Volume 257 — South Western Reporter

<p>Appeal from Donley County Court; J L. Bain, Judge.</p> <p>Action by T. H. Ellis against ,T. H. Evans. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and error <&wkey;>907(3) — Findings assumed supported by evidence, in absence of statement of facts or briefs.</p> <p>In the absence of statement of facts or brief for appellant attacking the findings of the lower court, it must be assumed that there was evidence to support same.</p>

P. Brown, Judge. Action by the Mebane Cotton Breeding. Association against J. B. Sides. Pending appeal from judgment against plaintiff on the merits, it makes a motion in the Court of Civil Appeals relative to injunction.

<p>Appeal from District Court, Liberty County; J. L. Manry, Judge.</p> <p>Trespass to try title by Laura Gore and others against Tipton. Walker and others. Judgment for plaintiffs,' and defendants appeal.</p>

<p>Appeal from District Court, Collin County; F. E. AVilcox, Judge.</p> <p>Action by T. F. Justice against the Sunlite Company, 'Manufacturers, and others. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Wilbarger County; J. V. Leak, Judge.</p> <p>Action by the Steel By-Products Company against the Vernon Cotton Oil Company. From an order of dismissal, plaintiff appeals.</p>

W. B. Terrell, Judge. Suit by S. S. 'Searcy against the J. W. Ward. Farming Company and others, in which defendants L. L. Lentz and another pleaded a cross-action, and defendants J. W. Ward Farming Company and another interposed their pleas of privilege. Pleas overruled, and defendants J. W. Ward Farming Company and another appeal.

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by Dolores Wiuvar against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Action by Clark Dickson against the Kil-gore State Bank. Judgment for defendant was affirmed by the Court of Civil Appeals (244 S. W. 392), and plaintiff brings error.

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Action by Alibe Castile against James C. Davis, Agent. Judgment for plaintiff was affirmed by the Court of Civil Appeals (244 S. W. 222), and defendant brings error.</p>

<p>1. Master and servant <§=I03(2) — Employee delegating his duty responsible for injury to himself.</p> <p>Where it was the personal duty of the chief cook of dining ear to close a waste hole in the kitchen, he could not delegate it to cooks under his control and relieve himself of liability to his employer, and, if injury resulted to himself, from his failure to close the hole, he was responsible.</p> <p>2. Negligence <&wkey;59 — “iProximate cause” of injury defined.</p> <p>Negligence to be actionable must be the proximate cause of the injury complained of, and the test as to whether a negligent act is a proximate cause of the injury is whether, in the light of all attendant circumstances, the injury was such as ought reasonably to have been anticipated as a consequence of the act.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>3. Master and servant <@=>129(6)— Cook’s failure to close waste hole in unlighted kitchen of diner held proximate cause of his injury from falling into hole.</p> <p>Where plaintiff, head cook on a dining car, intrusted to subordinate cooks his personal duty to close a waste hole in the kitchen diner before retiring for the night, an injury sustained by plaintiff the next morning, when the kitchen was insufficiently lighted,' from falling into the waste hole, held proximately caused by his failure to close the hole, precluding recovery under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665).</p>

<p>Appeal from Bexar County Court for Civil Cases; McCollum Burnett, Judge.</p> <p>Suit by the American District Telegraph Company against H. C. Feldman and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Banks and banking &wkey;>l5 — One who left bonds with bank for safe-keeping held not a “depositor” within bank guaranty law.</p> <p>One who left bonds with a bank for safekeeping to be returned to her on demand, was not a “depositor” within Complete Tex. St. 3920, art. 486 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 486) providing for payment of depositors out of guaranty funds, the relation in such ease being that of bailor and bailee, and not that of depositor and banker, or debtor and creditor.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Depositor.]</p> <p>2. Banks and banking <&wkey;l5 — Bank’s conversion of bonds left with it for safe-keeping did not entitle owner to compensation out of guar.* anty fund.</p> <p>Bank’s conversion of bonds, left with it for safe-keeping on the advice of the commissioner of insurance and banking, that the bank had a right to convert bonds, did not entitle owner to compensation out of guaranty fund on theory that on such conversion owner became a depositor.-</p> <p>3. Banks and banking' <&wkey;49(4)— Owner of bonds converted by bank not entitled to offset assessment made by commissioner of insurance and banking against bank’s liability for conversion.</p> <p>Owner of bonds left with a bank for safekeeping and converted by the bank was not entitled to offset the assessment made by the commissioner of insurance and banking against the bank’s liability for conversion.</p>

<p>Í. Evidence <&wkey;66 — Knowledge of ail provisions in contract and meaning thereof imputed to insured.</p> <p>The insured is deemed to know all the provisions in the policy of insurance and the meaning thereof.</p> <p>2.‘ Insurance <&wkey;583(2) — Facility of payment clause held to authorize payment to mother of insured.</p> <p>An insurance policy, designating insured’s wife as the beneficiary, and providing that the insurer might- pay the amount due under the policy to either the beneficiary or to any relative, or to any other person appearing to the company to be equitably entitled thereto, by reason of having incurred expense on behalf of insured for his burial, held to authorize payment to the mother of the insured for expenses incurred on behalf of insured for his burial.</p>

Green, Judge. Petition by Ben J. Fox proposing for probate the last will and testament of Mrs. O. M. Fox, contested by Maggie Bierman and others. From an order of the district court denying probate, proponent appeals.-

<p>1. Deeds &wkey;>!20— How to determine whether intention was to convey property or merely title thereto stated.</p> <p>In determining whether it was the intention of the grantor in a deed to convey the property described therein or merely his title thereto, the instrument is to be considered in its entirety, and if, considered as a whole, it. appears that the purpose was to convey the property itself it should be so construed, even though portions may indicate that only the grantor's title was conveyed.</p> <p>2. Husband and wife <&wkey;H9(3) — Deed from husband to wife held to convey title merely.</p> <p>. A deed by a husband to his wife in consideration of $10, and describing “the land herein conveyed,” grantee to assume an indebtedness of $2,500 and to have and to hold the premises so that neither the grantor nor his heirs nor any person or persons claiming under him should at any time thereafter have claim, or demand any right or title to the premises, held not to disclose an intention by the grantor to convey the land as distinguished from his title thereto.</p> <p>3. Estoppel &wkey;>39 — Title acquired subsequent to husband’s quitclaim held to vest in community.</p> <p>Where a husband quitclaimed to his wife an outstanding title- afterwards conveyed to the wife, held to vest.in the community and not to inure to her separate estate.</p> <p>4. Estoppel <&wkey;37 — After-acquired title held not to inure to separate estate of wife, where husband's quitclaim fraudulent.</p> <p>If a deed from a husband to his wife be construed as conveying the land itself, an after-acquired title from a third person will not be construed to inure to the separate estate of the wife but to the community, the deed from the husband to the wife being for the fraudulent purpose of defeating levy of execution under'a judgment of such third person.</p>

Hon. J. M. Combs, Judge. Suit by J. A. Mooney, trustee, against Ji L. Chapman, Commissioner of Insurance and Banking, and others. Judgment for plaintiff, and the named defendant appeals.

<p>1. Account, action on &wkey;>!2 — Plaintiff not required to put verified account in evidence, when denied.</p> <p>Though verified account was attached to petition and made a part thereof, plaintiff was not called on to place it in evidence, where it was met by an answer, properly verified, denying its justness, as its effect as evidence was destroyed by the answer.</p> <p>2. Evidence <@=3589 — Testimony of party held not to destroy other testimony in case.</p> <p>Testimony of plaintiff that there was due him $252.60, and that he thought defendant owed at least half of it, did not destroy other testimony in the case, which showed that defendant either owed the whole account or nothing at all.</p>

<p>Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.</p>

<p>Appeal from District Court, Wichita County;</p>

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.</p>

<p>Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.</p>

<p>Appeal from Criminal District Court, Dallas County; Eelix D. Robertson, Judge.</p>

<p>Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.</p>

<p>Appeal from District Court, Rusk County; C. L. Brachfield, Judge.</p>

<p>Appeal from District Court, Limestone County; A. M. Blackmon, Judge.</p>

<p>Appeal from District Court, Collin County; )E. E. Wilcox, Judge.</p>