Volume 30 — Texas Civil Appeals Reports

<p>Release of Claim—Consideration—Employment.</p> <p>While a release of claim for injuries received, executed in consideration of an agreement by the railway company to give employment to the injured party “for such time only as may be satisfactory to said company,” does not of itself show a consideration such as would bar a recovery for the injuries, yet where the company has given the injured party employment under such agreement of release, this will constitute a sufficient consideration therefor.</p>

<p>Appeal from the District Court of Milam Comity. Tried below before Hon. J. C. Scott.</p>

<p>1. —Pleading—Negligence—Proximate Cause.</p> <p>Allegations that injury to one loading a car on the track, caused one car to run against another thereon, which, in turn, was alleged to be caused by negligence of the railway company in constructing the track with too steep a grade for safety, were not demurrable on the ground that such a result was not to be anticipated from such construction.</p> <p>2. —Jury—Weight of Evidence.</p> <p>The jury, as judges of the weight of evidence, must determine therefrom whether the act of the injured person causing his injury was the result of terror.</p> <p>3. —Railway Company—Use of Track by Others.</p> <p>A railway company is responsible for the negligence, not only of its own servants, but of others permitted to move cars over its track, as e. g. the employes of a cotton mill moving cars for its purposes.</p> <p>4. —Contributory Negligence—Acting Under Terror.</p> <p>Contributory negligence is not to be imputed to one who, acting in an emergency under sudden terror, chooses a means of avoiding danger which results in his injury.</p> <p>Where a person was injured while loading a car, it is immaterial by whom the car was pointed out to him, if it appears that he was loading the right one, nor was it, in such case, error to defendant’s prejudice to instruct that it was responsible for the acts of the persons pointing out such car though they were not its agents.</p> <p>5. —Negligence—Acting on Information.</p> <p>6. —Proximate Cause—Charge.</p> <p>It was error "in the charge to require the jury to find that acts of an injured person which, if they existed, necessarily and directly caused his injury were proximate causes, as well as negligent acts, in order to defeat recovery.</p> <p>7. —Negligence—Moving Cars—Duty to Look Before Moving Them.</p> <p>Whether it was negligence in persons undertaking to move cars upon a track to first look to see if any person was in danger therefrom was a question of fact, and the duty could not be treated by the charge as an absolute one.</p> <p>8. —Contributory Negligence—Acting Under Fear—Charge.</p> <p>A charge upon contributory negligence is properly refused where the issue as to excuse for such negligence from the act being done under sudden fear is involved and is ignored by the instruction.</p>

<p>Appeal from the District Court of Parker County. Tried below before Hon. J. W. Patterson.</p>

<p>1. —Railroads—Injury to Brakeman—Negligence of Conductor..</p> <p>Where a brakeman was, in the discharge of his duty, extracting a coupling pin from the drawhead of a car, and was injured by other cars behind him being backed against him noiselessly and without signals, and his situation and peril were in plain view of the conductor who was signaling the moving train, the jury were warranted in concluding that the injury was due to the negligence of the conductor, and that there was no contributory negligence on the brakeman’s part.</p> <p>2. —Damages—Personal Injury—Verdict Not Excessive.</p> <p>A verdict for $7250 in favor of an experienced railroad brakeman, 30 years old, and earning $60 to $125 per month, for an injury causing the loss of nearly all his right hand, and attended with much pain and suffering, is held not excessive.</p>

<p>AppeaL from the District Court of Houston County. Tried below before Hon. John Young Gooch.</p>

<p>Appeal from the County Court of Ellis. Tried below before Hon. J. E. Lancaster.</p>

<p>1. —Railway Company—Passenger—Personal Injury—Charge.</p> <p>Where plaintiff having assisted his wife to a seat in defendant’s train, was injured in leaving it by a sudden jerk of the train, and the evidence showed that the conductor or brakeman, a white man, was given notice of plaintiff’s intention not to become a passenger, a charge that defendant would be liable if plaintiff notified any of the employes in charge of the train of his intention to get off was not misleading because the evidence showed also that there were negro porters at the steps of the car, and the jury might assume that one of the porters only had notice.</p> <p>2. —Same—Contributory Negligence—Leaving Moving Train.</p> <p>It is not negligence per se for one to leave a moving train. See evidence held to sustain a finding that plaintiff was not guilty of contributory negligence in entering the train to assist his wife and in alighting therefrom while the train was in motion.</p> <p>3. —New Trial—Newly Discovered Evidence—Diligence.</p> <p>A motion for new trial on the ground of newly discovered evidence is insufficient where it fails to show diligence on the applicant’s part to discover such evidence before the trial.</p>

<p>1. —Railway Company—Passenger—Pleading and Evidence.</p> <p>In an action against a railway company by a female passenger for damages alleged to have resulted from placing her in a second class car where the passengers used profane language in her presence, evidence of the profanity pf one of such passengers was admissible, and if defendant desired the evidence showing a profane remark limited to the allegation in the petition, it should have requested the court to do so by a proper charge.</p> <p>2. —Same—Authority of Porter—Charge.</p> <p>Where the evidence showed that it was the duty of the train porter to direct passengers which car to enter and that he carried the keys of the chair car, the court properly refused to charge that if the act of the porter in locking the door of the chair car and refusing to permit plaintiff to enter it was without the scope of his authority, the defendant company would not be liable.</p> <p>3. —Infant—Damages for Personal Injury—Father’s Negligence Not Imputed.</p> <p>Where an infant, by next friend, sues for her own benefit for personal injuries received, the negligence of her father will not be imputed to her so as to defeat the recovery.</p> <p>4. —Remarks of Counsel—No Reversible Error.</p> <p>A judgment will not be reversed for improper remarks of counsel in the closing argument where the court instructed the jury to disregard them, and the verdict does not appear excessive and is sustained by the evidence.</p> <p>5. —New Trial—Newly Discovered Evidence.</p> <p>Where plaintiff testified at what hours the train left her starting point and arrived at her destination, and defendant did not ask a continuance or postponement on the ground of surprise, it was not entitled- to a new trial because of alleged newly discovered evidence contradicting plaintiff’s testimony in that respect.</p> <p>6. —Railway Company—Negligence—Condition of Passenger Car.</p> <p>Evidence that the conductor passed through the ear taking up tickets and that the car was swept out by employes after plaintiff entered it, was sufficient to show that those in charge of the train had knowledge of the cold condition of the car, and that passengers were using profane language therein.</p>

<p>1. —Contract—Fraud of Seller—Misrepresentations.</p> <p>Plaintiff contracted to supply defendants with crossties, subject to the inspection of a railroad company, and afterwards wrote defendants for the railroad’s specifications as to the ties they would accept, saying that he could not furnish the stipulated number unless willow oak ties would be accepted, and that this was á very fine quality of oak. To this defendants replied that they would accept willow oak ties, and inclosed the requested specifications, which called for “oak standard” ties. The evidence showed that willow oak was not suitable for ties, plaintiff himself testifying that he had never before used'it or known it to be used for ties, and it further showed that defendants knew nothing about willow oak, and in agreeing to accept such ties relied on plaintiff’s statement as to the quality of the oak. Held, that defendants were not precluded from requiring that the ties furnished should be “standard,” or such as would be accepted by the railroad company.</p> <p>2. —Appeal—Objections to Evidence.</p> <p>Objections to the admissibility of evidence can not be made for the first time in the appellate court.</p>

<p>1. —Telegraph Company—Agency—Evidence.</p> <p>Where the liability of the telegraph company depended on the fact that the message had not been routed the best and most direct way, and the evidence was uncontradicted that the person who directed how the message should be routed was not the agent of the telegraph company, but of the sender, a verdict against the company can not be sustained.</p> <p>2. —Same—Telephone Connection—Changing Route.</p> <p>It was the duty of the telegraph company to send the message to M. as routed, unless it knew or should have known that the telephone line from that point was not in working order, and that therefore the message could not be promptly forwarded on from M. to the addressee.</p>

<p>1. —Carriers of Passengers—Degree of Care.</p> <p>In a case where plaintiff’s wife and child were carried by the defendant railway company in an unheated car, in cold weather, without water, and the wife compelled to stand and hold the child, whereby both were made sick, the charge of the court properly defined the degree of care which it was defendant’s duty to have used as “that high degree of care which would have been exercised by very cautious, prudent, and competent persons under similar circumstances.”</p> <p>2. —Same—Through Train—Duty to Stop.</p> <p>A charge that if defendant accepted plaintiff’s wife as a passenger without protest, it became its duty to stop the train at her station, although it did not customarily stop there, was error, since the fact that she was so received, and that she did not know the train did not stop at her station, would not authorize a recovery of damages for failure to put her off there, unless it was further shown that she exercised ordinary care to ascertain that the train she took was the proper one.</p>

<p>Appeal from Freestone. Tried below before Hon. L. B. Cobb.</p>

<p>Appeal from Dallas. Tried below before Hon. Thos. F. Hash.</p>

<p>1. —Husband and Wife—Illegal Marriage—Partnership Property.</p> <p>Where plaintiff in good faith lived with defendant as her husband, believing him to be such, but there was no legal marriage, their relation, as to property acquired by their joint efforts during its existence, is treated as a partnership, and the putative wife is entitled to an equal share of the property, regardless of the amounts respectively contributed by each party.</p> <p>2. —Same—Fraudulent Conveyance.</p> <p>Where, after the dissolution of the invalid marriage relation with plaintiff, defendant entered into a marriage and conveyed to his wife the property acquired during the former relation, without consideration, and for the purpose of putting it out of the reach of possible claimants, such conveyance was void as to plaintiff.</p> <p>3. —Same—Limitations.</p> <p>Where defendant ceased to treat plaintiff as his wife, and thereafter lived in adultery with his present wife and others, but did not cease to provide for plaintiff, and allowed her a house on the land in which she continued to live, subsisting out of the common fund, and for more than ten years after such desertion she took no legal steps because she hoped plaintiff would'return to his allegiance to her, limitation did not run against her rights in the property.</p> <p>4.—Same—Repudiation.</p> <p>The act of defendant in conveying the land to another, the possession not being surrendered, and the land afterwards reconveyed to defendant, was not necessarily such a repudiation of plaintiff’s rights as would set in motion the statutes of limitation.</p>

<p>Appeal from the District Court of Grimes County. Tried below before Hon. J. M. Smither.</p>

<p>1. —Ordinary Care Defined—Charge.</p> <p>An instruction that “ordinary care and caution as used in this charge is that degree of care and caution that a person of ordinary prudence is accustomed to use under like or similar circumstances,” is sustained, though it does not use the exact language of the books.</p> <p>2. —Same.</p> <p>Where the court charged that if plaintiff failed to use such care and caution as a prudent and cautious person would have used under the same circumstances, he could not recover, failure to use the word “ordinarily” before the word “prudent” was an error against the plaintiff, of which the defendant company could not complain.</p> <p>3. —Same.</p> <p>Objection that the court used the language “reasonably prudent person,” instead of “ordinarily prudent person,” is hypercritical, as the expressions may be used interchangeably.</p> <p>4. —Same—Warning—Issue Not Raised.</p> <p>Evidence held to so clearly show want of ordinary care on the part of a conductor in his attempt at giving warning to defendant, who was in a boxcar, of the approach of the train, as to warrant the court in refusing to charge that if the conductor attempted to warn those in the car as the train approached, and that such act on his part amounted to the exercise of ordinary care for the safety of those in the car, the verdict should be for the defendant.</p> <p>5. —Allegation and Proof—Personal Injury.</p> <p>Where the petition in an action for personal injury charged that plaintiff’s hip was dislocated, plaintiff was not precluded from recovering for injuries to his hip, including a bruise, strain, or contusion, on the ground that the evidence did not show a dislocation.</p> <p>6. —Res Gestae—Personal Injury.</p> <p>A declaration by the plaintiff a short time after the accident and before suit was brought that he could not work, made as a reason for quitting the service, and at a time when he was shown to be crippled, amounted to no more than a statement of the present effect of his infirmities at that time, and was admissible in evidence as being in the nature of res gestae.</p> <p>7.—Expert Evidence—Personal Injury.</p> <p>In an action for personal injuries a nonexpert witness could testify that plaintiff limped, appeared to be crippled, and was unable to work, such statement being based on the fact that plaintiff walked crippled, slowly, and with a stick; and the witness could further state that plaintiff’s condition had not improved since he was hurt.</p>

<p>1. —Sale of Land—Limitations—Gross Deficiency.</p> <p>Where the purchaser of an original survey of land bought with knowledge of a deficiency in the quantity called for in the patent, it was incumbent on him, if he did not intend to take the risk of whatever deficiency there might be, to have the land surveyed and ascertain the actual amount thereof, and therefore, as against his right of action to recover for a gross deficiency, the statute of limitation of two years ran from the date of the purchase.</p> <p>2. —Same—Fact Case.</p> <p>See evidence which is held to show, though the verdict of the jury was to the contrary, that the purchaser bought the land with knowledge of a shortage and agreed to take it at whatever acreage there might be, and that he was willing to risk the contingency of quantity, even to the extent of a gross deficiency. Garrett, Chief Justice, dissenting.</p>

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Robert M. Franklin.</p>

<p>Appeal from Dallas County. Tried below before Hon. Richard Morgan.</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Wm. H. Wilson.</p>

<p>1. —Contributory Negligence—Charge—Reiteration.</p> <p>Where in an action against a railway company for personal injury the charge of court reiterates the principles of law applicable to the issue of contributory negligence in such manner as to give it undue prominence, it is error and on the weight of evidence.</p> <p>2. —Same—Discovered Peril.</p> <p>Although plaintiff, who was injured by a train while walking on the railroad track, was intoxicated at the time and guilty of contributory negligence, the defendant company was liable for the injury unless its servants, after discovering plaintiff’s peril, used every reasonable means to prevent the injury sustained consistent with the safety of the train.</p> <p>3. —Same—Trespasser on Track.</p> <p>Where it was not controverted that the track along which plaintiff was walking when struck by the train was commonly used by the public with the knowledge and consent of the railway company as a public highway, it was error to charge that he was a trespasser unless the evidence showed that he used that portion of the track which was suitable and safest for pedestrians, as this was in effect stating that a pedestrian walking between the rails was guilty of contributory negligence.</p> <p>4. —Same—Burden of Proof.</p> <p>Where the action is for personal injury in being run over by a train while walking on the railroad tracks, plaintiff has not the burden of proving by a preponderance of the evidence that he was not guilty of contributory negligence.</p> <p>5. —Same—Discovered Peril.</p> <p>The defendant company was liable for running over "plaintiff on its track when he was not a trespasser, nor guilty of contributory negligence, if its servants were negligent in running the train at an unlawful speed, or in failing to keep a proper lookout, and such negligence caused the injury, even though the trainmen, after discovering his peril, used every reasonable means to prevent the injury.</p>

<p>1. —Notes—Indorsement Before Maturity—Burden of Proof—Innocent Purchaser— Vendor’s Lien.</p> <p>Where a vendor’s lien note, recited in the deed of the land placed on record, was assigned before maturity, the assignment not being recorded, and thereafter the vendor of the land accepted a reconveyance from the vendee which was recorded and which recited a cancellation of the note and release of the lien by the vendor as the consideration therefor, and the vendor then sold the land again, taking notes secured by a lien reserved in the deed, purchasers of such latter note were entitled to priority over the.lien of the first note, which had not been satisfied, if they purchased before maturity and without notice, but the burden was on them to show this, and the mere indorsement of the notes in blank, with no proof showing the circumstances or actual date of their acquisition, was not sufficient.</p> <p>2. —Same—Holder for Collection Only.</p> <p>Where the evidence showed that a party holding two of such latter -notes, held them for collection only, and had never applied the proceeds as directed, the court properly instructs a verdict against such party and in favor of the lien securing the note given on the first sale.</p>

<p>Trust—Corporation as Trustee—Incapacity—Equity Power—Will.</p> <p>Where a testatrix devised a part of her property to a corporation in trust for certain beneficiaries, to be paid to them as in the judgment and discretion of the trustee their necessities should properly require, it is held, in an action under the statute to- construe the will and bringing in question the validity of such devise because of alleged incapacity of the trustee to execute such a trust, that even if the trustee he incompetent, the trust will not thereby fail, as a court of equity has power in such case to appoint a proper trustee.</p>

<p>Appeal from the District Court of Johnson County. Tried below before Hon. W. H. Bledsoe, Special Judge.</p>

<p>1. —Community Property—Title—Survivor—Heirs.</p> <p>The surviving wife, by qualifying as survivor in community, does not become the owner in her own right of the entire community property (Revised Statutes, articles 1696, 2237, 2238), so as to make the children of the deceased spouse her creditors for the value of their interest in the estate; and hence the children may recover their interest in community lands sold for a personal debt of the survivor incurred after her qualification as such.</p> <p>2. —Same—Survivor in Community—Debts of—Liens.</p> <p>Where a survivor in community, duly qualified as such by bond given, incurs debts which are for her own personal benefit, and not that of the community estate, such debts are not a charge upon the entire community estate entitled to preference over the claims of the children of the deceased spouse.</p> <p>3. —Tax Sale—Illegality—Lien.</p> <p>The purchaser of several lots of land sold together at a void tax sale is not entitled to enforce a lien against one of the lots for the taxes properly chargeable against it without showing the amount of the taxes chargeable against such lot.</p>

<p>Appeal from the District Court of Hill County. Tried below before Hon. J. M. Hall.</p>

<p>1. —Homestead—Segregation—Renting.</p> <p>Though the renting out of a lot forming part of the homestead may constitute a segregation, yet where tie owner, his house on the other lot being afterwards burned, moves onto the lot so rented, and uses it for homestead purposes, this restores the homestead character.</p> <p>2. —Motes—Maturity—Failure to Pay First of Series—Motice—Defense of Homestead.</p> <p>Where each of a series of notes stipulates that a failure to pay any note at maturity shall mature all, a purchaser of the notes after one has matured is, as to all of them, a purchaser after maturity; and all the notes being secured together by a vendor’s lien, the purchaser is charged with notice of homestead rights existing as a defense against them all.</p> <p>3. —Homestead—Loan—Simulated Sale—Void Lien.</p> <p>Where a vendor’s lien is created by a simulated sale and conveyance of the homestead, made without consideration, and merely to permit the grantor to raise money on the lien notes given for the purchase price, such lien will not be enforced in favor of one who purchased the notes after maturity as against an assertion of the homestead right.</p> <p>4. —Same—Estoppel.</p> <p>See facts held not to estop the owner from asserting his homestead right as against such purchaser of the notes after maturity.</p>

<p>Appeal from the District Court of Cooke County. Tried below before Hon. D. E. Barrett.</p>

<p>■ Appeal from the District Court of Angelina County. Tried below before Hon. Tom C. Davis.</p>

<p>Error from Dallas. Tried below before Hon. T. F. Hash.</p>

<p>Appeal from the District Court of Galveston. County. Tried below before Robert M. Franklin.</p>

<p>Error from the District Court of Galveston County. Tried below before Hon. Robert M. Franklin.</p>

<p>1. —Master and Servant—Railroad’s Negligence—Charge.</p> <p>A charge that an employe riding on a work train assumes the dangers ordinarily incident to travel on such trains, but. does not assume any dangers on account of the negligent equipment and operation of the train, was -correct, and was not objectionable as assuming that the defendant railway company was negligent in these respects.</p> <p>2. —Same—Riding on Work Train.</p> <p>Where the action was- for injuries to an employe while riding on a work train, the liability of the railway company was limited to the exercise of ordinary care in the operation and equipment of the train. See charge held to properly define negligence in such a case, and that was not erroneous as making it the absolute duty of the railway company to have the train properly equipped and operated.</p> <p>3. —Same—N egligence—Accident—Charge.</p> <p>Where the evidence showed that the injury to plaintiff was due to the sudden stopping of the engine, causing a link in one of the couplings to part, and defendant offered no testimony explaining the cause of the accident, a charge was warranted upon the theory of negligence in the equipment and operation of the train.</p> <p>4. —Personal Injury—Allegation and Proof.</p> <p>Where the petition alleged injury by a shock to the nervous system, this was sufficient to admit testimony by an expert that such a shock produced a lower state of vitality, causing a defect of hearing, impairment of speech, and injury to the eyesight.</p> <p>5. —Same.</p> <p>Where the petition alleged injury to the spine, it was admissible to show the effect of such an injury on the sense of hearing.</p> <p>6. —Same—Rebuttal Evidence—Complaint of Injury.</p> <p>Where the defendant company introduced testimony that plaintiff, an employe, made no complaint as to injuries received while he remained in its service, evidence of statements by plaintiff, some time after the accident, complaining of being hurt and suffering pain, was admissible in rebuttal.</p> <p>7. —Same.</p> <p>Evidence that an employe of defendant reporting that he was injured would have to execute a release of his claim for damages before returning to work was admissible as tending to show a reason for plaintiff’s failure to make complaint to defendant of his injuries.</p> <p>8. —Same—Hypothetical Case.</p> <p>The testimony of the physician, who had already testified fully about plaintiff’s injuries and his examination, and who had been asked in the form of a hypothetical case as to the cause and result of the injuries, that the injury received by plaintiff would cause the condition he was in, was admissible, and was not objectionable as calling for the conclusion’ of the witness on an issue to be determined by the jury. In the absence of any showing as to what the hypothetical case was, it will be presumed that such question was justified by the facts of the ease in evidence.</p> <p>9. —Verdict—Impeachment by Juror.</p> <p>The affidavits of jurors will not be heard to impeach their verdict by showing that it was reached by lot.</p>

<p>Appeal from the District Court of Hill County. Tried below before Hon. Wm. Poindexter.</p>

<p>1. —Telegraph Company—Agency—Delivery of Message—Office Hours.</p> <p>Where the agent of the telegraph company made a special contract for the immediate transmission to and delivery at E. of an urgent message, for the delivery of which an extra fee was paid, the contract was within the apparent scope of his authority, and the company could not urge as a defense to an action for damages from nondelivery that its business hours at E. were such as rendered its compliance with the contract impracticable.</p> <p>2. —Same—Mental Anguish.</p> <p>A parent may recover damages for increased mental anguish incurred from witnessing the suffering of a sick child where such increased suffering is occasioned by the negligence of a telegraph company in failing to promptly deliver a message addressed to a physician directing him to come at once to the sick child. Following Telegraph Company v. Richardson, 79 Texas, 649, and reviewing cases in apparent conflict.</p> <p>3. —New Trial—Misconduct of Counsel.</p> <p>It was not ground for a new trial that plaintiff’s counsel treated the jury in another case against the defendant company before they returned their verdict, where it did not appear that any of those jurors sat in the trial of this case.</p>

<p>1. —Record of Deeds—Constructive Notice—Second Conveyance by Same Grantor.</p> <p>Where T. conveyed land to ,W. by deed which was recorded, and W. conveyed it to A. by deed which was not recorded, and thereafter both deeds were surrendered by the .grantees, and in lieu thereof T. conveyed direct to A., purchasers from the heirs of W. were not charged with constructive notice by the record of the deed from T. to A., since the title appeared to have passed out of T. prior to that time, and such deed was therefore not in the''chain of W.’s title.</p> <p>2. —Same—Actual Notice—Innocent Purchaser.</p> <p>Even if the purchasers from the heirs of W. were constructively charged with notice by the record of the deed from T. to A., they could, in the absence of actual knowledge of the deed, still be innocent purchasers, since the record showed the title in W. But actual knowledge of the deed might have sufficed to put them on inquiry as to the facts which invalidated W.’s apparent title.</p>

<p>Appeal from the District Court of Hunt County. Tried below before Hon. H. C. Connor.</p>

<p>Personal Injury Claim—Assignability.</p> <p>A cause of action, or portion thereof, based on damages arising from personal injuries, is assignable, although suit has not been instituted for such damages by the person injured.</p>

<p>Appeal from the District Court of Comal County. Tried below before Hon. L. W. Moore.</p>

<p>Verdict—Railroad Company—Using Initials.</p> <p>Where the jury found for the plaintiff “against the M. K. & T. Ry. Co.,” this was sufficient to authorize a judgment against the Missouri, Kansas & Texas Railway Company of Texas, it being a party defendant to the suit.</p>

<p>Appeal from the District Court of Travis County. Tried below before Hon. F. G. Morris.</p>

<p>Appeal from the District Court of Angelina County. Tried below before Hon. Tom C. Davis.</p>

<p>Appeal from the District of Angelina County. Tried below before Hon. Tom C. Davis.</p>

<p>1. —Garner of Passengers—Injury to Wife—Evidence.</p> <p>Evidence held sufficient to support a finding that the injury to plaintiff’s wife resulted from the negligence of defendant’s servants in not stopping the train long enough for her to alight, and in starting it again with a violent jerk.</p> <p>2. —Same—Verdict—Damages for Personal Injury.</p> <p>Evidence held to sustain a verdict for $2000 for injuries to plaintiff’s wife, resulting from a jerk of the train throwing her down, hurting her back, etc.</p> <p>3. —Same—Contradicting Witness—Predicate.</p> <p>Where a physician, testifying as a witness for defendant, had stated that he saw plaintiff’s wife just after she got off the train, and that it was three or four days afterwards before he first heard that she claimed to have been injured, it was proper to ask him on cross-examination if he did not ask her if she was not hurt, and say to her “You look pale,” and he having answered in the negative, it was permissible to contradict him by the wife’s testimony.</p> <p>4. —Same—Charge Limiting Effect of Evidence.</p> <p>A charge that certain hearsay testimony given in rebuttal and to impeach a witness is to be considered by the jury only as affecting the credibility of the witness, and for no other purpose, is proper and not on the weight of evidence.</p> <p>5. —Same—Husband and Wife—Value of Wife’s Services.</p> <p>Where the action was by the husband for personal injury to the wife, and the evidence disclosed their condition in life and the habit of the wife to do household work, this was sufficient to warrant the court in submitting to the jury the right of the husband to recover for loss of the wife’s services.</p>

<p>Appeal from the District Court of Tarrant County. Tried below before Hon. M. E. Smith.</p>

<p>Appeal from the District Court of Hill County. Tried below before Hon. William Poindexter.</p>

<p>1. —Foreign Corporation—Citation—Service.</p> <p>Service upon the local agent here of a foreign corporation doing business in this State is sufficient. Rev. Stats., art. 1223.</p> <p>2. —Same—Appearance.</p> <p>Where a foreign corporation appears for the purpose of objecting to the jurisdiction of the court, this operates as an appearance to the next succeeding term.</p> <p>3. —Same—Place of Contract—Guaranty.</p> <p>The agent of a foreign corporation contracted in G. County, Texas, to sell plaintiff certain machinery to be delivered f. o. b. in Pennsylvania, guaranteeing it and agreeing to correct any defects in its material or operation that might develop in thirty days. The contract was subject to approval by an executive officer of the company, and was so approved. Held, that under the statute providing that “a foreign corporation doing business in the State may be sued in any county where the cause of action or a part thereof accrued,” a plea of privilege by the defendant asserting its right to be sued in another county where it had a local agent was properly overruled.</p> <p>4. —Warranty—Extent of Recovery—Notice—Return of Property.</p> <p>Where an article of machinery sold on a warranty of quality is wholly worthless, the purchaser may recover the entire value of such an article as was warranted, and he is not required to give notice of the defect, or offer to return the article, or to return other apparatus bought therewith, but not defective, as a condition precedent to such right of recovery.</p> <p>5. —Assignment of Error—Statement.</p> <p>Where an assignment of error is to the admission of evidence, and the evidence is not stated in the propositions made under the assignment, and the page of the transcript where it may be found is not cited, the assignment will not be considered.</p> <p>6. —Witness—Expert Evidence.</p> <p>Where witnesses qualified themselves as expert machinists familiar with the operation of machinery, they were competent to testify as to whether an electric motor was operated under normal and proper conditions.</p>

<p>1. —Deed—Declaration of Grantor—Advancements—Delivery.</p> <p>Declarations of a grantor subsequent to the execution and delivery of a deed are not admissible in disparagement of the title conveyed; and this rule applies where such declarations were that deeds made to his grandchildren, but put in possession of another for delivery to them on the grantor’s death, were intended as advancements to be counted against the interest of the father of grantees, then living, as heir of the grantor.</p> <p>2. —Evidence—Party—Transactions with Deceased.</p> <p>The restriction of the right of a party to testify to declarations of a decedent (Revised Statutes, article 2302) applies though the testimony of the party would not affect his interest save by a judgment for costs.</p> <p>3. —Evidence—Conclusion of Witness.</p> <p>Where purpose or intention is in issue, acts or declarations evidencing same may be proven, but not the understanding or conclusion of the witness thereto as to such purpose or intention.</p> <p>4.—Deed—Delivery—Relation.</p> <p>A deed placed by the grantor in the hands of another for delivery to the grantees on the maker’s death, where delivered on the happening of that event, divests the grantor’s title, by relation from the time of the original delivery by him.</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Wm. H. Wilson.</p>

<p>1. —Community Property—Sale by Survivor—Presumption of Community Debts.</p> <p>B. and wife were married in 1850, and the wife died in 1867. One month thereafter B. sold and conveyed to his brother, for $600, a tract of land which was community property of himself and his deceased wife. It was shown that he then owed to one U. $1200, which he said he could not pay, and that he told ahother brother that he had transferred all his property to put it out of the reach of his creditors. Held, in an action brought by the heirs of the wife, fifteen or twenty years after they knew of such sale, to recover a half interest in the land so conveyed, that it would be conclusively presumed that community débts existed at the death of the wife, and that the sale of the land was, ostensibly at least, made for their satisfaction.</p> <p>2. —Same—Applying Proceeds of Sale to Community Debts.</p> <p>The purchaser of the land from B. was under no obligation to see that the proceeds of the sale were applied by him to the discharge of community debts, nor was he affected by B.’s subsequent declaration to another brother that he had transferred his property for the purpose of defrauding his creditors.</p>

<p>Appeal from the County Court of Washington. Tried below before Hon. E. P. Curry.</p>

<p>Appeal from the District Court of Nueces County. Tried below before Hon. Stanley Welch.</p>

<p>1. —Disqualification of Judge.</p> <p>Where the action was for damages to land by pollution of a stream flowing through it, the district judge was not disqualified to try it because he owned an adjoining tract below, and through which the stream also flowed, since the statute disqualifies a district judge only where he is “interested in the cause.” Rev. Stats., art. 1068.</p> <p>2. —Damages to Land—Sewers—Pollution of Water Course—Public Use.</p> <p>Where defendant, a private corporation, caused permanent damage to plaintiffs’ land by emptying its sewers into a creek flowing through the land, plaintiff was entitled to recover for such damage, although science, skill and care were exercised in the construction of the sewers, and the stream was the natural drainage of the territory covered by the sewerage system. The constitutional provision forbidding the taking or damaging of private property for public use applies, since defendant’s right could not rise higher than those of the city it served with its sewerage system. Const., art. 1, sec. 17.</p>

<p>School Land—Lease—Cancellation.</p> <p>The lease law of 1895 (Session Laws 1895, page 63) did not authorize the Commissioner of the General Land Office to cancel leases of school lands for any cause except those specified in the statute, and his action in canceling a lease upon mere request of the lessee, in order to re-lease to him for a longer term, was void. Following Ketner v. Rogan, 95 Texas, 559.</p>

<p>Appeal from the District Court of Parker County. Tried below before Hon. J. W. Patterson.</p>

<p>Appeal from-the District Court of Palo Pinto County. Tried below before Hon. W. J. Oxford.</p>

<p>Appeal from the County Court of Clay. Tried below before Hon. H. A. Allen.</p>

<p>Error from the District Court of Anderson County. Tried below before Hon. G. H. Gould, Special Judge.</p>

<p>Appeal from the County Court of McLennan County. Tried below before Hon. G. B. Gerald.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. Marshall Surratt.</p>

<p>Appeal from the District Court of Bexar County. Tried below before Hon. S. J. Brooks.</p>

<p>Appeal from the District Court of Bexar County. Tried below before Hon. S. J. Brooks.</p>

<p>Appeal from the County Court of Williamson County. Tried below before Hon. Chas. A. Wilcox.</p>

<p>Leased State Land—Driving Herds Through Pasture.</p> <p>Where plaintiff leased from the State and inclosed 140 sections of University lands under the Act of April 1, 1887, which forbids any one who fences any such lands to maintain more than three miles of fence in a continuous line without a gate therein, and provides that when necessary in moving herds of live stock, the lessee shall permit them to pass through the inclosure, provided the owner moves them expeditiously, plaintiff could not recover damages caused by defendant’s sheep in grazing while being moved expeditiously through the pasture.</p>

<p>1. —Insurance—Proof of Loss.</p> <p>A fire insurance policy on a stock of goods, which required proofs of loss to be submitted containing a sworn inventory stating the quantity and cost of each article, etc., is not complied with by furnishing insurer an unsworn statement showing the amount of plaintiff’s inventory of stock six months before the fire and the amount of his purchases and sales since.</p> <p>2. —Same—Waiver—Pleading.</p> <p>Proof of waiver of requirement to furnish the required proofs of loss by receiving those furnished without objection, is not admissible under pleadings which only allege compliance by plaintiff with the requirement to furnish the proofs.</p>

<p>1. —Negligence—Subcontractor—Employe of Contractor—Injury.</p> <p>Where a contractor employs a subcontractor to put cement floors in a building, and the latter delivered over a floor as complete, it could not claim that the contractor’s employes, in afterwards going on the floor in the transaction of their business, were trespassers, so as to be precluded from recovering for injuries due to its negligent construction of the floor; and in afterwards making changes and repairs in the floor, the subcontractor was charged with the duty to the contractor’s employes of using due care.</p> <p>2. —Same—Foreseeing Injury.</p> <p>A subcontractor engaged in putting in cement floors in a building, who, after replacing a cracked panel, removed the support, without giving it sufficient time to harden and become safe, should have foreseen that parties going on it would receive injury, and knowing that employes of the contractor were at work in other parts of the building, and that their work in that part was not complete, he should have foreseen that they might go on the panel.</p> <p>3. —Same—Knowledge of Contractor—Injury to Employe.</p> <p>Although a contractor who had employed a subcontractor to put cement floors in a building knew that the latter had replaced a defective panel in the floor, this would not preclude one of the former’s employes, who had been injured by a breaking through of the panel under his weight, from recovering for the injury, where neither the contractor nor the injured employe knew of the fact which caused the injury, viz., the removal of the support from under the panel before it had time to harden.</p> <p>4. —Same—Assumed Risk.</p> <p>The danger to the employe from going upon the defective panel was not, under the facts, a risk which he had assumed.</p> <p>5. —Same—Fact Case.</p> <p>Evidence held not. to show that an employe knew that a particular panel in a cement floor had just been'taken out and replaced and the support under it removed, so that it was unsafe to walk on-it.</p>

<p>1.—Master and Servant—Assumed Eisk—Inspection—Patent Defects—Charge.</p> <p>Where the only defect complained of as causing plaintiff’s injury was that the lid of a tool box on a locomotive tender was prevented by the tender from going far enough back when open to keep it from falling, and plaintiff saw just how far the lid could be pushed back when he used the box at the time the lid fell on his head, it was proper for the court to charge that the master is not liable if the defect was. as open to the observation of the employe as of the master, and such charge did not tend to convey the idea that it was the employe’s duty to inspect for defects.</p> <p>2. —Same—Inspection—Charge.</p> <p>Where the court had charged that it is the master’s duty to furnish safe appliances and that the employe has the right to assume that this has been done, a special charge, instructing that the employe is not required to inspect appliances before using them, was properly refused, as being unnecessary.</p> <p>3. —Personal Injury—Release—Evidence.</p> <p>Where there was no ambiguity in a release from liability for knocking out two teeth and cutting the lip, there was no error in excluding evidence that it was not then known that there were other injuries, and that it was not intended that the release should include other injuries.</p> <p>4. —Same—Harmless Error.</p> <p>If there was error in excluding such evidence, it was harmless where the court allowed evidence of and authorized recovery for the injuries that developed after the release. ’</p> <p>5. —Jury—Misconduct—Verdict.</p> <p>In a case wherein plaintiff claimed that he was injured by a box lid, eighteen inches wide, falling on his head, evidence to the effect that the jury, during their deliberations, experimented with a plank lid eighteen inches wide to see if its fall could cause such an injury, did not show such misconduct as called for a new trial.</p> <p>6. —Same—Affidavit of Juror Impeaching Verdict.</p> <p>Such a case of misconduct is not of that extreme character wherein it is permissible to impeach a verdict by the affidavit of one of the jurors.</p>

<p>Appeal from the District Court of Brazoria County. Tried below before Hon. Wells Thompson.</p>

<p>Anti-Trust Statute—Penalty—Liquidated Damages.</p> <p>The Act of May 25, 1899, prohibiting pools, trusts, and monopolies, authorizing prosecutions against them and the recovery back of any money paid to such a company or corporation so unlawfully transacting business, provides for a penalty, and not liquidated damage, so that the right of action dies with the corporation.</p>

<p>Appeal from Fayette. Tried below before Hon. Norman G. Kittrell, Special Judge.</p>

<p>1. —Practice on Appeal—Record—Ex Parte Affidavits Aiding.</p> <p>Where plaintiff’s petition fails to state a fact essential to his right of recovery, and there is no evidence of such fact in the record, the appellate court will not consider ex parte affidavits, and a certificate of the trial judge showing that proof of such fact was waived by the opposite party.</p> <p>2. —Same—State School Land Purchaser—Presumptions in Favor of Judgment.</p> <p>Where the suit was to recover school land by virtue of a rejected application to purchase it, and there is no proof in the record that plaintiff was an actual settler on the land at the time of his application, or was owner of and an actual settler on other land within a radius of five miles, the appellate court will not infer, in favor of the judgment for plaintiff, that proof of such fact was made, nor can it infer that the application was rejected on other grounds.</p> <p>3. —Same—Fundamental Error.</p> <p>The failure of plaintiff to allege that he had the right to purchase as an actual settler at the time of his application is fundamental error, of which notice will be taken though it be not assigned as error.</p> <p>4.—Trespass to Try Title—School Lands—Pleading Title.</p> <p>Where plaintiff sues in trespass to try title to recover a tract of State school land by virtue of his rejected application to purchase it, and he undertakes to plead his title specially, alleging the making of such application and its rejection, a failure to allege his right to purchase as an actual settler at the time of the application renders the petition fatally defective, and such as will not support a recovery even if the requisite proof on that point had been made.</p>

<p>1. —Practice on Appeal—Fundamental Error.</p> <p>Where the trial court, upon undisputed facts such as required a peremptory instruction for the defendant, misdirected the jury as to the law, and there was a judgment for the plaintiff, such error will be treated as fundamental, and will be noticed though not assigned.</p> <p>2. —School Land—Proof of Occupancy—Commissioner’s Certificate Conclusive.</p> <p>Proof of three years’ occupancy of State school land by a purchaser thereof, evidenced by the certificate of the Commissioner of the General Land Office, is conclusive as against the subsequent application of another to purchase the land. Following Logan v. Curry, 95 Texas, 664.</p>

<p>1. —Arbitration—Married Woman—Void Agreement.</p> <p>An agreement between a married woman and her husband, with whom she is living, to determine and effect by arbitration a division of their property, is a nullity, since she has no power to make such a contract.</p> <p>2. —Same—Judgment Upon Award.</p> <p>The agreement to arbitrate being void, the judgment of the court entered on the award and attempting to fix the status of the property as between her and her husband was also void.</p> <p>3. —Same—Acceptance of Service—Waiver.</p> <p>The wife’s acceptance of service Of the motion to -have judgment entered on the award could not give any vitality to such void agreement and award, nor operate as a waiver of the statutory requirement that the judgment on such an award shall be entered at the succeeding term of court.</p> <p>4. —Same—Limitations—Coverture.</p> <p>Limitations did not run during coverture against the wife’s right to set aside the judgment on the award.</p> <p>51—Same—Adult Children—Separable Award.</p> <p>As to the adult children who were also parties to the arbitration and who do not complain of the award, the judgment thereon was properly held binding as between them and the husband and wife jointly, there being nothing to show that the division was unfair or inequitable as to their interests.</p>

<p>Appeal from the District Court of Dallas County. Tried below, before Hon. Richard Morgan.</p>

<p>Appeal from the County Court of Montague County. Tried below before Hon. W. W. Cook.</p>

<p>1. —Assignment of Error.</p> <p>An assignment of error in permitting the amendment after verdict of a “first amended petition,” can not be considered where no such pleading is found in the record.</p> <p>2. —Insurance—Limitation on Agent’s Authority.</p> <p>The rule that insured must take notice of limitations contained in his written application, on the authority of the agent of insurer receiving and forwarding the same to affect his principal with any notice or statements by insured, to such agent (Insurance Company v. Walker, 94 Texas, 476) applies only where such agent’s authority is limited to receiving and forwarding the application for a policy to be issued by another, not to cases where he is furnished with blank policies to be signed and issued by him as local agent.</p> <p>3. —Insurance Agent—Liability to Company.</p> <p>To authorize recovery by an insurance company against its agent for failure to communicate to it facts material to the risk, disclosed to him by insured, it-must be shown that the policy would not have been issued had he made the facts known to the company.</p>

<p>Appeal from the County Court of Bexar County. Tried below before Hon. Robt. B. Green.</p>

<p>Appeal from the County Court of Travis County. Tried below before Hon. Geo. Calhoun.</p>

<p>Appeal from the District Court of Llano County. Tried below before James Flack, Esq., Special Judge.</p>

<p>1. —Life Insurance—Parol Contract.</p> <p>A parol contract of life insurance is valid; and such contract is sustained in this case, although a written policy, improperly dated ahead by the agent, was issued and mailed to the insured and was in his possession at the.time of his death, which was prior to the date so written in the policy.</p> <p>2. —Same—Pleading—Consideration.</p> <p>A petition on a parol contract of insurance was not subject to exceptions urged on the ground that it showed that the contract was without consideration, and had not taken effect before insured’s death, where it alleged that the insured should pay defendant out of his monthly wages a certain sum in monthly installments, beginning at a designated time, and that it was agreed at the time insured delivered his application to the agent, that the insurance should be binding on the next day, which was several days before the insured's death.</p> <p>3. —Same—Parol Evidence—Written Contract Excluded.</p> <p>Where plaintiff’s action was- on a parol contract of insurance, and she denied that the insured had accepted the written policy subsequently issued on his application, parol evidence to prove the terms Of the contract alleged was not objectionable as contradicting or varying the terms of the written contract.</p> <p>4. —Same—Date of Application Omitted.</p> <p>Where the application for insurance was not dated when delivered to the agent, parol evidence that the agent, without authority, subsequently inserted a date other than that agreed on, was not objectionable as varying the terms of a written contract.</p>

<p>Appeal from the County Court of Milam County. Tried below before Hon. R. B. Pool.</p>

<p>Election—Ballots—Identification Mark Omitted.</p> <p>Where city ordinances, enacted under a special city charter, provided that at a city election all ballots should be indorsed “official ballot,” together with the name of the city secretary and polling place, on the outside, and that ballots not so indorsed should not be counted, and also that the ballot handed to the voter should be marked with the initials or private mark of the officer delivering the same, but did not provide that unless a ballot was so marked it should not be counted, the latter requirement was directory only, and a ballot that had been received and deposited, having the official indorsement first mentioned, but without such private mark or initials, could not be rejected on that account.</p>

<p>Jurisdiction—Justice and County Court—Appeal—Amount—Plea Abandoned.</p> <p>Where plaintiff sued in the justice court to recover $19.95, and defendant pleaded in reconvention damages in the sum of $125, but no evidence was offered in support of the plea, the plea is held to have been abandoned, and the county court could acquire no jurisdiction of the case by appeal or certiorari.</p>

<p>1. —Application of Payments—Rule.</p> <p>The common law rule, which prevails in this State, gives the creditor the right, in the absence of instructions by the debtor, to make such application of payments as he may elect, provided it be not inequitable and unjust to the debtor.</p> <p>2. —Same—Note and Account—Debts Secured and Unsecured.</p> <p>Where a debtor owed both by note and open account, it was not inequitable for the creditor to apply payments to the account; and as between a debt secured by chattel mortgage and an unsecured debt, the creditor could apply payments to the latter.</p> <p>3. —Same—Delay in Making Application.</p> <p>Where a landlord’s accounts with his tenant were yearly accounts, a delay from October 10th to the end of December in applying a balance of a payment made by the tenant debtor on the current year account' to an unsecured debt of the previous year, against a similar debt secured by mortgage, was not such delay as forfeited the creditor’s right in that regard, the application being made with the first regular statement of the account furnished the tenant.</p>

<p>Appeal from the District Court of Dallas County. Tried below before Hon. Richard Morgan.</p>

<p>Appeal from the District Court of Cherokee County. Tried below before Hon. Tom C. Davis.</p>

<p>1. —Damages—Injury to Reputation—Evidence.</p> <p>Where the action was against officers for wrongful entry and search of plaintiff’s house, and special damages were asked for the humiliation and disgrace caused thereby to plaintiff and his family, and the injury to their standing in the community, evidence was admissible for the defendants showing that two women who were common prostitutes had occupied the same house in which plaintiff resided, one of them rooming with plaintiff’s family in the capacity of a servant, such evidence being limited by the charge to the issue of special damages.</p> <p>2. —Charge—Preponderance of Evidence.</p> <p>It was not error, this being a civil suit, for the court to refuse a special charge that required defendants to prove, not merely by a preponderance of the evidence, but to the “satisfaction” of the jury, that they had permission to make the search.</p> <p>3. —Same—Burden of Proof—Two Grounds of Recovery.</p> <p>Where plaintiff alleged that the entry and search of his house by defendants without the consent and against the protest of his wife, a charge that the burden of proof was on plaintiff to make out his case by a preponderance of the evidence did not impose on him the burden of proving want of consent unless that was necessary to make out his case.</p> <p>4. —Same—Submission of Issue.</p> <p>Where the charge submitted the issue just as plaintiff had tendered it in his pleadings and evidence,—that is, that the search had been made without the consent and over the protest of his wife,—it was not subject to criticism as being too onerous in that it required proof of both these facts.</p> <p>5. —Trial—Argument of Counsel.</p> <p>. It is not error for the court to refuse to allow two arguments by plaintiff’s counsel where counsel for defendant, after hearing the opening argument, decline to argue the case.</p>

<p>1. —Local Option—Election District—Commissioners Court—Constitutional Law.</p> <p>Although the provision in the Constitution of 1876 (article 16, section 20) directing the Legislature to enact a law whereby the voters of any county, justice precinct, town or city might determine in regard to the sale of intoxicating liquors therein, was amended in 1891 to include the voters of "such subdivisions of a county as may be designated by the commissioners court,” and the statute was subsequently amended in accordance therewith (Revised Statutes, articles 3384, 3393, 3395), yet as such constitutional grant of power to the people was not self-enacting, but dependent on legislative action, the subsequent amendment, in 1897, of article 3384, restricting the power of the commissioners court to the selection of one or more of the political subdivisions of the county as local option election districts, was a valid exercise of legislative power.</p> <p>2. —Same—Repeal by Implication.</p> <p>The Act of 1897 amending article 3384, Revised Statutes, in reference to local option election districts, repealed by implication articles 3393 and 3395, based upon a feature of the law removed by such amendatory act.</p> <p>3. —Same—Election Void—Unauthorized Election District.</p> <p>Where a local option election was held for a territory or district designated by the commissioners court, which had not theretofore been designated for any purpose, and which disregarded all political subdivisions, leaving part of a voting precinct within and part of it outside such election district, it was void.</p> <p>4. —Same—Jurisdiction of District Court.</p> <p>The district court has jurisdiction of a local option election contest and the power to declare the election void for want of authority in the commissioners court to order it for the territory in which it was held. Const., art. 5, sec. 8, as amended in 1891; Rev. Stats., art. 3397.</p>

<p>Survey—Land Certificate—Location—Appointment of Officer.</p> <p>Hardeman County not having been organized until 1872, being attached until that time to Montague County, was not within the meaning of the Act of May 25, 1871, authorizing the Governor to appoint one surveyor for two or more counties, and his appointment in 1871 of a surveyor for Jack and Hardeman counties being without color of authority and void, locations made in Hardeman County by such surveyor are invalid, though made by him as surveyor of the Jack land district.</p>

<p>1. —Charge—Construing Written Instrument—Undisputed Evidence.</p> <p>It is not upon the weight of evidence for the court’s charge, in an action of debt upon a written contract, to construe the legal effect of the written instruments in evidence and of the other undisputed evidence in the case, and to instruct that their effect is to render the defendant liable in a designated sum.</p> <p>2. —Action of Debt—Measure of Damages—Credits—Collaterals—Burden of Proof.</p> <p>Where the action was for debt upon a note, rather than for damages for breach of a collateral contract, the measure of damages was the amount due upon the note, less the credits to which it was entitled; and the burden of proof was on the defendants to show the credits arising from the sale of collaterals, and that the collaterals were sold at a fair price.</p> <p>3. —Note—Judgment Upon—Payment.</p> <p>Where the payee of a note recovers judgment thereon against the maker, the maker may, without showing payment of the judgment, maintain an action against another for the latter’s failure to pay the note according to an agreement so to do.</p>

<p>Error to the District Court of Tom Green County. Tried below before Hon. J. W. Timmins.</p>

<p>Appeal from the District Court of Bexar County. Tried below before Hon. J. L. Camp.</p>

<p>Appeal from the District Court of Rusk County. Tried below before Hon. R. B. Levy.</p>

<p>Appeal from the District Court of El Paso County. Tried below before Hon. J. M. Goggin.</p>

Tried below before Hon. J. C. Main. The sixth special instruction requested by the Texas Central Railroad Company was as follows: “If you believe from the evidence that the defendant, the Texas Central Railroad Company, received the car of meat shipped to plaintiff and that it forwarded same by its first freight train out after the receipt of said car, then there could be no negligence on its part, and you should find in favor of the defendant the Texas Central Railroad…

<p>1. —Jurisdiction—Title to Land—County and District Courts.</p> <p>The county court, although sitting as a court of probate, has no authority to determine the title to land, since such jurisdiction belongs exlcusively to- the district court.</p> <p>2. —Same—Administration Still Pending.</p> <p>One who bought at a sheriff’s sale the interest of a devisee in land belonging -to the estate of a decedent could maintain an action in the district court against the devisee and the administrator to establish his title and to recover rents from the administrator, although the administration was still pending.</p> <p>3. —Same—Judgment Construed.</p> <p>A judgment in such case against the administrator for the recovery by plaintiff of an interest in the land and for rents collected by the administrator, oyer and above the amount sufficient to support the surviving wife of decedent, with directions that it be certified to the' probate court, was not uncertain, and did not interfere with the jurisdiction of the latter court.</p>

<p>Appeal from the County Court of McLennan County. Tried below before Hon. G. B. Gerald.</p>

<p>Appeal from the District Court of Llano County. Tried below before James Flack, Esq., Special Judge.</p>

<p>1. —Case Followed.</p> <p>The rulings in Yeary v. Crenshaw, post, followed.</p> <p>2. —Colony Grant—Transfer Before Issuance of Title.</p> <p>The transfer, by a colonist, of his right to land under the laws of Coahuila and Texas, though made before the issuance of title and prohibited by then existing laws, was recognized by the Constitution and laws of the Republic, and became effective to transfer the title thereafter issued and patented by the Republic or State of Texas.</p>

<p>Appeal from the District Court of Coryell County. Tried below before Hon. W. J. Oxford.</p>

<p>1. —Fire Insurance—Change in Ownership of Property—Executory Contract.</p> <p>An executory contract to convey insured property does not, where no part of the consideration for such contract has been paid and there has been no change in the possession or right of possession, constitute a change in the interest or title within the meaning of a stipulation in the policy by which it should become void if any such change should take place.</p> <p>2. —Same—Policy—Ambiguity—Construction.</p> <p>Since the policy of insurance is a contract for indemnity, an ambiguity in it must be construed in favor of indemnity, rather than of forfeiture.</p> <p>3. —Same—Part of Building Falling in Storm.</p> <p>Where the policy provides that the insurance shall cease if the building or any part thereof shall fall, this requires that the fall should be of a substantial and material part thereof.</p> <p>4. —Same—Identity of Building Not Destroyed.</p> <p>Where the fall is of a material and substantial part of the building, the policy is avoided, although the distinctive character of the building is not destroyed thereby.</p> <p>5. —Same—Substantial Part of Building—Cupola.</p> <p>Where the main mill building was 50x50 feet and two stories in height, with a flat roof from which there' projected a cupola, called a third story in the policy, 12x16 and 10 feet high, used for operating the rice cleaning machinery, and the cupola was blown away in a storm, except a few uprights, the policy was thereby avoided. Garrett, G. J., dissenting.</p>

<p>Error from the District Court of Harris County. Tried below before Hon. Wm. H. Wilson.</p>

<p>1. —Garnishment—Transfer of Corporate Stock—Assent of Beneficiaries—Presumption.</p> <p>Where a debtor who owned stock in a corporation assigned and delivered the certificates thereof to R. for the payment of debts due to R.’s wife and child, exceeding the amount of the stock, but the stock was not transferred on the books of the corporation until after a creditor of the assignor had served a writ of garnishment on it, the assent of the beneficiaries under the assignment, necessary to its validity, will be presumed, and the creditor, having the burden of. proof, was not entitled to a judgment against the garnishee without showing that the beneficiaries had not assented.</p> <p>2. —Same—Husband and Wife—Minor.</p> <p>R.’s assent to the assignment of the stock was binding upon his wife, the statute giving him the control of her property, and the minor child being unable to contract, the assent of his natural guardian, made in his interest, should be upheld.</p>

<p>Appeal from the District Court of Baylor County. Tried below before Hon. J. A. P. Dickson.</p>

<p>Appeal from the County Court of Limestone County. Tried below before Hon. A. J. Harper.</p>

<p>Appeal from the District Court of Motley County. Tried below before Hon. J. A. P. Dickson.</p>

<p>Judgment—Default—Action to Set Aside—Merits Must Be Shown.</p> <p>Where a judgment recited that the defendant, though not cited, ha,d filed an answer in the case, but failed to appear at the trial in person or by attorney, and judgment was thereupon entered against him for the amount of the debt evidenced by the written instrument sued on, such judgment was valid on its face, and in an action to set it aside a petition, duly sworn to, alleging that the filing of the answer by the attorney was without authority, but failing to allege" a meritorious defense to the cause of action, was insufficient to warrant such relief.</p>

<p>1. —Evidence—Privileged Communication—Attorney and Client.</p> <p>Where the plaintiff, who was suing for $950 damages caused by injuries to his horses while in transit, was asked, while on the stand as á witness, if he had not instructed his attorney to present his claim to the defendant railroad company for damages for such injuries in the sum of $100, the court properly sustained an objection to the question on the ground that the communication was privileged.</p> <p>2. —Live Stock Shipment—Carriers—Evidence—Claim for Damages.</p> <p>Where plaintiff’s action was for damages to horses during shipment, it was error for the court to exclude from the evidence his written claim for damages in a less sum than was sued for, when offered by the defendant carrier, upon the ground that it was an offer of compromise, since it was competent to contradict plaintiff’s testimony as to the extent of the injury to the stock, and the amount of damages he had sustained.</p> <p>3. —Same—Degree of Care—Charge.</p> <p>A charge holding the defendant carrier liable for damages unless the injuries to the horses were occasioned, “by the act of God, a public enemy, negligence of the shipper, or some vicious propensity of the animals themselves,” was erroneous in exacting too high a degree of care, since the carrier was only required to use such care to avoid injury to the horses as a person of ordinary prudence and care would use under the same or similar circumstances.</p>

<p>Appeal from the District Court of Ellis County. Tried below before Hon. A. A. Kimble, Special Judge.</p>

<p>1. —Railroads—Dangerous Rate of Speed—Evidence and Charge.</p> <p>Evidence in an action by a railroad employe for personal injuries, considered and held sufficient to warrant a charge upon the theory that the car which struck and injured plaintiff at night, and which had been “kicked” in switching, was being run at a dangerous rate of speed under the circumstances.</p> <p>2. —Contributory Negligence—Proximate Cause.</p> <p>A charge that if plaintiff failed to use ordinary care, and such failure was negligence which proximately contributed to his injury, he could not recover, was not error because it required that the contributory negligence should have proximately contributed to the injury, and whether it did proximately so contribute was a question of fact for the jury.</p> <p>3. —Railroads—Injury to Employe—Evidence.</p> <p>Evidence held not to warrant a peremptory instruction for the defendant railway company in an action by an employe who, while at work iat night on cars standing on a side track near where switching was customarily done, was injured by reason of another car being switched, or “kicked,” onto that track at a high rate of speed and without any light or lookout thereon.</p> <p>4. —Same—Assumed Risk—Flying Switches—Knowledge of Custom.</p> <p>Although plaintiff may have been in defendant’s employ in its yards there for five or six months, and the switching was then being done in the customary manner, he could not be held to have assumed the risk unless he knew of the custom of propelling the cars without light or lookout at the rate of speed of the one that struck him.</p> <p>5. —Same—Prospect of Promotion—Charge Without Evidence.</p> <p>The court properly refused to charge that the jury should not take into consideration any probability of plaintiff’s promotion had he remained in the service and not been hurt, where there was no evidence to warrant it.</p> <p>6. —Practice on Appeal—Presumption—Improper Argument—Bill of Exceptions Necessary.</p> <p>Where alleged improper argument is the subject of a requested charge, the appellate court will presume in favor of the trial court’s action in refusing the charge that no such argument was made, and if there was no such argument, then there could have been no error in the court’s refusal to allow and sign an alleged bill of exceptions in relation thereto.</p>

<p>1. —Contributory Negligence—Street Railway Passenger—Projecting Bridge Girder.</p> <p>Where plaintiff boarded an open street car which was crowded, and in going to the further end of the car to obtain a seat used the running board along the outside of the car instead of the aisle through its center, and was struck by a projecting bridge girder, the dangerous proximity of which he did not observe, he was not guilty of contributory negligence as a matter of law.</p> <p>2. —Same—Negligence Per Se.</p> <p>Under the weight of authority it is not, it seems, negligence per se for passengers to stand on the platform or running board of a street car, even where there are vacant seats inside.</p> <p>3. —Practice—Overruling Exceptions—Harmless Error.</p> <p>Error in overruling exceptions to plaintiff’s allegation that a city ordinance required street cars to have both a conductor and motorman was harmless where no evidence of such matter was.offered, and no issue in relation to it submitted to the jury.</p> <p>4. —Same—Exception—Motion to Strike Out Supplemental Petition.</p> <p>A motion to strike out a supplemental -petition, aimed at the pleading as a Whole, is to be treated as a general exception, and is properly overruled where any part of such pleading presents a valid replication to any part of defendant’s answer.</p> <p>5. —Same—Reading Pleadings to Jury.</p> <p>Where a motion to strike out a supplemental petition has been properly overruled, plaintiff has the right to read it to the jury along with his other pleadings.</p> <p>6. —Same—Leading Question—Harmless Error.</p> <p>A question asking a witness, who had already stated that plaintiff was on the running board of the street car when first seen by him, “On what part of the running board when you first saw him?” was not objectionable as leading; and error in allowing the question, if any, was harmless where the evidence was undisputed that plaintiff was on the running board at the time of the injury.</p> <p>7. —Street Railway—City Ordinance Regulating Speed.</p> <p>In an action by a street car passenger for injuries resulting from coming in contact with a bridge girder, a city ordinance restricting the speed of street cars to three miles per hour in crossing bridges was relevant to the issues of the case where there was evidence that the speed of the car exceeded the prescribed rate at the time plaintiff was injured.</p>

<p>Appeal from the District Court of Mason County. Tried below before Hon. M. D. Slator.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. Marshall Surratt.</p>

<p>Acknowledgment—Deed of Wife—Impeaching Certificate.</p> <p>The certificate of the officer showing the due acknowledgment of a deed by a married woman can not be contradicted or impeached on the ground that the acknowledgment was taken hurriedly, without an explanation of the deed or examination apart from the husband, where no fraud is alleged.</p>

<p>Carrier of Passengers—Keeping Depot Open and Warmed—Injuries from Exposure.</p> <p>The statute requiring carriers to keep their depots lighted, warm, and open to all passengers for not less than one hour before the arrival and after the departure of passenger trains did not require a station agent to permit a passenger to leave his wife and children in the depot waiting room from 1 o’clock a. m. until he could go four and a half miles into the country and obtain a conveyance, and the carrier was therefore not liable for injuries sustained from exposure of the passenger and his family while walking that distance; and the fact that the passenger was without sufficient means to go to a hotel or hire a conveyance did. not enlarge the duty and liability of the carrier. Rev. Stats., art. 4521.</p>

<p>1. —Taxes—Voluntary Payment—Compromise.</p> <p>Where the defendant city was seeking to acquire land from Mrs. O. for street purposes, and she fixed a price on it which the city council agreed to allow, provided it was applied on certain back taxes she owed the city, the amount of which was in dispute, and she agreed with the city attorney to allow the money to go to satisfy her taxes in full, which compromise agreement was reported to the council and accepted, and she afterwards brought a deed of the land to the mayor, and indorsed the warrant she received therefor back to the city, protesting at the same time against the amount of the taxes, there was a voluntary payment by her of such taxes.</p> <p>2. —Same—Evidence.</p> <p>Where plaintiff sued to recover money paid for taxes claimed to be excessive and involuntarily paid, and there was evidence that the payment was made pursuant to a compromise agreed to with the city attorney, it was not error to admit in 'evidence the tax receipts and the report of the city attorney to the council.</p> <p>3. —Same—Payment by. City Warrant.</p> <p>The payment of city taxes with a city warrant calling for current money is equivalent to a payment with the money itself, and is therefore valid.</p>

<p>Appeal from the District Court of Rusk County. Tried below before Hon. Richard B. Levy.</p>

<p>1. —School Land—Sale—Lease—Improvements—Preference.</p> <p>Where there are improvements on leased State school land at the expiration of the lease, only the person who made them can claim the privilege as to leasing again given by the Act of April 19, 1901.</p> <p>2. —Same—Sale or Lease—Actual Settler or Lessee.</p> <p>Where, at the expiration of the lease, the lessee having improvements thereon applies to lease again and there is a contemporaneous application by another to purchase as an actual settler, the land should be awarded to the latter, the declared purpose of the law being to lease only such lands as are not in immediate demand for settlement. Gen. Laws 1901, p. 295.</p>

<p>1. —Railroads—Right of Way—Streets of City.</p> <p>Where a railway company has obtained the assent of a city to build its track along a street thereof, as provided by the statute (Revised Statutes, articles 4426, 4438), and has accepted the privilege, the right becomes vested, and can be revoked only in an action to forfeit brought by authority of the State.</p> <p>2. —Same—Foreclosure Sale—Rights of Purchaser.</p> <p>Purchasers -under a foreclosure sale of the entire roadbed, track, franchises, and charter rights of a railroad company, made under the statute, are vested with all the rights, privileges, and franchises of the foreclosed company, and have the option of continuing the business in the name of the old corporation, or of organizing a new one for that purpose. Rev. Stats., arts. 4549, 4550.</p> <p>3. —Same—Rights of New Purchasing Corporation.</p> <p>Where the charter of the new purchasing company empowered it to occupy the streets of the city in question provided it obtained the city’s assent thereto, this did not require it to surrender the right of way it had acquired by its purchase of the franchises granted to the sold-out company and reacquire them by the exercise of its charter powers.</p> <p>4. —Same—Acceptance of Grant.</p> <p>There was a sufficient acceptance of the city’s grant to the use of a street for right of way purposes where the railway company built on a portion of the street, and its successor in title assumed possession of the track and extended it.</p> <p>5. —Same—Forfeiture of Grant—Injunction.</p> <p>Where a city has granted right of way along a street to a railroad company which has built its track part of the way thereon and its rights have vested in another company by purchase at foreclosure sale, a local street railway company that has obtained a subsequent grant of a right of way along the same street can not by injunction restrain such purchasing company from completing its track on the ground that it had forfeited the grant by failure to use due diligence, since the State or the city is the proper party to insist on such forfeiture. Bookhout, Associate Justice, dissenting.</p>

<p>Appeal from the District Court of Donley County. Tried below before Hon. H. H. Wallace.</p>

<p>Appeal from the District Court of Grayson County. Tried below before Hon. Rice Maxey.</p>

<p>Appeal from the District Court of Dallas County. Tried below before Hon. Richard Morgan.</p>

<p>Error from the District Court of Harris County. Tried below before Hon. W. P. Hamblen, Special Judge.</p>

<p>Appeal from the District Court of Bexar County. Tried below before Hon. S. J. Brooks.</p>

<p>Appeal from the District Court of Nacogdoches County. Tried below before Hon. Tom C. Davis.</p>

<p>Appeal from the County Court of Bexar County. Tried below before Hon. R. B. Green.</p>

<p>1.—Physicians—Recovery for Services—Record of Certificate of Qualification.</p> <p>Where a physician, in 1882, duly obtained his certificate of qualifications and had it recorded in the proper county clerk’s office, as required by the statute then in force, but failed to afterwards have it recorded in the district clerk’s office, as required by the amendment of 1887 (Acts Twentieth Legislature, page 35), he could not recover for professional services rendered in May, 1901, since article 440 of the Penal Code makes it a penal offense for a physician to practice medicine for pay without having his certificate recorded in the office of the district clerk.</p> <p>' 2.—Same—Exempting Clause in Act of 1901.</p> <p>Plaintiff’s case was not saved by virtue of the clause in the Act of February 22, 1901, relative to the practice of medicine, which exempted physicians who had been practicing five years from the requirement of filing a certificate, as that act, although containing an emergency clause, did not take effect until ninety days after the adjournment of the Legislature.</p> <p>3.—Constitutional Law—Act of Legislature—Time of Taking Effect—Emergency Clause.</p> <p>Where an emergency clause to an act of the Legislature recites an imperative public necessity and suspends the constitutional rule requiring bills to be read on three several days, but does not direct when the act shall take effect, it does not take effect until ninety days after adjournment of the session, since such direction is necessary to relieve it from the operation of the constitutional provision regulating the time when legislative acts shall go into effect. Const., art. 3, sec. 39.</p>

<p>1. —Assumed Risk—Brakeman—Negligence of Engineer.</p> <p>Where a brakeman, while uncoupling cars, was injured by reason of the negligent act of the engineer in backing the engine in an unusual and violent manner, and the brakeman’s act in drawing the coupling pin was simultaneous with such act of the engineer, the risk was not assumed, since the brakeman could not have known of the negligence.</p> <p>2. —Same—Knowledge of Danger in the-Work.</p> <p>That the brakeman, as stated by himself, was on the lookout for danger while engaged in drawing the pin did not imply that he was looking for the violent and unusual movement of the engine, since one engaged in so hazardous an occupation should be constantly on the lookout for danger.</p>

<p>Appeal from the County Court of Smith County. Tried below before Hon. Geo. W. Cross.</p>

<p>Venue—Suit for Taxes on Personal Property.</p> <p>Though the Constitution and laws make taxes on personal property payable in the county where it is situated, a personal action by the State for their recovery must be brought in the county of defendant’s domicile, where he asserts this right, since the debt is not payable elsewhere by his written contract.</p>

<p>Appeal from the District Court of Coryell County. Tried below before Hon. W. J. Oxford.</p>

<p>Appeal from the District Court of Howard County. Tried below before Hon. A. S. Hawkins, Special Judge.</p>

<p>1. —Municipal Bonds—Issuance Authorized—City Charter—Negotiability.</p> <p>A provision in a city charter conferring the power to issue bonds in aid of a railroad authorizes the issuance of bonds having the commercial quality of negotiability. Following City of Austin v. Nalle, 85 Texas, 520.</p> <p>2. —Same—Railroad Bonds for Depot Purposes.</p> <p>Authority in a city charter to issue bonds to “aid in the construction of a railroad” will warrant the issue of bonds to purchase grounds for a depot.</p> <p>3. —Same—Action Upon—Equitable Ownership—Defenses.</p> <p>Where municipal bonds are payable to bearer they may be sued on by a legal holder thereof to whom they have been delivered for the purpose of bringing suit, thereon, but are subject to any defense good against the equitable owner.</p>

<p>1. —Contributory Negligence—Discovered Peril.</p> <p>Evidence held to warrant a finding that plaintiff was guilty of contributory negligence in attempting to cross a switch track at the rear end of a train thereon ready to be moved, and not to warrant a charge on discovered peril, (The facts will be found fully stated in Railway v. Shetter, 94 Texas, 196.)</p> <p>2. —Argument of Counsel—Harmless Error.</p> <p>Improper remarks of counsel to the jury will not constitute ground for reversal where the verdict is fully warranted by the fact, and probably no harm was occasioned thereby.</p>

<p>Local Option Election—Notice—Failure to Post.</p> <p>Where one of the five copies of notice of holding a local option election was posted only nine days instead of twelve days prior thereto, but the voters of the county had actual notice of the election, and the result thereof was not affected by the failure to post such copy for the full twelve days, the election was not for that reason rendered void.</p>

<p>Appeal from the District Court of Bexar County. Tried below before Hon. S. J. Brooks.</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Chas. E. Ashe.</p>

<p>1. —Notes—Innocent Purchaser—Sale by, to Party with Notice.</p> <p>Notice by the holder ‘of a negotiable note of a want of consideration in its original making is no defense where such holder bought it from an innocent purchaser for value before its maturity.</p> <p>2. —Same-Indorser After Maturity—Suit to First Term.</p> <p>Where a note was indorsed after its maturity in consideration of an extension of time, a failure to bring suit at the first term thereafter would not release the indorser unless it be" shown that such extension of time had then already expired; and in support of a judgment against such indorser it will be presumed that suit was not brought until after such extension had been given.</p> <p>3. —Same—Surety—Execution Over.</p> <p>A surety, whether indorser or guarantor, is entitled to have execution issued first against the principal, and also to have an execution in his own favor against the principal where he pays the debt for the principal.</p>

<p>Appeal from the County Court of Bexar County. Tried below before Hon. R. B. Green.</p>

<p>1. —State School Land—Void Award of Sale—Actual Settler.</p> <p>Where the Commissioner of the General Land Office, upon an application to purchase school land as an actual settler thereon, awards the land to one who is not in fact an actual settler, the award is void, and does not have the effect of taking the land off the market.</p> <p>2. —Same—Classification—Suspension of Sale.</p> <p>The Act of 1901 (General Laws 1901, page 292) did not require a new classification and appraisement of the lands, nor did it suspend the sale thereof until the Commissioner could make up and send out the revised lists for which it provided.</p>

<p>Appeal from the County Court of Waller County. Tried below before Hon. John M. Pinckney.</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Charles E. Ashe.</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Wm. H. Wilson.</p>

<p>Appeal from Tarrant County. Tried below before Hon. Irby Dunklin.</p>

<p>Appeal from Floyd County. Tried below before Hon. Jo A. P. Dickson.</p>

<p>Appeal from the District Court of Bosque County. Tried below before Hon. Wm. Poindexter.</p>

<p>Appeal from Lubbock County. Tried below before Hon. Jo A. P. Dickson.</p>

<p>Telegraph Company—Failure to Deliver Message.</p> <p>A telegraph company is liable for failure to deliver a message, although the addressee lived just outside the free delivery limits and no extra compensation was paid, where it undertook to do so with knowledge of the facts, and by the use of -reasonable diligence might have found the addressee within such limits.</p>

<p>Error from the District Court of Harris County. Tried below before Hon. Wm. H. Wilson.</p>

<p>1. —Registration—Proof of Signatures—Death of Subscribing Witnesses.</p> <p>A deed appears properly admitted to record when proven for registration by • affidavits to the handwriting and death of the maker and subscribing witnesses by a witness who states that he knows the handwriting of such witnesses, “who have both departed this life.”</p> <p>2. —Deed—Description—“Lower” Line of Survey.</p> <p>In a suit to recover the east fourth of a league of land fronting on a river running south 63 degrees east, and bounded by parallel lines running back from the river ten degrees west from a south course, describing such east fourth as reckoned “by running a line at such point west from its east boundary line and parallel with said east boundary line from north to south through said survey as that one-fourth thereof lies east of said line,” a conveyance of one-fourth of the league “to be taken off the said league adjoining the lower line of the same by a line running back from the said river lengthwise through said league parallel to and at a sufficient distance from said lower line, so that the area required be included within and between said parallel lines,” describes the same land as that sued for.</p> <p>3. —Deed or Bond for Title.</p> <p>An instrument in form of a bond for title, but which recites that the maker, for a cash consideration received, has “this day sold, assigned, and conveyed” the land described to the covenantee, conveys the legal title to the land.</p> <p>4. —Deed—Description—Reference to Another Deed.</p> <p>A deed purporting to convey a third of a league and labor survey, the part conveyed being identified as that described in a deed from B. to R., dated March 20, 1850, the only deed from B. to R. offered in evidence, being dated March 13, 1850, and no evidence offered that B. executed but one deed to R., does not identify the land.</p> <p>5. —Limitation—Deed Identifying Land.</p> <p>To support title to land under the three or the five years statutes of limitation, the deeds under which the claim is made must contain description sufficient to identify the land.</p> <p>6. —Limitation—Extent of Claim—Burden of Proof.</p> <p>Defendant claiming title to land by two years limitation, against one showing title as an heir, has the burden of showing what the interest of such heir was, in order to sustain his plea as to the part not so inherited.</p> <p>7. —Practice on Appeal—Findings of Fact—Written Instrument.</p> <p>The appellate court, in its conclusions of fact, can not be required to state testimony consisting of written instruments, nor conclusions of fact therefrom, since such conclusions are of law.</p>

<p>Appeal from the Couni Court of Gonzales County. Tried below before Hon. W. W. Glass.</p>

<p>1. —Will—Contingent Effect—Probate—Collateral Attack.</p> <p>A will, in the form of a postscript to a letter, made disposition of the property of testator, then upon a journey, “should I die on my route,” and was duly admitted to probate on his death. Held, that the disposition of his estate so made could not be defeated, in a suit to recover property claimed under the devisee, by the fact that the testator died, not on the journey in question, but after his return.</p> <p>2. —Wife’s Separate Estate—Deed—Community Property.</p> <p>A deed to a married woman “to have and to hold and enjoy and dispose of the said land in any and every manner she may think proper for her own use, benefit, and behoof,” conveys it to her in her separate right, and not as community property.</p> <p>3. —Same—Words Granting Power of Disposition to Wife.</p> <p>Words granting the wife power to dispose of the property conveyed without her husband joining, though ineffective for that purpose, may be held to evidence an intention to make it her separate property.</p> <p>4. —Wife’s Separate Property—Innocent Purchaser.</p> <p>One buying, from the husband alone, property which was conveyed to the wife by deed making it her separate estate can not be protected as an innocent purchaser.</p> <p>5. —Inheritance—Husband and Wife.</p> <p>Under the Act of January 28, 1840, the surviving husband did not inherit from a wife who left a surviving child.</p> <p>6. —Statute of Frauds—Verbal Exchange.</p> <p>Though a verbal partition of lands may be good, a mere verbal exchange is within the statute of frauds. The owner could not pass title to one having no interest in a tract of land by accepting, instead, the whole of another tract owned by them jointly.</p> <p>7. —Husband and Wife—Sale to Pay Wife’s Debt.</p> <p>Lands, the separate estate of the wife, can not be sold by the husband alone to pay her debts.</p> <p>8. —Deed—Interest in Undivided Half.</p> <p>A conveyance of the grantor’s right to an undivided half of 2500 acres to which she was entitled as a widow of one owning a tract of 3320 acres, commuity property, does not convey her half interest in the entire tract.</p> <p>9. —Charge—Questions of Law.</p> <p>A charge was properly refused which submitted to the jury, for their finding of fact, questions of law arising on the effect of written instruments.</p> <p>10. —Charge.</p> <p>A requested charge was improper, which gave the benefit of a defense to all the defendants, when available to only certain ones of them under their pleadings.</p> <p>11. —Separate Property—Land Certificate—Headright Grant.</p> <p>Under the Act of January 29, 1840, which provided that lands to which the wife had any claim at the time of her marriage, should be her separate property, her community interest in a headright certificate issued, after her second marriage, under special act, to the heirs of her former husband, became her separate estate, and her then husband took no interest in it.</p>

<p>1.—Principal and Agent—Power to Sell Land.</p> <p>Where the owner of land gave to an agent a written memorandum description thereof, with statement of the price, accompanied with verbal instructions to sell the land, this was not sufficient to empower the agent to bind the owner by a written contract of sale.</p> <p>Z.—Same—Revocation of Power.</p> <p>A sale of the land by the owner himself constitutes a revocation of the special power to sell so given the agent.</p> <p>3.—Same—Recording as Notice of Revocation.</p> <p>Under the statute providing that the record of a deed shall be notice to all persons of its existence, the registry of a deed executed by the owner of land is notice to a special agent and all persons dealing with him of the revocation of the agent’s authority to sell the land.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. Sam E. Scott.</p>

<p>1. —Express Company—Liability for Loss—Fraud in Stating Value of Package.</p> <p>Where the express charges for carrying packages the value of which exceeds $50 are greater than where no value is stated, and a shipper knew this, but for the purpose of obtaining the lowest rate failed to insert the value in the receipt, and the express company did not know the true value, but, if it had so known, would have made a greater charge and also have used greater precaution, such failure to state the value was a fraud on the express company such as discharged it from liability beyond the value of $50 where the package was stolen.</p> <p>2. —Carrier Limiting Liability—Interstate Commerce.</p> <p>State statutes prohibiting carriers from making stipulations limiting their common law liability are valid even as to interstate shipments.</p> <p>3. —Same—Law of Another State.</p> <p>The validity of such a stipulation depends on the law of the State where the contract was made, as construed by the courts of such State.</p> <p>4. —Judicial Notice—Construction of Law of Another State.</p> <p>The .court will not take judicial notice of the construction given a statute of another State by the courts thereof.</p>

<p>Appeal from the District Court of Rusk County. Tried below before Hon. Richard B. Levy.</p>

<p>1.—Res Adjudicala—Injury to Land—Obstruction of Sewer.</p> <p>Where the only ground of recovery submitted to the jury was the negligence of the defendant in permitting a sewer to become choked with rubbish so that it failed to carry off the water, thus causing it to accumulate and at times to overflow plaintiff’s land,—the sewer having been constructed long after a former suit for similar damages, had been disposed of,—the court properly refused to instruct a verdict for the defendant for all claims for damages for permanent injury to the property on the ground that they had been finally adjudicated in such former suit.</p> <p>2. —Damages for Overflowing Land—Pleading and Evidence.</p> <p>Where the petition alleged that by reason of the overflow of plaintiff’s property the premises had become filthy and unhealthy and “almost uninhabitable,” evidence was admissible to show the “inconvenience” of living upon the premises as an element of damages in the case.</p> <p>3. —Market Value—Personal Property.</p> <p>Where plaintiff testified that she knew the market value of the personal property destroyed by the overflow, and that she knew it from the price she had paid for the property, this did not disqualify her from testifying to such value, in the absence of a showing that her only knowledge of such market value was from what she had paid for the property.</p> <p>4. —Evidence of Value—Immaterial Error.</p> <p>The improper admission of evidence as to the value of the property which could not possibly have injured the appellant is not reversible error.</p> <p>5. —Parties—Injury to Land—-Wife’s Equitable Title—Stale Demand.</p> <p>Where a husband purchased land in his own name' with funds of his wife, inherited from her father’s estate, and after his death the wife, who was in possession, and had been since the purchase by the husband, sued to recover damages caused by overflowing the land, the heirs of the husband were not necessary parties to the suit, nor was the wife’s equitable title a stale demand.</p> <p>6. —Evidence—Expenses of Sickness—Physician’s Bill.</p> <p>Where a physician who gave medical attention to plaintiff’s family for the sickness alleged to have been caused by the overflow testified that his services were worth $150, this was sufficient evidence of the reasonableness of his bill to authorize its submission to the jury as an element of damage.</p>