Volume 235 — South Western Reporter

Suit by Alice Ilarringtoij and others against Texas & New Orleans Railroad Company. From a judgment of the Court of Civil Appeals (209 S. W. 685), reversing a judgment in their favor, plaintiffs bring error.

Action by the Shear Company against J. A. Hall and others. A judgment for the defendants other than defendant Hall was affirmed by the Court of Civil Appeals (215 S. W. 567), and plaintiff brings error.

<p>McClendon, P. J., dissenting.</p> <p>■ Error to Court of Civil Appeals of Fourth Supreme Judicial District.</p>

Supreme Judicial District. Suit by Maggie Walls and others against R. A. Cruse and others. Judgment for the defendants was affirmed by the Court of Civil Appeals (217 S. W. 240), and plaintiffs bring error.

Action by John E. Griffin against the Palatine Insurance Company and others. Prom a judgment of the Court of Civil Appeals (202 S. W. 1014) reversing a judgment for plaintiff, he brings error.

Action by E. Scheppelman against the Houston Belt & Terminal Railway Company. A judgment for plaintiff, and a denial of a new trial was affirmed by the Court of Appeals (203 S. W. 167), and defendant brings error.

<p>1. Criminal law <&wkey;l094 — Conviction affirmed, in absence of statement of facts or bill of exceptions.</p> <p>Where there is no statement of facts or bill of exceptions, and the complaint and information appear to be in regular form, and there seems nothing wrong with the court’s charge, and no error appears in the record, the judgment of the trial court will be affirmed.</p> <p>2. Criminal law <&wkey;>l097(5) — Exception to charge not considered, in absence of statement of facts.</p> <p>Defendant’s exception to the court’s charge as being on the weight of the evidence cannot be considered, in the absence of a statement of facts.</p>

<p>Appeal from District Court, Hunt County; Geo. B. Hall, Judge.</p> <p>John Corzine was convicted of assault with intent to murder, and appeals.</p>

<p>Criminal law <&wkey;ll3l(5) — Appeal dismissed where defendant has escaped.</p> <p>Where it is made to appear that, pending appeal, defendant has escaped from custody, and still remains at large, the appeal will be dismissed.</p>

^Appeal from District Court, Cherokee County; L. D. Guinn, Judge. Action by O. P. Bolton against the Texas & New Orleans Railroad Company and others. Judgment for the plaintiff, and defendants appeal. The appellee received personal injuries by being struck in his side and back by the engine of a freight train, and he brought this suit to recover damages therefor.

B. Davis, Judge. Suit by Chas. H. Mills against the City of Corsicana and others, and by such city, for the use and benefit of T. W. Worthington, against Chas. H. Mills, which suits were consolidated. Judgment in favor of defendants in both actions, and all the parties appeal.

<p>1. Bridges &wkey;>20 (3) — Lowest bidder not vested with right enforceable by action at law or suit in equity.</p> <p>The lowest bidder for a contract to construct highway bridge under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6966, providing for award to the “lowest responsible bidder,” but that commissioners’ court might reject “any and all bids,” pursuant to notice for bids reserving such power, did not, by reason of his bid, have a right to the contract enforceable at law or in equity.</p> <p>2. Injunction <S=»I07 — Not issued to restrain interference with public right at suit of individual not peculiarly damaged.</p> <p>An action does not lie to restrain an interference with a mere public right at the suit of an individual who has not suffered, or. who is not threatened by some damages peculiar to himself.</p> <p>3. Counties 196(1) — Contract by commissioners’ court without advertising for bids can be set aside in suit by taxpayer.</p> <p>A contract, made by commissioners’ court without advertising for bids, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6966, can be set aside and injunctive relief can be granted in a suit by a taxpayer.</p> <p>4. Bridges <@=>20(3) — Commissioners’ court may let contract to other than lowest bidder.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 0966, providing that the commissioners’ court shall let road or bridge contract to lowest responsible bidder, but “shall have the right to reject any and all bids,”- authorizes the court in its discretion to reject the lowest bid and award contract to other bidder on the ground that the best interests of the county are served thereby.</p> <p>5. Bridges <@=>20(6)~Commissioners’ court’s rejection of lowest bid not reviewable by court without allegation of illegality or fraud.</p> <p>Action of commissioners’ court in letting highway bridge contract to other than lowest bidder, on the ground that the best interests of the county required the rejection of the lowest bid, is not reviewable by the district court in the absence of an allegation that the commissioners’ court acted illegally or fraudulently; the rejection of lowest bid being the court’s exercise of its judgment.</p> <p>6. Bridges <@=>20(6)— Petition held insufficient to show that commissioners’ court in rejecting lowest bid acted illegally or fraudulently.</p> <p>Petition to restrain commissioners’ court from entering into bridge contract with one not lowest bidder, which did not allege that the court as a court fraudulently made the award, but merely alleged that the court in rejecting the lowest bid acted upon false statements made to it by one of its members that engineers of the highway department of the state had stated that the state would withdraw its financial aid if the contract was awarded to lowest bidder, and which showed that the state would withdraw its aid if contract was awarded to lowest bidder, held insufficient to show that the commissioners’ court acted illegally or fraudulently in rejecting lowest bid, and accepting higher bid; the mere allegation that its judgment was based upon perjured testimony being insufficient.</p> <p>7. Bridges <@=>20(3) — Rejection of lowest bid proper on state’s threat to withdraw state aid on award of contract to lowest bidder.</p> <p>Where state highway engineer appointed by state highway commission under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6904% et seq., threatened not to give county financial aid if highway contract was awarded to contractor who had submitted the lowest bid under article 6966, action of commissioners’ court in rejecting the lowest and accepting a higher bid held not an abuse of discretion, regardless of the question whether the state highway department would have acted arbitrarily or fraudulently in withdrawing its aid in the event that the codtract had been awarded to the lowest bidder.</p> <p>8. Bridges <@=>20 (6) — Contractor necessary party to suit to restrain commissioners’ court from entering into contract with such contractor.</p> <p>An injunction will not be granted to restrain the commissioners’ court from entering into a bridge contract with contractor, to whom the court had awarded the contract, unless the contractor is a party to the action; the award being practically a contract with the county, entitling the contractor to its day in court before it is annulled.</p> <p>9. Judgment <@=>11 — Entry of judgment dismissing case in vacation error.</p> <p>It was error to enter judgment dismissing a case in vacation, but case should have been continued over for trial or disposition at a regular term of court.</p>

B. Daviss, Judge. Proceeding by James Garitty and others against J. L. Halbert, Mayor, and others, to contest the validity of an election within the city of Corsicana. Judgment for defendants, and plaintiffs appeal.

<p>1. Brokers <©=532 — Broker employed by owner cannot become buyer’s agent to obtain lower price.</p> <p>A broker, employed by the owner of land to sell it for a stipulated sum and commission, could not, without the knowledge and consent of the owner, become the agent of a prospective buyer, and work to obtain a lower price from the seller. '</p> <p>2. Brokers <©=574 — Buyer’s agreement to pay broker employed by owner of land held without consideration.</p> <p>An agreement by a buyer of land with a broker employed by the owner to pay the broker’s commission, where he performed no services for the buyer, was without consideration.</p> <p>3. Brokers <©=>74 — Buyer’s agreement with owner to pay commission held without consideration.</p> <p>An alleged agreement by a buyer of land with the owner, made after the execution of a written contract of sale, and unknown to the broker, that the buyer would pay a commission to the broker, did not enter into and become a part of the consideration for the land, and was without consideration, and in conflict with the contract of sale which did not bind the buyer to pay a commission.</p> <p>4. Frauds, statute of <©=> 18(1) —O ral agreement by buyer with owner of land to pay latter’s broker his commissions not binding.</p> <p>An oral agreement by the buyer of land with the owner to pay his broker his commissions, made after the execution of the written contract of sale and in contradiction of such contract which did bind the buyer to pay a commission, was an agreement to pay a debt of the owner for which the buyer could not orally bind himself.</p>

<p>(. Justices of the peace <§=3159(7) — In determining amount of appeal bond, costs not included in amount recovered.</p> <p>On appeal from justice court the costs are not estimated as being a part of the “amount recovered” in fixing the amount of the appeal bond.</p> <p>2. Justices of the peace <§=ol59(l) — No appeal . bond necessary where judgment is for costs.</p> <p>On appeal from a judgment setting aside an award of the Industrial Accident Board and allowing plaintiff its costs, which defendant paid, defendant could appeal without bond.</p> <p>3. Master and servant <§=3398 — Notice of com-pensable injury and certificate of necessity of medical treatment held waived.</p> <p>Where an injured employé’s physician notified the insurer within 30 days after injury, certified to the Industrial Accident Board within two weeks the necessity for further treatment, and thereafter, at least once a week, notified the insurer through its agent of the employé’s condition and treatment, but, acting on such agent’s assurances that certification to the Board of the necessity for further treatment was not necessary, omitted to .further advise it, the insurer waived the giving of such notices and certificates, as required by Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246— 9, to 5246 — 11, and was estopped from asserting the want thereof; or any action the Board might have taken had notices and certificates been given, even though such notices and actions of the Board with respect to 'fees and charges for treatment are of the essence of the insurance contract.</p> <p>4. Estoppel <§=352 — Gives effect and meaning to men’s actions which common sense and justice dictate.</p> <p>The principle of equitable estoppel, which stands on the very foundations of right ’and fair dealing, considers and weighs the conduct of men in their dealings with each other and gives that effect and meaning to their actions which common sense and justice dictate.</p> <p>5. Master and servant <§=3385(16) — “Hospital services” within Compensation Act defined.</p> <p>Care, meals, heat, and artificial light furnished to a disabled employé commensurate with his needs are included in “hospital services,” to which such employé is entitled under Workmen’s Compensation Act (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246-9 to 5246-11), though furnished in a private residence.</p> <p>6. Master and servant <§=3404 — Evidence as to liability under Compensation Act for hospital service held admissible.</p> <p>In a suit to set aside an award by the State Industrial Accident Board for hospital services rendered to an injured employé by his father, the court did not err in admitting evidence that the father had furnished his son with board, lodging, and care, nor in permitting the attending physician to testify that the liability insurer’s agent, in its behalf, had authorized the rendition of such services without certifying to the Board the necessity for further medical treatment, as required by Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 9, the evidence showing that it was within the apparent scope of such agent’s authority to so advise the physician.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by T. A. Eldridge against Ned Mc-Uhenny, executor of Mrs. William Debth, deceased, and others. From a judgment for plaintiff, the defendant named appeals.</p>

<p>Appeal from District Oourt, Bexar County ; J. T. Sluder, Judge.</p> <p>Suit by the Norwich State Bank of Norwich, Kan., against Henry Kanner and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Interpleader <§=>23 — Petition held to state cause of action.</p> <p>A petition by one who had purchased land subject to vendor’s lien notes against a widow and heirs to determine to whom should be paid the indebtedness held to state a good cause of action for interpleader.</p> <p>2. Interpleader <§=>! — Remedy favored. Interpleader is an equitable remedy and</p> <p>favored wherever a debtor or bailee has a reasonable doubt as to the true owner of the fund.</p> <p>3. Appeal and error <§=>!010(1) — Finding of facts supported by evidence not disturbed.</p> <p>Conclusions of the trial court on the facts will not be disturbed on appeal where they have sufficient evidence to sustain them.</p> <p>4. Interpleader <§=>29 — Evidence to justify finding that plaintiff had reasonable doubt as to who was entitled to money. .</p> <p>In interpleader suit by purchaser of land subject to vendor’s lien notes against widow and heirs, evidence held to justify finding that plaintiff had a reasonable doubt as to who was entitled to unpaid notes, and that the suit was instituted in good faith.</p> <p>5.Interpleader. <§=>29 — Evidence justified finding that plaintiff had no remedy at law.</p> <p>In an interpleader suit to determine who was entitled to proceeds of vendor’s lien notes, evidence held to justify finding that plaintiff had no complete remedy at law.</p> <p>6. Interpleader <§=>35 — Attorney’s fees recoverable.</p> <p>Attorney’s fees and fees of guardians ad litem and attorneys for nonresident minors may be recovered in an interpleader suit, payable, at least primarily, out of the fund.</p> <p>7. Appeal and error <§=>226(I)— Complaint by one defendant that cost should have been taxed against another should be made in lower court.</p> <p>One defendant in an interpleader suit cannot complain on appeal that the cost of the suit 'should -have been taxed against other defendants, although primarily ordered out of the fund involved, in the absence of a showing that such relief was sought and was denied.</p> <p>8. Costs <§=>182 — No allowance for expense of making certified copy of decree.</p> <p>Trial court erred in charging a defendant in an interpleader suit with the expense of making a certified copy of the decree and the cost of recording the same; the copy being made and recorded in the county clerk’s office by the plaintiff as a muniment of title.</p> <p>On Rehearing.</p> <p>9. Interpleader <§=>2 — Plaintiff held not required to intervene in another suit.</p> <p>Where one purchased land subject to vendor’s lien notes, and a doubt arose as to ownership of such notes on death of original vendor, he was not required to intervene in a suit between other parties and turn the case into one of interpleader, such pending suit involving several distinct and entirely independent issues from the title to the notes, but could properly proceed in an independent action in interpleader.</p> <p>10. Interpleader <§=>6 — Plaintiff held entitled to waive contract protection and bring in-terpleader.</p> <p>One who purchased land subject to vendor’s lien notes, title to which became so involved in litigation that ownership was doubtful, could waive the benefits of a contract placing the notes in escrow in a bank and requiring indemnity and bring an action in interpleader and have the issue of title to the notes tried and determined by decree of the court releasing the vendor’s lien.</p> <p>11. Interpleader <§=>12 — Defendant cannot complain of overpartiality to self.</p> <p>A defendant in interpleader could not complain that suit could not be maintained because plaintiff was not a disinterested stakeholder, in that he had been over partial to such complaining defendant.</p> <p>12. Interpleader <§=>10 — Plaintiff held in substance a stakeholder. ,</p> <p>Plaintiff in interpleader held in substance a stakeholder for the parties, though he had been over partial and favorable to one of the defendants before bringing the suit, having tendered into court all the money involved.</p> <p>13. Interpieader @=>19 — Certain minor defendants held not necessary parties.</p> <p>In an action in interpleader by purchaser of land subject to vendor’s lien notes against widow of original vendor and heirs, minor heirs out of the state held, not necessary parties defendant.</p> <p>M. Appeal and error @=> 187(3)— Defect in parties not to be raised first on appeal.</p> <p>In an* interpleader action by purchaser of land, subject to vendor’s lien notes, against widow of original vendor and heirs, failure of service by publication to bind minor heirs out of the state could not be raised for the first time on appeal, since such failure could not affect the jurisdiction of the trial court as to the rest of the parties.</p> <p>(5. Appeal and error @=5877(3) — Defendant in interpieader held to have no ground for complaint.</p> <p>A defendant in interpleader who has a judgment for the entire fund cannot complain of a possibly void judgment as to defendants who were not properly served, who do not complain.</p> <p>16. Interpleader @=>15 — Suit held one in rem as to canceling of vendor’s lien.</p> <p>An interpleader action by purchaser of land within the state, subject to vendor’s lien notes, against widow of original vendor and heirs, in so far as it involved a judgment canceling and releasing the vendor’s lien, was an action in rem; the money having been deposited in court.</p> <p>17. Interpleader @=535 — Attorney’s fees proper, ly allowed nonresident minors.</p> <p>In interpleader by purchaser of land, subject to vendor’s lien notes, against widow of original vendor and heirs, where the amount due on the notes was tendered in court, there was no error in allowing attorney’s fees to the attorneys and guardians ad litem of the nonresident minors, though judgment for the entire fund, except for such fees, was rendered for complaining defendant.</p>

<p>1. Libel and slander <@=42(I), 48(1) — Report of judicial proceedings not privileged unless true.</p> <p>Under Rév. St. art. 5597, providing that a fair, true, and impartial account of the proceedings in a court of justice or other official proceedings and reasonable and fair comment or criticism on matters of public concern are privileged, a newspaper account of contempt proceedings was not privileged unless true.</p> <p>2. Libel and slander <@=42(1) — Publication of allegations of petition in connection with granting of preliminary injunction privileged.</p> <p>While a publication of the allegations of a petition charging fraud before any action of the court thereon would not have been privileged, the granting of a preliminary injunction was such a court proceeding as authorized the publication of such fact and a statement in connection therewith of' the allegations of the petition.</p> <p>3. Libel and slander <@=342(1) — Newspaper account of contempt proceedings held privileged, though inaccurately including a party in those charged with fraud.</p> <p>Where L. and W. were enjoined from selling a store, but sold it to O., who, with the others, was convicted of contempt, a newspaper article, which after naming all three parties stated that the conviction was the culmination of a swindle alleged to have been perpetrated by “defendants,” but following this by a particular statement of facts from which it appeared that W. alone was charged with perpetrating the fraud, was true, fair, and impartial, and privileged under Rev. St. art. 5597; the inclusion of O. in the “defendants” charged with the swindling being a mere inaccuracy of statement.</p> <p>4. Libel and slander <@=123 (8) — Question of privilege as dependent on meaning of unambiguous language is question for court.</p> <p>In an action for libel, the question of the meaning of the language used is in the first instance for the court, and if such a meaning is not ambiguous, it is the duty of the court to decide whether it was privileged.</p> <p>5. Libel and slander <@=123(8) — Question of privilege for jury when language ambiguous.</p> <p>In an action for libel if the meaning of the language used and claimed to be privileged is ambiguous, the proper practice is to submit the question of its meaning to the jury.</p>

Denton, Judge. Action by Haymon Mills against the City of Honey Grove. From judgment for plaintiff, defendant appeals. The appellant, a municipal corporation, acquired by purchase on March 12,1918, a sewerage system, and operates the same. Prior to that time it had, been owned and operated by certain private individuals, who installed and finished the plant in 1911. Appellee owns a tract of land of 68 acres, where he resides with his wife and two adult daughters.

A. Childers, Judge. • Suit by J. V. Stitz and wife against W. M. Stephenson and others to cancel' an oil and gas lease. Judgment for plaintiffs, and defendants appeal.

<p>1. Adverse possession <&wkey;112 — Burden of proving appropriation supporting limitations heid upon defendants.</p> <p>In trespass to try title, where defendants based their claim upon adverse possession and statutory limitations, the burden of proving an actual and visible appropriation of the land sufficient to support the limitations rested upon them.</p> <p>2. Adverse possession <s&wkey;6l — Landlord and tenant !&wkey;66(2) — When possession by agent or tenant is adverse to owner stated.</p> <p>A possession which would ordinarily be regarded as adverse is not adverse to the real owner where the possessor has been admitted as agent or tenant of the owner, and in such case limitations against the owner will not begin to run until the possessor has repudiated the relationship of agent or tenant, and the real owner is shown to have notice thereof, and that the possessor is holding adversely to him.</p> <p>3. Estoppel <&wkey;l 16 — Burden of showing estop-pel by plaintiffs to allege ownership held to rest,on defendants.</p> <p>In trespass to try title, where defendants held under conveyances from plaintiff’s agent, the burden of proving estoppel of plaintiff by admissions or representations that plaintiff did not' own the land, but that it belonged to the agent, held to rest upon defendants.</p> <p>4. Trial <&wkey;2l5 — Charge calling for general verdict inapplicable where case submitted on special issues.</p> <p>Where a case is submitted on special issues, a charge calling for a general verdict is inapplicable.</p>

B. Hall, Judge. Action by Mrs. Alice B. Landers against the National Surety Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Frank Hickman against J. W. Sanders and others. Judgment for plaintiff against the named defendant, who appeals.</p>

Action by Beatrice King and her husband against the Western Union Telegraph Company. Judgment for the plaintiffs, and the defendant appeals.

<p>1. Telegraphs and telephones <&wkey;26%, New, vol. 7A Key-No. Series — Not Hable for negligence during government control.</p> <p>A telegraph company is not liable for damages caused by failure promptly to deliver a message while its system was under control of the United States government.</p> <p>2. Telegraphs and telephones &wkey;>68(2)— Mental anguish alone not recoverable for delay in delivering interstate message.</p> <p>Damages for mental anguish alone are not recoverable in an action for delay in delivering an interstate telegraphic message.</p>

<p>Appeal from District Court, Harris County; Ewing Boyd, Judge.</p> <p>Action by Katherine Dick against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

L. Brachfield, Judge. Action by J. L. Albrigbt against John Barton Payne, Agent. Prom judgment for plaintiff, defendant appeals.

<p>Telegraphs and telephones &wkey;>68(2) — Mental anguish for delayed delivery of interstate message not recoverable.</p> <p>Damages for mental anguish caused by failure promptly to deliver a telegram are not recoverable where the message was interstate.</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Action by Potter County against the C. C. Slaughter Cattle Company and others. Judgment for plaintiff, and named defendant appeals.</p>

<p>1. Sales 4^=340 — Manufacturer of goods entitled to full contract price.</p> <p>Where an order was given for folders for use in incasing photographs, and they were specially manufactured for the purchaser, and embossed with his trade-name and address, and were worthless for any other purpose, and could not be disposed of, the seller, on cancellation of the contract or refusal to accept by the purchaser, was entitled to recover the full compensation agreed upon, goods to be held subject to the order of the purchaser.</p> <p>2. Evidence <3=5441 (9) — Oral agreement held not admissible.</p> <p>One who signed an order for folders for incasing photographs, containing a stipulation, “all items in this order .are to be made special, and it is hereby agreed that orders shall not be subject to countermand,” cannot prove that seller’s agent prior to the execution of the agreement represented that purchaser could cancel or countermand any part of the order on 45 to 60 days’ notice, and that purchaser did not read the paper because he believed that it was in accordance with such representation, in that agent said, “Now you sign here,” purchaser being guilty of inexcusable negligence, and no fraud being shown.</p> <p>3. Depositions <3=^44 — Interrogatory held not objectionable as leading.</p> <p>An interrogatory propounded in taking deposition, “State whether or not the goods, wares, and merchandise ordered from your company by E. were shipped out of stock, or was it necessary to manufacture the same specially; and if you say that it was necessary to manufacture the same specially, say whether or not such goods, wares, and merchandise could have been disposed of by ypu to other customers, and if you answer that in the negative, say why these particular goods could not have been used by other customers,” was not open to objection as a whole that it was leading, and court erred in striking it all out.</p> <p>4. Depositions <3=5107(3) — Objection to admission of interrogatory held one which should be made in written motion.</p> <p>An objection as leading to an interrogatory in a deposition, “State whether or not the goods, wares, and merchandise ordered from your company by F. were shipped out of stock, or was it necessary to manufacture the same specially; and if you say that it was necessary to manufacture the same specially, say whether or not such goods, wares, and merchandise could have been disposed of by you to other customers, and if you answer that in the negative, say why these particular goods could not have been used by other customers,” went to the form and manner of taking the depositions, and should have been made in a written motion filed and presented before the trial, rather than orally upon the trial, under Rev. St. art. 3676.</p> <p>5.-Appeal and error <3=5728(3), 742(4) — Assignment of error to exclusion of testimony held waived where not setting out evidence.</p> <p>An • assignment complaining of the exclusion of parts of depositions of witness must be regarded as waived where it does not purport to show by statement or otherwise the nature of the testimony excluded or of the objection thereto.</p> <p>6. Depositions <3=»110 — Statement in deposition as to indebtedness held admissible as against objection urged.</p> <p>An answer to an interrogatory in deposition that defendant was indebted to plaintiff “in the sum of $3,031.56, as per copy of ledger account showing all debits and credits,” attached to the deposition, was not open to general objection that proper predicate had not been made, where the witness on cross-examination stated that he had answered each and every interrogatory “upon my actual knowledge of the facts testified to, and upon the records of the transaction,” and defendant cannot urge that the witness did not show what part of his testimony was based upon the personal knowledge and what part upon record, since the burden was upon him to ascertain by cross-examination what portion of the testimony was inadmissible, and then confine his objection to that portion.</p> <p>7. Evidence <3=5271 (22), 314(1) — Answers held not open to objection as hearsay or self-serving.</p> <p>Testimony in detail in depositions as to manufacture, accounting, wrapping, packing, and shipping of goods ordered by defendant was improperly excluded upon objection made by defendant that the same was “hearsay and self-serving, where witness had testified, in answer to defendant’s cross-examination, ‘answers made by 'me are based upon my own knowledge of the manufacture of the goods called for by the question.’ ”</p>

F. Whitehurst, Judge. Suit by the McGhee Rubber Company and others against the Smith-Calhoun Rubber Company. From order overruling motion to vacate the appointment of a receiver, defendant appeals.

<p>I.Appeal and error &wkey;>731 (2) — Assignment of error that conclusion not supported by evidence held too general.</p> <p>Under rules Nos. 23-27 for Courts of Civil Appeals (142 S. W. xii), an assignment of error that the court’s conclusion of law was contrary to the evidence is too general; for an assignment should state in what respect 'the evidence does not support the conclusion.</p> <p>2. Trial <&wkey;396( I) — Finding must be supported by pleadings.</p> <p>No issue can be decided that is not raised the pleadings.</p> <p>3. Ferries <©=v32 — Public ferrymen liable as common carriers.</p> <p>Public ferrymen are common carriers, and as such liable as insurers of the property committed to their care, and for all accidents, except such as arise from the act of God, or the public enemy, or by the willful act of the complaining party, and are answerable in damages for any injury or loss resulting from their negligence.</p> <p>4. Ferries <&wkey;>32 — Ferrymen bound to provide proper facilities.</p> <p>Ferrymen are bound to provide proper boats, with competent attendants, and to equip them with all other things necessary and proper for the maintenance of the ferry in an efficient state and safe condition.</p> <p>5. Ferries <&wkey;32 — -Ferrymen not liable as insurer as to property retained in owner’s control.</p> <p>Where the owner of property being transported upon a ferry retains control thereof, the ferryman does not assume toward the property the strict responsibility of a common carrier, but his liability therefor in case of loss is governed by the ordinary rules in actions for negligence.</p> <p>6. Ferries &wkey;>32 — Failure to provide end gates or chains held 'proximate cause of drowning of mules.</p> <p>In a case where, but for the owner’s effort to make his mules pull the hind wheels of his wagon back upon the ferryboat without the ferryboat being fastened to the bank, the wagon would not have dragged the mules into the water and drowned them, but the accident could also have been avoided had the ferryman equipped his boat with end gates, stay chains, bumpers, or other means of preventing animals being transported from hacking off the boat, held, that the defendant’s negligence in operating his boat without such means for preventing accidents was the direct cause of the accident, for which he was liable.</p> <p>7. Ferries <&wkey;32 — Custom held not to excuse operation without gates or chains.</p> <p>Where mules were lost off of a ferryboat on which they were being transported because of absence of gates or chains thereon, the ferryman was not excused by the fact that it was customary to operate boats on that river without gates or chains; it not being enough that his and other ferries may have carried animals safely without these protective measures.</p>

<p>1. Railroads <&wkey;383(I) — Pedestrian held guilty of contributory negligence.</p> <p>A pedestrian using a familiar passway in a railroad yard who did not look before crossing a switch track and was struck by cars making a flying switch, held guilty of contributory negligence barring recovery, though statutory signals were not given.</p> <p>2. Negligence <&wkey;83 — Doctrine of discovered peril stated.</p> <p>To recover under the doctrine of discovered peril, it must be made to appear by evidence that the injured person was in a position of imminent danger, and that the defendant, or some one acting for him, actually discovered the peril in time to have averted the injury by the exercise of ordinary care in using all reasonable means at hand.</p> <p>3. Railroads &wkey;400(14) — Evidence held not to raise issue of discovered peril.</p> <p>In an action for injuries received on switch track in yard when a flying switch was made, evidence held not to raise the issue of discovered peril.</p> <p>Walker, J., dissenting.</p>

<p>Municipal corporations &wkey;>185(5)— City may discharge at will constable employed under aileged contract for two years.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1074, relating to the authority of cities under commission form of government, to appoint police, such a city might at will discharge a constable employed • under an alleged contract for two years.</p>

<p>1. Property <g=>l —1“Property” consists of ownership, possession, and unrestricted right of use and disposal.</p> <p>“Property” in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Property.]</p> <p>2. Constitutional law <§=>81 — “Police power” defined.</p> <p>. “Police power” is a grant of authority from the people to their governmental agents for the protection of the health, safety, comfort, and welfare of the public.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Police Power.]</p> <p>3. Constitutional law <§=>81 — Police power cannot invade fundamental liberties of citizen.</p> <p>Police power is subject to the limitations imposed by the Constitution upon every power of government and will not be suffered to invade or impair the fundamental liberties of the citizen.</p> <p>4. Property <§=>l — -The right to acquire, own, and use property is a natural right not originating in Constitutions.</p> <p>The right to acquire and own property and to deal with it and use it as the owner chooses and so long as the use harms nobody is a natural right and does not owe its origin, to Constitutions.</p> <p>5. Constitutional law <©=>81 — Police power founded on public necessity.</p> <p>Police power is founded on public necessity, and only public necessity can justify its exercise.</p> <p>6. Constitutional law <§=87 — Particular use of private property cannot be abridged unless it . endangers public health, public safety, or public welfare.</p> <p>Since the right of a citizen to use his property as' he chooses and so long as he harms nobody is an inherent and constitutional right, the police power cannot be invoked for the abridgment of a particular use of private property, unless such use reasonably endangers or threatens the public health, the public safety, the public comfort, or welfare.</p> <p>7. Municipal corporations <§=>601 — Ordinance prohibiting construction of business house in “residence district” held improper exercise of police power.</p> <p>An ordinance which prohibits the construction of a business house within a “residence district,” defined as a district having more dwelling houses than business houses, within a radius of 300 feet from the place where a business house is sought to be constructed without the consent of three-fourths of the property owners of the district and the approval of the building inspector, held void, not being a proper exercise of the police power.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Residence.]</p> <p>8. Municipal corporations <§=>591 — Ordinance prohibiting construction of business house in residence district unless approved by building inspector void.</p> <p>Ordinance prohibiting construction of business house in residence district, except upon building inspector’s approval of design of building, without specifying any rule or standard to govern the applicant in fashioning the design of his building or to govern the inspector in approving or rejecting it, held void, in that it leaves the right to construct a building subject to the arbitrary discretion of the inspector.</p>

Suit by H. P. Mansfield against James E. Ferguson and others. Judgment for plaintiff, and directing a division of the balance of the fund in controversy among the defendants, was affirmed by the Civil Court of Appeals (215 S. W. 234), and defendant Ferguson and others bring error.

Suit by the Southwestern Settlement & Development Company and others against G. p. May and others. Prom judgment for defendants, plaintiffs appealed to the Court of Civil Appeals, and on judgment there (220 S. W. 133), bring error.

Action by A. Ferrell, in his own behalf and as next friend of his minor son, Leroy Ferrell, against the Beaumont Traction Company, to recover for injuries to the son. Judgment for defendant on a directed verdict was affirmed by Court of Civil Appeals by a divided court (20T S. W. 654), and plaintiffs bring error.

Consolidated actions by Lampasas County against the Héss & Skinner Engineering Company and others, wherein certain parties intervened, and John Scharbauer and others were made parties defendant. Judgment for plaintiff against.John Scharbauer and certain other defendants was by the Court of Civil Appeals affirmed in part and reversed and rendered in part (214 S. W. 468), and John Scharbauer and others bring error.

<p>1. Landlord and tenant <&wkey;l64(7) — Tenant, knowing floor would sink or sway, but making no investigation, held charged with notice of defect.</p> <p>Where a tenant had known for 20 days prior to an accident that a hoard in the floor would sink and sway, but did not even remove the linoleum to find out the cause of the sinking and swaying, she was charged with notice of the extent of the defect in the floor.</p> <p>2. Landlord and tenant &wkey;>l64(7) — Tenant knowing of defective plank in floor held guilty of contributory negligence.</p> <p>Where a tenant, whose landlord had agreed to make repairs, had known for 20 days before an accident that a plank in the floor was defective, but did not replace it herself, or even make an investigation to ascertain the nature and extent of the defect or attempt to guárd herself in any other way than by placing an easily moved hatrack thereon, and at the time of the accident took no notice and paid no attention to the defective plank, she was guilty of contributory negligence as a matter of law.</p>

Suit by B. M. Childress against W. L. Car-wile and others. A judgment in favor of plaintiff and the defendant City of Terrell was reversed by the Court of Civil Appeals (213 S. W. 308), and they bring error.

Action by the Hercules Powder Sales Company against the Alba-Malakoff Lignite Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals and on affirmance of the judgment below (219 S. W. 554) brings error.

Suit by W. E. Sauermann against the El Baso Electric Railway Company. Judgment for plaintiff. Reversed, and cause remanded on appeal to the Court of Civil Appeals (208 S. W. 237), and plaintiff brings error.

Trespass to try title by Francisco Martinez against A. M. Bruni, M. D. Slator, and others. A judgment awarding plaintiff: a small part only of the land claimed by him was affirmed by the Court of Civil Appeals (216 S. W. 655), and plaintiff brings error.

Suit by Mrs. S. E. Pierce and others against the Foreign Mission Board of the Southern Baptist Convention and others to vacate a judgment. Judgment for defendants was affirmed by the Court of Civil Appeals (218 S. W. 140), and plaintiffs bring error.

Supreme Judicial District. Suit by Mrs. S. E. Pierce and others against B. L. Pierce and others. An order removing C. C. Pierce as trustee was affirmed by the Court of Civil Appeals (218 S. W. 144), and plaintiffs bring error.

Action by Annie Osborn against Jess Younger. Prom judgment for defendant, plaintiff appealed to the Court of Civil Appeals, and on affirmance there (218 S. W. 1089), brings error.

Action by J. L. Wortman against J. D. Young. From a judgment of the Court of Civil Appeals for the Fourth Judicial District affirming a judgment for the defendant (221 S. W. 660), plaintiff brings error.

Action by the American National Bank of Oklahoma against D. N. Garland. Judgment of the district court dismissing the suit was affirmed by the Court of Civil Appeals (220 S. W. 397), and plaintiff brings error.

Suit by Ellis Cooper against H. R. Hin-man and wife. From a judgment of the Court of Civil Appeals (212 S. W. 972), affirming a judgment for defendants, plaintiff brings error.

Suit by P. B. Bookman and another against Wm. Wyss and others. From a judgment of the Court of Civil Appeals (212 S. W. 297) affirming a judgment for plaintiffs, defendant brings error.

Suit by Eloisa C. Poff against W. S. Miller. Judgment for plaintiff, and the defendant appealed to the Court of Civil Appeals, which reversed the judgment, and rendered judgment for the defendant (217 S. W. 399), and the plaintiff brings error.

<p>Appeal from District Court, Wichita County ; E. W.. Napier, Judge.</p> <p>Suit by Sam Kelley and others against the Four Brotherhood Oil Company Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Stephens County; W. R. Ely, Judge.</p> <p>Action by F. L. Luckel against the Phillips Petroleum Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Levees and flood control &wkey;>2 — Statute relating to reclamation of bottom lands valid.</p> <p>Laws 85th Leg. (1918) c. 44, authorizing levee improvement districts for the purpose of reclaiming land lying in river bottoms, is valid and in pursuance of Const, art. 16, § 59.</p> <p>2. Eminent domain &wkey;>74 — Construction of levee held not a taking, but only damaging of-land, and compensation need not first be provided.</p> <p>The construction of a levee to reclaim river bottom lands along land contiguous to a river on the side opposite that on which the levee extends does not amount to a taking, which Const, art. 1, § 17, provides shall not be done without first providing compensation, but is merely a damaging of it within the meaning of such provision, and compensation need not be provided before the damage, assuming that such levee increases the depth of water on such land and causes it to flow with greater violence across it and stand for a longer' period of time than formerly, and this is true under Const. U. S., art. 5.</p> <p>3. Eminent domain <&wkey;74 — Compensation not first required in absence of physical appropriation.</p> <p>Only when there is a physical appropriation of property is the taking such that its owner can first require compensation before the property is taken, under Const, art. 1, § 17.</p> <p>4. Waters and water courses i&wkey; 162 — Embankment causing water to stand longer upon bottom lands does not create easement.</p> <p>The result of constructing embankments on adjacent lands, thereby increasing the depth and velocity of overflow water, and causing it to linger thereon for a longer period of time than it would under natural conditions, does not result in an easement on the land; an easement being acquired only by written grant and by prescription.</p> <p>5. Eminent domain <&wkey;58 — Easement in land, not acquired by improvement district by condemnation as against one owning entire title.</p> <p>Although Laws 35th Leg. (1918)- c. 44, relating to creation of improvement districts for the purpose of reclaiming land lying in river bottoms, expressly confers upon them the right of eminent domain for the purpose of acquiring fee-simple title, easement, or right of way over private and public lands and waters, a mere interest in land or right of use of land in the nature of an easement cannot be validly acquired by condemnation where the entire fee is owned by the person against whom such easement is sought to be acquired, but, if such private owner’s interest does not extend beyond a mere easement, that title and right may be taken from the owner only by condemnation in conformity with the provision of Const, art. 1, § 17. '</p> <p>6. Levees and flood control <§=39 — Levee district held not entitled to keep space between levee and water clear of obstructions.</p> <p>Laws 34th Leg. (1915) c. 146, § 57 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5581), authorizing a district supervisor “to keep the space between any levee or other improvements and the stream, or streams, the overflow of which is intended to be prevented, free and clear of all obstructions,” has no application whatever to a levee improvement constructed under Laws 35th Leg. (1917) c. 44, the purpose of the former chapter being to authorize improvements to confine the water within the stream of the channel, the subject of the latter chapter being to create districts merely designed to divert water from premises far removed from the stream itself after it had already overflowed and extended to the levees constructed, notwithstanding the reference in section 60 of the latter to the former chapter.</p> <p>7. Injunction <&wkey;l33 — Temporary mandatory injunction not granted where it will inflict great injury.</p> <p>A temporary mandatory injunction which would require the removal of a completed levee built at an expense of $400,000 should not be granted to a landowner whose injuries by reason of the levee are comparatively small, but such landowner should be required to obtain compensation by recourse to a remedy at law.</p> <p>8. Injunction <&wkey;!33 — Not purpose of temporary injunction to finally dispose of entire subject-matter.</p> <p>The purpose of a temporary injunction is to maintain or restore the status quo until upon a final hearing court may dispose of the controversy by granting full relief to the party whose right the law and the facts support, and a temporary mandatory injunction should not be granted where it will effectually and finally dispose of the entire subject-matter of the suit.</p>

<p>Appeal from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Suit by the San Antonio Loan & Trust Company and others against John H. Davis, Joseph C. Martin, and Minnie B. Martin and others, in which the two last-named defendants filed a cross-action. From that portion of the judgment holding a lien asserted by the two last-named defendants in their cross-action superior to that claimed by plaintiffs, the plaintiffs appeal.</p>

<p>1. Appeal and error <®=>719(6) — Special findings of jury conclusive when error not assigned thereon.</p> <p>Special findings by the jury are conclusive where no assignments of error are addressed to such findings as being unsupported by the evidence.</p> <p>2. Insurance @=>425 — Appropriation of automobile by prospective purchaser permitted to drive it pending collection of check held “theft.”</p> <p>Under Pen. Code 1911, art. 1348, defining theft by a bailee where automobile dealers permitted a prospective purchaser to take an automobile in order that he might learn how to drive it pending the collection of his check for the price or th'o receipt of information by them that it was good, his appropriation of the automobile amounted to “theft” within a policy insuring the dealers against theft.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Theft.]</p> <p>3. Insurance j§=»646(2) —Burden on insured to show automobile had not passed out of its possession when stolen.</p> <p>Under a policy insuring automobile dealers against theft and providing that the insurance should continue until the property was delivered to a purchaser or otherwise passed' out of possession of the dealer, the burden was on insured to show that an automobile for the theft of which recovery was sought had not passed out of its possession within the meaning of such provision interpreted in connection With other parts of the policy, and construed according to the rules of construction for insurance policies.</p> <p>4. Insurance <§=wl46(3) — -Policy construed favorably to insured.</p> <p>As the language in an insurance policy is used by the insurer to express the terms and conditions upon which it issues the policy, it will be strictly construed against it, and liberally in favor of insured, and if the words admit of two constructions that one most favorable to the insured will be adopted.</p> <p>5. Insurance @=ol46( I) — -Language of policy to be construed according to evident intent.</p> <p>The language used in an insurance policy must be construed according to the evident intent of the parties, to be derived from the words used, the subject-matter to which they relate, and the matters naturally or usually incident thereto.</p> <p>6. Insurance <§=ml46(3) — Language construed to prevent forfeiture if fairly susceptible of such construction.</p> <p>Forfeitures are not favored by the law, and, if the language of an insurance policy is fairly susceptible of an interpretation which will prevent a forfeiture, it will be so construed.</p> <p>7. Insurance <®=»329 — Automobile delivered to prospective purchaser pending collection of check for price held not to have passed out of dealer’s possession.</p> <p>Under a policy insuring automobile dealers against theft, and providing that it covered all automobiles owned by insured from time of delivery to it until the property was delivered to a purchaser or otherwise passed out of insured’s possession, where the dealer permitted a prospective purchaser to take an automobile in order that he might learn to run it,pending collection of his check for the price or the receipt of information as to whether it was good, the dealer held not to have parted with possession in view of other provisions of policy.</p>

<p>Appeal from District Oourt, .Wichita County; H. E. Weldon, Judge.</p> <p>Suit by Anderson & Patterson against W. S. Curlee. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Guadalupe County Court; J. B. Williams, Judge.</p> <p>Action by E. C. Willmann and another against Henry Schmidt. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Jasper County; George E. Holland, Judge.</p> <p>Action by Earlton Moore against the Texas Hardwood Company and others. From judgment denying plea of privilege, defendants appeal.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Suit by C. D., Cleveland against A. D. Spencer, in which a plea of privilege was filed. The plea was allowed, and plaintiff appeals.</p>

B. Muse, Judgé. Action by the Sigmond Rothschild Company, Incorporated, and another against the Waxahachie National Bank and others. From an order overruling pleas of privilege, defendant named and S. C. Watson appeal.

<p>Appeal from Nacogdoches County Court; J. M. Marshall, Judge.</p> <p>Suit by J. L. Williams against J. W. Stall-ings and others. Judgment for plaintiff, and defendants appeal.</p>

<p>J. Venue <@=>5 (2), 7 — Suit for work and labor may be brought in county where performed if lien exists on property therein.</p> <p>The law providing that venue may be laid in the county where work and labor is performed applies only to suits of which the justice court has jurisdiction, and not to suits over which the county or district court may have jurisdiction, under Rev. St. 1911, art. 2308, subd. 4, as amended by Act March 29, 1917 (Daws 1917, c. 124, § 1 [Vernon’s Ann. Civ. St. Supp. 1918, art. 2308, subd: 4]), but venue may be laid in such county where a lien exists on property therein.</p> <p>2. Mines and minerals <@=>117 — Evidence held to show oil well driller performed labor entitling him to lien.</p> <p>In an action to foreclose a lien on machinery used in drilling oil well, evidence held to show that plaintiff “performed labor * * * used in the digging, drilling, operating, completing, maintaining, or repairing an oil and gas well,” etc., within the meaning of Acts 35th Leg. (1917) c. 17, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5639a), relating to liens for labor performed, though no well was actually drilled.</p> <p>3. Constitutional law <@=70(l) — Provisions not extended beyond apparent intent of Legislature.</p> <p>Court cannot by implication or by interpretation, not authorized by the plain language of an act, extend the provisions thereof beyond that which it is apparent the Legislature alone intended, same to apply.</p> <p>4. Mines and minerals <@=>l 12(3) — One performing labor on oi! well entitled to iien on appurtenances.</p> <p>Acts 35th Leg. • (1917) c. 17 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5639a-5639h). provides for a lien on appurtenances to an oil or gas well, buildings, pipe lines, leasehold interest, and land used in operating for oil, gas and other minerals, for labor performed under proper contract of employment as provided for by section 1 (article 5639a) of such act.</p> <p>5. Mines and minerals <§=> 112(3) — Certain machinery and materials held not “appurtenances” to oil well.</p> <p>A derrick, engine, pumps, rotary, casing, drill joint, swivel, crown block, traveling block, line shaft, and drill were not appurtenances to an oil or gas well intended to be, but not, drilled, or a leasehold which has ceased to exist, or a leasehold interest which, if it did exist 'at time suit was filed, was not sought to be sub- ■ jected to a lien under Acts 35th Leg. (1917) e. 17, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5639a), giving a lien for labor performed under contract in drilling, maintaining, or repairing oil or gas well on the land or leasehold interest and appurtenances; the word “appurtenances” meaning attached to or belonging to another thing as' principal and passing as an incident to such principal.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appurtenance-Appurtenant.]</p>

Action by Rogers • & Adams and others against J. L. Lancaster and another, as receivers of the Tesas & Pacific Railway, and the Panhandle & Santa Fé Railway Company. Judgment for the Panhandle & Santa Fé Railway Company but against the receivers, and the latter appeal.

<p>1. Venue <S=^8 — Fraud of seller held to have occurred in county of his residence.</p> <p>Where all details of proposed purchase of land were had in Rusk county, and a check was drawn and delivered to a third person in such county to guarantee the carrying out of the sale of land in such county, and the seller of the land fraudulently obtained possession of the cheek in such county and cashed it at a bank therein, and such bank sent the check to a bank in another county, where purchaser resided, for collection, a plea of privilege by the defendant should have been sustained in action brought by the purchaser in the county of his residence to recover the amount of the cheek, the fraud, if any, occurring in the county where the check was obtained and cashed by the defendant, under Rev. St. arts. 1830, 1903, 2308.</p> <p>2. Pleading <®=»lll — Facts relied on to show exception to venue statute in county of defendant’s residence must be proven.</p> <p>Where the jurisdiction of the person of a defendant is claimed under some exception to the general statute of. venue, and he pleads the privilege of being sued in the county of his domicile, to deprive him of that right the facts relied on should be not only alleged, but also proven, under Rev. St. arts. 1830, 1903, and 2308.</p>

<p>Appeal from County Court, Martin County ; A. G. Odom, Judge.</p> <p>Suit by J. R. Sale against J. L. Lancaster and. another, as receivers of the Texas & Pacific Railway Company. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Pleading <&wkey;34(7) — Rule as to inferring material fact omitted from complaint, when objected to on appeal, stated.</p> <p>In determining the sufficiency of allegations as to a material or particular fact, when first questioned on appeal, every reasonable intendment must be indulged in favor of the pleading, and if it contains no direct or specific statement of the fact, but from the petition as a whole the allegation of such fact may be reasonably inferred, then such inference must be given effect, so where complaint by son of insured to recover on a policy payable to the estate omitted to allege there was no administration, or necessity therefor, or for suit by an heir, the petition was sufficient if containing allegations from ■ which such omitted facts might reasonably be inferred.</p> <p>2. Insurance <&wkey;629(I)— Complaint on policy held not to supply by inference omitted allegations as to administration.</p> <p>In a complaint by a son of insured on a policy payable to the estate,- allegations that his father died intestate leaving plaintiff as his only heir, and that plaintiff is entitled to receive the full amount due on the policy, and that there was another policy, the amount of which insured had paid to plaintiff’s next friend as temporary administratrix, did not supply the omission to allege administration or lack of necessity therefor, or necessity for suit by an heir.</p> <p>3. Pleading &wkey;>8(l2) — Allegation that plaintiff was entitled to receive amount due a conclusion.</p> <p>Allegation by a son. suing to recover on a policy payable to the insured’s estate, that plaintiff was entitled to receive the full amount ■due, was a conclusion, and not to be considered in determining whether the complaint inferentially supplied the omission to allege administration or lack of necessity therefor.</p> <p>4. Appeal and error <&wkey;l93(5)— Omission from complaint held fundamental error, reviewable without exception; “error apparent on the face of the record.”</p> <p>On a complaint by a son to recover on a policy payable to insured’s estate, failure to allege administration or lack of necessity therefor, or for suit by an heir, was “error apparent on the face of the record," reviewable without exception under Rev. St. art. 1607; such error being defined as a prominent error, either fundamental in character or one determining a question on which the very right of the case depends.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Error Apparent.]</p> <p>5. Insurance &wkey;>464 — Exemption from loss by intentional act of another held to relate to disability, and not fatality; “disability;” “fatal injuries.”</p> <p>An exemption in a policy from liability “from disability or fatal injury” received by the insured (1) while in military or naval services during the war or while engaged in aeronautics, (2) while under influence of or affected by intoxicants or narcotics, or (3) if said “disability” results from violation of the law or the intentional act of the insured or of any other person, did not exempt the company, where insured was killed by another, the rule of strict construction applying, and the exemption being in the nature of a forfeiture, for “disability” and “fatal injury” have distinctly different meanings when used in accident and disability insurance policies; the one embracing injuries preventing the insured from performing the work in which he is usually employed, but not resulting in death, and the other embracing injuries resulting in death.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Disability.]</p>

<p>Appeal from District Court, Falls County; Prentise Oltorf, Judge.</p> <p>Action by R. W. Bass and another against F. Dreyer. From judgment for plaintiffs, defendant appeals.</p>

<p>1. Railroads &wkey;>350 (30) — Contributory negligence of automobile driver crossing ahead of train held for jury.</p> <p>A driver of an automobile who approached a crossing obstructed by weeds, making it impossible for her to see a train approaching without signal until she was within 15 feet from the track, which she attempted to cross, believing that it was her only chance to escape, held not guilty of contributory negligence as a matter of law.</p> <p>2. Appeal and error <&wkey;1062(1) — Submission of special issue in crossing accident case held harmless error.</p> <p>In an action for injuries sustained by plaintiff’s wife, whose automobile was struck by defendant’s freight train at a crossing, that the court submitted as a special issue whether defendant had allowed weeds and trees to grow upon the right of way so as to obstruct the view of trains approaching the crossing, such issue having no basis in the pleading, held harmless error in view of the finding of the jury.</p> <p>3. Railroads <&wkey;350((6) — Negligent speed of automobile driver held for juty.</p> <p>In an action for injuries in a collision between an automobile and a train at a crossing, submission of the issue as to the speed of the automobile held proper; the evidence being conflicting.</p> <p>4. Damages <&wkey;l3l (4) — $2,400 held not excessive for broken ribs, etc.</p> <p>Where plaintiff’s wife, driving an automobile, was struck by defendant’s freight train at a crossing, sustaining two broken "ribs and experiencing intense suffering for several weeks, and was rendered unable to perform her household duties for four or five weeks, a verdict for $2,400 was not excessive.</p>

<p>1. Carriers &wkey;>340 — Action for death of caretaker of stock held not to present case of discovered peril.</p> <p>Where a person in charge of a shipment of stock as a caretaker alighted frqm defendant’s freight train at a station to examine the stock, and was killed while attempting to board the train, which had started without notice to deceased, there being evidence to show that those in charge of the train did not know that deceased had left it, held, that the case was not one of discovered peril, and a recovery on that ground would not have been warranted.</p> <p>2. Carriers <&wkey;280(5) — Carrier’s duty towards passenger on freight train stated.</p> <p>A carrier who accepts a passenger on its freight train is charged with the same degree of care as on a regular passenger train, but the passenger will be considered to have accepted passage with knowledge that he will not receive the same service as on a passenger train, and he is subject to the usual and ordinary handling and service by very competent and prudent persons on such train; he assenting to the inconveniences incident to such mode of traveling. ■</p> <p>3. Carriers <&wkey;>247(5) — Status of passengers not lost by alighting at intermediate station.</p> <p>A passenger may remain such in getting off the train at an intermediate station, so long as his object is not inconsistent with his character as a passenger, and such right does not depend on notice having been given to the conductor that he desired to alight.</p> <p>4. Carriers <&wkey;>320(9) — Lack of knowledge that stock caretaker had left train held not to relieve carrier from negligence in manner of starting as matter of law.</p> <p>Where a caretaker of stock alighted from a freight train at an intermediate station to examine the stock, and was killed in attempting to board the train, which had started without notice, it could not be field, as a matter of law, that because the operatives of the train did not have notice that deceased intended to leave the train, or had done so, they were not guilty of negligence in starting the train without notice.</p> <p>5. Carriers <&wkey;>347(5) — Stock caretaker’s negligence in boarding moving train held for jury.</p> <p>Where a caretaker in charge of stock had alighted from a freight train at an intermediate station to examine the stock, and was killed while attempting to board the train, which had started without notice, held, that deceased was not guilty of contributory negligence, as a matter of law, in attempting to board the train when he did; the evidence as to the speed of the train being conflicting.</p> <p>6. Carriers <&wkey;295(l)— Duty of train operatives to keep lookout defined.</p> <p>Ordinarily the duty on operatives of trains to keep a lookout does not mean to keep a lookout in the rear or to the rear of the train, but it is their duty to keep a lookout that the track ahead is free from obstruction, and the failure to do so may be negligence.</p> <p>7. Trial <&wkey;35Q(7)~FaiIure to submit contributory negligence of caretaker of stock attempting to board moving train held erroneous.</p> <p>Where a caretaker in charge of stock alighted from defendant’s freight train at an intermediate station to examine the stock, and was killed while attempting to board the train after it had started without notice to him, it was error to refuse definitely to submit affirmatively the issue as to whether deceased was negligent in attempting to catch the train at the time and at the rate of speed it was then going and in the manner in which he undertook to board the train.</p> <p>8. Trial <&wkey;350(5) — Submission of Issue of proximate cause unnecessary, where stock caretaker was killed while negligently boarding a moving train.</p> <p>Where a caretaker in charge of stock left the train at an intermediate station to examine the stock, and was killed while attempting to board the train after it had started without notice, and there was no controvertible issue of fact that deceased’s negligence, if established, was the proximate cause or a concurring proximate cause contributing to the injury, it was not necessary to submit proximate cause as an issue of fact in connection with the issue of negligence in boarding the train.</p>

<p>Trial <©=>191 (2) — Charge in divorce action held erroneous as assuming fact of cruelty.</p> <p>In suit for divorce, submitting to the jury, whether from the evidence in the case the conduct of the defendant toward plaintiff as alleged in plaintiff’s petition was of such a nature as to render their further living together insupportable, was erroneous as impliedly assuming that the charges of cruelty in plaintiff’s petition had been proven.</p>

<p>Appeal from District Court, Potter County; Henry S. Bishop, Judge.</p> <p>Action by Laura Morrow, administratrix of the estate of J. M. Morrow, deceased, against the Fort Worth & Denver City Railway Company. Judgment for plaintiff and defendant appeals.</p>

E. Weldon, Judge. Action by W. P. Seal and others against the City of Graham and others, to enjoin a prosecution- for violation of an ordinance. From a judgment granting the injunction, defendants appeal.

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Action by A. G. Edens against the Interstate Automobile Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Erath County; Robert L. Thompson, Special Judge.</p> <p>Action by Eliza McKinzie, by O. B. Hester, etc., against Lucas McKinzie and J. L. Sutton. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Erath County; Robert L. Thompson, Special Judge.</p> <p>Action by Eliza McKinzie against W. H. Frey and others. Judgment for defendants, and plaintiff appeals.</p>

B. Hatchitt, Judge. Action by George T. Browne and another against A. W. Culp and W. E. Reynolds, as partners. Judgment for plaintiffs, and defendant Culp appeals, the cause as to Reynolds having been dismissed.

<p>1. Appeal and error &wkey;>725(2) — Assignments held sufficient to test sufficiency of complaint.</p> <p>An assignment that the court erred in sustaining and not overruling the general demurrer of the defendants to the plaintiff’s third amended original petition filed in said cause was’Sufficient for review of the complaint.</p> <p>2. Executors and administrators <®=>20(10)— Purchaser from heirs held “person interested,” entitling him to maintain certiorari to review appointment.</p> <p>A purchaser of an interest in the lands of a decedent from his heirs is a person interested in the estate entitled to bring certiorari, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 733, and the statute was not to he construed .as applying only to parties to the proceedings.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Any.]</p> <p>3. Husband and wife <&wkey;276(l) — Order appointing community administrator held valid against collateral attack.</p> <p>Probate court having general jurisdiction of the subject-matter in appointing a community administrator, the fact that there might be no community debts, even if jurisdictional, did not render the order invalid as against collateral attack.</p> <p>4. Husband and wife <&wkey;276(l) — Proceeding to set aside order appointing community admini-stratrix held a direct attack.</p> <p>A proceeding to revise or set aside the order appointing widow of a decedent as his community administratrix, alleging that it had been improvidently entered, and that there were no community debts necessitating administration, was a direct, and not a collateral, attack on the appointment.</p> <p>5. Husband and wife <&wkey;276(I) — Existence of children the dominant reason for community administration.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3592-3614, the dominant reason for administration of community property was to enable the survivor to protect the interests of children; and nonexistence of community debts, debts not being made a requisite of the application, should not defeat it.</p> <p>6. Husband and wife <&wkey;276(l) — “Child” warranting community administration must be minor.</p> <p>Under Vernon’s Sayles’ Ann. St. 1914, arts. 3592-3614, making the survivorship of a child the dominant reason for appointment of community administrator, such child must be a minor. In its widest sense, by child or children is meant an offspring of either sex and of any age, and these terms are generally so considered in statutes of descent and distribution, and when used in devising property by will. Nevertheless a very general, and perhaps the most frequent, interpretation of the term “child” is that such a one is a young person of any age less than maturity.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Child— Children.]</p> <p>7. Husband and wife <&wkey;276(I) — Appointment of wife as community administratrix held improvident after appointment of general administrator.</p> <p>Where the surviving wife had consented to and joined in a petition for the appointment of an adult son as general, administrator, it was improvident to subseqeuntly grant her an appointment as community administratrix; the law not contemplating two independent administrations at the same time.</p> <p>8. Executors and administrators <&wkey;29(2)— Attack on appointment held collateral.</p> <p>Where plaintiff brought proceedings to revise or set aside an order appointing a surviving widow as community administratrix, contention by the defendants therein, claimants under the heirs, that the fact relied on by plaintiff as invalidating the appointment of the community administratrix also showed the invalidity of general administration granted on application of an adult son was collateral.</p>

<p>' Appeal from District Court, Wichita County ; II. E. Weldon, Judge.</p> <p>Suit by Lloyd Weaver against the Republic Supply Company and another. Prom a decree for plaintiff, defendant named appeals.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by the Choate Oil Corporation against the Plateau Oil Company and others. From a decree granting an injunction, defendants appeal.</p>

<p>Appeal from District Court, Stephens County.</p> <p>Bill by J. C. Nolen against W. A. Harding and others. From an order granting a plea of privilege, plaintiff appeals.</p>

<p>(. Bills and notes <&wkey;460 — No misjoinder of parties defendant in action on notes.</p> <p>Plea of misjoinder of parties defendant was properly overruled where plaintiff was suing several defendants on one note, and for foreclosure of lien of trust deed to secure its payment, and only one of the defendants on five vendor’s lien notes, where all the notes in question grew out of and were executed in pursuance of an agreed settlement of a land suit involving title to a tract of land, in which judgment, embodying the settlement agreement, was entered, in view of Yer'non’s Sayles’ Ann. Civ. St. 1914, art. 1842.</p> <p>2. Process <&wkey;4— No citation necessary on cross-action by codefendant.</p> <p>A defendant, having entered his appearance in the main ease, was not entitled to be served with citation as to a cause of action asserted against him in a cross-action by a codefendant.</p> <p>3. Continuance <&wkey;51 (5)— Motions for further continuance properly overruled.</p> <p>Where case was postponed and reset at least three times at the instance of defendants, iielü, that court did not abuse its discretion in overruling motions for a continuance by defendants on the ground they were necessary witnesses, and could not be present at the trial because of illness of children and duties to be performed as chief clerk and legal adviser of a state department, especially as the parties appeared and testified by deposition.</p> <p>4. Continuance <&wkey;7 — Motions within discretion of court.</p> <p>Motions for continuance are purely within the discretion of the trial court.</p> <p>5. Subrogation &wkey;>3l(4) — Surety paying note subrogated to rights of mortgagee.</p> <p>Where one signing as surety notes secured by trust deed paid off part of them, he became subrogated to the rights of the payee and to the enforcement of the lien of the trust deed for his protection, notwithstanding that the land in question was homestead property.</p> <p>6. Pleading <&wkey;30l(3) — Verification on knowledge and belief held not to present issue of non est factum.</p> <p>In action to foreclose trust deed, wherein the answer of defendants was sworn to be true “to the best of their knowledge and belief,” the verification was not sufficient to present the issue of “non est factum” under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1906, subd. 8.</p> <p>7. Mortgages <&wkey;3IO — No complaint can be made that mortgagee had not released certain frontage where no demand made.</p> <p>No complaint can be made, in foreclosure of trust deed providing that 100 feet of frontage should be released for every $250 paid, that mortgagee failed to release any part thereof, although $644 had been paid, where there was never any demand made of plaintiff to release any part of the frontage, and the deed of trust did not designate what portion of same should be released, especially as plaintiff alleged that it was, and had always been, ready to release same when it was advised as to what portion was desired to be released.</p> <p>8.Appeal and error <&wkey;733 — Assignments too general for consideration.</p> <p>Assignments merely saying that the judgment was contrary to the law and evidence were too general to be considered, under Courts of Civil Appeals rules 24-26 (142 S. W. xii). ■</p>

<p>Appeal'from Tarrant County Court; W. P. Walker, Judge. • -</p> <p>Action by J. B. Beach and another, doing business under the naine of the Beach1 Plumbing & Heating Company, against ■ the Western Builders, Incorporated,• O. C. Yea-, zie, C.- S. Gaynor, and others. Erom judgment for plaintiff against' the named defendants, the two last named defendants appeal.</p>

<p>Master and servant <&wkey;>332(2) — Scope of supervising engineer’s authority held for jury.</p> <p>Where subcontractors were engaged in paving under the supervision of an engineer employed by a firm of supervising engineer’s, and it developed that the plans for the curb or gutter encroached upon the foundation of a gasoline filling station owned by plaintiff, and that upon refusal of the subcontractor to disturb such foundation the engineer seized a sledge hammer and displaced the foundation, thereby damaging it, held that the evidence raised the issue whether the engineer, in destroying the foundation of gasoline tank, was acting within the general scope of his authority and in furtherance of the undertaking of the defendant firm of supervising engineers, regardless of whether he was authorized to do the very act in question, and it was not error to refuse a peremptory instruction for defendant.</p>

<p>I.Insurance <&wkey;145(1)— Conversations with agent held insufficient to show agreement with agent for insurance or renewal of policy.</p> <p>Where the agent’s written commission limited his authority to written contracts of and for insurance, an agreement for insurance between insured and the agent several years before the loss of insured’s property by fire, and casual inquiries by the insured from time to time as to whether insurance was in force, held not to constitute a binding agreement of issuance or renewal of insurance so as to cover loss in February, where the last'written policy in defendant company had expired the preceding May.</p> <p>2. Insurance <@=^145(2) — Agent held unauthorized to agree orally to renewals.</p> <p>Where insurance company issued no policies except written ones, and policy issued to plaintiff contained an explicit provision that policies might be renewed “in consideration of premium for the renewal term,” and an agent’s commission expressly withheld from him authority to make verbal contracts of or for insurance, the agent had no authority, actual or apparent, to make an oral agreement for insurance or for renewal of insurance.</p> <p>3. Insurance >&wkey;645(5) — Variance between allegation of request for renewal of policy and proof fatal.</p> <p>In an action to recover for a fire loss, an allegation that plaintiff had requested of defendant’s agent a renewal of a policy expiring May 5, 1919, such request having been acceded to and the premium for renewal having been accepted by the agent, being met only by substantial proof of the indefinite expression by plaintiff of a desire that insurance on the property be kept up, the variance is fatal.</p>

B. Terrell, Judge. Suit by Ray Lambert, Commissioner of Sanitation, Parks, and Public Property, and another, against O. B. Black, Mayor of the City of San Antonio, and others. Judgment for plaintiffs, and defendants appeal.

F. Weldon, Judge. Suit by the Mid-Texas Petroleum Company and another against C. F. Colcord and others. From a judgment for plaintiffs for insufficient relief, all parties • appeal.

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Suit by S. B. Dobbs against S. C. Counts. From a 'judgment for plaintiff, defendant appeals.</p>

M. Marshall, Judge. Action by Woods, Taylor & Co., a corporation, against Allen Smith and others. From judgment overruling the named defendant’s plea of privilege, he appeals.

Action by L. O. Ramsey against George W. Wahl, his mother, and another. From a judgment of the Court of Civil Appeals (218 S. W. 559), reversing a judgment for plaintiff against defendants Wahl and his mother, plaintiff brings error, and defendants Wahl also file cross-error.

Action by C. C. Taber against the Aransas Harbor Terminal Railway Company and another. From a judgment on directed verdict for defendants, plaintiff appealed to the Court of Civil Appeals, and on judgment there in favor of plaintiff (219 S. W. 860), defendant named brings error.

Action by M. E. Guthrie, for whom Athlena Long was substituted, against Willis Bayles.; and another. Judgment for plaintiff affirmed by the Court of Civil Appeals, (218 S. W. 131) and named defendant brings error.

Action by J. B. Robertson against H. W. Smith and others. Judgment for defendants reversed, and judgment rendered for plaintiff by the Court of Civil Appeals (220 S. W. 620), and defendants bring error.

Action by the Sealy Oil Mill & Manufacturing Company against the Bishop Manufacturing Company. Judgment for plaintiff was reversed, and judgment was rendered for the defendant by the Court of Civil Appeals (220 S. W. 203), and plaintiff brings error.

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Action by Mrs. M. F. Rutherford and others against Mrs. Pete Deaver and others. Judgment for the defendants, and the plaintiffs appealed to the Court of Civil Appeals, which affirmed the judgment (218 S. W. 31), and the plaintiffs bring error.</p>

<p>1. Counties <&wkey;94(2) — Irregular payments by county treasurer held proper credits where ratified by commissioners’ court.</p> <p>Payments by a county treasurer for the benefit and purposes of the county in pursuance of-his capacity as purchasing agent, made under order of the commissioners’ court or upon the requisition of the county judge or commissioners, instead of in pursuance of certificates or warrants, are proper credits in favor of such treasurer if thereafter in due course they are approved and ratified by the commissioners’ court, the payments being such as were within the power of the commissioners’ court to direct in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1505 and 1507, notwithstanding that article 1509 provides -that the county treasurer shall not pay out any money except in pursuance of certificates or warrants.</p> <p>2. Jury &wkey;>136(6) — Defendants asking judgment over against each other entitled to six peremptory challenges each.</p> <p>Each party to a civil suit in a district court are entitled to six peremptory challenges, and parties defendant asking judgment over against each other are within the rule.</p> <p>3. Appeal and error &wkey;>I045(l) — Error in respect to peremptory challenges not reversible where prejudice not shown.</p> <p>Where the bill of exceptions fails to show that any objectionable juror was accepted by appellant by reason of the ruling of the court on peremptory challenges, but shows that it did not appear to the court that the party was' compelled to take any jurors not acceptable to him nor that the jurors were partial or prejudiced nor that any harm resulted to the party, no reversible error is shown.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Proceedings under the Workmen’s Compensation Act by Mrs. Louise E. Hoover, opposed by the G. B. Smith Milling Company, employer, and the Millers’ Mutual Casualty Company, insurer. An award of compensation was sustained by the Court of Civil Appeals (216 S. W. 475), and insurer brings error.</p>

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Action by J. Bennett Noble against the American Indemnity Company and others. A judgment for plaintiff against the defendant named was affirmed by the Court of Civil Appeals (216 S. W. 441), and it brings error.</p>

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Suit by B. S. Zellner, guardian of the estate of G. B. Goodwyne, a minor, against Lena Goldberg and others, to set aside a judgment. On plaintiff’s appeal from the judgment rendered, the Court of Civil Appeals reformed the judgment and remanded the suit, with directions (220 S. W. 587), and defendants bring error.</p>

<p>Appeal from District Court, Comanche County; J. R. McClellan, Judge.</p> <p>Earl Bell was convicted of perjury, and he appeals.</p>

<p>•Criminal law <®=»!094 — Conviction affirmed, in absence of statement of facts, bill of exceptions, and error in record.</p> <p>There being no statement of facts or bill •of exceptions, without which none of the matters assigned as error in the motion for new trial can be considered, and no error appearing on the face of the record, conviction will be affirmed.</p>

<p>Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge,</p> <p>J. B. Day was convicted of theft, and he appeals.</p> <p>Leave to withdraw appeal granted, and appeal dismissed.</p>

<p>Appeal from Harris County Court, at Law; Roy F. Campbell, Judge.</p> <p>Kate Huey was convicted of keeping a disorderly house, and she appeals.</p>

<p>Appeal from Williamson County Court; E. D. Love, Judge.</p> <p>A Mexican called “Plea” was convicted of theft, and he appeals.</p>

C. Joiner, Judge. Action by Tom Thompson against the Panhandle & Santa Fé Railway Company and J. L. Lancaster and another, receivers for the Texas & Pacific Railway Company. Judgment for plaintiff, and the receivers appeal.

<p>I. Carriers <&wkey;230(3)— Holding sheep in'cars overnight and forwarding on first .regular train not negligence as matter of law.</p> <p>It cannot be said, as a matter of law, that a carrier was not negligent in keeping sheep in cars overnight and forwarding them on the first regular train leaving after they were loaded.-</p> <p>On Motion for Rehearing.</p> <p>2. Carriers <®=o228(5) — Evidence held to warrant finding that employees of one raiiroad were agents of another in loading sheep.</p> <p>In an action against a carrier for delay in loading and shipping sheep, which were loaded on the cars by employees of another railroad who used the same yards and pens, evidence held sufficient to sustain a presumed finding by the trial judge that the relation of principal and agent existed between defendant carrier and the employees of the other railroad? the issue not having been submitted to the jury.</p>

<p>Harper, O. J., dissenting.</p> <p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by J. M. Bassett against John Barton Payne, Director General of Railroads, as Federal Agent, and another. From a¡ judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Eastland. County; E. A. Hill, Judge.</p> <p>Suit, by W. J. Duckworth and others against W. M. Collie and others. Judgment for defendants, and plaintiffs appeal.</p>

Error from Eastland County Court; R. L. Rust, Judge. Condemnation proceedings by Wichita Falls, Ranger & Fort Worth Railway Company against R. D. Cooper. From a judgment for defendant on appeal from the commissioner’s award of damages, plaintiff brings error.

Suit by W. H. Latham and. others against E. L. Kistler and the Producers’ & Refiners’ Corporation. After plaintiffs dismissed as to the corporate defendant, judgment was rendered for defendant Kistler, and plaintiffs appeal.

A. Martin, Judge. Suit by George Gordon against the Banner Oil & Gas Company to recover damages for breach of contract. Judgment for plaintiff; and defendant appeals.

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Suit by Catherine P. Martelli and husband against A. Cecacci and wife. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Lipscomb County Court; B. E. Shutterly, Judge.,</p> <p>Action by J. E. Hostutler against H. H. Alldredge. From judgment for less than amount claimed, plaintiff appeals.</p>

<p>1. Courts <&wkey;489(7) — State courts have jurisdiction of boat owner’s suit to recover amount paid to discharge maritime lien for supplies furnished to lessees.</p> <p>A suit by the owner of a boat to recover an amount paid to release it from a maritime lien under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5650, for supplies furnished to lessees, is not one over which the federal court has jurisdiction, but one of which the county courts of the state have jurisdiction; the lien having been paid off and discharged.</p> <p>2. Shipping <&wkey;50 — Owner’s right to recover from charterer for discharging lien created by charterer held original and not derived from lienor.</p> <p>A boat owner may sue to recover from lessees an amount paid to secure the release of the boat from a maritime lien for supplies furnished them without written assignment of the account by lienor; the cause of action never having been owned by the latter, but accruing to the owner primarily.</p> <p>3. Shipping <&wkey;50 — Amount of recovery of boat owner paying demand to release boat from maritime lien for supplies furnished lessees stated.</p> <p>In a boat owner’s action to recover from lessees an amount paid by it to secure the release of the boat from a maritime lien for supplies furnished lessees for which a balance was still owing, plaintiff can recover only the proved amount of lessees’ purchases from lien- ‘or less the amount paid by them on account, though the total account, as claimed by lienor, the difference between which and the amount paid thereon the owner paid to discharge the lien, was greater than the amount proved.</p>

<p>1. Pleading <s&wkey;III — Notice of plea controverting plea of privilege is jurisdictional.</p> <p>Under Vernon’s Ann. Civ. St. Supp. 1918, art. 1903, before a plea of privilege can be heard and overruled, it is an indispensable requisite that the 10-day notice required by the act be given in a manner authorized by law or such notice waived by agreement; suoh notice, or waiver, is a jurisdictional matter, and without it the court is without authority to hear and overrule the plea.</p> <p>2. Appeal and error <&wkey;9!4(l) — No presumption as to service indulged on appeal from default of judgment.</p> <p>In a direct attack by appeal from judgment by default, the usual presumption as to service will not be permitted; but the record must affirmatively show jurisdiction, either by appearance or proper service.</p> <p>3. Process <&wkey;48 — Personal service required, where mode not indicated.</p> <p>Where statute provides for service of notice, without indicating manner of service, personal service is meant.</p> <p>4. Process &wkey;>82 — Personal service cannot be made by mail, unless authorized.</p> <p>Personal service cannot be made by mail, unless it is expressly authorized.</p> <p>5. Process <&wkey;82 — Service of notice of controverting plea by registered mall insufficient.</p> <p>Under Vernon’s Ann. Oiv. St. Supp. 1918, art. 1903, requiring notice of plea controverting plea of privilege, and not prescribing manner of service thereof, such service is governed by Bev. St. art. 2119; consequently service by registered mail was insufficient, and the court was without authority to rule on the plea.</p> <p>6. Process <&wkey;5I — Service of notice of controverting plea may be by person competent as witness, and need not be by officer.</p> <p>Under Vernon’s Ann. Oiv. St. Supp. 1918, art. 1903, requiring notice of plea controverting plea of privilege, and not prescribing manner of service thereof, such service is governed by Bev. St. art. 2119, and may be made by any person who would be a competent witness on the trial, and need not be made by an officer.</p> <p>7. Vendor and purchaser <&wkey;35 — Misrepresentations as to title support action to rescind.</p> <p>Vendors’ misrepresentations that they could convey absolute and indefeasible title, when in fact another had acquired title by limitations, supported vendee’s action to rescind as against contention that the misrepresentation related merely to a matter of law.</p> <p>8. Vendor and purchaser &wkey;>34l (5) — Counsel fees in prosecuting suit to rescind contract induced by fraud and recover money paid thereon held not recoverable.</p> <p>Counsel fees were not recoverable as damages in vendee’s suit against vendor to rescind and recover purchase price for misrepresentations as to title, as they were not proximate results of the wrong, and exemplary damages were not sought or recoverable.</p>

<p>1. Beneficial associations &wkey;>!4 — injunction against officers not granted before appeal has been taken under by-laws.</p> <p>Officers of local lodge of fraternal order hele! not entitled to an injunction restraining executive officer of entire organization from removing them from office, under by-law authorizing him to remove officers of local lodges when satisfied they are not performing their duties, on grounds that removal is without cause, that a property right is involved, and that such by-law is unreasonable and therefore void, where the right, under the by-laws, to appeal from order of removal to executive committee, the board of trustees, and the Supreme Commander, has not first been exhausted.</p> <p>2. Beneficial associations <&wkey;l2 — Rights of members must be settled in accordance with rules of association.</p> <p>The rights of all members of fraternal orders must be settled in accordance with the rules and laws of the association which the members have adopted, or to which they have agreed by becoming members, unless such rules or laws violate the laws of the land, or are inadequate to protect the member or his property or personal rights, and resort cannot be had to the courts until the remedy provided by the laws of the association has been exhausted.</p>

Appeal-from District Court, Eastland County; Geo. L. Davenport, Judge. Proceedings to probate a will by Mrs. Docia Norton and others, contested by John Houston and others. From judgment denying the probate, proponents appeal.

<p>Appeal from District Court, Wichita County; P. A. Martin, Judge.</p> <p>Action, by T. E. Hale against S. A. Rosser and another. Prom judgment for plaintiff, sureties appeal.</p>

Error from Denton County Court; Ed. I. Key, Judge. Suit by the Denton County National Bank against A. M. Spurgin and another. Judgment for plaintiff, and named defendant brings error.

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by Mrs. J. T. Beatty and another against James A. Baker, receiver of the International & Great Northern Railway Company, and John Barton Payne, Federal Agent. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Witnesses (&wkey;242 — Question held one to refresh memory, and not to impeach witness.</p> <p>A question, “Is it not a fact that when you met T., the plaintiff, * * * that T. told you he had rented the place, but that you were a white man and he was a negro and did not wish to antagonize you, but that he was going to make M. J. pay him whatever damages he may suffer?” held not open to the objection that it was an attempt by plaintiff to impeach his own witness, being proper to refresh the witness’ memory.</p> <p>2. Witnesses <&wkey;32l, 400(1) — Party may impeach or contradict own witness on material point.</p> <p>A party may impeach his own witness under certain circumstances in any way except -by showing his bad reputation for truth) and veracity or by such general evidence as would show the witness to be unworthy of belief, and he can, either by the witness himself, or by other witnesses for that purpoge, contradict him on a material point, even though not 'surprised by the testimony of the witness.</p> <p>3. Evidence &wkey;27l(l7), 317(18) — Testimony as to decedent’s declarations held seif-serv-ing and hearsay.</p> <p>In an action for damages for breach of oral contract to rent a farm to plaintiff, where defendant died before trial, testimony of third person that defendant told him that he had not rented the ' place to plaintiff was hearsay and self-serving and inadmissible.</p>

<p>1. Nuisance &wkey;>3(2) — Drug store and meat market not nuisance per se.</p> <p>The erection of a building in a residence section for purpose of conducting a drug store, grocery store, and meat market, is not a nuisance per se, enjoinable at once and as a matter of law.</p> <p>2. Pleading <&wkey;8I3 — Allegations in petition for injunction held mere conclusions.</p> <p>Allegations in a property owner’s petition that the construction and maintenance of a building in a residence section for the purpose of conducting a drug store, grocery store, and meat market “will necessarily constitute a nuisance” amount to mere conclusions, and are not equivalent to allegations of fact, which as a matter of law, amount to a nuisance enjoinable in equity.</p>

<p>1. Discovery &wkey;>70 — Reading of interrogatories by notary unnecessary, if deponent reads them.</p> <p>Where plaintiff before trial propounded interrogatories to defendant, and, on defendant’s refusal to answer after reading, the interrogatories were receivable at trial as confessed, under Vernon’s Sayles’ Ann, Civ. St. 1914, art. 3685, and, there being evidence that defendant read over the interrogatories at the time he was requested to answer them, it was unnecessary for the notary to read them to him.</p> <p>2. Discovery <&wkey;70 — -Notice in interrogatories unnecessary that failure to answer was confession.</p> <p>One is presumed to know the law, and the failure of interrogatories to state that, if unanswered, they stood as confessed was unobjectionable.</p> <p>3. Discovery <&wkey;64 — Failure of clerk to place tile mark on deposition attached to commission harmless.</p> <p>In an action for money converted, where plaintiff applied for a commission to take defendant’s deposition, interrogatories being left with the clerk at the time the commission was filed and attached to the commission, the1 placing of the clerk’s file mark only on the commission attached to the deposition, and not to the deposition, did not suppress the deposition on objection.</p> <p>4. Discovery <&wkey;64 — Not necessary to give notice of filing interrogatories or serve copy.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3682, provides that it is not necessary to give notice of the filing of interrogatories or serve copy on the adverse party and where plaintiff in an action for money converted had authority under article 3686, to take defendant’s deposition there was no injury to defendant by the failure to file original letters with the clerk and have the clerk issue commission and attach it to copies of the interrogatories.</p> <p>5. Principal and agent <&wkey;79(4)— Petition held sufficient to charge fraudulent conversion of money in procuring oil lease renewal.</p> <p>In an action for money converted, a petition alleging that defendant, volunteering to help in procuring a renewal of an oil lease for plaintiff, falsely stated that it would take $1 an acre, and that plaintiff relying on the representations, delivered the money to defendant, who procured such renewal at 50 cents an acre, and converted the difference, held to show defendant’s statements were made before plaintiff parted with his money, and sufficient to support an action of fraud.</p>

B. Terrell, Judge. Suit by Catherine Green against Louisa Green and others to set aside an award made by the Industrial Accident Board in favor of defendant Louisa Green. Judgment for plaintiff, and defendants appeal.

<p>Appeal and error <&wkey;773(4) — Judgment affirmed in absence of briefs and apparent error.</p> <p>Where no briefs have been filed and there is no error apparent, judgment appealed from will be affirmed.</p>

E. Monteith, Judge. Suit by F. A. Blevins against the Houston' Electric Company and the Gydeson-Manford Cadillac Company. Judgment for first-named defendant, and for plaintiff against the last-named defendant, and plaintiff appeals, and the last-named defendant files cross-assignments of error.

<p>Bills and notes <&wkey;356 — Payee’s indorsee, a bank, which could collect notes from payee, held not permitted to recover against makers.</p> <p>Where bank doing business in another state took notes in the due course of deposit from payee in such other state, who had sought to defraud, and had violated its contract with makers in Texas, and where the bank was not a purchaser in good faith, and could have collected notes from payee as its depositor, in such other state, without the assistance of a court, it will not be permitted to recover thereon against makers in Texas merely to protect such payee.</p>

W. Napier, Judge. Action by the Wichita County Lumber Company against W. N. Maer and others. A default judgment was rendered for the plaintiff, and defendant Maer obtained a judgment enjoining the sheriff and the Lumber Company from levying writ of execution thereon, from which the Lumber Company appeals.

Error' to Court of Civil Appeals of Eirst Supreme Judicial District. Action by W. J. Walker against D. N. Garland and others. A judgment for defendants was affirmed by the Court of Civil Appeals (220 S. W. 399), and plaintiff brings error.

Suit by the Ginners’ Mutual Underwriters’ Association of Texas against N. T. Master-son and others. On appeal by the named defendant from the judgment rendered it was by the Court of Civil Appeals affirmed as reformed (222 S. W. 263), and the named defendant brings error.

Suit by the State, on the relation of J. H. Wayland and others, against Charles Vincent and others. Erom a judgment of the Court of Civil Appeals (217 S. W. 402), reversing a judgment for defendants and remanding the case, defendants bring error.

Suit by William E. Paschen and others against the Edinburg Irrigation Company. Prom a judgment of the Court of Civil Appeals (223 S. W. 329) affirming an order awarding preliminary mandatory writ of injunction, defendant brings error.

Tried below before the Honorable J. R. Warren. Appeal from a conviction of the unlawful possessing of intoxicating liquors; penalty, one and one-half years imprisonment in the penitentiary. The opinion states the case.

<p>Appeal from District Court, Upshur County; J. R. Warren, Judge.</p> <p>Lee Haigler was convicted of unlawful possession of intoxicating liquors, and he appeals.</p>

<p>Appeal from District Court, Smith County; J. R. Warren, Judge.</p> <p>Charlie Lee was convicted of possessing intoxicating liquor, and he appeals.</p>

<p>Appeal from District Court, Upshur County; J. R. Warren, Judge.</p> <p>Isaiah Davis was convicted of possessing intoxicating liquor, and appeals.</p>

<p>Appeal from Bexar County Court; Mc-Collum Burnett, Special Judge.</p> <p>Action by Wheeler & Martin against the Cassidy-Southwestern Commission Company. From a judgment overruling defendant’s plea of privilege to be sued in Tarrant county, defendant appeals.</p>

<p>Buck, J., dissenting.</p> <p>Appeal from District Court, Tarrant County.</p> <p>Action by Albert Popino against Walker D. Hines, Director General of Railroads, and others. Judgment for plaintiff, and defendants appeal.</p>

A. McDowell, Judge. I Action by Mrs. Antonia Fontana and others against the Port Arthur Traction Company. Directed verdict for the defendant, and the plaintiffs appeal.

' Appeal from Tarrant County Court; Charles T. Prewett, Judge. Action by J. B. Smith against G. G. Nes-bitt and others. Judgment for defendants, and plaintiff appealed. Questions were certified to the Supreme Court (230 S. W. 976).

<p>1. Customs and usages <&wkey;>l2(2) — Seller of seed potatoes held to have contracted with regard to usages and customs of particular market.</p> <p>In an action by a seller of seed potatoes for damages resulting from a resale, defendant claiming that the potatoes were not up to the standard of seed potatoes as understood in the locality, it was not error to refuse to submit an inquiry as to whether plaintiff had any knowledge of such custom or usage, it being presumed that plaintiff entered into the contract as affected by the usages and customs of the particular market.</p> <p>2. Sales' <&wkey;404 — Remedies of buyer of potatoes not up to standard enumerated.</p> <p>Where potatoes shipped are not up to contract requirements, buyer could either accept the shipment and hold seller responsible for the potatoes below standard, or reject the shipment altogether as not being in compliance with the contract.</p>

Prince, Judge. Suit by Dora Davis and another against H. L. Hudson, in which defendant filed a cross-action. From the judgment-rendered, plaintiffs appeal.

<p>1. Carriers <&wkey;>209 — Carrier liable for defective oars furnished by belt line for reloading cattle.</p> <p>A carrier, delegating to a belt line railroad its duty to unload shipped cattle at stockyards where they could be unloaded, fed, and watered, and to furnish proper cars for reloading them, was liable for the belt line’s furnishing defective cars for reloading the cattle.</p> <p>2. Carriers <&wkey;>230(9) — in suit against initial carrier, instruction held not so general as to permit jury to consider injuries on connecting line.</p> <p>Where in a suit against an initial carrier the, petition only complained that cars furnished for reloading horses on its line where they were unloaded were defective, and that they were roughly handled only between that point and the end of defendants’ line, and the evidence does not show the condition of the cars of the connecting carrier into which they were reloaded, and plaintiff testified there was no difference between their condition then and when they reached their destination, except that wounds were a little more affected, and evidence showed rough handling on defendants’ line and no injury afterward, an instruction for plaintiff if the jury found “defendants failed to provide such cars” as an ordinarily prudent person would have provided, and they were injured by defects in “said cars,” or defendants negligently caused or permitted “said cars” to be bumped, etc., clearly referred to injuries received in cars for reloading, furnished by defendants, and was not too general as permitting the jury to consider movements from the point of origin to final destination, and so to consider injuries which might have occurred on the line of the connecting carrier.</p> <p>3. Carriers &wkey;>229 (2) — Damages to stock based on value at place of destination.</p> <p>In shipper’s action for damages to stock shipped, MM, that the point of destination was the place for determining the difference in the value of the animals, in computing damages.</p> <p>4. Carriers <&wkey;228(3) — Evidence that stock died after arrival at destination held admissible.</p> <p>•In shipper’s action for damages to stock shipped, it was proper to permit one of the plaintiffs to testify to the condition of the stock upon arrival at the point of destination, and that five head died after such arrival; it being for the jury to determine whether the condition of the animals and the death of five of them after arrival was caused by injuries received in shipment.</p>

G. Street, Judge. Suit by Galveston County against Ered McC. Nichols and others. Judgment for plaintiff and defendants appeal. Reversed, and judgment rendered. Questions certified to the Supreme Court. Judgment reversing the Court of Civil Appeals. See 228 S. W. 547.

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge. Jack O’Burke was convicted of unlawfully carrying a pistol, and he appeals.</p>