Volume 218 — South Western Reporter

<p>Appeal from District Court, Camp County; J. A. Ward, Judge.</p> <p>Action by the J. I. Case Threshing Machine Company against Camp County. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Ellis County Court; E. L. Wilson, Judge.</p> <p>Action by W. A. Martin against J. H, Jackson, judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Lubbock County; W. ft. Spencer, Judge.</p> <p>Suit in "trespass to try title by J. B. Stone against Jim Robinson, Jr., and others. Judgment for defendants, and plaintiff appeals.."</p>

<p>Appeal from District Court, McCulloch. County; J. O. Woodward, Judge.</p> <p>Action by J. T. Baker and D. M. Baker against the Gulf, Colorado & Santa PS Railway Company. Judgment for last named plaintiff, and defendant appeals.</p>

<p>1. Fraudulent conveyances ⅞=>208 — - Voluntary GIFT TO WIFE NOT VOID AS TO SUBSEQUENT CREDITORS.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3967, a husband’s gift to his wife, merely because without consideration and voluntary, is not void as to subsequent creditors.</p> <p>2. Arpear and error <§=>910 — Legality of GIFT TO WIFE PRESUMED TO UPHOLD JUDGMENT.</p> <p>In the absence of contrary facts found by the trial court, the Court of Civil Appeals must indulge the presumption that a gift of property, including land from plaintiff husband to plaintiff wife, attacked by defendant, was made in compliance with law, and was not by parol.</p>

<p>- 1. Appeal and error <§=>1056(4) — Exclusion OP EVIDENCE HARMLESS IN VIEW OP DETERMINATION ON OTHER ISSUE.</p> <p>In action to set aside conveyance for fraud, exclusion of evidence tending to show that defendant was a swindler, if error, was harmless, where the court found that defendant had made the fraudulent representations but gave defendant judgment on ground of estoppel.</p> <p>2. Vendor and purchaser <®=>43(1) — Purchaser WHO ATTEMPTS TO SELL NOTES RECEIVED POR PROPERTY APTER DISCOVERY OP PRAUD WAIVES'FRAUD.</p> <p>If plaintiff, after discovering that the vendor’s notes transferred to plaintiff by defendant for plaintiff’s property were not good notes and well secured as represented by defendant, tried to sell the notes to third persons, and, as defendant’s agent, tried to sell to third persons the land he had conveyed to defendant, he waived the fraud practiced upon him by defendant and ratified the contract.</p> <p>3. Vendor and purchaser <®=>44 — Evidence SUFFICIENT TO SHOW WAIVER OF FRAUD BY VENDOR.</p> <p>In grantor’s action to set aside conveyance and cancel note upon ground of grantee’s fraudulent representations as to value and security of vendor’s notes given grantor in exchange for property, evidence held, to sustain findings that grantor, after discovery of the fraud, tried to sell the notes to third persons and to sell the property as grantee’s agent.</p> <p>4. Action @=>25(2) — Action one in equity FOR RESCISSION AND NOT AT LAW FOR DAMAGES.</p> <p>Vendor’s petition, alleging that vendor’s notes on other land received for the land sold were valueless, held to state a cause of action in equity for rescission and recovery of the property transferred, and not a suit for damages.</p> <p>5. Pleading @=>279(4) — Supplemental petition SETTING UP NEW MATTER NOT CONSTITUTING A REPLY INSUFFICIENT.</p> <p>In suit to set aside deed, new matter alleged in supplemental petition attempting to set up claim for damages, but not constituting a reply to any allegations in defendant’s answer, under district and county court rule 5 (142 S. W. xvii), was not sufficient to warrant submission of question of damages, since such matter, under rule 15, should have been pleaded by amendment to the petition.</p>

<p>Appeal from District Court, Nueces County; W. B. I-Iopkins, Judge.</p> <p>Suit .by Mrs. G. R. Scott and others against Mrs. Etta M. Eryckberg and others. Judgment for plaintiffs, and defendants appeal.</p>

O. Beard, Judge. Action by Mrs. Gertude Davis, as adminis-tratrix, against Pearl Wight, receiver, and others. ITrom a judgment denying part of the relief sought, plaintiff appeals.

<p>1. Bailment @=>12 — Ordinary cabe required ON DELIVERY OF COTTON TO HOLD UNTIL CALLED FOR.</p> <p>Where plaintiff left two bales of cotton with defendant, the bales being accepted by defendant’s agent for storage to be held until plaintiff should call for them, alleged to have been received only for plaintiff’s convenience, and receipt stating it was not a public warehouse, a bailment resulted, requiring defendant to exercise ordinary care to hold and return the cotton.</p> <p>2. Bailment @=>31(3) — Evidence showing BREACH OF DUTY TO HOLD AND RETURN.</p> <p>Evidence held to show conclusively a breach of defendant’s duty as bailee of cotton to hold the bales for plaintiff as agreed, and to' return them on demand.</p>

<p>Contbacts <©=>113 (2) — Seceet composition AGEEEMENT WITH CEEDITOE VOID.</p> <p>■ An agreement by a bankrupt with a creditor to pay the entire amount due the creditor in consideration that such creditor should not seek by sequestration proceedings to recover goods sold to the bankrupt by such creditor, but should accept a • composition oiler, was illegal and void, whore the other creditors had no knowledge thereof, and recovery could not be subsequently had from the bankrupt for the balance.</p>

<p>1. Municipal corporations <©=>61 — City required TO FURNISH RESIDENTS WITH WATER, LIGHTS, STREETS, ETC.</p> <p>It is the duty of municipal governments to furnish citizens with all such necessary utilities as water, lights, str.eets, and such other public conveniences as are necessary for their protection and benefit; but it may contract with some other person or corporation to perform that service for it.</p> <p>2. Waters and water courses <©=>195 — Water COMPANY NOT LIABLE FOR INJURIES FROM CURB COCK BOX IN SIDEWALK NEGLIGENTLY INSTALLED BY OWNER.</p> <p>Water supply company under contract with city to furnish residents of city with water, giving the company the exclusive control of the repairing and installing of water service pipes and appurtenances, including curb cock box between mains and property lines, but providing that it should not be liable for damages not growing out of its own independent, unlawful acts, was not liable for injuries to pedestrian from curb cock box negligently installed by owner.</p>

R. Irby, Judge. Action by J. E. Hamilton and wife against S. B. Brooks. Defendant’s plea of special privilege overruled, judgment for plaintiffs, and defendant appeals. The appellees sue for damages for alleged fraud and deceit. The plaintiffs reside in Smith county, and the defendant resides in Hunt county. The defendant’s plea of privilege to be sued in Hunt county was overruled by the court, and that Is the sole question for decision on appeal.

<p>Insurance <@=s246 — Only t premiums paid RECOVERABLE ON REPUDIATION OE BENEFIT POLICY DURING! INSURED’S LIFE.'</p> <p>The repudiation and attempted cancellation, without cause, by an insurer of its contract of life insurance during life of insured, though, after a claimed total and permanent disability of insured which, if such, would entitle him to certain benefits, not terminating or impairing the contract, but it being terminated only by the voluntary election of insured to acquiesce in the abandonment, his measure of recovery is not the value of the policy, but, at most, the premiums paid, with interest.</p>

<p>Appeal from District Court, Travis County; Y. L. Brooks, Special Judge.</p> <p>Suit by A. H. King against H. B. Terrell, Comptroller of Public Accounts of the State of Texas, to restrain the latter from issuing a warrant in payment of salaries. Judgment for defendant and plaintiff appeals.</p>

<p>1. Brokers &wkey;>40 — Commissions cannot be RECOVERED IN THE ABSENCE OE EMPLOYMENT BY DEEENDANT.</p> <p>A real estate broker is not entitled to commission as an agent, unless he has been employed as such by the person against whom the commission is claimed.</p> <p>2. Brokers <&wkey;>40 — Evidence insueetcient TO SHOW THAT BROKER WAS RE-EMPLOYED TO SELL DEPENDANT’S EABM.</p> <p>Where defendant had listed his farm with plaintiff, a broker, for sale, but had subsequently withdrawn it, that the broker thereafter met defendant while showing another farm to a customer, introduced the customer to defendant, stating that if the farm he was about to 'show did not suit him he would show him defendant’s farm, the .broker having asked defendant if his farm was still for sale, defendant replying in the affirmative and telling plaintiff to ‘.‘bring him on,” such facts weré not sufficient to sustain a finding that he was re-employed; defendant having sold his farm to such customer following the conversation.</p>

<p>Appeal from Freestone County Court; G. W. Fryer, Judge.-</p> <p>Suit by A. D. Stamps against T. W. Platt and another. Judgment for defendants, and plaintiff appeals.</p>

Prince, Judge. Trespass to try title by Mrs. Georgia K. Dicks and another against J. A. Dupuy, individually, and as executor of the will of A. G. Dupuy. From a judgment for plaintiffs; defendant appeals.

<p>1. Insueanob <&wkey;535 — Condition in employers’ LIABILITY POLICY REQUIRING- NOTICE OE ACCIDENT TO INSURES VALID.</p> <p>In absence of statutory inhibition, conditions in employers’ liability policies requiring that immediate written notice of an accident he given to insurer with the fullest information obtainable are .valid.</p> <p>2. Insurance <&wkey;146(3) — Insurance contracts CONSTRUED AGAINST INSURER.</p> <p>Generally, in construing contracts of insurance as in construing other contracts, conditions are to be taken most strongly against the writer of the policy.</p> <p>3. Contracts <&wkey;14T(3) — Construction according TO INTENTION OE PARTIES.</p> <p>A contract must be construed as a whole, and be given a construction, if it can be reasonably done from the terms used and from the instrument as a whole,- that will give effect to the manifest intention of the parties.</p> <p>4. Insurance &wkey;>539;(3) — “Immediate written NOTICE” OE ACCIDENT REQUIRES NOTICE WITHIN REASONABLE TIME AETER ACCIDENT.</p> <p>Under employers’ liability policy requiring “immediate written notice” of “accident” to insurer with the fullest information obtainable, recovery could not be had where notice was not given until 17 months after accident, though it was given at the’ time of service of citation in employé’s action for damages; such stipulation requiring reasonably early notice after the accident, not after action for injuries,has been instituted.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Immediate Notice.]</p> <p>5. Insurance <&wkey;534 — Stipulation in employers’ LIABILITY POLICY AS- TO NOTICE OE ACCIDENT TO INSURER VALID.</p> <p>Stipulation in employers’ liability policy requiring that immediate written notice of accident be given to insurer is not void under Rev. St. 1911, art. 5714, providing that stipulation in contract requiring notice .to be given of “any claim for damages as a condition precedent to the right to sue thereon” to be reasonable, and that any stipulation fixing the time within which such notice shall be given at a less period than 90 days shall be void; such statute having no application to such stipulation as to notice of an accident.</p> <p>6. Statutes &wkey;>239 — To be strictly construed WHEN IN DEROGATION OE COMMON-LAW RIGHT TO FREELY CONTRACT.</p> <p>Rev. St. 1911, § 5714, providing that stipulation in contract requiring notice to be given of any claim for damages shall be void unless reasonable, and that any stipulation fixing time at a lesser period than 90 days shall be void, is restrictive and in derogation of the common-law right to freely contract, and therefore is to be strictly construed.</p> <p>7. Pleading &wkey;>422 — Failure to verify answer WAIVED BY FAILURE TO OBJECT TO EVIDENCE.</p> <p>In action on employers’ liability policy, where answer set up failure of insured to .give insurer notice of the accident as required by the policy, defendant’s failure to verify answer under Rev. St. 1911, art. 5714, providing that it shall be presumed that such notice has been given unless want of notice is especially pleaded under oath, was waived by plaintiff by failure to object to evidence as to such want of notice.</p> <p>8. Insurance <&wkey;612(2) — Long delay in giving INSURER NOTICE OF ACCIDENT TO EMPLOYE PRECLUDES RECOVERY ON LIABILITY POLICY.</p> <p>Under employers’ liability policy réijuiring immediate written notice of accident, failure to give insurer notice of accident until 17 months after it occurred was fatal to recovery on policy regardless of whether insurer was prejudiced by such delay; such notice within a reasonable tíme being a condition precedent to recovery on policy.</p> <p>9. Principal and agent <&wkey;177(3) — Authorized employes’ knowledge of accident to EMPLOYE IMPUTABLE TO EMPLOYER, REQUIRED TO GIVE INSURE® NOTICE OF ACCIDENT UNDER EMPLOYERS’ LIABILITY POLICY.</p> <p>Employer’s failure to give insurer “immediate written notice” of accident.to employs required by employers’ liability policy was fatal, to recovery under policy regardless of whether employer had actual -notice of accident, where his authorized servants and employés had actual knowledge thereof; such knowledge being imputable to employer.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by B. D. MacOorquodale against George Jones and others. Prom a decree for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Brazoria County; Sam’l J. Styles, Judge.</p> <p>Suit by the Masterson Irrigation Company against John A. Owen and others. From judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; ffm. Masterson, Judge.</p> <p>Suit by E. D. MacCorquodale against George Jones and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by Thomas M. Maes against George Jones, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Railroads <§=>282(5) — Evidence showing KNOWLEDGE OF DEFECTIVE CONDITION .CAUSING INJURY TO INVITEE.</p> <p>In an action against a railroad by a warehouse company’s employé caught on a sliver on a rail while engaged in moving a freight car on a side track, evidence held to show that plaintiff had full knowledge of the defect.</p> <p>2. Railroads <§=275(1) — Injuries to person MOVING CAB ON DEFECTIVE SIDE TRACK N07' ACTIONABLE.</p> <p>Where warehouse company’s employé aware of the condition of a side track was injured when in pushing a car a steel sliver on a rail caught his clothing and held him until the car, pushed against another, moved back upon him, the railroad was not liable for his injuries, though it had knowledge and failed to warn him.</p>

<p>1. Master and servant <§=>416 — Workmen’s compensation; decree of Industrial Accident Board final.</p> <p>Decree of the Industrial Accident Board is final as to all issues and controversies, both as to law and fact, where no action has been taken by either party to set aside the final ruling and decision of the board.</p> <p>2. Master and servant <§=>348 — Workmen’s compensation governed by law existing AT TIME OF ACCIDENT.</p> <p>Where insurance policy was issued to em-ployé and accident occurred while Acts 33d Leg. (1913) c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h to 5246zzzz), was in force, and prior to amendment thereof, by Acts 35th Log. (1917) c. 103 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91), the rights of the parties were governed by the provisions of the former statute in view of the latter statute, part 4, § 3b, employé having no right under the statute as amended to júdgment for installments not due or to recover a penalty or attorney’s fee upon insurer’s nonpayment of the matured installments.</p> <p>3. Master and servant <§=>348 — Rights of EMPLOYÉ AND INSURER FIXED BY LAW EXISTING AT TIME OF ACCIDENT.</p> <p>Where employé was injured while Acts 33d Leg. (1913) c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h to 5246zzzz), was in force, and prior to amendment thereof by Acts 35th Leg. (1917) c. 103 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246 — 1 tó 5246 — 91), the rights of employé and insurer were fixed by the law as it existed prior to amendment, though employs presented his claim to the Industrial Accident Board after the amendment took effect.</p> <p>On Motion to Correct and Reform Judgment and Retax Costs, Etc.</p> <p>.4. Master and servant <§=>426 — Costs properly ADJUDGED AGAINST APPELLANT RESISTING! PAYMENT OF AWARD UNDER WORKMEN’S Compensation Act.</p> <p>Where insurer, without appealing from award of Industrial Accident Board awarding employé certain sum per week for certain number of weeks, refused to make payment of the weekly amounts as they became due until the sum of $306 had become due, and where upon employe’s action on award it sought to have award set aside, appellate court, on insurer’s appeal from judgment for $950, properly adjudged costs against insurer, though it reduced judgment to the sum of $245.50, notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2046, providing that appellant shall recover costs if judgment on appeal is for an amount less than lower court’s judgment; the court, under the circumstances having “good cause” to “adjudge the costs otherwise” under article 2048.</p>

<p>Schools and school districts <§=»4S(5)— Agreement between county judge and commissioners’ court as to salary of JUDGE AS EX OFFICIO SUPERINTENDENT OF SCHOOLS.</p> <p>The fact that the county judge, elected November, 1910, served during his entire first term till 1912 without an order fixing his salary as ex officio superintendent of public schools, and for more than a year on his second term after re-election in November, 1912, without such an order, during all of which time he drew $87.50 per quarter for such service, and the fact that the accounts were approved by the commissioners’ court, amounted to an agreement between him and the court that the ex officio salary of $87.50 per quarter as fixed for his predecessor applied to him until changed, since otherwise he drew $700 illegally during his first term with the knowledge and consent of the commissioners’ court.</p>

<p>1. Courts @=>169(6) — Amount claimed in excess OE JURISDICTION OF COURT. .</p> <p>A cause of action for $32.35 as actual damages and $1,000 as exemplary damages .was not within the jurisdiction of the county court.</p> <p>2. Limitation of actions. @=>120 — Running NOT INTERRUPTED BY FILING OF. PETITION CLAIMING AMOUNT IN EXCESS OF COURT’S JURISDICTION.</p> <p>The filing of a petition claiming an amount in excess of the court’s jurisdiction was not the commencement and prosecution of a suit, and did not interrupt the running of limitations.</p> <p>3. Limitation of actions @=>120 — Running INTERRUPTED BY FILING OF AMENDED PETITION, -THOUGH ORIGINAL PETITION STATED CAUSE OF ACTION IN EXCESS OF JURISDICTION.</p> <p>The filing of a paper designated an amended petition stating a cause of action within the jurisdiction of the court was the commencement of a suit and interrupted the running of limitations, though the original petition stated a cause of action in excess of the court’s jurisdiction.</p> <p>4. Limitation of actions @=>24(2) — Action FOR ACTUAL DAMAGES FOR CARRIER’S BREACH OF CONTRACT IS BARRED IN FOUR YEARS.</p> <p>A cause of action for actual damages for a carrier’s refusal to transport a passenger pursuant to her ticket was within Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 5688, requiring actions for debt -when the indebtedness is evidenced by : or founded upon a contract in writing to be brought within four years.</p> <p>5. Limitation of actions <§=>30 — Action fob EXEMPLARY DAMAGES FOB CARRIER’S REFUSAL TO TRANSPORT IS BARBED IN TWO YEARS.</p> <p>A cause of action for exemplary damages for the refusal of a carrier to transport a' passenger pursuant to her ticket because she was a negro was barred in two years as a tort.</p> <p>6. Trial <@=>191(9) — Instruction assuming THAT BUS DRIVER WHO REFUSED TO TRANS - 'PORT PASSENGER WAS RAILROAD’S AGENT ERRONEOUS.</p> <p>In an action against a railroad company for refusing to transport plaintiff between its depot and that of another company as required by her ticket, where the driver denied that he was the railroad’s agent or that he told plaintiff he was the railroad transfer man, instruction held erroneous as assuming that he was defendant’s agent.</p> <p>7. Carriers <@=>275 — Petition . insufficient TO AUTHORIZE RECOVERY FOR DOCTOR’S BILLS FOR BREACH OF CONTRACT.</p> <p>In an action against a carrier for refusing to transport a passenger, a petition alleging that she suffered actual damages in a specified sum, including among other items one for medicine and doctors, but not alleging that she paid the sum claimed, or assumed to pay it, or that it was a reasonable charge, did not support a recovery for such item.</p> <p>8. Carriers <@=>276(3) — Evidence insufficient TO AUTHORIZE RECOVERY FOR DOCTOR’S BILLS FOR BREACH OF CONTRACT. •</p> <p>In an action against a carrier for refusing to transport a passenger, the evidence did not warrant a recovery for doctor’s bills where the doctor to whom plaintiff said she owed the bill denied attending her on account of any sickness contracted at the time' in question, or any knowledge of such sickness, or any charge for such service.</p>

D. Harvey, Judge. Suit by tbe Southern Rice Growers’ Asso-! ciation against D. S. Cage & Co. and others. Trial without a jury resulting in judgment in favor of the Crosby Mercantile Company, establishing a right to all the fund from sale of a quantity of rice, except a sufficient amount to pay a claim of intervener, Amos Fisher, and ordering costs and attorney’s fees paid out of the fund in controversy, and the defendants Dalquist, D. S. Cage & Co., and F. G. Gillette appeal.

<p>Insubance <®=>246 — Insubed not entitled to BECOVEE WHEEE POLICY CANCELED BY AGEEEMENT WITH WAIVES OF TENDEE OB BETUBN OF UNEABNED PREMIUM.</p> <p>Where fire policy with standard cancellation clause was canceled by insurer,' insured who, upon receiving notice of cancellation, immediately acquiesced therein, and surrendered policy to agent without demanding refund of the old -premium, depending upon agentas assurance that he would procure other insurance and apply overpaid premium upon new policy, could not recover upon the old policy, though agent failed to procure new one; the policy having been canceled by mutual agreement, and insured having waived the tender or return of unearned premium as a condition precedent to cancellation.</p>

<p>1. Husband and wife <$m>249 — Crop planted AND RAISED BY WIPE APTER HUSBAND’S DEATH NOT COMMUNITY PROPERTY THOUOH HUSBAND HAD PREPARED LAND.</p> <p>Where a husband prepared rented land for cotton crop, and, after his death before planting, the wife procured the seed, planted' the land, cultivated and raised the crop, the crop is not a part of the community property, and hence a bank- in which the proceeds of the crop were deposited by the wife cannot apply same to discharge of a community note.</p> <p>2. Husband and wipe <§=3264 — Evidence INSUFFICIENT TO SHOW THAT WIDOW’S BANK DEPOSIT WAS COMMUNITY PROPERTY.</p> <p>Where a bank which held community notes executed by the deceased husband, applied after his death to payment of notes a deposit standing in the name of the widow, evidence held insufficient to show that the sum of $60 which was the first item in the widow’s passbook was part of a deposit standing in the name of the husband at-the time of his death; hence direction of a verdict for the widow was not improper on the ground that such sum was community property.</p>

<p>1.Sales <§=>71 (5) — -Agbeement foe sale of OIL GAVE FUBCHASEE OPTION TO TAKE EXCESS OIL AT SAME PEICE.</p> <p>A contract to purchase oil at a certain price per barrel, buyer not being obligated to take more than 2,000 gallons per day, held to give ■ buyer option to take the total output of the seller’s oil well at the specified price.</p> <p>2. Conteacts <§==>59 — Option connected WITH AGBEEMENT SUPPOBTED BY SUFFICIENT CONSIDEEATION.</p> <p>Where, in a contract supported by a sufficient consideration, an option is given to one of the parties, the option is valid and enforceable, though there is no independent or specific consideration therefor.</p> <p>3. Sales <§=>150(1) — Option to puEcnASE SUPPOBTED BY CONSIDEEATION NOT AFFECTED BY BEFUSAL TO DELIVEE.</p> <p>Where buyer of oil agreed to take 2,000 gallons of oil per day, but contract gave him the option of purchasing all oil produced by the seller in excess of such amount at the same price, the seller could not, by refusing to deliver the oil produced in excess of the 2,000 gallons, affect the right of the purchaser to have such excess oil at the specified price.</p>

M. Combs, Judge. Action between W. D. Loftin and Jake Roth and others. Contending that the county court erroneously granted and perpetuated an injunction in favor of the former, the latter appeal.

<p>1.Insurance <@=424 — Ferryboat submerging, LOSING AUTOMOBILE, AND RISING AGAIN MADE INSURER OB AUTOMOBILE LIABLE ON CLAUSE AGAINST SINKING.</p> <p>In an action on a policy, insuring an automobile against sinking in conveyance by water, where the petition alleged that a ferry carrying the car sunk when the car was on it, which was proved, it is immaterial that by way of implication the petition also charged the ferry was held down at the bottom of the stream by the car, and proof of the mere averment of sinking would fasten liability on the insurer, though there was showing that after tbs first sinking with the car the ferry, relieved of weight by the car’s having slid off, rose again to the surface.</p> <p>2. Insurance <@=424 — Defense ob unseaworthiness NOT APPLICABLE TO CONTRACT INSURING AUTOMOBILE PROM SINKING WHEN TRANSPORTED BY WATER.</p> <p>In an action on a policy insuring an automobile from fire, explosion, lightning, burning, derailment, collision, and stranding or sinking of any conveyance by land or water in which the car was being transported, the defense of unseaworthiness of the ferry in which the car was being carried when the ferry sunk was not applicable to the particular contract, in view of the nature of the risk.</p> <p>3. Appeal and error <@=>173(14) — Waiver of DEFENSE OF UNSEAWORTHINESS OF FERRY CARRYING AUTOMOBILE BY FAILURE TO SET UP.</p> <p>In an action on a policy, insuring an automobile against sinking while being transported by water, the defense of breach of any implied warranty of seaworthiness of the ferry in which the car was being transported was waived by failure to set it up by pleading or otherwise in the trial court.</p> <p>4. Appeal and error <@=1033(5) — Instruction AS TO DAMAGES IN FAVOR- OF' INSURER NOT INJURIOUS TO, IT.</p> <p>In an action on a policy insuring an automobile against sinking when being transported by water, such sinking of a ferry having occurred, where the policy provided recovery could be had for what it would have cost insured to repair or replace damaged parts, instruction on damages, enlarging to some extent on such provision by limiting amount of recoverable damages to what it would take to repair parts properly repairable, etc., being more liberal than the policy in the insurer’s favor, held not prejudicial to it.</p> <p>5.- Insurance <©=665(4) — Evidence sufficient TO SHOW DAMAGES OF $1,300 TO AUTOMOBILE BY SINKING.</p> <p>In an action on a policy insuring an automobile against sinking when in transport by water, .the car having sunk with a ferry into salt water, evidence as to damages held sufficient to sustain the jury’s finding of $1,300 in favor of insured.</p> <p>6. Insurance <@=670 — Findings on damages TO INSURED AUTOMOBILE NOT CONFLICTING.</p> <p>In an action on a policy insuring an automobile against sinking during transport by water, unconnected findings of $1,300' as the total damage-done the car, and also in such amount as the amount of damage done before the automobile slipped off the sunken ferry, held not necessarily in conflict, in view of the charge permitting the jury to deduct any sum from the total damage they might find due to the negligence of plaintiff owner or his agents in failing to get the automobile out of water sooner.</p>

<p>Appeal from District Court, Harris County ; Hugh M. Potter, Special Judge.</p> <p>Suit by Mrs. J. B. Warren and husband against S.' Johnson and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, San Patricio County; M. A. Childers, Judge.</p> <p>Action by John J. Welder against the Sin-ton Independent School District. Judgment for defendant, and plaintiff appeals.</p>

Styles, Judge. Trespass to try title by Anna Dittman against W. D. Cornelius and others. From a judgment denying her relief, save as to lands as to which defendants disclaimed, plaintiff appeals.

Bishop, Judge. Suit by Thomas Downing against the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board, allowing plaintiff compensation under the Workmen’s Compensation Law, and to recover compensation in a lump sum for injury sustained while working for Alex and Sam Davidson. Judgment for plaintiff, and defendant appeals.

In suit to reform a deed, court in denying reformation will not construe deed solely for the purpose of relieving an uncertainty regarding its legal effect. Appeal from District Court, Camp County; J. A. Ward, Judge. Suit by Dave Henson and wife against W. Y. Peterson and others. Judgment for defendants, and plaintiffs appeal.

<p>1. Evidence c&wkey;83(l) — Performance of duty BY OFFICERS PRESUMED.</p> <p>The legal presumption prevails, in the absence of contrary proof, that public officers have not culpably neglected, but have properly performed, their official duties, and that their acts are regular and in compliance with law.</p> <p>2. Municipal ooeporations <&wkey;183(4) — Bub-den to snow improper removal on officer SUING FOR SALARY BY PRESUMPTION OF PROPER REMOVAL.</p> <p>In suit by a city marshal removed by the mayor to recover salary after an illegal removal, the presumptions that the mayor properly performed his duty in relation to the removal casts on plaintiff marshal the burden to prove that the mayor removed him for political reasons alone, contrary to the charter, and that reasons of incompetency, etc., were fraudulently assigned by the mayor, or were not placed in the hands of the clerk for filing when the removal took place.</p> <p>3. Municipal corporations &wkey;>183(3) — Removal OF MARSHAL NOT RENDERED ILLEGAL BY FAILURE OF CLERK TO FILE MAYOR’S STATEMENT OF REASONS FOR REMOVAL.</p> <p>When paper containing the reasons of the mayor of a city for removing the city marshal was placed in the hands of the city clerk for filing as required by the charter, the mayor had complied with the law, and failure of the clerk to file the paper so placed in his hands did not render the removal or discharge illegal.</p> <p>4. Municipal corporations &wkey;>183(4) — Evidence HELD TO SHIFT BURDEN TO CITY TO JUSTIFY REMOVAL OF MARSHAL SUING FOR SALARY.</p> <p>When a city marshal previously removed by the mayor swore to conversations in which the latter gave political reasons for removal, a prima facie case was made, and the presumption destroyed that the mayor had given the true reasons for the removal in the statement he filed with the city clerk as required by charter, and the burden was cast on the city, in the removed marshal’s suit for salary, to sustain the reasons for the discharge by showing that they had a basis in unfitness of the marshal.</p> <p>5. Trial <&wkey; 139(1) — Questions of existence AND SUFFICIENCY OF EVIDENCE FOR COURT AND JURY RESPECTIVELY.</p> <p>The question of whether there is any evidence is one for the court, and whether sufficient evidence is one for the jury.</p> <p>6. Appeal and error <&wkey;1001(l) — No reversal OF JUDGMENT BASED ON VERDICT SUSTAINED BY TESTIMONY.</p> <p>If there is any testimony in a case on which verdict can be predicated, judgment based on such verdict should be sustained. •</p> <p>7. Municipal corporations &wkey;>183 (4) — Evidence SHOWING REMOVAL OF MARSHAL FOR . POLITICAL REASONS.</p> <p>In an action against a city for salary by its marshal removed from office by the mayor, evidence of plaintiff marshal as to his conversation with the mayor, tending to show that he was removed for political reasons and not for incompetency, as stated by the charges filed by the mayor in accordance with charter, held, sufficient to sustain verdict for plaintiff marshal.</p> <p>8. Trial <&wkey;256(l) — Further additional instruction MUST BE REQUESTED.</p> <p>If defendant desired an addition to the charge, such further charge should have been requested.</p>

P. Dehoney, Judge. Action by Mrs. R. A. Martin and others against the Mackay Telegraph & Cable Company. Judgment for plaintiffs, and defendant appeals. The action is by the appellees for damages lor alleged negligent failure of the appellant company to deliver to them a death message.

<p>Appeal from District Court, Fannin County; Ben H. Denton, Judge.</p> <p>Suit by Mrs. S. E. Pierce and others against the Foreign Mission Board of the Southern Baptist Convention and others. From judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Galveston County; Itobt. G. Street, Judge.</p> <p>Action by Grespi & Co. against J. H. Lang-ben. Judgment for plaintiff and defendant appeals.</p>

<p>Appeal from District Court, Fannin County; Ben H. Denton, Judge.</p> <p>Suit by Mrs. S. E. Pierce and others against B. B. Pierce and others. From an order removing one C. C. Pierce as trustee, plaintiffs appeal.</p>

Error from District Court, Harris County; K. C. Barkley, Special Judge. Suit by John E. Baber as temporary administrator of the estate of James E. Galbraith, deceased, against the Houston National Exchange Bank. Judgment for defendant, and plaintiff brings error.

F. O’Neal, Judge. Suit by Fannie Steele against Richard Roy Steele for divorce, in which defendant filed cross-bill. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Collin County Court; R. L. Moulden, Judge.</p> <p>Bill Moore was convicted of petty theft, and appeals.</p>

<p>Husband and wife <S=3'02 — Wife must be IN NECESSITOUS CIRCUMSTANCES WHEN CHARGING HUSBAND WITH DESERTION.</p> <p>Where wife, at time of preferring charge against husband for desertion under Vernon’s Ann. Pen. Code 1016, art. 640a, had $110, conviction will not be sustained; the wife not being in destitute and necessitous circumstances.</p>

P. Moreland, Judge. Suit by A. L. Harris against Edward Randall. A plea of privilege was overruled, and from a judgment for plaintiff, defendant appeals.

D. Guinn, Judge. Action by H. H. Berryman against the Alto Cotton Oil and Manufacturing Company and others. From an order in vacation, appointing a receiver and granting temporary restraining order, defendants appeal.

<p>1.' Contracts <©=3145 — Made whebe acceptance OP OFFER IS GIVEN.</p> <p>A contract is made where the acceptance of the offer is given.</p> <p>2. Cobpobations <©=503(2) — Action bob BREACH OB CONTRACT MAT BE BROUGHT IN COUNTT WHEBE CONTRACT WAS.MADE 1 “PART OP CAUSE OF ACTION.”</p> <p>Within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 24, authorizing suit against a private corporation in the county in which the cause of action, “or a part thereof arose,” the making of a contract constitutes part of the cause of action in suit for its breach.</p> <p>3. Evidence <©=457 — Ambiguous provisions OF CONTRACT MAT BE EXPLAINED.</p> <p>Testimony is admissible as to the meaning of provisions of a written contract of sale of linters, they being ambiguous, in the sense that their meaning is not clear to one not familiar with the preparation of and dealing in cotton seed mill products.</p> <p>4. Sales <©=177 — Butee entitled to stand ON PROVISION OF CONTRACT AS TO PLACE OF DELIVERT.</p> <p>The purchaser of goods is not required to accept delivery of them at a place other than provided in the contract, and limit damages to the difference in cost of shipping from the two places, but may stand on his contract, and recover as though the seller had refused to make any delivery.</p> <p>5. Sales <©=418(7) — Buyer mat not but from itself on nondelivert bt seller AND HOLD SELLER FOR DIFFERENCE IN PRICE.</p> <p>A buyer cannot, on failure of the seller to deliver, buy other goods of itself, trading under another name, and hold the seller for the difference between the price paid and the contract price.</p> <p>6. Appeal and error <©=854(2) — Judgment AUTHORIZED BT PLEADING AND EVIDENCE NOT REVERSED BECAUSE OF WRONG THEORT.</p> <p>Judgment for plaintiff, though on a wrong theory of measure of damages, will not be reversed ; the petition authorizing recovery on the proper thei . , and. the evidence showing plaintiff entitled to an amount equal to the judgment.</p> <p>7. Sales <s=418(6)— Common-law remedt NOT EXCLUDED BT RIGHT GIVEN BT CONTRACT IN CASE OF NONDELIVERT.</p> <p>Provision of contract of sale giving purchaser, in case of nondelivery, right to buy other goods in the open market and hold the seller for the difference between the contract price and the price paid, not being mandatory, does not furnish the exclusive remedy, but the buyer may have his common-law remedy of recovering the difference between the contract price and the price at which he could have sold the goods.</p>

Action by C. F. Rudolph against S. D. Meador and others. Action dismissed as to defendants not named. From judgment for plaintiff against named defendant, the latter appeals.

<p>1. Telegraphs and telephones ⅞=»27 — Mental ANGUISH LAW OP STATE WHERE MESSAGE ORIGINATES GOVERNS RECOVERY.</p> <p>In suits based upon interstate messages, laws of the state where the message originates must determine whether mental anguish alone can be regarded as an element of actual damages.</p> <p>2. Telegraphs and telephones ⅞=»27 — Mental anguish doctrine op Arkansas COURTS FALLOWING PEDERAL SUPREME COURT GOVERNS SUIT ON INTERSTATE MESSAGE WHERE MISCONDUCT OCCURRED THERE.</p> <p>The right of recovery for mental anguish due to failure of defendant’s agent in Arkansas to send death message to plaintiff in 'Texas must be referred to the Arkansas statutes (Kirby’s Dig. § 7947), as construed by the courts of that state, and, since the Arkansas courts following the federal Supreme Court would deny recovery in suit for damages for mental anguish alone, there can be no recovery in the Texas courts.</p> <p>3. Courts <S=>8 — Statutes have no extraterritorial effect.</p> <p>The statutes of a .state have no effect beyond its own'limits.</p> <p>4. Courts <S^511 — Comity gives right to enforce TRANSACTION OCCURRING IN ANOTHER STATE.</p> <p>It is only by virtue of the principle of comity that the plaintiff can ask the courts of Tex-, as to enforce a transitory action which occurred in Arkansas.</p> <p>5. Courts ®=»97(5) — Decision op federal COURT AS RESPECTS DAMAGES POR FAILURE TO SEND INTERSTATE MESSAGE BINDING ON STATE COURTS.</p> <p>If the Supreme Court of the United States may entertain jurisdiction of action for damages for mental anguish, due to failure to send interstate message, the rule adopted by that court for determining the measure of damages is binding upon the courts of Texas.</p>

O. Beard, Judge: Action by R. A. Bell against Pearl Wight, receiver and others. Judgment for plaintiff, and defendants appeal. The appellee was a locomotive engineer operating the regular passenger train on the Texas & Pacific Railway from Marshall, Tex., to Boyce, La. The passenger train was approaching Shreveport, La., at 5 o’clock a. m. on January 24, 1918, when the engine suddenly derailed, causing appellee to be severely injured.

Cornell, Judge. Suit by T. P. Sanderson and another against the Panhandle & Santa Eé Railway Company and another. From judgment for plaintiffs against named defendant, the latter appeals.

<p>1. Pleading <§=»101 — Attempted plea in-abatement NO MOEE THAN SPECIAL EXCEPTION.</p> <p>In an action to cancel and set aside part of a judgment on the ground that plaintiff was never served with notice or any process, a motion or plea that the husband’s case be dismissed “because the petition filed herein is not pleaded with that certainty demanded by law, when attacking a return under oath, duly filed in said cause No. B-9841, the said petition herein not being sworn to as required by law in order to attack the sworn return of a notice or citation served in said cause,” was not a plea in abatement, and was no more than a special exception. ,</p> <p>2. Judgment <®=o460(2) — Pleading to set ASIDE SUFFICIENTLY ALLEGED LACK OE PROCESS.</p> <p>In an action to set aside part of a judgment on the ground that plaintiff was never served with notice recited in the judgment, or any other process, it was not necessary to specifically allege that the return on the notice was false, such allegation being necessarily embraced in the allegation that the notice was never served.</p> <p>3. Abatement and revival @=>8⅞ — Plea in ABATEMENT SHOULD PRECEDE GENERAL DEMURRER.</p> <p>A plea in abatement should precede a general demurrer, as such a plea cannot be sustained and still have an adjudication on the merits which result from the sustaining of a general demurrer and a refusal to amend.</p> <p>4. Jury <§r=>25 (11) — Plaintiff in action to SET ASIDE JUDGMENT FOR LACK OF SERVICE OF PROCESS NEED NOT ESTABLISH RIGHT TO JURY TRIAL.</p> <p>In an action by a husband to set aside part of a judgment of divorce granted his wife, which required him to pay money to the wife, on the ground that he had never been served with notice of the suit or process, court was not authorized by Rev. St. art. 1951, or otherwise, to hear testimony and require the plaintiff to introduce testimony for the purpose of ascertaining whether or not there was sufficient .testimony contesting the service in the complaint to authorize the submission of such an issue to the jury; it being the duty of the court to pass on all matters of pleading without hearing evidence, and, if a good cause of action is pleaded, to empanel a jury and let plaintiff introduce his evidence.</p> <p>5. Process <S=»149 — Testimony of two witnesses OR ONE WITH CORROBORATING FACTS NECESSARY TO OVERCOME OFFICER’S RETURN.</p> <p>When the return of an officer is attacked the testimony of the officer must be met by the oath of two witnesses, or of at least one with strong corroborating circumstances, but such rule, however, is not to be applied so as to deprive a person of the right to have the jury pass on the credibility of witnesses, but is to be used to weigh the testimony which was found by the jury to be true.</p> <p>.6. CONSTITUTIONAL LAW <®=»309(1) — JUDGMENT <S=>17(2) — Personal judgment on SERVICE OUTSIDE OF STATE NOT UNCONSTITUTIONAL AS DENYING DUE PROCESS OF LAW.</p> <p>Rev. St. 1911, "arts. 1869-1873, are not vio-lative of due process of law clauses of the federal and state Constitutions, so far as they authorize t£e rendition of a personal judgment against a citizen of the state upon personal service of process upon him while temporarily absent from the state.</p>

<p>Appeal from District Court, Bowie County; H. F. O’Neal, Judge.</p> <p>Action by Carrie L. Raines against the Southwestern Gas & Electric Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Action by A. J. Campbell against J. L. Lancaster and others, receivers. Judgment for plaintiff, and defendants appeal.</p>

M. Blackmon, Judge. Action of trespass to try title by W. T. Adams against Mark Anderson and another. After default judgment, defendants filed motion -for new trial, and, from an order overruling the motion, they appeal.

<p>1. Divorce <§=>145 — Trial and judgment on SECOND DAT AFTER FILING OF SUIT PREMATURE.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4632, providing suit for divorce shall not be heard or divorce granted before expiration of 30 days from filing, it was improper to hear the suit and grant divorce on the second day after filing; the statute being mandatory.</p> <p>2. Divoroe <§=>182 — Grant of alimont mat BE CONTINUED IN FORCE PENDING APPEAL.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4640, where the facts justify granting of alimony, an order, making the grant to the wife pending appeal, may be made to continue in force until termination of the appeal, which does not prevent granting of alimony, but the order continues and terminates with the final decree on appeal, and order for alimony until further order is objectionable.</p> <p>3. Divorce <§=>263 — Alimont not “debt” COLLECTIBLE ON EXECUTION BUT ENFORCEABLE BT CONTEMPT PROCEEDINGS.</p> <p>' Alimony is not in the nature of a “debt” for the collection of which execution may issue; order for its payment being enforceable by contempt proceedings.</p> <p>[Ed. Note. — For other definitions, see "Words and Phrases, First and Second Series, Debt.]</p> <p>4. Divorce <§=216 — Order for alimont objectionable AS possiblt destroting fi-NALITT OF DECREE.</p> <p>Order in a wife’s divorce suit that she have judgment against defendant for attorneys fees "and $25 a month alimony to be paid monthly by defendant husband until further ordered by the court, also directing execution to issue, held objectionable in form as possibly destroying the finality of the decree.</p>

W. Rogers, Special Judge. Suit by J. D. Woosley against the Buchanan-Vaughan Auto Company. Prom an order overruling motion to dissolve a temporary injunction, defendant appeals.

<p>Appeal from District Court, Montgomery County; D. F. Singleton, Judge.</p> <p>Action by Mrs. Joe Butler and husband against the City of Conroe and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Action by L. O. Ramsey against the Gold-oft Liquor Company, which interpleaded George W. Wahl and another. From the judgment, defendant Mrs. George W. Wahl appeals.</p>

<p>Appeal from Smith County Court; W. R. Castle, Judge.</p> <p>Suit by the Moore Grocery Company against Henderson & Rhoades, a partnership commonly known as the Aubrey Milling Company, defendant, and the People’s Guaranty State Bank of Tyler, garnishee, to which the Denison Bank & Trust Company was made a party defendant. From judgment rendered the Denison Bank & Trust Company appeals.</p>

<p>1. Highways <&wkey;113(4) — Peremptory instruction IN PAVOR OP ENGINEER FOR SERVICES RENDERED 1⅛ CONSTRUCTION OP HIGHWAY PROPER.</p> <p>In an action by an engineer for services rendered in supervising the construction of a highway, the giving of a peremptory instruction in his favor held warranted under the rule that, where there is no reason for ordinary minds to differ as to the conclusion to be drawn from the evidence, a peremptory instruction is proper.</p> <p>2. Trial <&wkey;225(2) — Failure op court to SIGN CHARGE NOT REVERSIBLE ERROR.</p> <p>The failure of the trial judge to sign the charge is not reversible error.</p> <p>3. Highways <&wkey;113 (4) — Judgment directing COMMISSIONERS’ COURT OP COUNTY TO ISSUE WARRANT ON TREASURER PROPER.</p> <p>As the special road laws of Henderson county provide that all moneys received from sale of bonds shall be held by the treasurer and paid out on orders of the commissioners’ court, and as the last special road law (Sp. Acts 1918, c. 24, § 15k) makes it the duty of the treasurer to hold the funds and pay them out as in other cases, a judgment, in an action by an engineer against the commissioner's’ court to recover compensation for services rendered in supervising construction of highways, is not, in view of Const, art. 5, § 8, and Rev. St. 1911, art. 2241, erroneous in directing the commissioners’ court to draw warrants on the treasurer who held funds belonging to the road district.</p> <p>4. Action <&wkey;45(4) — No objection to join-der IN ONE ACTION ON CONTRACTS OP TWO ROAD DISTRICTS.</p> <p>The commissioners’ court of Henderson county having wholly supplanted the officials -of the several road districts, one having claims against two road districts might properly join the same in an action against the commissioners’ court.</p> <p>5. Appeal and error <&wkey;916(l) — Presumption THAT PLEA IN ABATEMENT, DISPOSED OP ON DATE OP PINAL JUDGMENT, WAS NOT PILED IN DUE SEASON.</p> <p>Where the record showed that a plea in abatement based on misjoinder of causes of action was not disposed of until the date on which judgment was rendered, it will be assumed that the plea was not filed in time and hence was waived.</p> <p>6. Highways <&wkey;113(4) — Answer in defense OP ACTION BY ENGINEER POR SERVIOES DEFECTIVE.</p> <p>In an action by an engineer for services rendered in supervising construction of highways, the answer, setting up that the roads were improperly built and that the engineer failed to keep a maintenance fund, held open to exceptions made, and' hence such portion of the answer was properly stricken.</p>

<p>Error from Midland County Court; J. M. De Armond, Judge.</p> <p>Action by Charles E. Goetz against Mrs. John Walker and husband. There was a judgment for plaintiff, and the named defendant alone brings error.</p>

<p>Error from Midland County Court; J. M. De Armond, Judge.</p> <p>Action by Chas. E. Goetz against Mrs. John Walker. Judgment for plaintiff, and defendant brings error.</p>

T. Stubbs, Judge. Suit by W. F. Jackson against Mrs. E. L. Carlock and another, wherein G. W. Gray in-terpleaded. From a judgment partially for and partially against plaintiff, also protecting the intervener, plaintiff appeals.

Pierson, Judge. Injunction suit by W. S. Page and. others against T. J. Tucker, County Judge, and others. From an order denying the writ, plaintiffs appeal.

<p>1. Insurance <§=529 — Self-destruction not ACCIDENTAL DEATH; “ACCIDENT.”</p> <p>Self-destruction, inflicted purposely, is not classed as an “accident” within the meaning of a supplemental life insurance policy, providing for double liability in case of accidental death.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accident.]</p> <p>2. Insurance <§=>646(6) — Burden on beneficiary TO SHOW DEATH ACCIDENTAL.</p> <p>In an action by a beneficiary under a supplemental life policy, providing for double liability in case of accidental death, burden was on plaintiff to allege and prove that the deceased came to his death by accident within the terms of the policy.</p> <p>3. Insurance <§=645(3) — General denial by INSURER PERMITTED PROOF OF SUICIDE.</p> <p>In an action on a supplemental insurance policy, providing for double liability in event of accidental death, insurer under a general denial could introduce evidence that the death was purposely self-inflicted, and thereby defeat recovery upon the double indemnity feature.</p> <p>4. Trial <§=25(9) — Insurer not entitled to OPEN AND CLOSE BY FILING ADMISSION UNDER RULE 31.</p> <p>In an action under a supplemental life policy, providing for double liability in event of accidental death, insurer was not entitled to demand the right to open and close by filing an admission under rule 31 for district courts (142 5. W. xiii), insurer claiming that death was by suicide, since the effect of such an admission was to admit that the plaintiff was entitled to recover, and that the death was not accidental.</p> <p>•5. Trial <§=180 — Court erred in recalling JURY AND DIRECTING VERDICT ON FACT ADMITTED UNDER RULE OF COURT WHERE SUCH ADMISSION MIGHT HAVE BEEN WITHDRAWN IF COURT ACTED PROMPTLY.</p> <p>In an action on a supplemental life policy, providing for double liability in event of accidental death, where insurer filed answer setting up defense of suicide, and filed an admission under district court rule 31 (142 S. W. xiii), and the court erroneously permitted it to open and close, it was error, after the case was submitted, to recall the jury and direct a verdict in favor of plaintiff on the ground that the defendant had admitted that the death was accidental, as by failing to so hold until that time the insurer was deprived of the right to move to withdraw the admission, and in equity is entitled to a new trial.</p> <p>■6. Insurance <§=635, 640(3) — Pleading suicide AND ACCIDENTAL DEATH.</p> <p>A clause, not in the same part of a life policy in which an insurer promises to pay upon the death of insured, to the effect that insurer will not be liable in event of suicide, is in the nature of a condition subsequent, or a proviso which courts treat as a defeasance clause, and which, if relied on to defeat a recovery under the policy, must be sufficiently pleaded and proved by the insurer; but, in a supplemental policy, providing for double liability in case of accidental death, it is for the beneficiary to plead that the death was accidental.</p> <p>7. Pleading <§=428(3), 433(6) — Failure to NEGATIVE DEFENSE NOT MATTER FOR OBJECTION TO EVIDENCE AFTER VERDICT.</p> <p>Assuming that suicide clause in life policy required beneficiary to plead a negative, failure to plead such negative was only a defect of pleading which could not be raised upon the introduction of evidence or after verdict, where no exception was taken to such omission.</p> <p>8. Trial <§=25(7) — Answer no admission THAT DEATH WAS ACCIDENTAL.</p> <p>A petition by a beneficiary under a life policy and a supplemental life policy providing double liability in case of accidental death, set up two distinct causes of action, one on the plain life insurance policy and the other on the supplemental policy; and where defendant set up suicide in its answer, and then filed an admission under rule 31 for district courts (142 S. W. xiii), defendant did not thereby admit that the death under the plain policy was an accident, although its effect was to admit that the death was accidental as far as the count on the supplemental action on the 'policy was concerned.</p> <p>On Motion for Rehearing.</p> <p>9. Trial <§=25(7) — Purpose of rule relating TO ADMISSIONS TO EXPEDITE TRIAL STATED.</p> <p>Rule 31 for district courts (142 S. W. xiii) is simply one of practice and for the purpose to expedite the trial and relieve the plaintiff of the necessity of proving his case upon consideration that the defendant take the burden.</p>

<p>Appeal from District Court, Donley County; Henry S. Bishop, Judge.</p> <p>Action by A. B. Smith against C. Y. McDonald, to which various other persons were made parties. From a judgment in favor of plaintiff and certain defendants the defendants William Spitzer and others appeal.</p>

<p>Error from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>Divorce suit by Charles O. Smith against Lena Lucius Smith. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by Joe Lee Ferguson against Reuben M. Ellerd. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Garza County; W. R. Spencer, Judge,</p> <p>Suit by John B. Slaughter against L. N. Brooks and others. Prom judgment for plaintiff defendants appeal.</p>

<p>Error from District Court, Callahan County; Joe Burkett, Judge.</p> <p>Action by R. L. Alexander against W. C. Martin. From an order against defendant to draw a warrant, he brings error.</p>

<p>1. Appearance <§=>20 — Citation waived by ANSWERING GENERALLY.</p> <p>By filing a general answer defendant waived the issuance and service of citation and voluntarily submitted himself to the jurisdiction of the court, and was bound by any judgment thereafter rendered.</p> <p>2. Trial ' <§=>194(19) — Requested instruction in action for injuries to railroad FIREMEN PROPERLY REFUSED AS ON WEIGHT OF EVIDENCE.</p> <p>In an action for death of a fireman killed by reason of a derailing switch being left' open, the court properly refused, as being on the weight of the evidence, a request to instruct “that, if you believe the engine was caused to leave the track on account of defects in the derailing appliances, and those defects were caused by the repair man having taken some pipes, rods, and connections out temporarily to repair them, and said repairs were necessary to maintain the appliance in proper condition, and they were to be kept out only a short time, then you cannot find that such act was an act of negligence.”</p> <p>3. Trial <§=>352(4) — Request to submit inquiry as whether fireman saw the danger OF RUNNING INTO OPEN DERAILMENT SWITCH PROPERLY REFUSED FOR WANT OF EVIDENCE.</p> <p>In an action under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) for the death of a fireman in a derailment caused by an open derail switch, the court properly refused to submit to the jury the inquiry, “Do you find from the evidence that deceased, situated as he was, either saw or should have seen the derail open in time to have, by the exercise of ordinary care, requested the engineer to stop the train, or so lessened its speed that'the engine would not have been derailed, or the tank would not have been overturned, and the said M. would not have been killed?” there being no evidence that the open switch could have been seen in time to have stopped the train.</p> <p>4. Death <s=>86(2), 88, 89 — Measure of damages TO WIDOW AND CHILDREN STATED.</p> <p>The damages to a widow and children for wrongful death are limited to the pecuniary benefits, if any, which the- widow and' children respectively hav-e lost, and in fixing the amount due the minor children, the money value of the loss of the care, training, and education which the deceased would have bestowed on them if he had lived should be considered, but no damages- should be allowed the widow for loss of care, consolation, .training, and guidance, or for grief or loss of companionship or society.</p> <p>5. Death <§=>99(4) — 840,000 to widow and CHILDREN OF RAILROAD FIREMAN NOT EXCESSIVE.</p> <p>$40,000 to the widow and five minor children of á railroad fireman 38 years old, of good habits, who was earning $185 per month, spent mainly for their benefit, held not excessive.</p>

<p>1. Telegraphs and telephones <®=>65(2)— Damages for mental distress sufficiently AVEBBED.</p> <p>A petition, alleging that plaintiff’s telegram, reading, “Mr. J. not expected to live come at once,” was delivered to defendant’s agent, who was advised that J. was ill and not expected to live, and that the addressee was the son of plaintiff and stepson of. her husband, J., and that she desired his presence at once, held sufficiently to allege that defendant had notice that plaintiff would suffer mental anguish in case the message was not properly transmitted.</p> <p>2. TELEGEAPHS AND TELEPHONES <©=338(6) — Message sufficient notice that sendee WOULD SUFFEB MENTAL ANGUISH IF NOT PROMPTLY DELIVERED.</p> <p>Where plaintiff wrote, “Come at once, death message, mother,” and defendant’s agent changed the wording to, “Mr. J. not expected to live, come at once, Mother,” the messages, taken together, constituted notice that the message was sent for the benefit of the plaintiff, the mother, and that she would likely suffer mental anguish if it should not be delivered promptly, and therefore deprive her of the presence of her son, the addressee.</p> <p>3. Telegraphs and telephones <§=338(1) — Evidence of consideration foe telegram UNNECESSARY FOR RECOVERY OF DAMAGES FOR MENTAL ANGUISH CAUSED BY DELAY.</p> <p>Damages for mental anguish caused by failure to promptly deliver a death message may be recovered without showing that the telegraph, company received a valuable consideration for transmitting it.</p> <p>4. Telegraphs and telephones <§=>65(6) — Route available to addressee in delayed DEATH MESSAGE. SUFFICIENTLY ALLEGED TO ALLOW PROOF.</p> <p>Allegations, in a petition for damages for mental anguish caused by failure to promptly deliver a death message to plaintiff’s son, “that if the message had been delivered * * * he could have started for K. to be with plaintiff, and by the customary routes of travel from L. to K., to wit, from L. to B. S. by automobile route, same being the regular used and traveled passenger route,"and from B. 8. to K. via railway travel,” etc., sufficiently stated what facilities the son could avail himself of in reaching K., and the son was properly permitted to testify to the route he took, which, if the telegram had been promptly delivered, would have carried him to K. in time.</p> <p>5. Telegraphs and telephones <§=371 — $1,000 FOR MENTAL A'NGUISH BY DELAY OF TELEGRAM NOT EXCESSIVE.</p> <p>One thousand dollars damages was not excessive for mental anguish, caused a mother by failure to promptly deliver a message to her-son, so that he could come to her in her bereavement on the death of her husband.</p>

M. Richey, Judge. Suit by Mrs. Ethel M. Gooch, for herself and as next friend for two minor children, against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.

<p>1. Appeal and error <&wkey;781(5) — Question op PROPRIETY OP APPOINTMENT OP MUNICIPAL MANAGER MOOT WHERE PENDING APPEAL ANOTHER WAS APPOINTED.</p> <p>Where plaintiffs’ suit to restrain the board of commissioners from appointing a particular individual municipal manager resulted in judgment aganst plaintiffs, and after plaintiffs’ appeal the commissioners appointed another as manager who duly qualified, the case became moot and will be dismissed.</p> <p>2. Appeal and error <&wkey;781(l) — Where case IS MOOT, MERITS WILL NOT BE CONSIDERED TO DETERMINE AGAINST WHOM COSTS WILL BE IMPOSED.</p> <p>Where pending appeal the case became abstract, the appellate court will dismiss the case and will not consider the merits for determining against which party costs should be assessed.</p>

<p>Appeal from District Court, Bexar County; W. W. Walling, Special Judge.</p> <p>Dick Lee was convicted of burglary, and he appeals.</p>

<p>On motion for rehearing.</p>

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Suit by J. W. King and others against F. H. Woytek and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Continuance <©=320(3) — Defend ant’s motion foe continuance impeoperhy denied WHEEE ITS ATTOENEY HAD TO APPEAE IN CRIMINAL CASE WHEN CASE WAS SET FOE TEIAIi.</p> <p>Where defendant’s attorney who had appeared in two previous trials was forced to trial in other actions, criminal and civil, in other courts, so that he was unable to appear, and it was shown that he requested a continuance and notified plaintiff and the trial judge of his inability to secure a postponement of the criminal action, held,, that defendant should have been granted a continuance, the time being too short to engage other attorneys, and defendant’s attorney being particularly familiar with the facts, regardless of fact that delay might work hardship on plaintiff.</p>

<p>Dismissal and nonsuit <⅜=>81(3) — Action DISMISSED EOE FAILURE TO COMPLY WITH RULE FOR COSTS CANNOT BE REINSTATED AT SUBSEQUENT TERM.</p> <p>Where an action in trespass to try title was dismissed for plaintiff’s failure to file a cost bond, the court is without jurisdiction to reinstate the same at a subsequent term.</p>

<p>Appeal from District Court, Ellis County; F. L. Hawkins, Judge.</p> <p>Action by J. E. Price and others against the Texas Electric Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Error from District Court, Nueces County; W. B.- Hopkins, Judge.</p> <p>Action by R. H. Boatner and Charles Weil against the Home Insurance Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from .District Court, Donley County ; Henry S. Bishop, Judge.</p> <p>Suit by C. O. Burkholder and wife against Chas. Spencer. Spencer disclaimed, and 'by agreement and permission of the court J. W. Davis was substituted as party defendant. Judgment for plaintiffs, and Davis appeals.</p>

<p>1. Landlord and tenant @=>155 — Tenant’s DUTY TO BEPAIK FENCES.</p> <p>It is the duty of the tenant to keep fences on the leased premises in repair.</p> <p>2. Landlord and tenant @=>136 — Lessee’s DUTY TO USE FARM PROPERTY IN A TENANT-LIKE MANNER.</p> <p>In the absence of express agreement there is an implied agreement on the tenant’s part to use'leased farm property in a tenantlike manner without committing injury to it by acts inconsistent with good husbandry.</p> <p>8. Landlord and tenant @=>134(6) — Tenant MAY BE RESTRAINED PROM PASTURING STOCK ON WET LANDS.</p> <p>An injunction prohibiting a tenant from pasturing stock on the leased lands while they were wet was not wrongful, where there was evidence that such pasturage rendered it difficult to cultivate the lands the next year and was not in accordance with good husbandry.</p> <p>4. Landlord and tenant @=>134(6) — Refusal TO DISSOLVE INJUNCTION AGAINST PASTURAGE OF STOCK NOT AN EVICTION.</p> <p>An injunction restraining a tenant from pasturing stock upon leased lands while wet and refusal to dissolve the injunction did not constitute an eviction of the tenant where the injunction might be sustained upon the theory that pasturing stock on wet lands was contrary to good husbandry.</p> <p>5..Landlord and tenant @=>139(5) — Judgment AGAINST TENANT FOR CROPS DESTROYED SUSTAINED BY EVIDENCE.</p> <p>Where cattle entered, ate, or destroyed the landlord’s share of the crop, a judgment against the tenant for the value of such part of the crop held sustained by evidence that the tenant did not properly repair the fences protecting the landlord’s share of the crop, and that he gave the stock access to such crop.</p> <p>6. Evidence @=>588 — Court not bound by TESTIMONY CONTRADICTED BY CIRCUMSTANCES.</p> <p>The trial court is not bound to find in accordance with testimony if he believed it to be contradicted by circumstances.</p> <p>7. Landlord and tenant @=>139(4) — Tenant LIABLE FOR CROP DAMAGES OCCURRING AFTER TERMINATION OF LEASE.</p> <p>A tenant violating a duty owing to the landlord by failing to repair fences, etc., is liable for the resulting damage caused by stock entering the premises and destroying crops, although the damage was not fully accomplished before the termination of the lease.</p> <p>8. Trial @=>351(2) — Court may find on issues NOT SUBMITTED TO JURY.</p> <p>Although it was the court’s duty to submit all issues of fact to the jury, under Rev. St. 1911, art. 1985, yet, if there was no request for a submission of the issues, the court itself could make a finding on it.</p> <p>9. Appeal and error @=>930(3) — Finding of FACT BY COURT TO SUSTAIN VERDICT ON SPE CIAL ISSUES PRESUMED.</p> <p>A judgment entered after finding on special issues will be sustained, though all issues of fact were not submitted, as it must be presumed that the court found on necessary facts, unde." Rev. St. 1911, art. 1985.</p> <p>10. Landlord and tenant @=>139(4) — Tenant SUED FOR DAMAGES TO CROPS NOT ENTITLED TO RECOVER FOR HIS SHARE DAMAGED WHILE HIS USE WAS RESTRICTED BY INJUNCTION.</p> <p>Where a tenant claimed that the landlord had wrongfully excluded him from part of the premises by. an injunction, he is not necessarily entitled to recover the value of his share of the crop on land covered by the injunction, where his cattle entered the field and ate or destroyed the crop despite the injunction.</p> <p>11. Trial @=>351(2) — Necessity of requesting FULLER STATEMENT IN SUBMITTING AN ISSUE.</p> <p>Where the court submitted an issue whether a landlord’s eviction of the tenant damaged the tenant by depriving him of pasturage lands, the tenant, if he desired a fuller statement of the law in connection with the submitted issue, should have requested it.</p> <p>12. Appeal and error @=>218(2) — Party not REQUESTING SUBMISSION OF ISSUE TO JURY CANNOT COMPLAIN OF COURT’S FINDING ON CONFLICTING EVIDENCE.</p> <p>A. party failing to request a submission oi the issue to the jury cannot complain of an unfavorable finding by the court based on contradictory and confusing evidence.</p>

<p>Appeal from District Court, Bee County; M. A. Childers, Judge.</p> <p>Suit by P. Borroum against P. B. Butler and another. From a judgment for. plaintiff, defendants appeal.</p>