Volume 262 — South Western Reporter

Error from District Court, Dallas County; Kenneth Foree, Judge. Suit between Lucy Craycroft and others and Kate Lamar Crawford and others. Judgment for latter, and former bring error. On motion to strike out statement of facts.

Error from District Court, Wichita County; E. W. Napier, Judge. Action by the Osage Oil & Gas Company against the Travis Refining Company, in which defendant filed a cross-action against R. F. Morgan and the Lewis Oil Corporation. The Lewis Oil Corporation was dismissed from the case, and defendant’s motion to postpone trial was overruled, and defendant brings error.

<p>Appeal from Taylor County Court; X W. Moffett, Judge.</p> <p>Action by Friedman & Landau, a copart-nership, against the Wichita Valley Railway Company. Judgment for' plaintiffs, and defendant appeals.</p>

<p>1. Stipulations <§=>3 — Trial <@=>403 — Findings and conclusions of trial court, not filed within time allowed!, may be stricken.</p> <p>Under Rev. St. art. 2075, findings and conclusions of the trial court, not filed within 10 days after adjournment, must be stricken, nor can the matter be controlled by agreement of the parties.</p> <p>2. Principal and agent • <@=ri36(2)— Agent’s contract for disclosed principal imposes no personal liability; exception stated.</p> <p>Generally agent’s contracts within scope of authority on behalf of disclosed principal involve no personal liability, though agent receives benefit or appropriates proceeds, though exception may exist where agent pledges or superadds his own credit to that of the principal.</p> <p>3. Principal and agent <@=> 190(3) — Evidence held insufficient to establish agent’s fraud and render him personally liable. -</p> <p>Evidence held insufficient to establish fraud of agent acting for disclosed principal, rendering him personally liable.</p> <p>4. Fraud <@=520 — Purchaser with knowledge of .defects may not complain of fraud.</p> <p>Where evidence establishes that one purchasing merchandise from an agent was at the time aware of defects, he cannot subsequently complain of fraud in same, though the purchase may have been induced by the agent’s fraud.</p> <p>5. Principal and agent <@=>136(2) — Agent, Inducing purchase of chemical heating bottle, held not personally liable to purchaser for defects.</p> <p>An agent, inducing the purchase of a bottle, which when uncorked and exposed to the air was supposed to generate and retain heat for a s*tated period, held not liable to the purchaser for proceeds which he appropriated himself as compensation under agreement with his employer, nor liable to such purchaser for defects in bottle of which the purchaser was aware at the time of purchase.</p>

<p>1. Gas <@=>18 — Failure to keep competent workmen to keep regulators in repair not proximate cause of fire.</p> <p>In action against gas company for damages for loss of plaintiff’s house by fire, while it may have been negligence for defendant not to keep competent workmen to keep regulators in repair, where such failure resulted only' in insufficient flow of gas to meet demands of users, it was not proximate cause of the fire.</p> <p>2. Gas <@=18 — Act of independent third' party held proximate cause of fire.</p> <p>No liability against defendant gas company was shown where direct and proximate cause of fire in plaintiff’s house, was caused by act of independent third party who attempted to adjust regulator levers in the regulator house, for which defendant was not responsible.</p> <p>3. Gas <@=>20(2) — Res ipsa loquitur inapplicable where cause pleaded.</p> <p>In action against gas company for damages for loss of plaintiff’s house by fire, where cause of gas explosion was pleaded and proved, principle of res ipsa loquitur is inapplicable.</p> <p>4. Negligence <@=>l 19(1) — Specific acts alleged must be proved.</p> <p>IVhere plaintiff rests his ease on specific acts of negligence it is incumbent on him to prove acts charged.</p>

R. Wilson, Judge. Action by the Graham Oil Syndicate against the Graham Refining Company, wherein the Seaboard Oil & Gas Company was made a party. Erom judgment rendered, defendant Refining Company appeals.

<p>1. Mechanics’ liens <3=573(2) — Contract held to contain all essentials necessary to create lien.</p> <p>A contract to furnish materials and construct house held to contain all essentials necessary to create a valid mechanic’s lien, even upon a homestead.</p> <p>2. Alteration of instruments <3=>l I (2)— Change in interest rate made by auditor held immaterial.</p> <p>Change in interest'rate in note was not material where made by auditor without authority to either make or change contracts, and without knowledge or consent of parties.</p> <p>3. Appeal and error <3=930(3) — Presumed in support of judgment that court reformed a note or found alteration immaterial.'</p> <p>In action on note claimed by defendant to have been altered, in absence of finding by jury upon issue of material alteration, it must be presumed in support of judgment for plaintiff that court either reformed note or found that alteration did not invalidate it.</p> <p>4. Contracts f 63 — Typewritten portions prevail over printed portions.</p> <p>Where there is ambiguity because of apparent inconsistencies between typewritten portions and printed portions of contract, typewritten words will control.</p> <p>5. Mechanics’ liens <3=573(4) — Contract held not to require materialman to build house.</p> <p>A contract for mechanics’ lien drawn on a blank form held not to require materialman to build house upon premises, but only to supply material; blanks in part of form relating to building house not being filled in.</p> <p>6. Mechanics’ liens <3=73(1) — Practical construction binds court.</p> <p>Where mechanics’ lien contract was ambiguous as regarded question whether material-man was to construct house, acceptance of materials by landowner and construction of building by him was such a practical construction by parties as binds court in its interpretation.</p> <p>7. Contracts <3=335(2) — Sufficient for plaintiff to allege general compliance.</p> <p>It is sufficient to allege general compliance without alleging in detail performance of acts required to be done.</p> <p>8. Contracts <3=333(5), 338(1) — Parties must declare specifically upon particular terms relied on.</p> <p>Where contract is made an exhibit to pleadings, it is incumbent upon plaintiff to declare specifically only upo,n particular terms upon which his cause of action is based, and same rule applies to stipulations relied upon by defendant as defense.</p> <p>9. Appeal and error <3=171(1), 173(1) — Case not reviewed upon theory different from that on which case tried below.</p> <p>A case will not be reviewed upon theory different from .that on which tried below, and defenses not urged below cannot be' considered.</p> <p>10. Appeal and error <3=204(1) — Objections to evidence first raised on appeal not considered.</p> <p>Objections to evidence first raised on appeal are not considered.</p> <p>11. Contracts <3=528(3) — Individual held entitled to recover under contract executed in name of company.</p> <p>Recital in contract that Mrs. S. was sole owner of E. L. Company is sufficient evidence upon that point, and judgment was properly entered in her behalf in absence of allegation that company appearing as party in contract was a corporation, or that she was not entitled to recover and in absence of answer verified as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1906, setting some such matter up as defense.</p>

<p>I.Appeal and error (@=>673(1) — Judgment denying recovery by merchandise corporation against its officer not disturbed when extent of authority not shown.</p> <p>Judgment denying merchandise corporation any recovery against its vice president and general manager, for cash used in entertaining customers and subscribed, in name of corporation in good faith, for stock in a large hotel company, as a sort of contribution to. a public enterprise, will not be disturbed when record does not show extent of his authority.</p> <p>2. Corporations <@=>308(3) — Informal agreement between, majority of directors to grant bonus held not enforceable by beneficiary.</p> <p>An informal agreement among three of five members of the board of directors, made outside of session of such board, to grant bonus to employees for services, heldi not to create in proposed beneficiary right of action against the corporation to compel it to pay the bonus.</p> <p>3. Corporations <@=>388(3) — Officer held not entitled to enforce agreement among board of directors to pay him bonus.</p> <p>Back salary or bonus could not be voted to a director of a corporation and an officer of it, where the vote of that officer was necessary to the adoption of the proposition; and, where that was attempted to be done, the officer could not enforce the agreement against the corporation.</p>

<p>1. Release <&wkey;>16 — Is contract enforceable according to terms in absence of fraud or mistake.</p> <p>A release of liability for personal injuries is contract, and must be enforced according to its terms in absence of fraud or mistake, mere failure to read it before signing furnishing no ground for avoidance.</p> <p>2. Release <®^s57(2) — Evidence held not to show fraud or mistake invalidating release of claim for personal injuries.</p> <p>In section foreman’s action 'for injuries, evidence held not to' show fraud or mistake, invalidating release pleaded by defendant railroad.</p>

<p>I.Appeal and error &wkey;>882(8) — Plaintiff, testifying as to certain matter, cannot complain of defendant’s testimony as to same matter.</p> <p>Plaintiff testifying, in action on note executed by defendants, as trustees of business trust, that they refused their personal indorsement, admitted that credit was extended to company, and lost benefit of objections to defendant’s testimony as to such refusal.</p> <p>2. Evidence <&wkey;423(6) — Testimony as to makers’ disclaimer of personal liability, held not objectionable as contradicting note and certificate of shares securing it.</p> <p>Testimony that payee of note sued on was told, during negotiations, that trustees executing it in behalf of business trust were not personally liable and would not indorse it personally, held not objectionable as contradicting, varying, and changing terms of note and certificate' of shares securing it, which exempted members of company, who alone could be trustees, from personal liability.</p> <p>3. Evidence <&wkey;>423(6)- — Payee, accepting certificate of shares exempting members of business trust from personal liability for debts, cannot complain of parol testimony as to trustees’ disclaimer of personal liability.</p> <p>One accepting, as security for note, certificate of shares in business trust, exempting members of company, who alone could be trustees, from personal liability for its debts and stating that persons acquiring shares, as security for debt or otherwise, accept terms of declaration, cannot complain of parol testimony that he was told during negotiations that trustees executing note were not personally liable and would not indorse it personally.</p> <p>4. Joint stock companies and business trusts <&wkey;>!5(l) — May enter into contract exempting members from personal liability.</p> <p>Association organized under declaration of trust, or joint stock company, may enter into contract exempting members from personal liability thereon.</p> <p>5. Evidence <S&wkey;423(6)— Paroi testimony as to trustee’s disclaimer of personal liability, held admissible to show that payee was looking to company for debt.</p> <p>In action on note, secured by certificate of shares in business trust, as trustees of which note was executed by defendants, parol testimony that plaintiff was told during negotiations that defendants were not personally liable and would not personally indorse note held admissible to show that plaintiff was looking to company for debt.</p>

<p>Municipal corporations <&wkey;-1024 — Venue of action county of situs of corporation.</p> <p>A municipality can only bo sued in county 'of its situs; Rev. St. art. 1830, subds. 9 and 14, providing exceptions to exclusive venue, and applying to all “persons,” which by article 5504 includes “corporations,” being inapplicable to municipal corporations, in view of public policy, when not expressly including them.</p>

<p>1. Evidence <@=>41 — Appellate court judicially knows date of beginning of term of court in judicial districts.</p> <p>Appellate court judicially knows date of beginning of term of district court in particular judicial districts.</p> <p>2. Process <@==>63 — Citation, not served until two days after return date specified therein, held “functus officio” and void.</p> <p>A citation, not served until two days after the return date specified therein, held, under Rev. St. arts. 1852, 1866, 1867, functus officio and insufficient to give court jurisdiction to proceed further against such defendant; “functus officio” being term applied to writ or process which has expired by its own terms or has become exhausted by having accomplished the purpose of its issuance.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Functus Officio.]</p>

<p>Appeal from District Court, Dallas County; T. A. Work, Judge.</p> <p>Action by H. F. Grimm against the City National Bank of Dallas and others. Judgment for plaintiff, and defendants appeal.</p>

W. B. Terrell, Judge. Suit by Walter P. Shafer, as administrator of the estate of A. H. Shafer,' against Zay Smith, in which Walter P. Shafer, individually, and others, as heirs of A. H. Sha-fer, filed amended petition after termination of administration. Judgment of dismissal, and the heirs appeal.

<p>1. Principa! and agent <@=>l 19(1)— Plaintiff suing for breach of agreement to insure had burden of proving that person with whom he dealt had authority to act for defendant.</p> <p>In an action for breach of agreement to insure automobile, plaintiff had burden of proving that person with whom he made agreement had authority to act for defendant in the matter.</p> <p>2. Principal and agent <®=I24(2) — Evidence heidi insufficient for submission of question whether agent was authorized to act for defendant in agreeing with plaintiff to insure car.</p> <p>In action for breach of agent’s agreement to insure automobile, evidence held insufficient for submission of question whether agent was authorized to make such agreement.</p> <p>3. Principal and agent <©==>22(I) — Declarations of assumed agent not admissible in proof of agency.</p> <p>The declarations of an assumed agent are not admissible to prove agency.</p> <p>4. Principal and agent <§=>23(2) — Agency may be proved by circumstances.</p> <p>Agency may be shown by circumstances.</p>

Grimes County; Carl T. Harper, Jr., Judge. Action by W. L. Slayton & Co. against Grimes County and others. Judgment for plaintiff, and defendants appeal.

<p>1. Courts @=3207(5) — Appellate court may grant prohibition until judgment is completely executed by court below.</p> <p>Appellate court’s authority to act in prohibition proceeding continues until its judgment completely executed by court below; the issuance of mandate from appellate court not exhausting its jurisdiction.</p> <p>2. Courts @=3207(5) — Appellate court may issue prohibition after denial of writ of error by Supreme Court.</p> <p>Authority of Court of Civil Appeals to issue writ of prohibition to enforce its judgment ceases only when its jurisdiction is lost by granting and perfecting of writ of error by Supreme Court, and if writ of error is denied this jurisdiction of the Court of Civil Appeals is not legally interrupted.</p> <p>3. Courts @=>207(5) — •Appellate, not district, court, may grant writ of prohibition to another district court.</p> <p>Appellate, not district, court, may grant writ of prohibition to district court of another county, for writ of prohibition cannot issue, from one court to another of equal rank.</p> <p>4. Prohibition @=>l — Defined.</p> <p>A writ of prohibition is a writ issued by superior court, commanding judge and parties to suit in inferior court to cease from further prosecution thereof on suggestion that cause or collateral matter arising therein does not belong to that jurisdiction, but to the cognizance of another court.</p> <p>[Ed. -Note. — For other definitions, see Words and Phrases, First and Second Series, Prohibition (Writ of).]</p> <p>5. Courts @=>297(5) — Prohibition cannot issue to prevent prosecution of suit not necessarily interfering with enforcing appellate court judgment.</p> <p>Writ of prohibition cannot issue to prevent prosecution of suit which does not attempt to immediately and necessarily interfere with due enforcement of judgment of appellate court.</p> <p>6. Courts @=>207(5) — Prosecution of city’s suit to enjoin railroad from maintaining general offices elsewhere held subject to prohibition as interfering with onforcing appellate court judgment.</p> <p>Further prosecution of suit by city and taxpayers thereof to enjoin railway company from maintaining general offices at any other place held subject to prohibition as necessarily obstructing and interfering with due enforcement of appellate court judgment perpetually restraining railroad from transferring offices from another city.</p> <p>7. Judgment @=3675(2) — City assisting in railroad’s defense of suit to enjoin maintenance - of general offices therein held concluded by appellate court judgment enjoining transfer thereto.</p> <p>City of H., paying special attorneys to assist railroad’s attorneys in defending suit by city of P. and citizens thereof to enjoin railroad from transferring general offices to H., held directly interested in subject-matter, and hence concluded by judgment granting injunction, though such attorneys, who signed railroad’s trial answer, assisted railroad’s attorneys in presenting defense and signed brief and argument on appeal, did not intervene or file distinct answer for city of H. ,</p> <p>8. Judgment’ @=>702 — Judgment compelling railroad to maintain general offices in certain county and city, conclusive on all citizens of state.</p> <p>In view of Rev. St. art. 6429, judgment in suit brought in name of county, city therein, and citizens of both, to compel railroad, which is public highway (Const, art. 10, § 2), to perform duty under Rey. St. art. 6423, to maintain general offices in such county and city, concludes all citizens of state, as well as of city and county.</p>

<p>1. Appeal and error <@=>770(1) — Cause on appeal will be considered on appellee’s brief, where appellant fails to file one.</p> <p>"Where appellant excepted, gave notice of and perfected an appeal, but failed to file brief, court, under court rule No 39, will consider cause on brief as filed by appellee.</p> <p>2. Subrogation @=23(2), 36 — Bank furnishing money to prevent foreclosure held subrogated, under agreement therefor, to rights of judgment creditor.</p> <p>Bank which advanced money to a judgment debtor to prevent sale of lands under a decree of foreclosure, with a distinct understanding that it should be subrogated to lien and claim of judgment creditor under trust deed and decree of foreclosure, held subrogated to lien of judgment creditor, and entitled to foreclosure as against purchaser of an attachment lien with notice of its lien.</p> <p>3. Subrogation <§=>! — What constitutes.</p> <p>“Subrogation” is procedure by which equitable rights of one person are worked out through legal rights of another, and exists by operation ■ of law, when one having a liability or owning an interest, or occupying a fiduciary relation, pays debt of another so as to be entitled, in equity, to security held by creditor whose claim has been paid.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Subro-gation.]</p> <p>4. Subrogation <§=>23(2) — Equity will substitute person paying debt of another to place of original creditor under agreement that prior lien shall be kept alive for his benefit.</p> <p>Where one pays debt of another as a result of an agreement, express or implied, that the prior lien be kept alive for his benefit, equity will substitute person so paying to place of original creditor to enable him to enforce the security for his reimbursement.</p>

<p>Appeal from District Court, Bell County;, Lewis H. Jones, Judge.</p> <p>Action by Carl H. Copass, by Annie Stephens, as next friend, against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Libel and slander <®=»l0(3)— News article that sheriff was ahsent from office when wanted held not libelous; “nonfeasance.”</p> <p>A news item to effect that plaintiff sheriff was absent from his office when a deputy phoned, resulting in escape of murderer and a three-year search, and further stating that there was delay in getting a warrant, held not libelous as charging sheriff with dereliction of public duty, as absence from office is not “non-feasance” (quoting Words and Phrases, Second Series, “Nonfeasance”).</p> <p>2. Evidence <§=»48 — Common knowledge that sheriff not always found In his office.</p> <p>It is common knowledge that a sheriff in discharge of responsible duties is not expected to be always found in his office.</p> <p>3. Libel and slander <S=» 19 — Effect publication would have on mind of ordinary reader determines whether defamatory.</p> <p>In determining whether a publication was defamatory, question is whqt effect did it have upon mind of ordinary reader.</p> <p>4. Libel and slander <@=»l9— Language used must be susceptible of defamatory meaning.</p> <p>Unless language in publication is reasonably susceptible of. defamatory meaning, it cannot form basis of charge of libel.</p>

C. .Canty, Judge. Proceeding by Cbaríes Summers, under tbe Workmen’s Compensation Act to recover compensation for personal injuries while employed by tbe Oleander Compress & Warehouse Cotupany, opposed by tbe United States Fidelity & Guaranty Company, insurance carrier. Tbe Industrial Accident Board denied compensation, and plaintiff obtained judgment for compensation, ■ and tbe insurance carrier appeals.

<p>Intoxicating liquors <§=236(11) — Positive as- ' sertion of state’s witness that he bought . from defendant held to sustain conviction.</p> <p>The positive assertion of state’s witness that he purchased intoxicating liquor from defendant held to sustain conviction for selling.</p>

<p>Husband and wife <S=nl56, 159 — Wife cannot be • held as surety or joint maker on husband’s note.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621 and 4624, and in view of articles 4629a to 4629d, removing certain disabilities of coverture, a wife cannot be held as surety for, or joint maker with, her husband on his note.</p>

<p>1. Corporations <&wkey;ll6 — Buyer of- oil stock could not recover purchase price because misled by statements of spiritualist, in absence of fraud or deception on part of seller.</p> <p>Buyer of stock in oil company could not recover purchase price on the ground that he was induced to buy the stock by the statements of a spiritualistic medium, in absence of fraud or deception on part of seller.</p> <p>2. Corporations <&wkey;l2l (5) — Admission of evidence as to buyer’s faith in spiritualism and effect on mind in buyer’s action for purchase price of oil stock held error.</p> <p>In buyer’s action to recover purchase price of oil stock for fraud and his incompetency, in which there was no evidence that seller took advantage of buyer’s faith in spiritualism, admission of evidence as to buyer’s faith in spiritualism and effect thereof on mind held error.</p> <p>3. Evidence &wkey;>548 — Facts held insufficient basis for opinion of alienist.</p> <p>Opinion of alienist that plaintiff was mentally incompetent to make the contract in suit, based on an hour’s conversation with plaintiff, and the fact that plaintiff believed in spiritualism, which the alienist did not believe in, held/ inadmissible, as founded on insufficient data.</p> <p>4. Appeal and error <&wkey;> 1053(1) — Admission of subsequently withdrawn evidence held prejudicial.</p> <p>In buyer’s action to recover purchase price of oil stock for fraud and his incompetency, in which there was no evidence that seller took advantage of buyer’s faith in spiritualism, admission of evidence as to buyer’s faith in spiritualism, and an alienist’s opinion of the effect thereof on mind, held prejudicial to seller, though subsequently withdrawn from jury.</p> <p>5. Evidence @=317(4) — Testimony as to statement made to plaintiff by spiritualist held inadmissible as hearsay.</p> <p>In buyer’s action to recover purchase price of oil stock for fraud, in which there was no testimony connnecting seller with statements made to buyer by spiritualist, evidence • as to statements made by spiritualist to buyer held not admissible, being hearsay.</p> <p>6. Appeal and error <&wkey;>l050(() — Evidence as to statements made by spiritualist to plaintiff held harmless.</p> <p>In buyer’s action to recover purchase price of oil stock for fraud, in which there was no testimony connecting seller with statements made to buyer by spiritualist, evidence as to statements made by spiritualist to buyer, though inadmissible as hearsay, was harmless.</p> <p>7. Witnesses <&wkey;>383 — Evidence of witness on former trial as to immaterial matter not admissible for impeachment.</p> <p>Testimony of witness on former trial as to immaterial matter was not admissible to impeach witness.</p> <p>8. Evidence <&wkey;47l (I) — Testimony constituting merely opinion held not admissible.</p> <p>Testimony constituting merely an opinion or conclusion of the witness held not admissible.</p> <p>9. Trial <&wkey;304 — Jurors should hot be permitted to read newspaper comments on issues.</p> <p>Jurors should not be permitted during the course of a trial to read newspapers containing comments on the issues in the case on trial.</p>

<p>Municipal corporations <©=>710 — Connection with service sewer held wrongful.</p> <p>Under city ordinance prohibiting running of service sewer through block and across intersecting street to another block, and prohibiting connection of sewer with sewer on another’s lot without owner’s permission, held, that one cannot connect sewer to service sewer in another block across street, though owner unlawfully extended sewer across such street.</p>

<p>Appeal from Tarrant County Court for Civil Cases; H. O. Gossett, Judge.</p> <p>Action by M. S. Morgan against L. P. La Lumiere. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hunt County; Geo. B. Hall, Judge.</p> <p>Suit by C. B. Jones and another 'against W. T. Monroe and Mrs. N. B. Teague. Prom the judgment rendered, plaintiffs' and defendant Mrs. Teague appeal.</p>

<p>Appeal from District Court, Travis County; Cooper Sansom, Judge.</p> <p>Suit by J. L. Chapman, State Commissioner of Banking and Insurance, against J. Lee Costley. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Municipal corporations &wkey;>705(2) — Statutory duty of drivers of vehicles approaching “intersection” as to turning at required “center of intersection”; “intersect.”</p> <p>Under Vernon’s Ann. Pen. Code Supp. 1922, art 820k, subd. (g), requiring vehicles to keep to the right of the center of an intersection, and, in turning to the left, to run beyond the center, construed in connection -with subdivisions (a) and (k), a vehicle intending to turn must approach the intersection on the proper side of the street; “intersection” referring to the space -where one street enters into another or the space occupied by two streets at the point where they cross each other, “intersect” meaning either to come into or between, or to cut or cross mutually, the common space, and “center of intersection” referring to point where the center lines of the two streets cross.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Intersect — Intersection.]</p> <p>2. Statutes &wkey;>205 — Duty of court to adhere to construction carrying out legislative intent, as gathered from entire act.</p> <p>Even if Vernon’s Ann. Pen. Code Supp. 1922, art. 820k, subd. (g), relative to rules of road at intersection, is susceptible of two constructions, the court is under duty to adhere to that construction which would carry out the legislative intent and purpose as gathered from entire legislative enactment.</p> <p>3. Municipal corporations <&wkey;>706(9) — General finding of ordinary care by injured driver held properly ignored.</p> <p>'Where the jury found plaintiff’s act of “cut-tips the corner” in violation of city ordinance and Vernon’s Ann. Pen. Code Supp. 1922, art. 820k, subd. (g), was negligence per se and was thd direct and proximate cause of the injury, trial court properly ignored the general finding that plaintiff exercised ordinary care, and properly entered judgment for defendant.</p>

<p>Appeal from District Court, Dallas County; Kenneth Fores, Judge.</p> <p>Action by the Kirby Investment Company against C. J. O’Connor and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Chattel mortgages @=3256 — Petition for Injunction against sale of stock covered by mortgage held sufficient.</p> <p>Petition alleging that note was paid by delivery and acceptance of described cattle held not pleading of accord and satisfaction, but allegation of payment, sufficient to state cause of action for injunction against sale of cattle, cancellation of note and mortgage, and removal of cloud from title.</p> <p>2. Banks and banking <@=3223 — Sufficiency of service on vice president of bank held fact question for trial court.</p> <p>Whether vice president of bank was proper person on whom service could be had in suit to restrain sale of cattle under mortgage held question of fact for trial court.</p> <p>3. Appeal and error <@=3662(2) — Judgment reciting defendant’s appearance binding on appellate court.</p> <p>Judgment reciting that defendant appeared, which he may do, in person or by counsel, under Rev. St. art. 1881, is binding on appellate court.</p> <p>4. Appeal and error <@=3548(2) — Assignments of insufficiency of evidence not considered without statement of facts.</p> <p>Assignments that judgment is not supported by evidence cannot be considered, in absence of statement of facts.</p> <p>5. Appeal and error @=>527(2) — Findings and conclusions filed after time allowed not considered.</p> <p>Findings and conclusions filed after ten days from adjournment of court cannot be considered.</p> <p>On Motion for Rehearing.</p> <p>6. Appearance @=9(5) — General appearance by motion to dissolve injunction on ground other than jurisdiction.</p> <p>General appearance is entered when defendant invokes court’s judgment in any way, as by motion to dissolve injunction, on any question other than that of court’s jurisdiction, without being compelled to do so by previous ruling sustaining jurisdiction.</p> <p>7. Appearance @=>8(3) — Filing answer is appearance.</p> <p>Filing of answer is appearance.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>On motion for rehearing.</p>

<p>1. Intoxicating liquors <@=>239(2) — Instruction that manufacture directly or indirectly was unlawful held not erroneous.</p> <p>In prosecution for manufacturing of liquor, instruction that it was unlawful for any person directly or indirectly to manufacture liquor held not erroneous.</p> <p>2. Intoxicating liquors <@=>239(2) — Refusal to instruct against conviction for offenses other than charged! held not error.</p> <p>In prosecution for manufacturing liquor, refusal of court to instruct that jury could not convict for possession of liquor or mash or for having still held not error,</p> <p>3. Criminal law <@=>833 — Defendant may not complain of giving request as part of main charge.</p> <p>Defendant, having requested a special charge, may not complain that the court gave it as part of main charge.</p> <p>4. Criminal law <@=>982 — Instruction against consideration of prior conviction of accused on question of suspended sentence held properly denied.</p> <p>Requested instruction that jury in considering suspended sentence could not consider former conviction of defendant for possession of liquor because such conviction had on appeal been reversed and case dismissed held properly denied.</p>

<p>Error from Dallas County Court at Daw; Frank G. Harmon, Judge.</p> <p>Action by the Republic Insurance Company against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Municipal corporations @==>485(5) — Improvement certificate prima facie evidence of prerequisites to creating debt and lien.</p> <p>In an action by municipality on paving certificates, it was unnecessary for plaintiff to establish by independent proof performance of proceedings necessary to creation of indebtedness and lien against abutting owner before certificates could be received in evidence, in view of'Rev. St. art. 1011, making such certificates containing prescribed recitals prima facie evidence oí such indebtedness and lien.</p> <p>2. Municipal corporations @=485(5) — Improve. . mcnt certificates prima facie evidence of municipality’s acceptance of benefits of statute.</p> <p>In action by municipality on paving certificates, independent proof of plaintiff’s acceptance of benefits of Rev. St. c. 11, tit. 22, in manner prescribed in article 1016, was not' required in first instance, in view of recitals contained in them, as provided by article 1011, making such recital prima facie evidence of facts recited; such provision being broad enough to include every proceeding necessary to fix valid debt and lien for paving.</p> <p>Vaughan, J., dissenting.</p>

<p>Appeal from District Court, Harris County ; J. D. Harvey, Judge.</p> <p>Proceedings by Harry E. Holmes for the probate of a will, to which Clyde Houston, by his next friend, and others, filed objections. From a judgment in favor of the will, objectors appeal.</p>

<p>1. Homestead @=>l811/2 — Abandonment of business homestead held for jury.</p> <p>On evidence that owner had executed ten-year lease and given lessee option to purchase property, that owner was insolvent and had gone to another state and was not in a position, and did not have sufficient credit, to resume business on such property, whether he had abandoned business homestead held for jury.</p> <p>2. Homestead <@=5161 — Temporary absence because of ill health does not destroy homestead character.</p> <p>Debtor’s temporary absence on accaunt of .his health or that of some member of family does not destroy homestead character.</p> <p>3. Evidence @=>589 — Court not required to accept uncorroborated testimony of interested party. .</p> <p>In action involving question whether plaintiff had abandoned business homestead, the court was not required to accept his testimony that his absence was due to wife’s health, where plaintiff did not corroborate evidence by producing wife or some one of his physicians.</p> <p>4. Equity @=>427(3)— Chancellor not controlled by prayer for general relief.</p> <p>In equity cases, a prayer for general relief is as broad as the equity powers of a court, and the prayer does not control a chancellor in determining what relief shall be- given, but he may grant such relief as is consistent with the issues raised by the pleading and supported by the evidence.</p> <p>On Motion for Rehearing.</p> <p>5. Appeal and error @=>832(4) — Party cannot on motion for rehearing question sufficiency of pleading for trial on theory in which party aequiesced.</p> <p>Where trial court and parties have placed a certain construction on a pleading in any degree susceptible of such construction and the case has been tried upon a theory so understood and acquiesced in, the pleader cannot question the sufficiency of his allegations by motion for rehearing in court of civil appeals.</p> <p>6. Appeal and error @=>882(5) — Pleader cannot attack own pleadings on appeal.</p> <p>A pleader cannot attack his own pleadings on appeal.</p> <p>7. Homestead @=>181 (I) — Facts held to establish prima facie abandonment.</p> <p>Where owner discontinued business, executed a ten-year lease giving lessee option to purchase his business property, was insolvent and without credit, and moved to other state, there was a prima facie abandonment of the business homestead placing burden on owner of showing property exempt from execution in his action to enjoin sale on execution.</p> <p>8. Homestead @=205 — Judgment debtor suing to enjoin execution sale waived homestead claim by failure to assert it in pleadings.</p> <p>Where judgment debtor suing to enjoin sale of property on execution could have asserted a homeptead claim, but did not assert such claim in pleadings, the court will not give him one nolens volens, since failure to assert claim in pleadings is waiver of it.</p> <p>9. Homestead @=3213 —Abandonment may be shown under general denial.</p> <p>In judgment debtor’s action to enjoin sale of property under execution, his abandonment of the homestead could be shown under a general denial.</p> <p>l\). Easements @=>16 — Court in authorizing sale of portion of lot used for bnsiness purposes, and in holding other portion exempt because homestead, properly preserved easement.</p> <p>Where owner used a portion of a lot for residence purposes and other portion for a bakery, the court in denying injunction against sale under execution of portion devoted to bakery as being an abandoned business homestead, and in enjoining sale of portion devoted to residence as residence homestead, did not create easement by including in business homestead right to use passageway and driveway a's against owner, but properly preserved easement created by owner himself in dedicating such passageway and driveway by user.</p>

<p>1. Insurance <@=»l46(1)— Every provision In favor of insured given effect, if possible.</p> <p>Every provision of life policy in favor of insured must be given effect, if possible.</p> <p>2. Insurance <@=>146(3) — Reasonable construction favorable to insured adopted in case of ambiguity.</p> <p>Where life policy is ambiguous and admits of a reasonable construction favorable to insured, such construction will be enforced.</p> <p>3. Insurance <@=>146(3) — Policy prepared by insurer construed against it.</p> <p>Terms of policy prepared and written by insurer will be construed most favorably to insured and most strictly against insurer.</p> <p>4. Insurance <§= 146(3) — Life policy construed, if possible, to avoid forfeiture.</p> <p>Life policy will be construed, if,possible, to avoid forfeiture.</p> <p>5. Insurance <@=>367(3) — Period of extended insurance held not to have commenced to run until expiration of period of grace.</p> <p>Under life policy providing for extended insurance and also for a 31-day period of grace for payment of premiums, the period of extended insurance did not commence to run until expiration of period of grace.</p>

P. Kinnard, Judge. Action by G. W. Thomason and another against Harry Tom King and another. From a judgment sustaining defendants’ plea of privilege, plaintiffs appeal.

5. Callaway, Judge. Action in justice court by Young County Hardware & Furniture Company against J. V. Gilliland and J. D. Wilson, garnishee. From judgment rendered in the county court dismissing an application for certiorari, garnishee appeals.

<p>Appeal from District Court, Wise County; P. O. McKinsey, Judge.</p> <p>Action by Millie May Atcheson against the Modern Woodmen of America. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Process <§=o31 — Variance between defendant’s first initial and that in citation held immaterial and cured.</p> <p>The variance between defendant’s first initial and that contained in the citation required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1852, 2180; to comply with certain .formal requisites, held immaterial and corrected by the style of the case on the back of citation.</p> <p>2. Judgment <®=ol0l (I) — Citation held not to set oqt correctly true nature of plaintiff’s demand, and did not support judgment rendered.</p> <p>Citation held not,' as mandatorily required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1852, 2180, correctly to set out true nature of plaintiffs demand and did not support the default judgment based on the petition.</p> <p>3. Appeal and error <§=>l 172(1) — Court of Civil Appeals could not cure defective citation by rendering judgment for part of demand of which defendant was notified.</p> <p>In view of mandatory provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1852, 2180, naming the things a citation shall state, Court of Civil Appeals did not have power to cure illegality of a citation by rendering a judgment for that part of plantiff’s demand of which defendant was by the citation notified.</p> <p>4. Judgment <©=»I17 — Description of land in petition should have been followed in default judgment.</p> <p>The description, in the petition, of land with reference to the sale of which a commission was sought to be recovered, should have been followed in the default judgment.</p>

<p>t. Appeal and error &wkey;?!048(6) — Cross-examination using term “lied" held not prejudicial error.</p> <p>Where, in suit to enforce lien against homestead, defendant asserted defense based upon his admitted false representations to his wife, questions on his cross-examination as to whether he expected jury to believe anything he would say, and whether he would not readily lie again before jury to keep property, helé not prejudicial error.</p> <p>2. Pledges (&wkey;l6(3) — Evidence held to show codefendant held vendor’s lien note as collateral security for note of lesser amount.</p> <p>Evidence held to show that codefendant was not the owner of a $14,000 vendor’s lien note, but held it under a pledge as collateral security for a $6,000 note.</p> <p>3. Vendor and purchaser &wkey;>28l (I) — Plea held equivalent to general denial placing burden on one seeking foreclosure of vendor’s lien note to show ownership.</p> <p>Where, in suit to foreclose vendor’s lien note and to hold inferior codefendant’s alleged vendor’s lien note, defendant mortgagor filed no special defense against codefendant’s claim of ownership of latter note, but contested co-defendant’s right to foreclose his lien, defendant’s plea was as to codefendant equivalent to at least general denial which placed burden on codefendant to show ownership of latter note.</p> <p>4. Vendor and purchaser <®=^280(3) — Failure to sustain allegations of ownership of lien note precluded judgment therefor though no denial of ownership.</p> <p>In action to foreclose prior vendor’s lien note eodefendant, who failed by his evidence to sustain his allegation of ownership of a vendor’s lien note, held not entitled to have judgment for note notwithstanding defendant mortgagor interposed no answer as to codefendant.</p> <p>5. Husband and wife <&wkey;270(5)~Right of wife, in suit against husband involving community property, to intervene stated..</p> <p>In suit against husband involving community property the wife may intervene if no exception is urged against her plea.</p> <p>6. Vendor and purchaser <&wkey;279 — Rights stated of holder of vendor’s lien note as security in suit to foreclose prior lien note.</p> <p>In suit to foreclose prior vendor’s lien note, codefendant, as holder of vendor’s lien note to secure another matured note of lesser amount, held- proper party, with right to have , judgment of foreclosure and order protecting him in proceeds of sale to extent of his claim.</p> <p>7.Judgment &wkey;>252(5) — Pleading of claimant of inferior vendor’s lien held sufficient to secure protection as' to legal and equitable rights.</p> <p>In suit to foreclose vendor’s lien where claimant of inferior vendor’s lien, after pleading all facts of transfer to him of vendor’s lien note as collateral for smaller note and the other facts connected with his claim, prayed for general relief, held sufficient to afford him relief as to both his legal and equitable rights.</p>

<p>Appeal from Clay County Court; J. F. Va-den, Judge.</p> <p>Action by B. B. Brown against Chas. Ma-taska. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Railroads &wkey;>350(7) — Negligence in not giving signals held for jury.</p> <p>Evidence held sufficient to go to jury on question of negligence in failing to give proper crossing signals.</p> <p>2. Railroads e&wkey;350(l3) — Contributory negligence of truck driver held for jury.</p> <p>Evidence held insufficient to establish contributory negligence of truck driver killed at railroad crossing, as matter of law.</p> <p>3. Trial <&wkey;260(8) — Denial of instructions covered by others given held not error.</p> <p>Requested special charges in action for death of plaintiff’s intestate at railway crossing helé covered by others given and not improperly denied.</p> <p>4. Appeal and error <&wkey;1033(4) — Instruction submitting issue relative to crossing signal held erroneous but in favor of appellant.</p> <p>Instruction submitting issue whether motorman, by sounding whistle or ringing bell, “or otherwise,” gave notice of approach of car, | held erroneous in use of phrase quoted, though in manner favorable rather than prejudicial to railroad.</p> <p>5. Railroads <&wkey;348(8) — Findings as to truck driver’s negligence sustained.</p> <p>Evidence held to sustain findings that deceased truck driver, killed at railroad crossing, did not see approaching car in time to stop, and that he could not by exercise of ordinary care on his part have avoided the collision.</p> <p>6. Trial <&wkey;l39(l), 140(1) —Credibility of 'witnesses and weight of testimony for jury.</p> <p>Credibility of witnesses and weight of testimony for jury.</p> <p>7. Railroads <&wkey;352— Findings as to contributory negligence held not conflicting.</p> <p>Finding that deceased, killed at railroad crossing, could not have discovered approaching train in time to have avoided collision, held not in irreconcilable conflict with finding that dump and vegetation alongside of track did not entirely obstruct view.</p> <p>8. Railroads <&wkey;352 — Findings as to obstruction of view held not conflicting.</p> <p>Findings that dump and vegetation alongside railway cut did not entirely obstruct view from highway held not in irreconcilable conflict with finding that crossing was neither wholly nor partially obstructed .from view.</p> <p>9. Railroads &wkey;335(5) — Finding of unlawful speed as cause of injury essential to defeat recovery.</p> <p>Finding that deceased,' killed at railway crossing, did not reduce speed to six miles per hour within 30 feet of crossing, as required by statute, and that such failure contributed to accident, held not to preclude recovery; there being no finding that such failure was the proximate cause, and the statute itself being involved.</p> <p>10. Trial i&wkey;365(2) — Findings of jury must be construed together.</p> <p>Findings of jury must be construed together.</p> <p>11. Appeal and error <&wkey;1060(1) — Trial <&wkey; 129 — Argument of counsel denouncing Workmen’s Compensation Act held not prejudicial.</p> <p>In action for death wherein insurer of deceased’s employer intervened, argument of plaintiff’s counsel denouncing the Workmen’s Compensation Act (Vernon's Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz) “as one of the biggest frauds ever gotten out,” and “a method by which big concerns can run over com.mon people,” held not prejudicial in view of the collateral nature of the argument, the fact that it was invited by opponent’s argument, and the conservative amount of verdict.</p>

<p>Appeal from District Court, Stephens County; C. O. Hanjlin, Judge.</p> <p>Suit by E. A. Johnson against the Breckenridge Ice & Cold Storage Company and another. Judgment for plaintiff, and named defendant appeals.</p>

<p>1. Master and servant <@=>289(35) — Car inspector’s contributory negligence in failing to display blue flag held for jury.</p> <p>Car inspector alleging switching crew’s negligence in moving cars against train, about which he was working, to their knowledge, with sueh force as to move it such distance with such rapidity that he was knocked down before he could get out from between two cars, though brakes were securely set, held not precluded from recovering for injuries, as matter of law by failure to put out blue signals at end of train, in view of conflicting evidence as to whether such rule applied to employés making up train.</p> <p>2. Master and servant <@=>243(1) — Violation of rule not negligence per se.</p> <p>Servant’s violation of rule promulgated by master, whether as to manner in which work shall be done or for safety of servant, is not negligence per se; such rule not having force of statute.</p> <p>3. Trial <©=5365(1) — Jury’s findings on special issues harmonized if reasonably possible.</p> <p>Jury’s findings on special issues must be harmonized, if possible, by giving each reasonable construction in light of evidence on which based.</p> <p>4. Master and servant <©=>297(2)— Findings as to contributory negligence held not conflicting.</p> <p>In action for injuries, to car-inspector from switching crew’s negligence in moving cars against train being made up with such force as to move it considerable distance at such speed that plaintiff was knocked down before he could get out from between two ears, though brakes were securely set, jury’s findings that plaintiff was negligent in failing to put out blue signals at end of train, and that such negligence was not proximate cause of injury, held not contradictory, so as to require that latter be disregarded and judgment entered for defendant, in view of evidence of switching crew’s knowledge that plaintiff was coupling up air hose of train, and inapplicablity of blue flag rule to employés engaged i,n making up train.</p> <p>5. Damages <©=>132(9) — $25,915 for loss of leg by railroad car inspector held not excessive.</p> <p>$25,915 damages for severance of leg of 44 year old railroad ■ car inspector, who was earning about $175 per month, held not excessive.</p> <p>.6. Trial <©=315 — Verdict in amount of sum agreed on after ascertainment by division of aggregate amount suggested by jurors by 12 held not verdict by lot.</p> <p>Verdict in amount of aggregate sum of amounts suggested by members of jury, divided by 12, held not verdict by lot, in view of evidence that jurors agreed, after sum was ascertained in such manner, to fix damages in such amount.</p> <p>7. Trial <©=>351 (5) — Refusal of special issues submitted in main charge not error.</p> <p>Refusal of special issues submitted in main .charge is not error.</p> <p>On Motion for Rehearing.</p> <p>8. Master and servant <©=>278(18) — Finding of switching crew’s knowledge of car inspector’s danger held supported by evidence.</p> <p>Evidence held sufficient to support finding that switching crew, moving cars agaiiist train being made up, was charged with knowledge that car 'inspector was coupling up air hose between cars in train.</p>

<p>Appeal from Fannin County Court; Sam E. Neilson, Judge.</p>