Volume 36 — Texas Civil Appeals Reports

<p>Appeal from the District Court of Fannin. Tried below before Hon. Ben H. Denton.</p>

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

<p>Error from the District Court of Dallas. Tried below lief ore Hon. Bichard Morgan.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. T. F. Nash.</p>

<p>Appeal from the District Court of Hunt. Tried below before Hon. T. D. Montrose.</p>

<p>Appeal from the District Court of Menard. Tried below before Hon. J. W. Gimmins.</p>

<p>1. —Evidence—Effect of Personal Injury—Opinion.</p> <p>Where in an action for personal injuries plaintiff was asked, “To what extent do you think you are still injured in the way of strength and ability to work; how much are you at this time weakened or reduced in the way of strength and the doing of work, or the ability to work, as the result of these injuries?” his answer, “More than one-half, anyhow,” was not inadmissible as being an opinion.</p> <p>2. —Personal Injury—Verdict Not Excessive.</p> <p>A verdict for $1999 for personal injuries to a stout man earning $35 per month and hurt by being run over by a hand car, held not excessive.</p>

<p>Appeal from the District Court of Colorado. Tried below before Hon. M. Kennon.</p>

<p>1. —Note—Attorney Fees—Estoppel—Cases Distinguished.</p> <p>Where the maker oí a note stipulates for 10 per cent attorney fees in case the services of an attorney are required in collection, he is estopped from saying that such sum is unreasonable, in the absence of a showing of fraud or mistake in making the note or that the holder of the note actually secured the services of an attorney for less than the agreed 10 per cent. Luzenburg v. B. & L. Assn., 9 Texas Civ. App., 261; Hammond v. Atlee, 16 Texas Civ. App., 267, distinguished.</p> <p>2. —Jurisdiction—County Court—Administrators—Lien—Mandamus.</p> <p>The county court in which the administration of an estate is pending has exclusive jurisdiction of such estate and no other court has authority to enjoin the administrators from using work stock upon which a lien is held or to issue writ of mandamus to compel the sale of such stock in satisfaction of the lien.</p>

<p>1. —Foreign Corporation—Service Upon—Fraternal Insurance Order.</p> <p>Service of citation, in an action against a fraternal insurance order domiciled in Kansas, made upon the president of a local lodge of that order in the county in Texas where the suit was brought, was a sufficient service upon the defendant under the statute authorizing process against a foreign corporation to be served upon “any local agent’’ thereof. Rev. Stats., art. 1223.</p> <p>2. —Same—Local Lodges.</p> <p>Bach local lodge of such an order is the agent of the order.</p> <p>3. —Same—Statute as to Service on Insurance Commissioner.</p> <p>The Act of 1899 providing for service, in suits against beneficiary associations, upon the State Insurance Commissioner, is merely cumulative, and does not render service had under the general statute as to foreign corporations ineffectual.</p> <p>4. —Same—Consolidation of Orders—Policy Merged in Judgment.</p> <p>Where N., defendant herein, brought suit on a benefit policy, and obtained judgment, against a fraternal insurance order, which order was after-wards merged by consolidation with the plaintiff order, and defendant then brought suit on his judgment and obtained a judgment against plaintiff herein, and plaintiff then brought this suit to set aside that judgment, it could not urge that the judgment in the original suit on the benefit policy was rendered on a petition that was subject to general demurrer, since the benefit policy was merged into a judgment, and such judgment was the claim upon which the judgment here sought to be set aside was obtained against plaintiff.</p> <p>5. —Same—Practice on Appeal.</p> <p>The question that the judgment sought to be vacated in this action was not authorized by any evidence introduced at the trial can not be raised where no sufficient reason is shown why it was not urged upon the trial of the case.</p>

<p>City Charter—Adoption by City Council—Police—Tenure of Office—Cases Followed.</p> <p>City of Houston v. Estes, 35 T.exas Civ. App.,—, followed, on the holding that the charter provision continuing city police in office during good behavior contemplates only the constitutional tenure of two years, and C;ty of Houston v. Mahoney, ante, p. 568, followed on the holding that the action of the city council in adopting the provisions of the charter did not amount to a reappointment to take effect upon the expiration of the term at which such charter was adopted.</p>

<p>1. —City Charter—Police—Term of Office—Wrongful Discharge—Case Followed.</p> <p>City of Houston v. Estes, 35 Texas Civ. App., —, followed as to the construction of the special charter of the city of Houston in the matter of term of office of police and the right to recover salary for wrongful discharge.</p> <p>2. —Special Charter—Incorporation Into City Ordinances—Police—Civil Service—Term of Office—Reappointment.</p> <p>The part of the special charter of 1897 of the city of Houston, incorporated into the city ordinances, placing the police under civil service rules, applied to those in office when the incorporation into the ordinances was made as well as those officers to be appointed in the future. But it applied only for the unexpired part of the two-year term and can be given no effect of reappointment upon the expiration of the term during which such incorporation was made. Bovee v. Gatlin, 84 Texas, 48, distinguished.</p>

<p>1. —Carriers of Passengers—Privilege of Train to Transfer Man—Anti-Trust Law.</p> <p>The action oí a railway company in permitting the agents of only one transfer and hack company to solicit business on its trains is not violative of the anti-trust statute as being an unauthorized restriction in the free pursuit of any business.</p> <p>2. —Same—Right to Grant Exclusive Privilege on Trains.</p> <p>A railway company has the right to exclude from its premises and cars persons going thereon for the purpose of transacting private business, and the privilege of so doing may be granted to one and refused to another without violating any principle of law which governs the conduct of carriers and regulates their duty to the public.</p> <p>3. —Same—Injunction by Carrier.</p> <p>An injunction will lie to restrain the agents of a transfer company from soliciting business on the trains of a railway company where the latter has granted to another transfer company the exclusive privilege to solicit business on its trains.</p>

<p>Appeal from the County Court of Parker. Tried below before Hon. D. M. Alexander.</p>

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

<p>1. —Judgment—Void or Voidable—Citation to Defendant.</p> <p>A judgment is not void for want of service of citation on the defendant where it does not affirmatively appear from the face of the judgment nor from the citation or other part of the record that the citation was not served. In such case suit by the defendant is necessary in order to have the judgment set aside for want of such service.</p> <p>2. —Same—Setting Aside—Limitations.</p> <p>Where the defendant had actual notice that a judgment had been rendered against him and took no steps to have it set aside until more than four years thereafter, his right to relief was barred by limitation.</p> <p>3. —Same—Judgment Against Sureties on Injunction Bond.</p> <p>Where in an action by injunction to restrain an execution the judgment is for the defendant, he is not entitled by virtue of a cross-action to have judgment for his debt, interest and costs against the sureties on plaintiff’s injunction bond without alleging damage or injury resulting from the grant of the injunction.</p>

<p>1. —Community Property—Innocent Purchaser—Notice—Presumption.</p> <p>A wife joined the husband in a conveyance of community property which was afterwards reconveyed to the husband who, after the death of the wife, again sold the land to one under whom defendants claim as innocent purchasers. Held, that even if the relation of husband and wife, as recited in the first deed of conveyance, be presumed to exist until dissolution is shown, still defendant’s claim of innocent purchaser is a defense against an action by the heirs of said husband and wife, since they had no notice that the wife was dead at the time the land was conveyed to the person under whom they claim.</p> <p>2. —Trespass to Try Title—Legal or Equitable—Stale Demand.</p> <p>When a title, either legal or equitable, sufficient to sustain an action of trespass to try title, is asserted by a plaintiff the defense of stale demand is not available.</p>

<p>1. —Liquor Dealer—Prohibition—Election Contest—Publishing Result—Injunction.</p> <p>Injunction can not be maintained to prevent the commissioners court from canvassing the returns and publishing the result of an election for prohibition of the traffic in intoxicating liquors under the local option law, either upon grounds rendering such election void, or such as would avail to set it aside upon contest filed under the statutes regulating contested elections.</p> <p>2. —Same—Contest Under Statute.</p> <p>Elections are under the control of the political power of the State, and the proceeding provided by the statutes (Rev. Stats., art. 3397; Act of April 16, 1895) for contesting their results is neither a civil suit nor a criminal action, maintainable under the general law or equity jurisdiction of the courts, but a political proceeding committed by the Legislature to the court as a special tribunal, which can not exercise such powers by a suit for injunction; nor could it in an injunction suit maintained under its general jurisdiction apply the remedies provided for the case of a statutory contest.</p> <p>3. —Same—Protection of Private Rights.</p> <p>Contestants appealing to the court merely for the protection of their private rights as licensed liquor dealers, if entitled to maintain injunction on the ground that they were threatened with numerous unwarranted criminal prosecutions, should proceed against the officers charged with the enforcement of the law, not against those to whom was committed the mere duty of determining and announcing the result of the election.</p> <p>4. —Same—Void Election.</p> <p>As to matters making the law void, as distinguished from those furnishing ground for statutory contest, the remedy by injunction against declaring the result of the election is too drastic to be invoked by an individual for the protection of his private rights, which are amply protected by the law without resorting to such procedure.</p>

<p>Appeal from the District Court of Grayson. Tried below before Hon. J. M. Pearson.</p>

<p>Appeal from the County Court of Dallas. Tried below before Horn Ed. S. Lauderdale.</p>

<p>Appeal from the District Court of Schleicher. Tried below before Hon. J. W. Timmins.</p>

<p>Cross-Action—Citation—Void Judgment.</p> <p>The defendants m a cross-action by their codefendant have the same right to be served with citation, process or notice advising them of the relief sought as defendants in an original suit, and a judgment rendered without such service or appearance is void.</p>

<p>Appeal from the District Court of Smith. Tried below before Hon. R. W. Simpson.</p>

<p>Appeal from the District Court of Washington. Tried below before Hon. Ed. E. Sinks.</p>

<p>1. —Judgment—Finality—Cross-Action.</p> <p>Where plaintiff sued for damages for malicious prosecution and the defendant by cross-action asked for damages for an alleged libel that formed the' basis of the criminal prosecution, a judgment rendered in plaintiff’s favor without disposing of the cross-action was not a final judgment from which an appeal could be taken.</p> <p>2. —Same.</p> <p>The question of whether defendant’s counterclaim was properly pleaded in the suit is not determined here. It was pleaded by him, and until the issue thus raised is in some way disposed of the judgment in the case is not final.</p>

<p>1. —Telegraph—Special Delivery Charges—Negligence Not Pleaded.</p> <p>Where in an action against a telegraph company for nondelivery of a message, it was not pleaded that the company was guilty of negligence in failing to send a service message to ascertain if the sender would guarantee the payment of the necessary special delivery charges, the addressee being outside the free delivery limits, error could not be predicated upon the failure of the court to submit that issue.</p> <p>2. —Same—Definition of Negligence.</p> <p>A charge defining negligence as “the failure to do that which an ordinary prudent person under all the circumstances of the case would do, or doing that which an ordinarily prudent person under all the circumstances of the case would not do,” while not to be approved, is not reversible error.</p> <p>3. —Same—Lines Not Working.</p> <p>Where a telegraph company, at the time it receives a message for transmission, has no notice that its lines are down and not working it is entitled to plead such condition of the lines as an excuse for its failure to promptly transmit the message; and it is not the duty of the company, after ascertaining that its wires are down, to undertake the delivery of the message by any other method, or by any other telegraph or telephone line.</p> <p>4. —Same—Duty of Notifying Sender.</p> <p>Where a telegraph company, after receiving a message for transmission, ascertains that its wires are down and not working, the duty of, so notifying the sender is not an absolute one, and in this case it was a question for the jury whether or not, under all the circumstances, a reasonably prudent person would have pursued the course adopted by the company's agent in attempting to get word to the sender by some one of the many persons who were passing towards his home.</p> <p>5. —Assignment of Error.</p> <p>Assignments of error s»n not be enlarged by propositions made under them so as to include a 'BMerent ground of attack from that specified in the assignments.</p>

<p>1j—Carrier of Passengers—Furnishing Only Mixed Trains as Negligence or Proximate Cause of Injury.</p> <p>Where plaintiff bought a first-class railroad ticket, but was compelled to ride on a mixed train, no other kind being run on that road, which fact was well known to him. and he was injured by reason of stepping on a banana peel and a lurch of the car occurring at the same instant, the failure of the road to run trains for passengers exclusively was not the proximate cause of plaintiff’s injury.</p> <p>2.—Same—Pleading and Charge—False Issue.</p> <p>It was therefore error for the court to admit evidence showing the character of service given on other roads to one holding a first-class ticket, and to submit to the jury the question of negligence in the failure to furnish a train for passenger service exclusively, thus trying the case upon a false issue, although such failure was pleaded as negligence and a ground of recovery.</p>

<p>1. —Will—Probate—Judgment.</p> <p>A judgment of the district court establishing the due probate of a will, rendered a proceeding brought up by certiorari from the county court, is not defective because the court failed to incorporate the will in the judgment “for identification,” where a copy of the will was attached to plaintiffs’ petition for certiorari as a part thereof, and defendants’ answers referred to it and asked that it be probated, and the judgment refers to it as the will of J. T. C. offered for probate herein.</p> <p>2. —Witness—Supporting Declarations.</p> <p>Evidence of what a witness has said out of court can not be received to sustain or fortify his testimony; but there is an exception to the rule to the effect that where an effort is made to impeach the credibility of the witness by evidenóe imputing a design to misrepresent from some motive of interest, or that by reason of some influence operating upon him at the time his statement is a fabrication, it is proper, in order to repel such imputation, to admit evidence of his former declarations which corroborate his testimony, provided they were made at a time when no such motive or influence existed.</p> <p>3. —Same—Rule Applied.</p> <p>It is no ground for the introduction of such corroborative declarations that other witnesses have merely contradicted the witness sought to be sustained by testifying to a different state of facts. See opinion for case where such supporting declarations were properly excluded both because the witness was merely contradicted and because the declarations were made at a time when the motive to fabricate still existed, if at all.</p> <p>4. —Will—Muniment of Title—Irregularity in Probate.</p> <p>Where a will appointing an executrix without bond, but failing to provide that no other or further action should be taken in the probate court than the return of an inventory and appraisement, is nevertheless improperly probated as an independent will, such error will not render the will inadmissible as a muniment of title of the property embraced therein.</p> <p>5. —Same—Purchaser Pendente Lite.</p> <p>Where a will has been duly probated in the county court one who purchases the property conveyed by it during the time in which an appeal to the district court by certiorari could be taken is not a purchaser pendente lite.</p> <p>S.—Same—Innocent Purchaser.</p> <p>Nor does the fact that the will was irregularly probated as an independent will, and the fact that at the date of the purchase the time for an application for certiorari to the district court had not expired, deprive the buyer of the character of an innocent purchaser and charge him with notice of matters, such as the insanity of the testator or fraud in procuring the title, that would render the will void.</p> <p>7. —Same—Sale by Executrix and Sole Devisee Without Order.</p> <p>Where the executrix was the sole devisee under the will, and it was probated as an independent will, but improperly so, a sale by the executrix without an order of court was a mere irregularity as against persons who were not creditors of the testator.</p> <p>8. —Same—Attorneys as" Innocent Purchasers.</p> <p>Attorneys who, in satisfaction for their .services in probating a will, take from their client, the sole- devisee, a deed of land conveyed by the will, are entitled to protection as innocent purchasers as against alleged fraud of the devisee in procuring the will, charged by the contestants in the probate proceedings and adjudged by the decree of probate not to have existed in fact; nor does the irregularity of having the will probated as an independent will subject them to the rule that an attorney who purchases property from a party for whom he recovers judgment loses title when this judgment is reversed for errors apparent upon the record.</p>

<p>Administration—Classification of Claims—Revision of Judgment.</p> <p>The action of the court in classifying a vendor’s lien note held by an administrator against the estate as of the second class, expenses incurred in administration, and a note held by plaintiff as of the third class, claims secured by lien, thus giving the note held by the administrator priority, did not have the effect of a final judgment, but was subject to revision as long as the administration remained open.</p>

<p>1. —Street Railway—Passenger.</p> <p>A special policeman riding on a street car which he had boarded believing in good faith that he had a right to ride free, policemen being permitted to do so by the rules of the company, was entitled to the rights of a passenger though he had paid no fare, wheré none was demanded and he was ready to pay on demand.</p> <p>2. —Negligence—Unlawful Act—Getting Off Moving Car.</p> <p>One injured by another’s negligence is not prevented from recovery because he was engaged in an unlawful act when injured, as where he was getting off a car in motion in violation of a city ordinance forbidding such act. „</p> <p>3. —Contributory Negligence—Charge.</p> <p>A requested instruction which assumes that one getting off a slowly moving car was guilty of negligence is on the weight of evidence.</p> <p>4. —Negligence—Pleading.</p> <p>Where plaintiff’s pleading sought to recover on the ground that he was thrown from the platform of a street car by an electric shock, a requested charge that he could not recover if he had one foot on the ground when shocked was properly refused.</p>

<p>Fraud—Gift of Exempt Property.</p> <p>The sale or gift of exempt property of a debtor is good as against his ■ creditors irrespective of his good faith or intent to defraud, and though the debtor afterwards acquire other similar exempt property.</p>

<p>1. —Right of Way—Deed—Boundaries.</p> <p>The limits embraced in a conveyance of right of way for a railroad are to be determined by the calls in the deed and evidence is not allowed to extend same by showing an actual survey of the boundary beyond the limits called for.</p> <p>2. —Same—Deed Construed.</p> <p>See deed construed to limit the right of way conveyed thereby to a line twenty-five feet from the center of the grantee’s track as located, and not to be controlled, in its effect, by proof that the actual survey was elsewhere.</p> <p>3. —Charge—Intention of Parties to Deed.</p> <p>Submitting to the jury as a question of fact the intention of parties to a deed, without other evidence thereof than the deed itself, was not error where the verdict involved no other finding as to the intention and effect of the deed than the court should have drawn from its terms as matter of law.</p> <p>4. —Right of Way—Conveyance—Main and Side Tracks.</p> <p>A mere conveyance of right of way for a railroad over the grantor’s land carries only such rights as would be acquired by condemnation under article 4445, Revised Statutes, and authorizes the construction thereon of main and necessary side track, but not of machine or repair shops or switching yards.</p> <p>5. —Same.</p> <p>Circumstances attending conveyance of right of way held to strengthen the presumption that it conveyed no right to construct buildings or switching grounds. ></p> <p>6. —Railway—Right of Way—Use for Shops and Switch Yards.</p> <p>The construction of shops and switching yards upon land adjacent to the home of another and over which the railway has acquired only a right of way for its main and side tracks, whether considered as a private nuisance or a public use, gave a right of action for the depreciation in the value of such adjacent property by such additional use, and also for the personal inconvenience occasioned to the owner and his family by the noise, vibration, gases, smoke, etc.</p>

<p>1.—Defective Tools—Assumed Risk.</p> <p>The trial court would not have been warranted, under the evidence in this case, in assuming as a matter of law that plaintiff, a machinist’s helper of three months’ experience, knew that a brass punch was liable to sliver and break off under blows from a hammer, or that the punch given plaintiff by the machinist had been subjected to long usage under the hammer thus rendering it particularly liable to sliver. The helper did not assume the risks incident to such danger.</p> <p>ON MOTION FOB BEHEABING.</p> <p>2.—Machinist and Helper—Vice-Principal—Fellow Servants.</p> <p>The fact that a machinist and his helper both labored at a certain piece of work, but only one at a time, did not present the case of a vice-principal doing a particular piece of work in such a manner as to constitute his acts for the time being those of a fellow servant, the helper receiving his injuries while the machinist was standing some distance off and not engaged in the same piece of work.</p>

<p>1. —Dismissal of Cause—New Trial—Delay in Filing Motion.</p> <p>A delay of five days in presenting a motion for new trial, upon dismissal of plaintiff’s cause for want of prosecution, was not excused by the fact that plaintiff was unable to communicate with his attorney,- it being incumbent upon him to engage other counsel, if he intended to move for new trial, immediately upon finding that he could not reach such attorney; nor is such á delay excusable upon the ground of sickness, it not appearing that he was prevented thereby from attending to his other business.</p> <p>ON MOTION EOR REHEARING.</p> <p>2. —Practice on Appeal—Overruling Motion for New Trial.</p> <p>Although a motion for new trial filed more than two days after dismissal of plaintiff’s cause was entertained and overruled, the appellate court may nevertheless affirm the judgment of dismissal on an insufficient showing of reason for the delay without passing on the questions raised.</p> <p>3. —Negligence of Attorney—Setting Aside Judgment.</p> <p>When a case has been disposed of a litigant is not entitled to have the judgment set aside where it appears that it was the result of the negligence of his attorney.</p>

<p>Appeal from, the District Court of El Paso. Tried below before Hon. A. M. Walthall.</p>

<p>Appeal from the District Court of Frio. Tried below before Hon. E. A. Stevens.</p>

<p>Appeal from the County Court of Brazos. Tried below before Hon. A. G. Board.</p>

<p>Appeal from the District Court of Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>Appeal from the District Court of Fannin. Tried below before Hon. Ben H. Denton.</p>

<p>1. —Telegraph Company—Damages from Erection of Pole—Evidence.</p> <p>In an act.cn for damages to land from the erection of a telegraph pole thereon, wherein the evidence showed that the pole had been removed at the time of trial, it was error for the court to admit evidence as to what would have been the depreciation in the value of the land had the pole remained.</p> <p>2. —Same—Lost Time as Element of Damage.</p> <p>The value of time lost by plaintiff in trying to get the telegraph company to remove the pole was, as an element of damage, too remote and speculative, and such damage was not the natural and proximate result of the trespass in placing the pole on the land.</p> <p>3. —Same—Damage from Wires.</p> <p>As no injury resulted from the wires that were strung on the pole, and they were removed without damage, the court should have instructed the jury that plaintiff could not recover on the allegations that the wires were strung so close to plaintiff’s house that they were dangerous to the life and security of the occupants.</p> <p>4. —Same—Measure of Damages.</p> <p>Measure of damages stated in a case where a telegraph pole was placed on plaintiff’s land and afterwards removed, but the hole in which it stood was not filled up.</p>

<p>1. —Railroads—Brakeman Killing Trespasser on Train—Mental Anguish.</p> <p>In an action by parents for the killing of their son by a brakeman on a freight train, the son being a trespasser thereon, and for mental anguish resulting from the mutilation of his body, which was thrown by the brakeman under the wheels of the train, the court held the evidence insufficient to bind the defendant railway company for the killing of the son and instructed to that effect, but submitted the question as to liability for mutilating the body. Held, that such mutilation of the body, done to conceal the crime, was so intimately connected with the wrongful act of killing that it can not be considered as a separate cause of action, and the court erred in so submitting it.</p> <p>2. —Same—Liability of Railroad for Brakeman’s Act—Issue Raised.</p> <p>There being evidence that brakemen customarily ejected passengers from freight trains, though that duty was delegated to conductors by the rules of the company, the court should have submitted to the jury the questions whether or not, under the evidence, the brakeman was attempting to eject the son and had authority to perform that duty.</p> <p>3. —Same—Rule as to Liability.</p> <p>Where a servant has authority to do a certain thing and in attempting to do it he does wrong, the master is liable for the wrong; but if the servant is not acting within the scope of his authority nor in the master’s interest, the master is not liable.</p>

<p>Appeal from the District Court of Burnet. Tried below before Hon. Clarence Martin.</p>

<p>1. —Personal Injuries—Action for Damages—Laws Governing.</p> <p>Where plaintiff’s injury occurred in this State, though caused by the-negligent loading oí a car of lumber in another, the laws of this State will govern an action for damages caused by such injury.,</p> <p>2. —Charge—Weight of Evidence—Assuming Uncontroverted Fact.</p> <p>A charge is not on the weight of evidence which assumes as proved a fact established by the undisputed evidence.</p> <p>3. —Same—Vice-Principal—Servant Assuming Ordinary Care on Part of Master.</p> <p>Though plaintiff may have assisted in the loading of the car of lumber which caused his injury, he may not have known that it was improperly loaded, or, if he did, he may not have known of the danger arising therefrom, and in the absence of knowledge to the contrary he could act upon the assumption that defendants, through their vice-principal, the foreman in charge of the work, had used ordinary care to see that the car was properly loaded. Charge on this point approved. ¡</p> <p>4. —Same—Negligence—Unusual Accident.</p> <p>Plaintiff, a bridge carpenter, was sitting in front of an open door of a box car when he was struck by a piece of lumber which fell from a flat car just in front of the one in which he was riding. Held, that the fact that the accident occurred in a peculiar and unusual manner, not to be expected, did not prevent the act of defendant from being negligent where the loading of the car without fastening the lumber threatened danger in many ways which could have been foreseen. Special requested charge on this issue-properly refused.</p>

<p>1. —Contributory Negligence.</p> <p>The question of negligence on the part of a section hand injured by collision of a train with a push car while he was endeavoring to remove it from the track held to be one o'f fact for the jury.</p> <p>2. —Evidence—Mortality Tables—Dangerous Calling,</p> <p>On the issue of damages from permanent disability by injuries to the person, mortality tables are admissible to show plaintiff’s expectancy of life, though based on experience in ordinary avocations while that in which plaintiff was injured was extra hazardous.</p> <p>3. —Damages—Charge—Double Recovery.</p> <p>Charge on assessing damages for specific personal injuries and also for their permanent results held erroneous as allowing double recovery.</p> <p>4. —Charge—Issues Not Raised.</p> <p>A charge on the duty of the master to furnish the servant safe and appropriate tools and implements was improper where no such issue was presented by the pleading or evidence.</p> <p>5. —Contributory Negligence—Reliance on Foreman—Charge.</p> <p>Requested charges on the duty of a section hand removing a car from the track before an approaching train to exercise care to discover and avoid probable danger, and not trust his protection wholly to the foreman, which it is held error to refuse.</p>

<p>1. —Building Contract—Bids—Delayed Message—Evidence—Probable Action of Sender or Sendee.</p> <p>A witness who contemplated the erection of a building, or his agent in procuring bids therefor, being the only persons who could pass upon and accept the bids, may testify that but for the telegraph company’s delay in delivering the message of plaintiff, a building contractor, stating the amount of his bid, such bid would have been accepted and the contract awarded to him.</p> <p>2. —Same—Profits—Evidence.</p> <p>A contractor, whose bid for the proposed erection of a building was negligently delayed by a telegraph company until too late to be considered, may testify, in a suit for loss of the contract, what would have been his profits had he been awarded the contract.</p> <p>3. —Loss of Contract—Measure of .Damages.</p> <p>The measure of damages for the loss of a building contract through negligent delay of a telegram stating the amount of plaintiff’s bid is the difference between the amount of the bid and the actual amount it would have cost him to erect the building according to the plans and specifications.</p>

<p>Appeal from the County Court of Lee. Tried below before Hon. John H. Tate.</p>

<p>1. —Defective Appliances—Knowledge of Defects.</p> <p>Plaintiff, a brakeman, was injured through a fall caused by the top rung of a ladder on defendant’s water car pulling loose while he was attempting to lift himself thereby to the second rung, the bottom one being gone, which fact was known to plaintiff. The uprights of the ladder were old and weather-cracked and were split at the place where the top cleat was ’'nailed. Held, that plaintiff can not be charged, as matter of law, with knowledge of the defective condition of the ladder where the accident occurred at night and plaintiff had never used the ladder before.</p> <p>2. —Requested Charge—Proximate Cause.</p> <p>A requested charge was properly refused which instructed a verdict for defendant if the jury should believe that the fact of the bottom rung of a ladder being gone was the proximate cause of plaintiff’s injuries, which were received while attempting to lift himself to the second rung by grasping the top one, which pulled loose, since, although the absence of the bottom rung may have been a proximate cause of the accident, yet the proximate and responsible cause may, also, have been the defective fastening of the top rung which pulled loose.</p> <p>3. —Charge—Submitting Undisputed Fact.</p> <p>A charge submitting in' issue a fact which was undisputed held not prejudicial when the charge is read as a whole.</p> <p>4. —Defective Appliances—Known and Unknown.</p> <p>Although plaintiff knew that the bottom rung of a ladder which he was attempting to ascend was gone, he could nevertheless recover for injuries caused by other defective parts, which defects was not known to him, unless it appeared that, with such knowledge of defects as he had, he acted imprudently in using the ladder.</p> <p>5. —Requested Charges—Issue Not Presented by Evidence.</p> <p>Evidence held to justify the refusal of requested charges denying plaintiff a right to recover if he was injured while performing an act not in the discharge of his duty, such issue not being presented.</p>

<p>1. —Carrier of Passengers—Degree of Care.</p> <p>Charge holding a railway as carrier of passengers bound to exercise a high degree of care, held proper.</p> <p>2. —Same—Invited Error.</p> <p>That a charge holding the passenger carrier bound to furnish a reasonably safe place to alight made it an insurer whose liability did not depend on negligence, was not error available to one who requested and obtained a charge stating the same rule.</p>

<p>1. —Negligence—Pleading and Charge—Railroads.</p> <p>Where the negligence charged in plaintiff’s petition was the act of the railway employes in raising a water hose, which had been placed through the door of a car, just as plaintiff was stepping over it in leaving the car, thus causing him to trip and fall, the failure ot the chr ge to submit as negligence the placing of the hose in and across the door of the car was not error.</p> <p>2. —Same—Concurring Causes.</p> <p>The petition havin- charged that plaintiff’s fall and injury was caused by the raising of the hose, which tripped him, and a sudden movement of the car at the same time, a charge conjunctively submitting these matters of negligence as concurring causes of the injury was proper, and a failure to present them disjunctively was not ground of complaint in the absence of reguest therefor.</p> <p>3. —Same—Contributory Negligence—“Proximately.”</p> <p>A charge that contributory negligence of the plaintiff which "caused or contributed” to the injury would defeat a recovery was not error for failure to state that it must have “proximately” contributed to the injury.</p> <p>4. —Same—Undue Prominence.</p> <p>A charge merely presenting in a negative form for the defendant matters of negligence which had been affirmatively presented for the plaintiff is not subject to objection as giving such matters undue prominence.</p> <p>5. —Carrier of Passengers—Exit From Train.</p> <p>It is not an unreasonable regulation for a railway company to designate certain doors and steps by which its passengers shall leave the train and reserve others for the performance of its necessary work.</p> <p>6. —Same-—Trespasser. ■</p> <p>Where a passenger, after disembarking from the train at his destination, returned to it for the purpose of crossing by means of the car steps to the other side of the track, he was a trespasser, and the company owed him no duty, except not to hurt him if it discovered him in a place of peril.</p>

<p>Appeal from the District Court of Travis. Tried below before Hón. George Calhoun.</p>

<p>1. —Continuance—Materiality of Testimony—Diligence.</p> <p>The materiality of the testimony sought not being shown and.the evidence .indicating a lack of diligence to procure it, .a continuance was properly refused.</p> <p>2. —Contract of Sale—Homestead—Wife's Separate Estate.</p> <p>Property being homestead up to the time of the death of the' wife, a contract of sale signed by the husband and wife is not binding on the wife, nor upon her heirs at her death, as.to her separate interest in the property.</p> <p>3. —Same—Homestead—Mental Incapacity of Wife—Community—Estate.</p> <p>A husband and wife entered into a contract to sell their homestead, but before the deed was signed the wife became of unsound mind and was in that condition when she signed. The homestead was bought partly with the wife’s separate funds. Held, that although the purchaser bought without notice of this and for a valuable consideration, he acquired under the contract of sale and the deed only the husband’s interest in the community and his additional life interest in the portion owned by the wife, but not her separate interest.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. ¡Norman G. Kittrell.</p>

<p>Appeal from the District Court of Smith. Tried below before Hon. B. W. Simpson.</p>

<p>1. —Charge on Weight of Evidence—Degree of Certainty in Proof.</p> <p>A charge in an action for causing death, that if the jury believed from the evidence that the deceased was injured early in February and did not die until late in May, then before they could find in favor of plaintiffs the evidence must show with a reasonable degree of certainty that such death in May was the direct and proximate result of the injury received in February, was on the weight of evidence. Plaintiffs were only required to show by a preponderance of the evidence that the death was the proximate result of the injury received in February, and the words “reasonable degree of certainty” imply a higher degree of certainty than is furnished by a preponderance of evidence.</p> <p>2. —Same—Proximate Cause.</p> <p>A requested charge that, in order to find for plaintiffs, the jury must believe that the deceased did not die from heart failure or a stroke of apoplexy, but that defendant’s negligence was the proximate cause of his death, was properly refused where the main charge required the jury to find affirmatively, as a condition precedent to a recovery by plaintiffs, that death was proximately caused by injuries received by the deceased as alleged in plaintiff’s petition.</p> <p>3. —Evidence of Suffering—Personal Injury—Opinion.</p> <p>It was permissible for a witness to testify that three or four hours after the collision of the trains deceased, one of the passengers, and who had then gone to a hotel, appeared to be suffering greatly. It was not necessary for the witness to be an expert in order to give an opinion as to the appearance of an injured party.</p> <p>4. —Same.</p> <p>So it was competent for the witness to testify that he met the deceased four or five weeks afterwards and that he complained greatly at the time and seemed to be suffering considerably.</p> <p>5. —Same—Harmless Error.</p> <p>The admission of a further part of the witness’ statement to the effect that the deceased at that time had been out of his bed only a few days was harmless error, if error at all, where other uncontradicted evidence showed such to be the case.</p> <p>6. —Same—Expressions of Present Suffering.</p> <p>It was not error for the court to refuse to exclude testimony of a wit- ■ ness to the effect that twelve hours after the collision the deceased was complaining very badly of his back and neck, and seemed to be suffering very much, since by such complaints the deceased was giving expression to then existing pain and suffering.</p> <p>7. —Same—Statements to Physician.</p> <p>A physician was properly permitted to testify to statements as to pain and suffering made by the deceased to the physician at the time the latter was examining him for treatment.</p>

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

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

<p>Appeal from the District Court of Palo Pinto. Tried below before J. C. Kearby, Esq., Special Judge.</p>

<p>Appeal from the County Court of Cooke. Tried below before Hon. J. M. Wright.</p>

<p>1. —Assumed Risk—Railroad Section Hand Moving Heavy Ties.</p> <p>A railroad section hand and a colaborer working with him were ordered by the foreman of the gang to move a heavy oak tie 12 or 14 feet long, 12 inches wide and 10 inches thick. In the joint effort to do so the colaborer, who was a man of good health and strength, yielded to the weight, which was consequently thrown suddenly on plaintiff, and he was injured through a rupture caused thereby. Plaintiff, had worked with timbers all his life, and had worked two and one-half days in moving the ties. Held, that the danger of attempting to move the tie without a sufficient number of men to safely do so was open and obvious, and a risk which plaintiff assumed.</p> <p>2. —Same—Charge.</p> <p>Evidence of facts as above shown did not warrant the giving of a charge which submitted the question of assumed risk as one for the determination of the jury.</p>

<p>Power of Attorney—Intention of Parties.</p> <p>Although an instrument recited a valuable consideration, transferred all power on the part of the owner of land to his attorney and declared that such power was irrevocable, nevertheless such instrument is held to be a mere power of attorney and not an absolute conveyance where the acts of the attorney, the grantor and those who purchased from the grantor with full knowledge of the existence of such instrument indicate that they so regarded it.</p>

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

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

<p>1. —Carrier of Passengers—Degree of Care.</p> <p>The duty of a carrier of passengers is not absolutely to furnish cars or to operate them in a manner which shall be reasonably safe, but only to exercise a high degree of care so to do.</p> <p>2. —Charge.</p> <p>Affirmative error in an instruction is not corrected by a proper statement of the law in other portions of the charge.</p>

<p>1. —Surety—Notice of Default.</p> <p>Sureties on the bond oí a building contractor can not defeat their liability for his failure to complete the building according to contract by showing that they were not notified of his default, and that they could have completed it without loss or protected themselves out of money of the contractor then in their hands had they received timely notice.</p> <p>2. —Evidence—Error.</p> <p>The admission of illegal evidence is error, though the charge does not submit the issue involving its effect to the jury, especially where the evidence legally admitted will not warrant the verdict.</p> <p>3. —Building Contract—Completion to Satisfaction of Architect,</p> <p>Under a contract to complete a building in accordance with plans and specifications and in a manner satisfactory to the architect, his determination of what is necessary to .constitute compliance is conclusive, in the absence of fraud or collusion on his part, and it can not be shown that items required by him were unnecessary.</p> <p>4. —Peremptory Instruction.</p> <p>Evidence held to justify a peremptory instruction to find for plaintiff a sum shown to be due by undisputed testimony.</p>

<p>1. —Nuisance—Damages. ■</p> <p>Plaintiff could recover damages for a nuisance created by defendant in placing green ties in front of plaintiffs’ home and allowing water to collect under them, causing decay and disagreeable odors, the items of damage being loss of time and all discomforts in the home arising from the nuisance, such as vile odors, causing either bodily or mental pain; but no recovery could be had for the unsightly appearance of the ties or the marring of plaintiff's view.</p> <p>2. —Same—Mental Anguish.</p> <p>In order to recover for mental pain caused by disagreeable odors and sickness as a result of a nuisance, it must be proved that such mental pain existed and was caused by the nuisance and it can not be presumed from an attack of chills and fever.</p> <p>3. —Verdict—Separate Items.</p> <p>A verdict allowing damages for physical pain and mental anguish should state the amount allowed for each.</p> <p>4. —Evidence—Loss of Time.</p> <p>Testimony by plaintiff that the time lost while he was sick and in waiting on his wife and minor children was sixty or seventy days did not show how much time was spent in waiting on the children and was insufficient to support a finding of $60 for such item.</p> <p>5. —Excessive Verdict—Remittitur.</p> <p>Bemittitur of $60 found for loss of time in waiting on minor children, $50 for obstructing plaintiffs’ view and $100 for mental and physical suffering caused by sickness,- in addition to $50 for medicines and doctor bills voluntarily remitted, required of plaintiffs as a condition of affirming judgment in an action for damages caused by nuisance.</p>

<p>Appeal from the County Court of Nacogdoches. Tried below before Hon. Bobert Berger.</p>

<p>1. —Railroads—Employe—Medical Attention—Charge.</p> <p>In suit by an injured railway employe for discharging him from the company’s hospital before recovery, in violation of an undertaking to furnish him medical attention, a charge permitting him to recover for time lost “caused by such injury” was erroneous; “injury” in its natural sense would be taken as the wound to the foot, and not the denial of surgical treatment which, alone, was complained of.</p> <p>2. —Same—Charge.</p> <p>An action for damages for refusing plaintiff medical treatment contracted for does not involve or call for a charge on the degree of care required in furnishing such treatment.</p>

<p>1. —Carriage of Live Stock—Charge.</p> <p>Where the charge as a whole authorizes recovery of the value of animals which died from injuries received in their transportation only when such injuries were the direct result of the carrier’s negligence, the failure to charge affirmatively on the carrier’s defense that they died through inherent weakness is not available in the absence of requested instructions to that effect.</p> <p>2. —Same.</p> <p>Requested instructions held properly refused because presenting issues not involved and ignoring necessary issues which were involved.</p>

<p>1. —Injury to Trespasser—Charge—Evidence.</p> <p>In an action for running down a trespasser on a trailway track, a requested instruction limiting the ground of liability to negligence after discovery of .his peril was erroneous in directing the jury to disregard the circumstance that the track was level and the view unobstructed, since such evidence bore on the question, when the trespasser was discovered, as well as when he might have been.</p> <p>2. —Injury to Trespasser—Discovered Peril—Charge.</p> <p>Instructions in case of a trespasser on a railway track riding a railway bicycle and run down by a rapidly moving train, which required of defendant “the greatest precaution” and the use of the “means and agencies” at hand to avoid injury after discovery of the peril, were erroneous and required qualification, where the evidence showed, as excuse for not reversing the engine, that it would have endangered the train and passengers.</p>

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

<p>1. —Carriers—Connecting Lines—Injuries to Freight—Burden of Proof.</p> <p>Where freight has been transported by successive carriers and it is damaged en route, and the evidence fails to show on what particular line the injury occurred, the presumption of law is that it occurred upon the line of the last carrier through whose hands the freight passed.</p> <p>2. —Same—Charge Not Applying the Rule.</p> <p>In an action against two connecting carriers for damages to horses occurring on a through shipment over their lines the court correctly charged that the burden was on plaintiff to show that the injury did not occur on the terminal line, but erred in further instructing that in case the jury found there had been a want of proper care in the transportation of the horses, but were unable to determine which defendant failed to exercise the required care, the burden was on each defendant to show that such failure did not occur on its line.</p>

<p>Appeal from the District Court" of Wilbarger. Tried below before Hon. S. P. Huff.</p>

<p>Appeal from the District Court of Wilbarger. Tried below before Hon. J. A. Habers.</p>

<p>Appeal from the District Court of Hardeman. Tried below before Hon. S. P. Huff.</p>

<p>Boundaries—Construction of Calls.</p> <p>Where one of the lines of an original survey "was not actually run out, but it called for course and distance and also for the line of a prior survey on that side, which could be reached only by exceeding the call for distance, and there was evidence that it was intended, in making such survey and location, to cover all the vacant land up to such adjacent prior survey, it should have been left to the jury to determine where the line should extend to, and whether the intent of the locator was in fact to include all of the vacant land there.</p>

<p>Appeal from the County Court of Shackelford. Tried below before Hon. J. M. Chism.</p>

<p>Appeal from the County Court of- Victoria. Tried below before Hon. Ben W. Ely.</p>

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

<p>Appeal from the District Court of Burnet. Tried below before Hon. Clarence Martin.</p>

<p>Appeal from the District Court of Grayson. Tried below before Hon. J. M. Pearson.</p>

<p>Error to the District Court of Panola. Tried below before Hon. Richard B. Levy.</p>

<p>Appeal from the District Court of Bastrop. Tried below before Hon. Ed. B. Sinks.</p>

<p>Appeal from the District Court of Clay: Tried below before Hon. A. H. Carrigan.</p>

<p>1.—Irrigation—Riparian Rights.</p> <p>Lands that do not lie in the watershed of a stream and whose surface ■casts their waters away from rather than into the stream, are not riparian to such stream, nor entitled as such to be irrigated therefrom.</p> <p>Z.—Same—Right by Appropriation and User for Ten Years.</p> <p>Findings of fact considered and held not to show that a right to use the waters of a creek for irrigation purposes had been acquired by appropriation and user for more than ten- years.</p> <p>3. —Same—Unlawful Diversion of Water.</p> <p>Where a lower riparian owner complains of the unlawful diversion of the waters of the stream to nonriparian lands by an owner above him, it is no defense that such lower owner is receiving from the stream all the water necessary to irrigate his riparian lands.</p> <p>4. —Same—Limitations.</p> <p>An unlawful diversion of water to nonriparian lands by an upper owner under claim of right is adverse to the lower owner, and is such a use as will ripen into title by limitations. This would be true also with reference to the,use of unnecessary quantities of water, and to allowing the surplus water to go to waste instead of returning it to the stream.</p> <p>5. —Same—Rule as to Riparian Rights.</p> <p>The doctrine of reasonable use of water by riparian owners obtains in this State, and under it one of such owners may not lawfully exhaust the supply of a stream for irrigation purposes as against the rights of lower owners to á similar use of the water. Fleming v. Davis, 37 Texas, 173, followed, and other Texas cases reviewed and distinguished.</p>

<p>Bankruptcy—Discharge Held Not a Bar—Debt Not Properly Scheduled»</p> <p>Plaintiff, then Mrs. Amanda M. Douglass, obtained a judgment against one S., who, after she had by subseuent marriage become Mrs. Rust, obtained a discharge in bankruptcy. In the schedule of debts filed by S. the holder of the debt of plaintiff was named as "Mrs. Amanda M. Douglass," and her postoffice stated, to be unknown, while the evidence in this case tends to show that by the use of reasonable diligence S. could readily have learned the true name and residence of plaintiff. Held, that under section 17, paragraph 3, of the Bankrupt Act of 1898 (U. S. Compiled Stats., 1901, p. 3428) providing that a judgment of discharge under the act does not apply to such debts of the bankrupt as “have not been duly scheduled in time for proof of allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy,” the judgment of discharge did not operate as a bar to the debt of plaintiff, who was without actual notice of the bankruptcy proceedings.</p>

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

<p>1. —Will—Devise of Life Estate—Restriction Against Alienation.</p> <p>By the terms of a will certain real estate was devised to D. for life, with remainder in fee to her children, “and I direct that said L. shall not sell and convey or mortgage said land during her life. She may rent it and use the rent.” Held, that,such provision in restraint of alienation is repugnant to the right conferred by the devise of the life estate, and is therefore not valid.</p> <p>2. —Same—Cases Distinguished—Trust.</p> <p>Simonton v. White, 93 Texas, 50; Wallace v. Campbell, 53 Texas, 229, and other cases distinguished as arising under instruments creating a trust wherein the provisions against alienation were upheld as necessary to the fulfillment of the trust.</p>

<p>1. —Evidence—Opinion—Injury to Cattle During Shipment.</p> <p>It was not error to admit opinion evidence as to the transportable condition of cattle shipped by rail, as to the effect upon them and their value, of delay and bad treatment, as to what constituted overloading, and as to what was a reasonable time to transfer them from one carrier to another en route, where the witnesses showed themselves qualified 'to give opinions as experts on such matters.</p> <p>2. —Same.</p> <p>It was also competent for witnesses to testify as to the condition,' history and shortage of the cattle as placed in a pasture at their destination, as this tended to show the extent of the injury and loss.</p> <p>3. —Same—Immaterial Evidence.</p> <p>The admission of evidence wholly immaterial and probably irrelevant besides could not reasonably have done any harm.</p> <p>4. —Carriers—Restricting Liability—Shipment of Cattle.</p> <p>Stipulations in a written contract for the shipment of cattle, restricting the carrier’s liability to injuries occurring on its own line do not apply in case of a further shipment beyond the point of destination named in the written contract, and as to which there was an oral contract between the carrier and shipper made before the shipment was begun.</p> <p>5. —Charge—Defensive Matters.</p> <p>A charge submitting a matter of defense is not subject to objection on the part of the defendants where it submitted the defense just as defendants had alleged it and just as they had, in a special instruction refused by the court, invited the court to submit it.</p> <p>6. —Market Value—Cattle Shipment—Point of Destination.</p> <p>It was not error for the trial court to refuse to instruct the jury to return a verdict in favor of one of the defendants, the initial carrier, because the evidence failed to show the market value of the cattle at R., the point of destination named in the through bill of lading, but showed their value at M., a point beyond R„ where the initial carrier knew the cattle were to be carried on to M„ and no objection to the evidence on that ground was made at the time the evidence was offered.</p> <p>7. —Carriers—Cattle Shipment—Rough Handling.</p> <p>In an action for injuries to cattle during shipment it was not error for the court to refuse a requested charge which in effect instructed the jury that the carrier would not be liable for the rough handling of the cattle if they found this had been done in the usual and customary manner.</p> <p>8. —Same—Connecting Carriers—Custom.</p> <p>Where the issue was raised by the pleadings it was not error for the court to admit evidence as to the custom among railroads, in cases of through shipment over connecting lines, as to which company should furnish cars “properly cleaned and suitable for shipping.”</p>

<p>Appeal from the District Court of Navarro. Tried below before Hon. L. B. Cobb.</p>

<p>1. —Railroads—Killing . Live .Stock—Fenced Right of. Way—Stock Law.</p> <p>Where plaintiff’s mules escaped from its corral in a county where the stock law prohibited such animals from running at large, and entered upon defendant’s, right of way át a public place where the right of way was not required to be fenced, and wandered along it for nearly a mile and across the line of an adjoining county and were there struck and killed by a train, the engineer of which used all means to stop it after seeing the mules, the defendant road was not liable therefor.</p> <p>2. —Same—Cattle Guards at County Line.</p> <p>The defendant’s failure to provide cattle guards across its track at the county line was not such negligence as to render it liable, since it could not have reasonably expected that stock would come on its track in a county where the law prohibited their running at large.</p>

<p>1. —Charge—Deed—Mortgage—Intention—Homestead.</p> <p>In order to constitute a deed, absolute in form, a mortgage to secure a •debt, it must be mutually so intended by the parties, and a charge was erroneous which instructed the jury to find for plaintiffs, in an action to cancel a deed given by a husband and wife on their homestead, if the wife intended such to be a mortgage, although the other contracting party may have considered it an absolute conveyance.</p> <p>2. —Same—Innocent Purchaser.</p> <p>Plaintiffs whose claim to recover land rested on establishing a conveyance, absolute on its face, to be a mortgage of their homestead, could not recover if it was in fact a deed and it was error to make defendant’s title, in such event, rest on his claim to be an innocent purchaser.</p>

<p>1. —Railway—Fellow Servant—Operating Cars.</p> <p>A section hand injured by the negligence of another section hand while placing their hand car on the track to return from work at the close of the day, was engaged in the operation of a car within the meaning of article 4560ea, Batts’ Rev. Stats., giving him a right to recover from the master for such negligence of his fellow servant.</p> <p>2. —Charge.</p> <p>No error appears in a charge on negligence using the term “great weight’' in regard to a hand car, though the evidence showed it to be light for a hand car.</p> <p>3. —Charge—Pleading.</p> <p>Submission of the question whether a hand car, in falling, struck plaintiff, was not unsupported by pleading which alleged that in falling' it jerked him forward “striking his head and face against said car.”</p>

<p>Appeal from the County Court of San Saba. Tried below before Hon. W. A. Smith.</p>

<p>Appeal from the District Court of Travis. Tried below before Hon. V. L. Brooks.</p>

<p>Appeal from the District Court of Travis. Tried below before Hon. R. L. Penn.</p>

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

<p>1. —Liquor Dealer’s Bond—Application for License.</p> <p>A liquor dealer’s bond is not invalid because his application for license to sell liquor in a town where the houses are not numbered does not state the number of the house wherein the business is to be carried on. Rev. Stats., art. 5060c.</p> <p>2. —Same—Constitutional Law—Discrimination as to Native Wines,</p> <p>The statute imposing a tax on the sale of intoxicating liquors is not unconstitutional because of the exemption of native wines in the hands of the producers or manufacturers thereof, such exemption having for its object the encouragement of the growth of grapes and the production of wines in this State.</p> <p>3. —Same—Two Penalties Recoverable.</p> <p>The State may recover for two or more penalties of $500 each for different breaches of the bond, since the statute provides for recoveries on the bond until its amount is exhausted. Rev. Stats., art. 5060g.</p> <p>4. —Same—Minor Remaining in Saloon.</p> <p>Where a minor entered a saloon for the purpose of repairing a gasoline lamp, and remained there a minute or two for that purpose, it was no defense that he entered for a harmless purpose.</p>

<p>Appeal from the County Court of Fannin. Tried below before Hon. Tom C. Bradley.</p>

<p>1. —Carriers—Express Company—Shipment of Horses—Injury to Attendant,</p> <p>An express company contracted with plaintiff’s brother to transport certain race horses, the contract providing that certain parties therein named should accompany the horses. Plaintiff was not named among such parties, but his brother pointed him out to the express agent as one of the men to accompany the horses, and no objection was made by the agent or by the conductor of the train. Held, that plaintiff was a passenger and entitled to protection as such against negligent injury occurring during the transportation.</p> <p>2. —Same—Liability of Express and Railway Company.</p> <p>The express company engaged a train from the railway company for the transportation of the horses and sent an agent along in charge. While the railway company was operating the .train over its own tracks for the express company plaintiff was injured through the negligence of the railway company in having a defective track which produced a wreck, causing the horses to knock down a scantling in the partition of the cars, which fell upon plaintiff,—the insecure fastening of the scantling being the negligence of the express company. Held, that the negligence of the railway company was a jointly concurring cause of the injury, and did not exempt the express company from liability therefor.</p> <p>3. —Same—Railway Company as Agent of Express Company.</p> <p>Under the facts the express company was responsible for the negligence of the railway company which was a mere agent employed by it in the transportation of the horses, and it was therefore immaterial, so far as the express company is concerned, that the court’s charge restricted plaintiff’s right of recovery to the latter company’s negligence.</p> <p>4. —Same—Evidence.</p> <p>There was no error in admitting the testimony of plaintiff to the effect that no one complained of his presence on the car.</p>

<p>1. —Local Option Election—Political Subdivisions.</p> <p>The statute empowering the commissioners court to order a local option election to be held in a territory which is less than the whole county and includes more than one of the political, subdivisions of the county is in contravention of article 16, section 20, of the State Constitution.</p> <p>2. —Same—Election Precincts.</p> <p>The combination for election purposes of precincts in which prohibition is in force, with those in which it does not prevail (the entire territory being less than the whole county) is forbidden by the Constitution.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Herman G. Kittrell.</p>

<p>1. —School Land—Lease—Cancellation—Reletting.</p> <p>A new lease, made by the Commissioner of the General Land Office, of school land already held by the same tenant under a valid lease on which there had been no default authorizing its cancellation was unauthorized and void.</p> <p>2. —Lease—Expiration of Term.</p> <p>The courts will follow the construction given by the General Land Office to its leases of school land, holding that the day of their execution is excluded from the computation in determining when they expire.</p> <p>3. —Same.</p> <p>A lease of school land on November 15, 1897, for five years, expired at midnight of November 15, 1902.</p> <p>4. —Lease—Purchase—Premature Application.</p> <p>Where a lease of school land did not expire till midnight of the day on which application to purchase the land was filed, the application was premature, and the lg.nd could not be awarded to the applicant by the Land Commissioner where, before he acted on the sale and after the lease had expired, another had applied to purchase it.</p>

<p>1. —Homestead—Rural or Urban.</p> <p>Evidence considered and held to support finding that plaintiff seeking to enjoin sale of any portion of four adjoining tracts of land, situated within the corporate limits of a> city, but claimed by him as a rural homestead, was entitled only to the urban homestead; that two of such tracts were not so used as to constitute a part of such urban homestead; and his urban homestead exceeded the value of $5000 when these were acquired.</p> <p>2. —Same.</p> <p>The situation within corporate limits, the subdivision and occupancy of surrounding property, the schools, fire protection, and light and water supply furnished by the municipality, and other circumstances considered in determining a homestead to be urban and not rural in its character.</p> <p>3. —Urban Homestead—Burden of Proof.</p> <p>It is questioned whether plaintiff seeking to enjoin sale of his alleged homestead on the ground that it was a rural one had not the burden of proving it to be so.</p> <p>4. —Urban Homestead—Use—Value.</p> <p>Lands in town may be subject to sale either because not so connected in use with the home as to constitute part of an urban homestead, or as exceeding the value permitted at the time of their designation.</p> <p>5. —Homestead—Injunction—Right to Select.</p> <p>One seeking to enjoin sale of land on the ground that it was all his rural homestead and tendering no issue as to his right to select if not all exempt can not complain of a judgment dissolving- the injunction as to a part of the property on the ground that it deprives him of his right of selection.</p> <p>6. —Levy—Pointing Out Property.</p> <p>One can not complain that real property was levied on without opportunity for him to point out personal unless he has done so at the first opportunity.</p> <p>7. —Assignment of Error.</p> <p>An assignment that the court erred in overruling a motion for new trial "because of the errors herein assigned,” is too general.</p>

<p>Appeal from the District Court of Mills. Tried below before Hon. John W. Goodwin.</p>

<p>1. —Charge—Contract—Limiting Liability.</p> <p>A charge that a clause in a contract limiting defendant’s liability to $4 per acre, in case of failure to furnish sufficient water to make a crop, applied only in case defendant furnished some water but not enough, was erroneous.</p> <p>2. —Same—Irrigation Company—Quasi Public Corporation—Lease Contract.</p> <p>A charge was erroneous which told the jury that an irrigation company was a quasi public corporation and a common carrier of water for hire and as such could not limit its liability for failure to comply with the terms of a contract to furnish water, since the only possessory right plaintiff had in the land was obtained by the lease contract, and he is therefore bound by its terms.</p> <p>3. —Written Contract—Parol Evidence to Vary.</p> <p>Where parties to a contract have reduced it to writing all preliminary agreements are deemed to have been merged in the written instrument and the contract evidenced by the writing can not be varied by paroi, in the absence of fraud or mistake.</p>

<p>Justice Court—Jurisdiction—Counterclaim.</p> <p>Plaintiff having sued for a sum within the jurisdiction of the justice court, defendant pleaded a counterclaim of $628.44 and prayed that plaintiff’s claim be deducted from this sum and judgment rendered for defendant for the remainder. Held, that, since such sum was not within the jurisdiction of the justice court, plaintiff’s exception to defendant s plea of counterclaim should have been sustained and judgment rendered for plaintiff.</p>

<p>Appeal from the District Court of Montgomery. Tried below before Hon. L. B. Hightower.</p>

<p>Appeal from Justice to County Court—Appeal Bond—Parties.</p> <p>Where judgment is rendered in justice court against one of two defendants having no adverse interest, appeal may he taken to the county court without making the codefendant a party to the appeal bond.</p>

<p>1. —Pleading—Variance—Oral Agreement to Loan Money—Homestead.</p> <p>A petition averred substantially that plaintiff agreed with defendant that the latter should advance or loan him money with which to purchase from a third person property, originally plaintiff’s homestead but which had been sold for taxes, defendant to take a deed in his own name as security and plaintiff to repay in small installments not specified. The transaction did not assume the form of a technical loan secured by mortgage because defendant’s attorney feared the homestead question, plaintiff being then still in possession. Such pleading was sufficient to support an action to recover the land, plaintiff having been ousted, and evidence was not variant from the pleading although it failed to show any definite agreement as to amount of. installments or time of repayment.</p> <p>2. —Oral Agreement—Statute of Frauds—Express Trust Created .by Parol.</p> <p>An oral agreement to lend money for the purchase of property, the lender to take a deed as security and the borrower to repay the money in small installments, was not void under the statute of frauds, since the transaction amounted to an express trust in land which can be created by paroi.</p> <p>3. —Loan—Time of Repayment.</p> <p>A loan of money where no time is fixed for repayment is payable on demand.</p> <p>4. —Oral Agreement—Repudiation—Ouster—Rents.</p> <p>Where defendant repudiated an oral agreement to loan plaintiff money with which to purchase property, defendant to take a deed as security, and ousted plaintiff, claiming the property for himself under the deed, he is liable to plaintiff for the rental value during such ouster and can not recover for money expended for an abstract of title and advice of attorney in the absence q£ a showing that plaintiff assumed such expenses.</p>

<p>Contributory Negligence Defeating Recovery.</p> <p>Evidence considered and held sufficient to show contributory negligence on the part of deceased in stepping in front of a moving engine in a switching yard without exercising any care for his safety; and such contributory negligence justified a peremptory Instruction releasing defendant from liability although its servants were negligent in not keeping a lookout and in violating a city ordinance in regard to speed of trains.</p>

<p>1. —Telephone Company—Injury from Wire Left In Street—City’s Concurring Negligence.</p> <p>In an action against a telephone company for personal injury resulting from one of its wires being left in the street, it was not error to exclude evidence of the incorporation of the city and that it suffered che streets to remain obstructed by wires and rubbish, since the city’s negligence did not relieve defendant from the consequences of its own negligence certainly and próximately contributing to plaintiff’s injury.</p> <p>2. —Same—Declaration of Agent Held Admissible.</p> <p>It was not error for the court to admit testimony that one V., defendant’s local agent, when shown the wire in question, said, “That is our wire,” since the evidence, which is set out in the opinion, was sufficient to establish V.’s agency.</p> <p>3. —Same—Contributory Negligence—Failure to See Wire.</p> <p>- It can not be held contributory negligence for plaintiff, walking along the sidewalk of a street, to fail to observe a wire hanging down and across the sidewalk which he could have seen by observing closely, where nothing in the evidence indicates that he should reasonably have contemplated an obstruction of that character.</p>

<p>Appeal from the District Court of Knox. Tried below before Hon. H. B. Jones.</p>

<p>Appeal from the District Court of Ector. Tried below before Hon. James L. Shepherd.</p>

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

<p>Appeal from the District Court of Dallam. Tried below before Hon. Ira Webster.</p>

<p>1. —Pleading and Judgment—Interest—Conversion.</p> <p>Where in an action for the conversion of an insurance policy for $1200 plaintiff prayed “for his damage for the conversion of said policy, to wit, $1200, for costs of suit, and for general relief,” a judgment for the amount of the policy, $1200, together with legal interest thereon from the date of the conversion, was not, as to such interest, warranted by the pleading.</p> <p>2. —Same—Conversion—Tender.</p> <p>Where plaintiff’s original petition asked for the possession of a policy, or its value, and by an amended petition he charged its conversion, and on the day the amended petition was filed defendant tendered the policy to plaintiff, but the record did not show whether this was before or after the filing, it will be presumed on appeal in favor of the judgment that it was after the filing, and it is therefore held of no'avail.</p> <p>3. —Fire Insurance—Iron Safe, Clause—Keeping Set of Books.</p> <p>Evidence considered and held to show a compliance with the iron safe clause required the assured, a merchant who sold almost exclusively for cash, to keep and produce a set of books.</p> <p>4. —Same—Burden of Proof.</p> <p>Where the evidence showed only that the fire occurred “on the morning” of a stated day, the burden of proof was on the insurance company to go further and show that it occurred at a time when the policy required the books to be kept in the iron safe.</p> <p>5. —Bank—Equitable Lien.</p> <p>A bank has not an equitable lien on a fire insurance policy left with it, for any debt due it by the owner of the policy, in the absence of a contract, express or implied, to that effect, and the giving of credit on the faith of the lien.</p> <p>6. —Same—Pleading.</p> <p>Judgment for such an equitable lien can not be rendered in favor of one who has not set up in his pleadings the facts relied on to establish the lien.</p>

<p>1. —Charge—Special, Properly Refused, When.</p> <p>Where the charge on a given issue was general in its terms but correct as far as it went, and a special requested charge which grouped the facts was of itself incorrect, the refusal to give such special charge was not reversible error.</p> <p>2. —Same—Assuming Contributory Negligence as Proximate Cause of Injury.</p> <p>In an action for negligently causing the death of an employe, the court properly refused a requested charge to find for defendant if the jury believed that deceased saw the car approaching, and that under such circumstances an ordinarily prudent person would not have gone in front of it, because this made such negligence as matter of law the proximate cause of the injury.</p> <p>3. —Same—Failure to Specify Obvious Danger as a Risk Assumed.</p> <p>Where in such action the evidence showed indisputably that the danger arose from the presence of a hole in an elevated railroad track which, if left open, was só inherently dangerous and the danger so obviously apparent that ordinary minds could not differ about it, and also that if the deceased knew of the hole and that it was uncovered, the danger was known to him, a charge restricting assumed risks to danger resulting from the defendant company’s negligence within the knowledge of the deceased in connection with a charge that no recovery could be had if deceased knew of the hole and knew that at the time of the injury the hole was uncovered, did not present reversible error because it failed to state that deceased assumed the risk of t3ie danger if it was obvious and open.</p> <p>4. —Action for Death—Parents’ Right of Recovery.</p> <p>The parents of a married man are not entitled to recover for his death unless they show that they suffered pecuniary loss thereby. Evidence considered and held not to show that parents had a reasonable expectation of further pecuniary aid from their son.</p>

<p>1. —Charge—Fraud—Mental Incapacity.</p> <p>Where the pleading and evidence presented the issue of both fraud and advantage taken of mental incapacity in procuring a release of damages, a charge making its invalidity depend solely on plaintiff's mental incapacity was erroneous.</p> <p>2. —Same—Charge—Weight of Evidence.</p> <p>A charge that mental incapacity to contract could not be inferred from enfeebled condition of mind and body, was both erroneous in law and upon the weight of evidence.</p> <p>3. —Mental Incapacity—Contract—Knowledge.</p> <p>Mental incapacity of a party will avoid a contract though it was not known to the party dealing with him.</p> <p>4. —Passenger—I n jury— N eg I i gence.</p> <p>The rulings in Mexican C. Ry. Co. v. Lauricella, 87 Texas, 279, referred to for rule as to burden of proof of negligence in case of injury to a passenger.</p>

<p>1.—Value—Proof Insufficient.</p> <p>Judgment herein reversed for insufficiency of evidence to sustain the amount fixed as the value of a horse sought to he recovered.</p> <p>2d—Conversion—Specific Property—Value.</p> <p>In an action to recover specific property, or for its value in the alternative, the latter should be estimated at the market value at the time of trial, the suit being for the property, not for conversion.</p>

<p>Error from the District Court of Travis. Tried below before Hon. George Calhoun.</p>

<p>1. —Sheriff’s Sale—Inadequacy of Price—Res Judicata.</p> <p>An adverse judgment rendered against a plaintiff, in an action to recover land sold under judgment for taxes, on the ground that it was void for want of citation and because the property, part of which was homestead, was sold in bulk does not preclude the plaintiff from thereafter maintaining, in the nature of a bill in equity, suit to set aside the sheriff's deed on account of irregularities in the sale and the grossly inadequate price paid for the property. i</p> <p>2. —Sheriff’s Return—Evidence to Contradict—Notice.</p> <p>A judgment debtor may contradict an officer’s return upon the notice of sale by testimony that he was never served where the action is a direct attack upon the return, but not in a collateral proceeding.</p> <p>3. —Judgment Debtors—Recovery of Property—Return of Purchase Price.</p> <p>Judgment debtors, having recovered their proportionate interest in land sold under judgment for taxes, should be required to return to the purchaser at such sale only that portion of the purchase price which corresponds to their proportionate interests in the land.</p>

<p>1. —Conveyance for Street Purposes—Lowering Grade—Damage to Property-— City’s Liability.</p> <p>The fact that plaintiff deeded land to a city for street purposes is no bar to an action for damages to her property by the lowering of the grade of the street to the level of a bridge erected across a bayou so that no approach to the property could be constructed, where she did not know, when she deeded the property, of the city’s intention to grade, and such grading was not necessary but was done as a matter of economy and could have been avoided by building a higher and longer bridge.</p> <p>2. —Street Improvement—Damage to Property—Release of Liability.</p> <p>The Legislature has no power to release a city from liability for damage to property caused by grading the streets.</p> <p>3. —Street Improvement—Damage to Property—Offset.</p> <p>Advantages accruing to a property owner, in common with others, from street improvements can not be offset against damages to the property of such owner.</p>

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

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

Error from the District Court of Milam. Tried below before Hon. J. C. Scott. Justice Streetman being disqualified to sit in this case, T. B. Cochran, Esq., was appointed and qualified as Special Associate Justice.

<p>1. —Damages—Ownership of Personal Property — Parties — Apportionment of Damages.</p> <p>Where plaintiff sued in damages for injury to horses, and the evidence showed that the horses were in his control and possession, but that another person owned a part interest in them, the court correctly refused to charge that plaintiff could not recover, since defendants, having failed to interpose any plea of want of proper parties, were entitled to claim only that the damages should be apportioned.</p> <p>2. —Same—Apportionment—Charge.</p> <p>Where the evidence was undisputed that plaintiff’s interest in the horses was about two-thirds, and that of one J. about one-third, with very slight evidence of some interest in one R., the court properly refused to instruct that plaintiff was entitled to recover only such proportion of the damages as would be equal to his interest, “and if there is no evidence tending to establish the amount of interest owned by each party, then the jury should find for the defendants."</p> <p>3. —Same—Right of Bailee to Recover.</p> <p>The right of a bailee in possession of personal property to recover in full for damages thereto, irrespective of ownership, as affirmed in prior unreported decisions of this court, is discussed, but the court as now constituted inclines to the view that the damages should be apportioned where plaintiff is only a part owner.</p> <p>4. —Evidence—Declarations of Agent—Abandonment of Lease. ,</p> <p>Where defendants sought to justify their action in turning plaintiff’s horses out of a pasture he had leased, by setting up a prior lease of the land by plaintiff’s lessor made through T., defendants’ ranch manager, to one W., it was competent to prove statements of T. subsequently made to such .lessor, showing an abandonment of such prior lease, although defendants were not present at the time.</p> <p>5. —Same—Sublease Without Consent.</p> <p>The admission of such statements of the agent, if error, was immaterial where defendants claimed under a sublease to them by W., and such sublease was made without the consent of the original lessor as required by the statute. Rev. Stats., art. 3250.</p> <p>6. —Same—Declaration of Agent.</p> <p>There was no error in admitting evidence of a declaration of defendant’s agent, made while he was driving plaintiff’s horses out of the pasture, that “if those horses are again found in this pasture, they will be scattered so that they will never be found.”</p> <p>7. —Damages—Exemplary Held Authorized;</p> <p>Evidence considered and held to warrant a verdict for exemplary damages for turning plaintiff’s horses out of a pasture, the act constituting a deliberate invasion of a known right.</p>

<p>Carriers—Shipping Contract—Prior Oral Agreement.</p> <p>Where in signing a written contract of shipment, which limited the liability of the carrier to damages occurring on its own line, the shipper merely-carried out an agreement which was implied when he made a previous oral negotiation with the carrier’s agent, the signing was but the consummation, of such negotiation or oral contract, and the shipper was not in a position, to avoid the binding force of the written contract, which took away none of the rights he would have had in the absence of any contract, oral or written.</p>

<p>1. —Damages—Special Verdict.</p> <p>The amendatory act oí 1897 (Sayles’ Civ. Stats., art. 1331) in relation to special verdicts, while authorizing the courts to treat as harmless mere omissions in the verdict where the evidence supplies them, unless the party complaining requests the submission of the issues, does not authorize them to assess unliquidated damages in a case tried by a jury.</p> <p>2. —Same—Sale of Machine with Warranty—Measure of Damages—Profits.</p> <p>Where a machine sold is not such in kind, quality or condition as it was warranted by the seller to be, the direct and natural loss which the buyer is entitled to recover is the difference between the value of a machine he was thus entitled to receive and the value of°the one he did receive, and not the profits he may have lost because the machine was not such as it was warranted to be.</p> <p>3. —Same—Verdict Uncertain.</p> <p>Where the jury, rendering a special verdict, allowed the plaintiff buyer for the difference in value between a threshing machine as contracted for and warranted and its value as delivered, and also a further sum as damages for its diminished capacity to thresh grain, a judgment for the total amount of the verdict should be set aside as based upon a wrong measure of damages, or at least on a verdict which is uncertain.</p> <p>4. —Principal and Agent—Powers of Agent—Evidence.</p> <p>Where there was evidence to the effect that the agent of defendant, through whom plaintiff purchased the property in question, was a traveling salesman with limited powers, it was error for the court to permit plaintiff to prove by the declarations of such agent that he was State agent for the defendant, the rule being that the power of an agent can no more be extended than it can be created by his own declarations.</p>

<p>Appeal from the District Court of Grayson. Tried below before Hon. J. M. Pearson.</p>

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

<p>1. —Personal Injuries—Pleading.</p> <p>An allegation that plaintiff was precipitated with great force and violence to the ground, striking the cross-ties and ground, whereby he was so crushed and mangled that he suffered serious and permanent injury to his back, spine, head, kidneys, etc., was not subject to special exception because not stating what portions of his body were struck or crushed in the fall in order that defendant might be able to determine whether or not the injuries could have resulted therefrom, since it was in effect an allegation that the result to plaintiff from the fail consisted of injuries to his back, spine, head, kidneys, etc., and no recovery was sought for the fall and crushing except as specified.</p> <p>2. —Same—Defective Handhold—Evidence.</p> <p>Where plaintiff was injured by the handhold on a car giving way, testimony of witnesses who examined the handhold after the accident that the screw had pulled out of the wood was admissible though the witnesses did not see the accident.</p> <p>3j—Same—Examination of Physicians.</p> <p>Examination of a plaintiff by physicians appointed by the court being a matter subject to consent of plaintiff, he may terminate such examination before it is concluded.</p>

<p>1. —Conspiracy—Wrongful Act.</p> <p>Intent to injure another can not make actionable as a conspiracy a combination to perform acts within the legal right of the parties combining to effect them.</p> <p>2, —Benefit Society—Membership—Dissolution and Reorganization of Lodge.</p> <p>No cause of action was shown against the grand lodge of a benefit society for permitting a subordinate lodge to disorganize and to reorganize itself in accordance with the regulations of the order, though this was done by the members of such subordinate lodge for the purpose of getting rid of a member distasteful to them and whom they left out in reorganizing.</p>

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

<p>Appeal from the County Court of Burleson. Tried below before Hon. B. J. Alexander.</p>

<p>1. —Injury to Minor—Discretion—Burden of Proof.</p> <p>In. an action against a railway company for injury to a minor the burden . is upon plaintiff to show by affirmative proof that he was not of such discretion as to realize the danger of placing himself in a position where he was likely to be injured.</p> <p>2. —Same—Contributory Negligence.</p> <p>Evidence that plaintiff was a bright, smart boy, over 16 years of age, had attended school seven years, was familiar with trains and had ridden in freight cars before, and the further fact that on the occasion of his injury when he got on top of the box car he took the precaution to brace his feet against the handhold and to grasp the running board with his hands, held sufficient to show knowledge of the danger of riding thus and of falling asleep in that position, and to justify .the court in refusing to submit to the jury the question of his knowledge and realization of his danger.</p>

<p>Appeal from the District Court of Jasper. Tried below before Hon. W. P. Hicks.</p>

<p>Appeal from County Court of Taylor. Tried below before Hon. D. Gf. Hill.</p>

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

<p>1. —Railroads—Damage to Crops from Overflow.</p> <p>Where crops on an irrigated farm are destroyed by water through the failure of a railroad company to provide necessary culverts in its roadbed, the company is not exempt from liability therefor because at the time of the construction of the road the country there was an arid one, devoted only to pastures, since the statute required necessary culverts and sluiceways to be provided is absolute in terms and without exceptions. Rev. Stats., art. 4436.</p> <p>2. —Same—Extraordinary Floods.</p> <p>A railway company in the construction of its road is required to provide against extraordinary floods where such floods may reasonably be anticipated.</p> <p>3. —Same—Charge—Harmless Error.</p> <p>Where the charge referred to the duty of the railway company in the construction of its road to employ an engineer of ordinary prudence and caution, and no such issue had been made by the pleadings and evidence, but the failure to discharge this duty was not submitted as a ground of recovery, there was not reversible error.</p>

<p>1. —Lien Reserved on Personal Property—Failure to Record.</p> <p>The failure to record a lien reserved to secure the purchase price of personal property and the failure to enforce the rights in the property for more than two years after date of the lien, do not affect the lien as between the original parties, article 2547, Revised Statutes, applying to loans of chattels only.</p> <p>2. —Creditors—Meaning—Statute Construed. '</p> <p>The word “creditor,” as used in article 3328, Revised Statutes, declaring unrecorded chattel mortgages to be void as against creditors and bona tide purchasers for value, means one having some sort of lien fixed by law upon the particular property, and does not include a mere general creditor.</p> <p>3. —Bankruptcy—Preferred Creditors—Sale by Insolvent—Discharge of Lien.</p> <p>Defendants sold to a firm a. complete sawmill outfit and reserved a vendor’s lien to secure the purchase price. Less than four months before the institution of bankruptcy proceedings it became generally known that the firm was insolvent, and a meeting of the general creditors was held, at which it was agreed that the firm should sell what lumber they had on hand to defray further running expenses. This was accordingly done, defendants being the purchasers, reserving the amount still due on their lien and paying the balance in cash with the understanding that it should be used in paying labor claims then due. The incumbered property was released, the price paid for the lumber was adequate and the value of the estate was not impaired. Held, that there was no fraud in the transaction and the trustee in bankruptcy can not recover, for the benefit of other creditors, the value of the property sold.</p>

<p>Loan—Homestead Exemption—Fraud—Estoppel.</p> <p>Parties not in actual possession subjecting’ property to homestead use held estopped, by fraudulent representations as to the status of the land upon which a loan was secured, from setting up homestead claim as against parties acting on such representations in ignorance of the homestead claim.</p>

<p>Error from the District Court of Liberty. Tried below before Hon. L. B. Hightower.</p>

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

<p>1. —Last Carrier—Presumption as to Damage—Burden of Proofi</p> <p>The burden of proof is upon the shipper to establish the condition of goods when delivered to the initial carrier, in order that the presumption of injury in the hands of the last carrier should attach upon proof of delivery-in damaged condition.</p> <p>2. —Same—Connecting Lines—Evidence—Bill of Lading.</p> <p>A bill of lading issued by the initial carrier, though evidence of a contract as against a connecting line receiving and transporting the goods under it, is not as a mere receipt for the goods, evidence as against the terminal carrier, not a party to its execution, of their good condition when delivered to the initial carrier.</p> <p>3. —Carrier—Condition of Goods'—Evidence—Inspector’s Certificate.</p> <p>The certificate of an inspector under the laws of Missouri as to the condition when delivered to the initial carrier, is not evidence as against the terminal carrier in Texas, at least in the absence of proof as to the effect given to such certificate by the laws of Missouri.</p> <p>4. —Hearsay.</p> <p>Evidence of witness shown by cross-examination not to be derived from his personal knowledge, should be excluded.</p>

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

<p>1*—Minor—Custody—Rights of Parent.</p> <p>In a contest between a father and other relatives over the custody of his child, the controlling consideration is the interest of the minor and the custody by which this will be best subserved.</p> <p>2,—Same—Fact Case.</p> <p>Findings of fact held to sustain the judgment of the court awarding the custody of a girl of eight years to its maternal grandparents, to whom the father, now seeking to regain control, had surrendered her on the death of her mother.</p>

<p>1. —Interstate Commerce—Failure to Furnish Cars—Penalty.</p> <p>Articles 4497-4500, Revised Statutes, providing a penalty for failure to furnish cars for transporting property on demand therefor, as applied to an interstate shipment, are a proper exercise of police power by the State and not invalid as a State regulation of commerce between the States.</p> <p>2. —Application for Cars.</p> <p>Application to a railway agent to furnish cars held to be a sufficient compliance by the shipper with article 4497, Revised Statutes.</p> <p>3. —Delay in Shipment.</p> <p>Pleading and evidence held to justify submission of issue as to liability of railway for delay in receiving and shipping cattle.</p>

<p>1. —Landlord’s Lien—Subtenant.</p> <p>A landlord has by the statute a lien upon all products grown on his farm, "whether raised by himself, his tenant, or the subtenant or assignee of the latter, and whether he did or did not consent to subletting.</p> <p>2. —Evidence—Exemplary Damages.</p> <p>Declarations of tenants as to intentions or plans for beating his landlord ■out of his rent are properly admitted on the issue whether the distress warrant was lawfully sued out, though not made to or in the presence of the landlord.</p>

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

<p>1. —Affirmance on Certificate—Transcript.</p> <p>To give the appellate court jurisdiction to affirm a judgment on certificate, the motion for affirmance must be accompanied by a transcript containing a copy of the judgment.</p> <p>2. —Statutory Construction.</p> <p>The adoption or re-enactment of a statute which has received judicial' construction is presumed to enact it with the construction so placed upon it. •</p>

<p>Heir—Natural Child—Adoption.</p> <p>Evidence considered and held sufficient to support a finding of the trial court that an illegitimate child was never adopted by her father as his heir, it not appearing that she was adopted under the old Spanish law, and the common law not authorizing the adoption of heirs, and it not being shown that the child was ever adopted in pursuance of a special act of the Legislature authorizing such adoption or under the general statute of adoption passed subsequently.</p>

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

<p>Jurisdiction of County Court—Probate Matters—Action to Set Aside Judgment.</p> <p>The fact that a judgment sought to be vacated had been allowed and classified by the county judge, sitting as a court of probate, as a valid claim against an estate, did not take from the county court jurisdiction to hear and determine a suit to set aside such judgment on the ground of fraud and perjury in its procurement.</p>

<p>Sequestration—Damages—Release of Mortgage.</p> <p>Evidence considered and held insufficient to show a release oí a duly recorded mortgage given on a horse to secure certain debts, so as to render the creditor liable to one purchasing from the mortgagor, for seizure of the animal under writ of sequestration.</p>

<p>Appeal from the District Court of Jefferson. Tried below before Hon. A. T. Watts.</p>

<p>1. —Negligence—Injury at Railroad Crossing—Evidence.</p> <p>In an action against a railway company for personal injury received by plaintiff in attempting to pass between cars left across a public crossing it was admissible to show that it was the custom of the company to habitually block the crossing there with its cars, and the custom of people to climb between them, since this bore upon the issue of negligence on the part of the company in setting its cars in motion at the time plaintiff was injured.</p> <p>2. —Assumed Risk.</p> <p>In an action for injury to plaintiff, who was not an employe of the defendant railway company, received while he was attempting to pass between cars left across a street, it was not error for the court to refuse to charge that the verdict should be for the defendant if plaintiff knew of the danger at the time he attempted to cross, since the doctrine of assumed risk was not applicable, and plaintiff would not be debarred from recovery for an injury caused by defendant’s negligence merely because he knew there was some danger incident to his act.</p> <p>3. —Minor—Personal Injury—Measure of Damages.</p> <p>In an action by a minor for damages for personal injury a charge was error which authorized a recovery for injury to his earning capacity, without any exclusion of the time until he should attain his majority.</p>

<p>Appeal from the District Court of Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>Evidence—Matter Not Pleaded—Sale of School Land.</p> <p>Plaintiff purchased of defendant a tract of State school land, assuming to pay the balance due the State thereon, and having ascertained afterwards that the amount due the State was in excess of what defendant represented it to be, sued defendant to recover for such excess. Defendant testified that after the sale, when plaintiff was paying off certain notes, not then due, executed to him, defendant, for the purchase price of the land, defendant stated that he wanted this settlement to be final as to all claims between them on account of the alleged misrepresentation as to what was due the State. Held that, in the absence of such matter having been pleaded in defense, the admission of the evidence was error.</p>

<p>H.—Carriers of Freight—Live Stock Shipment—Overloading. .</p> <p>A contract between a carrier and a shipper of horses by which the latter assumes the duty of loading: the stock into the cars and waives any claim for injury to the horses from overloading is not invalid because limiting the liability of the carrier.</p> <p>2.—Same—Contributory Negligence.</p> <p>Where it is the fault of the shipper, in whole or in part, that too many horses are crowded into a car, he 'can not recover for injury resulting therefrom, irrespective of whether or not he had by contract assumed the duty of loading.</p>

<p>id—Assignment of Debt—Surety on Contractor’s Bond.</p> <p>A surety on a contractor’s bond given to indemnify and protect the owner of a building to be erected against claims for materials furnished may acquire by verbal assignment from the contractor, to secure himself for materials furnished to the contractor, the superior right to such sum of money as should become due from such owner to the contractor under the building contract; and the surety may assert the right so acquired against a judgment creditor of the contractor proceeding by garnishment against such owner.</p> <p>2. —Same—Potential Existence of Debt.</p> <p>The debt to become due from the owner to the contractor had a potential if not an actual existence at the time of the execution of the written contract for the erection of the building.</p> <p>3. —Same—Notice.</p> <p>It was not essential to the assignment that notice thereof be given to the debtor, the owner of the building, or that she consented thereto.</p>

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

<p>Appeal from the District Court of Jefferson. Tried below before Hon. W. H. Pope.</p>

<p>Error from the District Court of Llano. Tried below before Hon. Clarence Martin.</p>

<p>1. —Railway—Overflow.</p> <p>Pleadings, instructions and evidence in an action against a railway for injury to plaintiff’s land and crops by causing overflow through interference with the natural drainage, set forth in extenso in the opinion, considered, and held that the issues were properly submitted and the refusal of charges asked by plaintiff was proper.</p> <p>2. —Same—Charge.</p> <p>An instruction denying plaintiff’s right to recover for certain damages not claimed in his petition was proper.</p> <p>3. —Same.</p> <p>An instruction submitting in the terms of the statute that it was not the duty of the railway to construct a channel for the drainage of the plaintiff’s land, but only to provide culverts and sluiceways for its natural drainage, is correct.</p> <p>4. —Same.</p> <p>Instruction denying recovery, if the defendant railway had constructed its road in a proper, careful and scientific manner, was correctly given.</p> <p>5. —Same.</p> <p>Charge given on request held not erroneous as repeating instructions embodied in main charge.</p> <p>6. —Evidence—Opinion—Flow of Water.</p> <p>Witnesses familiar with the plaintiff’s land and the usual rainfalls in that section, may give their opinions on matters of drainage and of proper construction of road in reference thereto, though not otherwise qualified as experts.</p> <p>7. —Conflict—Testimony.</p> <p>A verdict and judgment sustained by the trial court will not ordinarily be reversed on appeal because of the conflict in testimony.</p> <p>8. —Assignment of Error.</p> <p>Assignment of error in refusing a new trial on account of newly discovered testimony should point out in itself or by proposition and statement thereunder the specific error complained of.</p> <p>9. —Newly Discovered Evidence.</p> <p>Newly discovered evidence which is merely cumulative does not require the granting of a new trial.</p>

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