgage of crops to be grown on certain places during a certain year by mortgagor, or those in his employ or under his control, and of the rent note on one of the places for that year covers all interest of the mortgagor in the rents for that year on that place. [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. § 202; Dec. Dig. <&wkey;> 117.] 2. Chattel Mortgages <&wkey;48 — Crops—Description op Premises. Description of the premises in a mortgage of the crops to be grown on the “Lewis place” owned by the mortgage in a certain county, it being long and notoriously so known, is sufficient to be notice. [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 93-95; Dee. Dig. <&wkey;> 48.]
187 S.W. 1016Western Union Telegraph Co. v. Alexander (1916)pany
TELEGRAPHS AND TELEPHONES t&wkey;71 — EXCESSIVE Damages — Failure to Deliver Telegram Announcing Death. In action against telegraph company, a verdict of $975 is not excessive, where a telegram announcing death of addressee’s favorite brother was not delivered, causing her to miss his funeral, which she had made prior arrangements to attend, and addressee lived within speaking distance of the telegraph office, and the company was so advised by the sender of the telegram. [Ed. Note. — Por other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. <&wkey;> 71.]
187 S.W. 1019Anderson County v. Hopkins. (1916)Affirmed
Appeal from Anderson County Court; P H. Springer, Special Judge. Action by Anderson County against J. I. Hopkins. Prom a judgment for defendant, plaintiff appeals.
187 S.W. 1021Townsend v. Pilgrim (1916)Affirmed
A. King, Judge. Action by W. H. Pilgrim against R. H. Townsend. Prom a judgment for plaintiff, defendant appeals. Action to recover the excess paid by the plaintiff in buying cotton at Moran, Tex., under a trade arrangement or custom whereby plaintiff paid a certain price, and if, after receipt and grading, the cotton was found to be of lower grade than paid for, the difference was to be adjusted by the defendant seller refunding the difference.
187 S.W. 1022Trinity County Dumber Co. v. Conner (1916)Reversed and rendered
Appeal from Trinity County Court; C. M. McKinnon, Judge. Action by Ernest Conner against the Trinity County Lumber Company. Judgment for plaintiff, and defendant appeals.
187 S.W. 1025Barger v. Brubaker (1916)Appeal of plaintiff dismissed on his motion, and…
Appeal from District Court, Galveston County; Clay S. Briggs, Judge. Action by Edward H. Bailey against W. L. Brubaker and others. From the judgment plaintiff and defendant A. G. Barger appeal.
187 S.W. 1031Bounds v. Stephenson (1916)Affirmed
Suit for injunction and other relief by W. R. Bounds and others against J. B. Stephenson and others. Judgment for defendants, and plaintiffs appeal.
187 S.W. 1036Glens Falls Ins. Co. v. Walker (1916)Affirmed
1. Insurance <&wkey;6G5(2) — Actions — Sufficiency of Evidence — Delivery of Policy. Evidence held to sustain a verdict that a fire insurance policy was delivered to assured. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1709; Dec. Dig. <&wkey;G65(2)J 2. Insurance <&wkey;235 — Actions—Sufficiency of Evidence — Cancellation of Policy. Evidence held to sustain a verdict that a fire insurance policy was not canceled by mutual consent. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 507; Dec. Dig. &wkey;235.] 3. Estoppel <&wkey;56 — Equitable Estoppel-Essentials — Prejudice to Party Claim-ins Estoppel. Assured’s acquiescence in an insurance agent’s mistaken statement that contemplated foreclosure proceedings voided the policy does not estop him from denying that the policy was canceled by mutual consent, where there is no proof that his silence misled the insurer. [Ed. Note. — For other cases, sec Estoppel, Cent. Dig. § 142; Dec. Dig. <&wkey;56.] 4. Insurance <&wkey;651(4) — Actions—Evidence — Admissibility — Cancellation of Policy. Where the defendant fire insurance company claimed that a policy had been canceled by mutual consent in a conversation between its agent and assured, the assured’s explanation that he understood the policy was void only during certain foreclosure proceedings is admissible, where the conversation was somewhat ambiguous. [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1673; Dec. Dig. @=»651(4).]
187 S.W. 1039Hill v. Staats (1916)
187 S.W. 1043Barton v. Wichita River Oil Co. (1916)Reversed and rendered for plaintiff, with a foreclosure…
1. Chattel Moetgages &wkey;>138(l) — Existing Lien Law — Labobeks’ Lien — Peiokity. Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, giving to mechanics, laborers, etc., a first lien against the products of their work and labor, in force at the time of a chattel mortgage executed by an oil well company to secure the purchase price of its machinery and tools, the claim of laborers engaged in drilling an oil well with such machinery and tools,-if within the statute, was prior to the lien of the chattel mortgage, since the statute was to be read into the mortgage contract as a part thereof and as if expressly assented to by the parties at the time of the contract, article. 5671, providing that nothing in the title should impair the rights of parties who claim liens by special contract or any other lien not covered by the statute, not applying. [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 228, 229, 231-236; Dec. Dig. <&wkey;138(l).] 2. Chattel Moetgages <&wkey;157(2) — Priorities — Lab obebs’ Lien — Bubden oe Pbooe. The assignee of claims of laborers engaged in drilling an oil well, who, after foreclosure, asserted a lien under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, superior to that of an existing chattel mortgage, had the burden of showing that such Ben was given by the statute. [Ed. Note. — Eor other cases, see Chattel Mortgages, Dec. Dig. <&wkey;157(2).] On Motion for Rehearing. 3. Mines and Minebals &wkey;>112(3) — Liens— Deilling Oil Well — “Mine”—“Mineeal” —“Minee”—Statute. Vernon’s ’Sayles’ Ann. Civ. St. 1914, art. 5644, enacted in 1895 when oil wells in the state were not generally known and considered, gives to any one laboring in any mine, quarry, factory, or mill of any character a first lien upon the products, machinery, etc., created by such labor or necessarily connected with its performance that may be owned by or in the possession of the employer. Rev. St. 1911, art. 5502, subds. 1, 6, declare that the ordinary signification shall be applied to words, and that in all interpretations, the court shall look for the intention of the Legislature, keeping in view the old law, the evil, and the remedy, and the rule prescribed by law is that statutes shall be liberally construed with a view to effect their objects and to promote justice. Const, art. 1, § 3, declares: that no man, or set of men, is entitled to exclusive privileges but in consideration of public services. Held, that a “mine” is an excavation, properly underground, for digging out some useful product, as ore, metal, or coal, any deposit of such material suitable for excavation and working; that “to mine” is to obtain by digging out of the earth, to dig into the earth for ore; that a “miner” is one who mines in any sense, especially one whose occupation is to excavate ore, coal, etc., in a mine; that while oil is classed as a. “mineral,” that term refers ordinarily to minerals in place, and not to substances in solution and migratory, such as oil; and that an oil well was not a mine or the driller a miner, and hence that a driller had no lien on the oil company’s machinery and tools used in drilling the well. [Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. § 235; Dec. Dig. <&wkey;> 112(3). For other definitions, see Words and Phrases, First and Second Series, Mine; Miner; Minerals.]
187 S.W. 1049Hunter v. Hunter (1916)Affirmed
1. TRIAL &wkey;314(l) — REMARKS 01? C'OUET>-Co-ercion op Jury. When the jury had been out two days and asked to be discharged, it was highly improper for the judge to reply that the trial had been costly and that he would give .them eight nwre days to reach a verdict, where, in view of terrific storm conditions and lack of communication with their homes, the jury might have been and apparently were coerced into rendering a compromise verdict. [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 472, 473, 747; Dec. Dig. &wkey;314(l).] 2. New Trial &wkey;2G — Preservation op Exceptions— Remarks op Court — Time to Object. Where appellant’s counsel was present and made no objection to erroneous remarks of the court in retiring the jury after its request to be discharged, his objection to the error came too late in motion for new trial made a week later. [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 37-39; Dec. Dig. &wkey;26J S. Divorce <&wkey;149 — Conplict in Verdict — Custody op Children. Error cannot bo predicated on the alleged conflict in the verdict which found the mother entitled to a divorce and custody of two girls, but not a fit and proper person to have custody of a boy; no actual conflict necessarily following from such findings. [Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 496-498; Dec. Dig. <&wkey;149.] 4. Appeal and Error &wkey;>690(4) — Record — Admission op Testimony — Scope of Review — Sufficiency. In the absence from the record of any statement of facts, error alleged in admission of testimony will not be reviewed, there being no way to determine whether the admission was error. [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2899; Dec. Dig. <&wkey;>690(4).] 5. Divorce <&wkey;302 — Decree—Fundamental Error — Inconsistent Findings. It was not fundamental error for the judgment to award divorce to the wife with custody of two girls and deny custody of a boy to her, on the ground that it was not in accordance with the verdict, which, while not in conflict in itself, required such disposition. [Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 791, 792; Dec. Dig. <®=^302.]
187 S.W. 1052Peil v. Warren (1916)
187 S.W. 1073Missouri, K. & T. Ry. Co. of Texas v. Cardwell (1916)
187 S.W. 1078Houston Oil Co. of Texas v. Stepney (1916)Affirmed
1. Adverse Possession <&wkey;85(2) — Hostile Possession. On the issue of title by adverse possession the material point of inquiry is whether claimant has actually claimed adversely to the owner, and it is not material whether his claim would have been different if his knowledge of the title had been more correct. [Ed. Note. — For other cases, see Adverse Possession, Gent. Dig. §§ 501-503; Dec. Dig. <&wkey; 2. Appeal and Error &wkey;1058(2) — Harmless-Error — Conversation with Deceased. In trespass to try title defendants claiming by adverse possession, excluding evidence of instructions by plaintiff’s deceased grantor to his agent to allow defendants to occupy the land permissively, was not error, whore-witness was permitted to testify that under such instructions he had permitted defendants to remain on the premises without paying rent, and that one defendant had told witness he was holding possession under such an arrangement. [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4195, 4201; Dec. Dig. &wkey;> 1058(2).] 3. Adverse Possession <&wkey;115(l) — Question eor Jury — Duration and Continuity of Possession. In such action evidence of occupation by defendants and their predecessors, and conflicting evidence as to interruption thereof hold not to warrant peremptory instruction for plaintiff. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 691, 701; Dec. Dig. <&wkey;>-115(1).] 4. Adverse Possession &wkey;>100(l) — Constructive Possession. The rule that possession by the true owner of a part of a tract gives constructive possession of all not actually adversely held does not apply where the true owner cuts logs from land which are sold him by the adverse occupant. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. <&^100(1).] 5. Adverse Possession <&wkey;116 (5) — Instructions. In trespass to try title, defendant claiming by adverse possession, a charge that “adverse possession is a claim inconsistent with and hostile to the claim of another,” was not misleading as suggesting that defendants’ possession could be adverse, although against “another” than the owner, where the court also submitted the direct question whether defendants did in fact claim adversely to the true owner, naming him, and the jury answered in the affirmative. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. <&^116(5).J 6. Adverse Possession <&wkey;70 — “Claim of Right.” Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5681, defining adverse possession as actual and visible appropriation of tlie land, commenced and continued under a “claim of right” inconsistent’ with and hostile to the claim of another, entry under “claim of right” simply means an entry not subordinate to another’s title, but with claim of right to the land, hostile and adverse to the true owner, although the person so entering knows he has no title except such as possession may confer. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 394-414; Dec. Dig. <&wkey;> 70. For other definitions, see Words and Phrases, First and Second Series, Claim of Right.] 7. Adverse Possession &wkey;>68 — “Color of Title.” Color of title, by which is meant that which has the semblance or appearance of title, legal or equitable, but which is in fact no title, is not necessary to perfect title by adverse possession, in the absence of statutory provisions expressly or by clear implication requiring it. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. <&wkey;> 68. For other definitions, see Words and Phrases, First and Second Series, Color of Title.] 8. Advekse Possession <&wkey;12 — Claim ox Night. Claim of title or claim of right by the occupant is necessary in all cases where title is established by adverse possession. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 387-393; Dee. Dig. <§»12.] 9. Adverse Possession <&wkey;ll — Hostile Possession. No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent of the occupant to make it so. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 67 — 76; Dec. Dig. 11J 10. Adverse Possession <&wkey;68 — Claim ox Bight — Length ox Claim. Entry and possession without a claim of right is nothing more than a trespass, and can never ripen into good title, no matter how long continued. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 387 — 393; Dec. Dig. 68.] 11. Adverse Possession <&wkey;31 — Elements— Knowledge ox Owner. In order to make a good claim by adverse holding, the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to raise the presumption of notice that the rights of the true owner are invaded intentionally and' with the purpose of asserting a claim of title adverse to his, so patent that the owner could not be deceived, and such that, if he remains in ignorance thereof, it is his own fault. [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. <&wkey;> 31.] 12. Descent and Distribution &wkey;>ll — Beal Property. Whore title to land has been established by limitation upon death of the occupants it descends to their heirs and becomes their separate property. [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 40-44, 47, 180, 184; Dec. Dig. <&wkey;>ll.] 13. Judgment &wkey;>707 — Conclusiveness — Parties. A judgment is not binding upon persons not parties nor privies thereto. [Ed. Note. — For other cases, see Judgment, •Cent. Dig. § 1230; Dec. Dig. <&wkey;>707.] 14. Judgment <&wkey;743(2) — Oonclusiveness— Alter-Acquired Title. One is not estopped by a judgment that he has no title to land from setting up an after-acquired title, or a title based on the ten-year statute of limitations. [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1253, 1276, 1284; Dec. Dig. &wkey; 743(2).] 15. Appeal and Error <&wkey;10G2(l) — Harmless Error — Submission ox Interrogatory. The submission of an interrogatory the answer to which becomes immaterial by the submission and answer of other interrogatories is harmless. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. 1062(1).]
187 S.W. 1085Magnolia Petroleum Co. v. Ray (1916)Judgment for plaintiff against defendant Houston & Texas…
1.Master and Servant <&wkey;107(3) — Master’s Duty — Safe Place to Work — Dangerous Character oe Work. The general rule requiring the master to exercise ordinary care to furnish a reasonably safe place to work has no application to a car inspector, employed to see whether ears were in a safe condition for. use by the road and to remedy any defects in them which he might discover since the character of his employment necessarily required him to go upon cars that were in an unsafe and dangerous condition; the reason being that no negligence can be charged to thé master when the servant voluntarily contracts to assume the very risk of which he complains. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 201, 255; Dec. Dig. &wkey;> 107(3).] 2. Master and Servant <®=o203(l) — Assumption oe Risk — Master’s Negligence. The defense of assumption of risk implies negligence on the part of the master creating liability for the damages sustained, unless such a right of action is destroyed by the defense; and, where the common-law rule of allowing the defense of assumed risk where the master has been guilty of negligence is charged by the statute, such defense has no place in a case where there has been no negligence on the part of the master. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-540, 542, 543; Dec. Dig. &wkey;203(l).] 3. Explosives &wkey;>8 — Master and -Servant &wkey;>lll(l) — Injury—Care Required — Explosion oe Tank Car. A railroad owed the duty to its employes, other than its car inspector, and to strangers whose presence might reasonably be expected sufficiently near an oil tank car to receive injury from an explosion thereof, to exercise ordinary care to see that the car was in a proper condition to avoid such explosion. [Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;>8; Master and Servant, Cent. Dig. §§ 215, 255; Dec. Dig'. &wkey;lll(l).] 4. Master and Servant <&wkey;107(3) — Safe Place to Work —Oar Inspector — Liability. There may be unusual circumstances rendering the situation of a car inspector extraordinarily hazardous, and, when he is excusably ignorant thereof, the master may be liable for an injury resulting therefrom through a negligent failure to remedy such conditions or to inform him thereof. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 201, 255; Dec. Dig. <&wkey;> 107(3).] 5. Master and Servant <&wkey;258(13) — Action eor Injuries — Petition — Safe Place to Work — Injury to Car Inspector. A petition in a car inspector’s suit for injury from the explosion of a tank car loaded with gasoline and naphtha, not alleging that he was inexperienced in such work or was ignorant of the dangers incident thereto, or that defendant was negligent in not warning him of the dangers before directing him to inspect the car, did not show any such unusual facts or circumstances as to exempt him from the general rule applicable to servants employed to repair defective machinery or other equipment. [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 828; Dec. Dig. <&wkey;> 258(13).] 6. Negligence <&wkey;62(l) — Intervening Negligence — “Proximate Cause.” Intervening agencies between an act or omission constituting negligence and an injury do not preclude a finding that the negligence was the “proximate cause” of the injury, if it can reasonably be said that the injury was the natural and proximate result of such negligence and that, in the light of the attending circumstances, some such injury ought reasonably to have been anticipated as the probable result. [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76, 78; Dec. Dig. &wkey;>62(l). For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.] 7. Master and Servant <&wkey;286(13) — Injury to Servant — Question eor Jury — Anticipation oe Injury. Whether or not an injury to a car inspector, from the explosion of a tank car in which he was trying to remedy a defect, ought reasonably to have been anticipated as a probable result of the road’s negligence, in allowing a defective tank car to remain in its yard, was for the jury, unless, by reason of an absence of proof, or conclusiveness of proof to sustain the affirmative of that issue, a peremptory instruction thereon would be warranted. [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1020; Dec. Dig. <&wkey; 286(13).] 8. Trial <&wkey;208(3) — Instruction — Deeend- ■ ant’s Theory oe the Case. In an action for injury to a car inspector, from the explosion of a tank car loaded with gasoline and naphtha, which it was alleged defendant railroad negligently permitted to remain in its yard in a defective condition, defendant was entitled to an instruction affirmatively presenting the group of facts upon which it relied to refute the charge of negligence, such as an instruction that, if the injury resulted from a pure accident not proximately caused by the negligence of any one, plaintiff could not recover. [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 478, 479; Dec. Dig. &wkey;203(3).]
187 S.W. 1091Jenkins v. Morgan (1916)Affirmed as modified
Jay Jackson, Judge. Action by R. Morgan against W. N. Jenkins and others. Judgment for plaintiff, and defendants appeal. The first two assignments of error, and appellee’s counter assignments thereto, are as follows: First Assignment of Error.
187 S.W. 1096McCamant v. McCamant (1916)Reversed, and cause remanded
Prewitt, Judge. Suit by Mrs. Minnie May McCamant, on behalf of herself and. as community administra-trix of the estate of herself and of her deceased husband, W. A. McOamant, against R. Tj. McOamant and others, to vacate a judgment obtained by defendant McOamant. Judgment against plaintiff individually and as community administratrix, denying the relief sought, and for costs of suit, and she appeals.
187 S.W. 1100McConkey v. McConkey (1916)Affirmed
L. Lockett, Judge. Suit by Clara L. McConkey against C. E. McConkey to set aside a decree of divorce obtained by defendant. Judgment setting aside the decree and denying defendant’s petition for divorce, and he appeals.
187 S.W. 1106W. B. Clarkson & Co. v. Gans S. S. Line (1916)Affirmed
1. Pleading <&wkey;214(l)—Demurrer—Effect— Admission of Allegations of Petition. On general demurrer, the allegations of the petition must be regarded as true. [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 625, 529; Dec. Dig. &wkey;214(l).] 2. Corporations <&wkey;426(l) — Right to Contract in Another Name. Where the contract has been partly performed, recognized, or ratified by a corporation for whom in fact it was made, suit may be brought by such corporation thereon, notwithstanding that the contract was made in a name other than the true name of the corporation. [Ed. Note.—Por other cases, see Corporations, Cent. Dig. §§ 1596, 1702; Dec. Dig. <&wkey;426(l).j 3. Corporations <&wkey;453—Contracts Executed by Corporation Under a Name Other Than its Corporate Name. In the absence of statutory prohibition, a corporation may recover on a contract executed by it in a name other than its corporate name. [Ed. Note.—Por other cases, see Corporations, Cent. Dig. §§ 1798, 1799; Dec. Dig. <§^453.] 4. Shipping <&wkey;108—Contracts—Validity-Unilateral Contracts. A shipping contract, binding the shipper to pay for space unused in a vessel by reason of the shipper’s failure to furnish a cargo according to contract, held not unilateral, though drawn, since the maritime rules expressly included in contract made plaintiff liable for failure to furnish ships specified in contract. [Ed. Note.—Por other cases, see Shipping, Cent. Dig. §§ 225, 226, 404, 406-410; Dec. Dig. <&wkey;>108.] 5. CORPORATIONS <&wkey;64S — Foreign Corporations — Permit to Do Business in State-Interstate Commerce. A statute, requiring foreign corporations to secure a permit for doing business in tbe state, held to have no application to a corporation engaged in carrying on interstate commerce. [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2516; Dec. Dig. <¿=^648.] 6. Commerce <í&wkey;69 — Regulation and Control-Licensing — Foreign Corporation. The state cannot control or regulate interstate commerce by requiring' a foreign corporation engaged in such business to secure a permit to do business rvitbin tbe state. [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 118-119; Dec. Dig. <&wkey;>69.] 7. Shipping <&wkey;145(-CoNTRACTS — Actions on —Evidence—Sufficiency. Evidence held sufficient to support a judgment for plaintiff, a corporation carrying on interstate commerce, for damages consisting of the rental of unused space in a vessel against a shipper failing to furnish merchandise for shipment pursuant to contract requirements. [Ed. Note. — For other cases, see Shipping, Dent. Dig. §§ 226, 502-505; Dec. Dig. <&wkey;l45.]
187 S.W. 1111Cain v. Garvey (1916)Affirmed
Appeal from District Court, Liberty County; L. B. Hightower, Judge. Action by Ed Garvey and others against 0. H. Cain, County Attorney. Judgment for the plaintiffs, and defendant appeals.
187 S.W. 1199Worsham v. State (1916)Affirmed
H. Garnett, Judge. Waddell Worsham was convicted of pursuing the occupation of selling intoxicating liquors in local option territory, and he appeals.
187 S.W. 1199Ramos v. State (1916)Affirmed
Appeal from District Court, Galveston County; Robt. G. Street, Judge. J. Ramos was convicted of murder, and he appeals.
187 S.W. 1199Coleman v. State (1916)Affirmed
Appeal from Bexar County Court; Nelson Dy-tle, Judge. W. P. Coleman, Sr., was convicted of negligent homicide, and appeals.
187 S.W. 1199Bullard v. Lanius Pressed Brick Co. (1916)Reversed and rendered as to appellants only
Appeal from District Court, Taylor County; Thomas D. Blanton, Judge. Action by the Danius Pressed Brick Company against George P. Bullard and others. From a judgment for plaintiff, certain defendants appeal.