Volume 40 — Texas Civil Appeals Reports

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

<p>Error from the District Court of Dallas. Tried below before Hon. Thos. P. Hash.</p>

<p>1. — Illegal Arrest — Unlawful Search — Damages.</p> <p>Defendant, having missed certain money, suspected plaintiff of having stolen it, and requested an officer to arrest and search defendant, no complaint having been filed nor warrant issued. After the search defendant refused to file a complaint, and it was discovered later that the money had been stolen by another. Held, that the arrest and search were illegal acts, for which the officer was liable in damages, and defendant, having instigated and procured their commission, became liable also for the damages sustained by reason thereof.</p> <p>¡2. — Same—Accused Consenting to Search.</p> <p>The fact that plaintiff, after his arrest, and in order to convince his accusers of his innocence, expressed himself as willing to be searched, did not relieve defendant of liability.</p>

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

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

<p>1. —Damages—Personal Injury — Loss of Time.</p> <p>Evidence (stated in opinion) considered, and held sufficient to justify submission, as an element of damages recoverable for personal injury impairing plaintiff’s ability to work, of his past and prospective loss of time from labor by reason of such injuries.</p> <p>2. —Damages—Personal Injury — Medical Expenses.</p> <p>There was no error in a charge permitting plaintiff to recover for “reasonable expense incurred for a physician and medicine” by reason of personal injuries, where evidence showed such expenses for treatment of the injuries by the physician employed therefor, though the evidence also showed that another physician was called in temporarily, but did not show whether he treated the patient or made any charge for his services; the instruction in question did not authorize any recovery by reason of supposed expenses incurred for the latter’s attendance.</p>

<p>1. —Wills—Holographic Will.</p> <p>Letters wholly in the testator’s handwriting, signed by him, and directing a disposition of his property in case of his death, may constitute a holographic will, valid under the statute, though not attested by witnesses. (Rev. Stats., arts. 5335, 5336.)</p> <p>2. —Same—Conditional Will — Revocation.</p> <p>Where the testator stated in such letters that he was about to undergo a surgical operation, in which there might be danger, though he did not anticipate such, and, if anything happened to him, he desired his property disposed of as therein stated, the will was a conditional one, and the contingency not having arisen, the testator living for about two years after the operation, the will thereby ceased of effect and was annulled.</p> <p>3. —Same—Unconditional Will.</p> <p>Where the happening of an event is merely referred to as giving the reason for the making of the will, it is an unconditional one, but it is otherwise where the testator intended to dispose of his property only in the case of the happening of the event named.</p> <p>4. — Same—Conditional Will Revoking ¡Former One.</p> <p>The conditional holographic will, since it made a disposition of the property entirely inconsistent with a former will, operated to revoke such former will, and this although the conditional will, because of the failure of the contingency to arise, itself ceased to be effectual and became no will. It was, nevertheless, a “declaration in writing,” sufficient, under the statute, to revoke the former will, which could then be given vitality only by a republication. (Rev. Stats., art. 5337.)</p>

<p>1. —Common Source — Priority in Time of Deeds — Fraud Against Creditors.</p> <p>Where the wife, as plaintiff, claimed under a deed made to her by the husband, and the defendant under a sheriff’s deed made by virtue of an execution against the husband, both parties claimed under a common source, and the wife’s deed, being the older, was superior in law, unless made by the husband in fraud of his creditors.</p> <p>2. —Deed in Fraud of Creditors — Notice.</p> <p>A deed by an insolvent debtor, made in payment of a debt, and conveying property which exceeds in value many times the amount of the debt, is fraudulent as to creditors, irrespective of whether or not the grantee knows of such fraud.</p> <p>3. —Same—Voluntary Conveyance — Notice.</p> <p>A voluntary conveyance is invalid against creditors without reference to knowledge, or want of it, on the part.of the grantee of the grantor’s indebtedness.</p> <p>4. —Same—Execution Sale — Inadequacy of Price.</p> <p>Where property, which has been conveyed by a debtor to place it beyond the reach of his creditors, is sold under execution against him, such sale will not be avoided or set aside at the instance of the fraudulent grantee because of inadequacy of the price the property brought at the execution sale.</p>

<p>1. —Railroads—Negligence—Ringing Bell for Crossing.</p> <p>A failure to ring the hell as cars are approaching a public crossing, as required by the statute, is negligence per se. (Rev. Stats., art. 4507.)</p> <p>2. —Concurring Negligence — Joint Tortfeasors.</p> <p>Where acts of negligence of two different parties concur in producing an injury, each will be liable therefor if such acts are a proximate cause of the injury.</p> <p>3. —Same—Proximate and Concurring Causes.</p> <p>It is not essential that a cause should act alone in order to constitute it the proximate cause, but it will be such if it concurs with another cause in producing the result. The rule applied in a case of injury resulting from the failure of a street car to stop at a railway crossing, and the failure of an engine to sound the bell as cars were approaching the crossing.</p> <p>4. —Assignments of Error Too General.</p> <p>Assignments of error, such as that a certain paragraph of the charge “was erroneous,' misleading and confusing,” or that the charge “permits a double recovery,” without specifying wherein, are too general where submitted as propositions.</p> <p>5. —Charge—Assuming Pact — Negligence.</p> <p>A charge that it was the duty of the defendant company to use ordinary care to prevent an injury to plaintiff, and defining ordinary care, is not objectionable as assuming that defendant injured the plaintiff or was guilty of negligence.</p> <p>6. —Bailroads—Failure to Bing Bell at Crossing.</p> <p>Where plaintiff was injured in jumping from a street car to escape an apparently impending collision with approaching railroad cars, the railroad company was not relieved of its liability resulting from its not having the bell rung by reason of the fact that its train actually stopped before any collision took place, the injury to plaintiff having already then occurred.</p> <p>7. —Charge—Invited Error.</p> <p>A party can not complain of a charge which is substantially the same as one requested by him.</p> <p>8. —Street Bailroad — Crossing Bailroad Track — City Ordinance.</p> <p>• Where a city ordinance provided that street cars should come to a full stop before crossing any railroad track, this included switch and spur tracks as well as the main track.</p> <p>9. —Pleading and Charge — Injury to Passenger — Lookout at Crossing.</p> <p>Where plaintiff, a street car passenger injured at a railroad crossing, alleged that the defendant street car company “failed to take any precaution whatever to ascertain the presence or coming of a train,” this was sufficient to justify the court in presenting the issue as to whether such defendant “failed to keep a reasonably sufficient lookout for said train, as alleged in plaintiff’s petition.”</p> <p>10. —Charge—Implied Assumption.</p> <p>The court did not assume that plaintiff had reasonable ground for leaving the street car, while on the railroad track, to avoid a threatened collision, by submitting the question whether there was reasonable ground for leaving the car after it had moved off the railroad track.</p> <p>11. —Damages for Personal Injury — Measure.</p> <p>A charge in an action for personal injuries that the jury should allow plaintiff such damages as would fairly compensate her for her injuries was proper, and that language could have no other signification except that of present compensation.</p> <p>12. —Same—Amount of Verdict.</p> <p>A judgment for $14,000 upheld in the' case of a strong, healthy woman of thirty-four years of age, who was reduced to a nervous wreck by injuries received.</p>

<p>1. —Condemnation Proceeding — Measure of Compensation — Charge—Repetition.</p> <p>Where, in condemnation proceedings, the main charge gave the measure of damages for taking property for public use, the giving of a special charge reciting the provision of the Constitution (art. 1, sec. 17), that no person’s property should be taken without adequate compensation, and stating that defendant was entitled to recover full compensation, which is the market value of the property as defined in the main charge, was not error giving undue prominence to defendant’s right to receive the full market value of the property.</p> <p>2. —Same—Measure of Damages and Value.</p> <p>Where land is taken by a city for a public park, the taking including all the land the owner has there, the measure of damages is the market value at the time of the taking, and in arriving at such value the jury may consider the conditions surrounding the property at that time, with reference to business and demand for property at that time existing, including any increase in development thereof that might then have been reasonably expected in the immediate future.</p> <p>3. —Same—Use of Other Land Connected by Agreement.</p> <p>Where, at the time of the taking, certain railroads had acquired other land near by and begun the construction of a union depot thereon, and the proceedings by them to acquire such land were separate from those by the city to condemn the land here in question, the jury could consider the construction of the depot and its effect on values in determining the value of defendant’s land, and this, although prior to any of the proceedings, it had been jointly agreed between the railroads and the city that the former would secure land and establish the depot there, and the city would secure this land near by for a public park, to be thereafter maintained and kept up by the railroads.</p> <p>4. —Same—Jurisdiction of County Court.</p> <p>The provision of the Constitution (art. 5, see. 16) denying the County Court jurisdiction of suits for the recovery of land does not render invalid the statute giving such court jurisdiction in condemnation proceedings.</p>

<p>4. —Findings of Fact — Exceptions—Conclusiveness.</p> <p>Appeal from the District Court of Bexar. Tried below before Hon. A. W. Seeligson.</p>

<p>1. —Discovered Peril — When Doctrine of, Not Applicable.</p> <p>The principle upon which the doctrine of discovered peril is based has no application in the absence of actual knowledge on the part of the person causing the injury of the peril of the person injured in time to prevent the injury by the use of the means within his reach.</p> <p>2. —Negligence—Train Operatives — Watchout for Danger to Another Employe.</p> <p>Where the engineer and fireman knew that the conductor was riding on the pilot of the engine while the train was being switched, this did not charge them with the duty of keeping a continuous watch on his movements, or require them to anticipate that he would fall from the engine, and to be on the lookout for such an emergency, to the neglect of duties immediately requiring their attention in another direction. They could assume that he understood the danger of his position on the pilot, and they were required only to be careful not to do anything to increase his danger.</p>

<p>1. —Carrier of Passengers — Special Damages — Pleading.</p> <p>Where a passenger sued for breach of a contract of carriage, claiming that, because of a delay in reaching his destination, he had sustained special damages in having been prevented from consummating a deal by which he would have made a profit, a failure to state the names of the parties with whom the deal was to be made rendered the petition subject to special exception.</p> <p>2. —Same—Exemplary Damages — Malice of Agent — Ratification.</p> <p>Plaintiff could not recover exemplary damages from the railroad company for the malicious act of its agent in leaving him at an intermediate station where his petition did not allege a ratification of such malicious act by the company, or facts from which such ratification could be implied.</p> <p>3. —Jurisdiction—Amount—Damages.</p> <p>Where exceptions were properly sustained to items of damages claimed by the plaintiff, and the amount was thereby reduced to a sum below the jurisdiction of the court, and plaintiff declined to amend, the- suit was rightly dismissed.</p>

<p>1. —Carriers of Freight — Furnishing Cars — Variance.</p> <p>Evidence merely that the carrier’s agent agreed to furnish ears by November 1, if he could, did not justify the submission of the issue whether or not he agreed to furnish them on or by that date, since the evidence did not show such a contract.</p> <p>2. —Same—Negligence—Issue Not Pleaded.</p> <p>A pleading alleging failure to furnish cars on a specified and agreed date did not warrant the submission of the issue of negligent delay generally in furnishing the cars.</p> <p>3. —Market Value — Cattle Shipment.</p> <p>Testimony as to the market value of cattle at a given place, based upon information received from what others at that place told witness about it, was hearsay, and inadmissible.</p> <p>4. —Damages—Items Not Pleaded.</p> <p>In an action for damages resulting from a failure to furnish cars for a shipment of cattle, the charge should not separately submit an item of damage, such as horse hire necessary to the holding of the cattle during the delay, which was not pleaded, but was shown by the proof,</p>

<p>1. —Cattle Shipment — Market—Evidence.</p> <p>Error in admitting evidence by a cattle shipper, who had never transported cattle over the route in question, as to the length of time required to transport the cattle to a certain market, was harmless where it was shown that it was a country market, and had not changed much, if any, during the entire spring covering the time when the cattle should have reached the market.</p> <p>2. —Same—Failure to Furnish Cars — Extra Freight as Damages.</p> <p>Where a shipper of cattle, because of the failure of a carrier to furnish him with cars, shipped them over another route at a larger freight cost, he was entitled to recover the amount of such extra freight.</p> <p>3. —Allegation and Proof — Contract—Variance.</p> <p>Where plaintiff alleged that M. and S., the agents of defendants, who acted for them in making the contract to furnish him with cars, were duly authorized by them to make such contract, proof that he negotiated with S. through letters and telegrams, and consummated a verbal contract with M., did not constitute a fatal variance.</p> <p>4. —Carriers—Authority of Agent — Evidence.</p> <p>In order to show the authority of the railroad agent at O. to contract to furnish cars to plaintiff at I., it could be shown that such agent contracted with another party to furnish cars at I., which were so furnished, and also what was the custom among railroad agents in regard to making such contracts.</p> <p>5. —Same—Concurring Negligence — Connecting lines — Cattle Shipment.</p> <p>Where there is a shipment of cattle over connecting lines, one of the roads, while it would not be liable for damages resulting alone from the negligence of the others, would nevertheless be liable for damages resulting proximately from the combined negligence of all the roads, in which its own negligence concurred.</p> <p>6. —Same—Weak Condition of Cattle — Charge.</p> <p>A requested charge was properly refused, as misleading, which instructed that, if plaintiff’s cattle were damaged, and they were poor and weak, and their poor and weak condition, independent of any other causes, aided, assisted or contributed to the damage, the defendants were not liable for any damage occasioned by reason of the condition of the cattle.</p>

<p>1. — School land Contest — Tiling Application — Irregularity.</p> <p>Where, before the doors of the county clerk’s office were opened to receive applications for the purchase of school land just placed on the market, defendant had secured a position near the door, from which he was thrown with force by plaintiff, who was behind him in the waiting line, and then defendant procured a deputy clerk to take his application into the office through the back door and have it filed prior to that of plaintiff, the latter’s action in using force and collusion to deprive defendant of his advantageous position neutralized the irregularity in the filing of defendant’s application.</p> <p>2. — Same—Suit on Rejected Application — Equity.</p> <p>Plaintiff, suing by virtue of a rejected application, was not entitled to receive the aid of the court in setting aside the award to plaintiff by the Land Commissioner where he did not come into court with clean hands.</p>

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

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

<p>1. — Bill of Exceptions — Argument of Counsel — Action of Court.</p> <p>A bill of exceptions to improper argument of counsel which shows the language used, and that appellant’s counsel called the attention of the court to it, and objected thereto, and shows no more, is sufficient, and will be presumed to state all that occurred; that is, the presumption will be that the court did not sustain the objection nor interfere with the abuse; and, unless appellant appears not to have been prejudiced, it will be ground for reversal. (Key, J., dissenting. )</p> <p>2. —Argument of Counsel — Public Interest — Facts Hot In Evidence.</p> <p>Argument of counsel on the failziz’e of a railway company to keep a watchman at crossing, to the effect that public interest demanded full compensation, and that the defendant seemed willing to fight .cases of injuries rather than go to the expense of employing a watchman, was improper in its appeal to public interest and intimation of what was not in evidence, that other injuries had occurred at the same place.</p> <p>3. —Dissenting Opinion.</p> <p>Justice Key dissents from the conclusion reached, holding that the bill of exceptions should affirmatively show that the court overruled the objection of counsel or he will not be presumed to have done so.</p>

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

<p>1. — Cattle Shipment — Bad Handling — Pleading and Evidence.</p> <p>Where there was no allegation of injuries to the cattle from bad handling during the shipment, it was no ground for a new trial that the verdict, for plaintiff, was against the evidence in that there was no evidence of bad handling in transit.</p> <p>S$. — Same—Shrinkage—Proof of Damage.</p> <p>Direct evidence of the shrinkage of the cattle caused by the delay in their transportation together with testimony of experts based on hypothetical questions embracing the facts proven, was sufficient to show that the cattle were injured by the negligence of the defendant.</p> <p>3. —Same—Contracts of Shipment — Oral and Written — Breach of Oral.</p> <p>The carrier’s breach of an oral contract to furnish cars at a given time created a liability which could not be avoided by a written contract of shipment afterwards made unless there was a consideration inuring to the shipper as compensation for the damages from such breach, when the contract was signed.</p> <p>4. —Same—Shrinkage—Difference of Value — Expert Testimony.</p> <p>Where a witness testified that cattle would shrink from 50 to 60 pounds per head every 24 hours during transportation, he could, as an expert, testify as to what the difference in value per hundred weight would be on that account.</p> <p>5. —Same—Evidence of Negligent Delay.</p> <p>It was not error to permit plaintiff to prove, his cattle having been kept over by the carrier at a certain point for an entire day, that freight trains passed such point during that day going in the direction of the cattle’s destination. As to whether such trains could have carried the cattle was a matter peculiarly within the knowledge of the carrier.</p> <p>6. —Same—Failure to Furnish Cars.</p> <p>The testimony of a witness that when he first ordered the cars for plaintiff from the carrier’s agent at V., such agent informed him that he could get the cars through the agent at Gr., was admissible to show that the carrier had contracted with plaintiff through the proper agent to furnish the cars.</p> <p>7. —Same—Failure to Feed and Water.</p> <p>Where plaintiff placed his cattle in the pens for shipment when he knew there were no cars there for them, and allowed them to remain in the pens without .feeding and watering them because relying on the representations of the carrier’s agent that the cars would soon be there, the carrier was liable for the resultant injury to the cattle.</p>

<p>Appeal from the County Court of Mitchell. Tried below before Hon. L. M. Murphy.</p>

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

<p>Receivership — Application—When Jurisdiction Attaches — Attachment Lien.</p> <p>Where a petition asking the appointment of a receiver was presented to the District Judge at 11 o’clock a. m., and he endorsed thereon (the exact time not appearing) an order directing the clerk of court to issue notice to the defendant to appear before him at a designated time, the jurisdiction had attached as against an attachment from another court which was levied on defendant’s property at 11:30 a. m., and which created no lien because the property was then in custodia legis.</p>

<p>1. —Community Property — Presumption—Burden of Proof.</p> <p>Property purchased during the marriage is presumed to belong to the community, and the burden of proof is on the party asserting the contrary.</p> <p>2. —Husband and Wife — Partnership.</p> <p>Where a husband and wife acted in a partnership relation in the purchase of bank stock her interest ceased to be separate estate, and the husband became her, debtor to the extent of her separate funds used., in the purchase.</p> <p>3. —Same—Tracing Separate Property of Wife — Mutations—Bank Stock.</p> <p>Where there was a joint investment in bank stock of separate funds of the husband and wife, it devolved on the wife’s heirs, claiming through her, -to trace the stock through mutations it had undergone and show that her separate funds actually went, in part at least, to the acquisition of the particular stock claimed by such heirs, and which had been levied on as the property of the husband. Evidence held not to identify any part of the stock in controversy as the separate property of the wife.</p>

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

<p>1. —Evidence—Declarations Made to Agent — Terms of a Settlement.</p> <p>Where there was an issue as to the terms of an agreement of settlement in pursuance of which the check sued on by plaintiff was given, and it appeared that defendant delegated one C. to communicate with plaintiff with a view to effecting the settlement and that C. stated to plaintiff the terms upon which defendant proposed to settle, the declarations of plaintiff then made to C. in reply, though not shown to have been communicated to defendant, were admissible as declarations made to an agent, knowledge of which would be imputed to his principal.</p> <p>2. —Same—Part of Same Conversation.</p> <p>Where part of a conversation has been introduced in evidence the opposite party may put in evidence another part of the same conversation which serves to explain and make understood that which has been already admitted.</p> <p>3. —Same—Res Inter Alios — Hearsay.</p> <p>Advice which plaintiff’s counsel gave him, to the effect that plaintiff could not, as part of the settlement, do anything about dismissing a criminal prosecution, was not admissible in evidence where defendant had no knowledge thereof.</p> <p>4. —Contract—Consideration Partly Illegal.</p> <p>Where any part of the consideration of a contract is illegal the whole consideration is void, since public policy will not permit a party to enforce a promise which he has obtained by an illegal act or promise, although he may have connected therewith another which is legal.</p> <p>5. —Same—Charge.</p> <p>Where in a suit against the drawer of a check the defense pleaded was that the check was given in consideration of an agreement by plaintiff to have a criminal prosecution against defendant’s son dismissed, and there was evidence tending to prove that the agreement may have included, besides the dismissal of a civil suit against defendant, also the dismissal of the criminal case, it was error for the court to refuse to charge that the jury should find for defendant if the check was given either in whole or in part upon the agreement to dismiss the criminal prosecution.</p>

<p>1. —Agency—Proof of — Admissions.</p> <p>Agency can not be established by the declarations of the one purporting to be the agent, nor can the admissions and statements of such a one bind the principal until the agency is established.</p> <p>2. —Notes—Payment—Burden of Proof.</p> <p>Where the suit was on a negotiable note indorsed to plaintiff, the burden of proof was on defendants, who set up the defense of payment, to show that the party to whom they made the payment was authorized to collect the note.</p> <p>3. —Same—Possession of Note.</p> <p>Where a note was payable to an investment company at its office and was indorsed by it to plaintiff, a payment to the company discharged the note if it was at that time held by the company.</p> <p>4. — Same—Authority to Collect — Interest.</p> <p>Authority to collect the principal of a note can not be inferred from the fact of agency to collect the interest.</p>

<p>Affidavit in Lieu of Appeal Bond — Notary Public.</p> <p>Under the present statute an affidavit of inability to pay costs in lieu of a writ of error bond may be made before a notary public in another State. Rev. Stats., art. 7, subd. 2. Jenks v. Jenks, 47 Texas, 220, not followed because decided before the change in the statute.</p>

<p>1. —Deed—Description of Land.</p> <p>Where a deed by the heirs of the original locator of a league of land described it as his “location or right of location on Bear Creek,” this was a sufficient description where the evidence showed that the league was on Bear Creek and was the locator’s only location in that country, the ambiguity in such description not being a patent one.</p> <p>2. —Same—Reservation of Part not Bounded.</p> <p>The deed was not ineffectual because it reserved 640 acres out of the league or location, describing the part reserved as “640 acres to be taken at the old place on Bear Creek,” where it was shown that “a certain” 640 acres was definitely known as “the old place,” being the place where the locator’s widow lived at the time of her death.</p> <p>3. —Same—Subsequent Designation by Agreement.</p> <p>If the designation of the 640-acre reservation was not sufficiently certain, the deed left in the grantors the right to select 640 acres at the point designated, and the evidence showing that this was subsequently done with the acquiescence of those concerned, the deed conveyed the other portion of the league.</p> <p>4. —Same—Deed as Evidence — Part of Grantors not Bound.</p> <p>The fact that the deed was not binding on a part of the grantors therein, certain minors and a married woman, did not prevent it from being admissible in evidence.</p> <p>5. —Trespass to Try Title — Pleading and Proof.</p> <p>In trespass to try title where the plaintiff has not pleaded his title specially, lie is entitled to prove any character of title except title by limitation. Rev. Stats., art. 5250.</p> <p>6. —Deed—Presumption of Existence — Actual Possession of the Land.</p> <p>In countries where the lands are largely unsettled and actual possession the exception and not the rule, the doctrine that possession is indispensable to the presumption of a grant does not apply. Evidence that the widow of L. recognized the open claim of E. to certain land patented to L., and that the heirs of L. never paid any taxes on the land, and afterwards in 1848, quit-claimed it to the heirs of E., held to warrant a finding that there was a conveyance from L. to E., though no actual possession of the land, which was wild, was shown in E. or those claiming under him.</p>

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

<p>Appeal from the District Court of Travis County. Tried below before O. W. Allen, Esq., Special Judge.</p>

<p>1. —Promissory Note — Parol Evidence.</p> <p>Parol evidence was admissible to show that the payee of a promissory note was not the real owner, but held in trust for another, over objection that it varied the terms of a written instrument.</p> <p>2. —Same.</p> <p>Notes given for the purchase money of land, the property of a wife separated from her husband, having been made, as to the principal, payable to her three children, but with the interest payable to her, it was competent, in a suit by one of the payees for partition of the notes, to show by paroi evidence that the intention in making the notes so payable was to defeat the husband’s interest in case of the death of the wife, and that no gift of the principal to the children was intended, but that the wife was to have the principal as, well as the interest during her life. .</p> <p>3. —Evidence—Action by Heirs.</p> <p>In an action by an heir, parties to the suit, who have disclaimed any interest, may testify as to transactions with the decedent.</p> <p>4. —Harmless Error.</p> <p>The improper admission of testimony of parties in a suit by heirs will not be considered ground for reversal where the trial was without a jury and there was ample competent evidence to sustain the judgment.</p>

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

<p>Error from the County Court of Galveston. Tried below before Hon. Lewis Fisher.</p>

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

<p>1. —Fire Insurance — Iron Safe Clause — Sufficient Set of Books.</p> <p>A provision in a policy of insurance on a stock of goods requiring the insured to keep inventories and a set of books which should clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and on credit, was sufficiently complied with where the insured, in addition to- the inventories, kept a cash book and ledger into which, at the end of each day, there were entered from the daily blotters the amount of the cash sales and the sales made on credit, the latter being in some instances fully itemized and in others showing only the credit sales for the day to each given purchaser, and the court, upon uncontradicted evidence to the above effect, did not err in refusing to submit to the jury the issue of noncompliance in this respect.</p> <p>2. —Same—Forfeiture Clause — Construction.</p> <p>Clauses of forfeiture in an insurance policy are to be construed most strictly against the insurance company.</p> <p>3. —Same—Assignment of Policy as Collateral.</p> <p>A clause in a policy which in general terms prohibits its assignment before loss should be construed as only intending to prohibit a complete and absolute divestiture of title by the insured, and not a conditional transfer to a creditor as collateral security which in effect only gives the creditor a lien on the proceeds of the policy to the extent of his debt.</p> <p>4. —Same—Loss—Payable Clause — Notice to Agent — Fraud.</p> <p>Where the insured had the right under the policy to assign it as collateral, the subsequent act of the insurer in refusing to assent to a loss-payable clause which the local agent had attached to the policy and in instructing him to eliminate, such clause, in no way affected such right of assignment, nor was such instruction a notification to the agent that the insured would cancel the policy if the insured should assign it as collateral, and hence the failure of the agent to report to the insurer that he had, as agent also for a bank, creditor of the insured, taken an assignment of the policy to himself as collateral to secure the bank, was not a fraud on the insurer.</p> <p>5. —Same—Liability of Agent.</p> <p>Since the assignment of the policy as collateral did not increase the risk and the agent had no instruction forbidding it, his failure to notify the insurer of it did not render him liable over to the insurer for the loss, the property having been destroyed by fire, even though the insurer might have canceled the insurance had it known of the assignment.</p>

<p>Appeal from the District Court of Taylor. Tried below before Hon. J. H. Calhoun.</p>

<p>1. —Estoppel—Representations by Widow — Title to Land.</p> <p>Where plaintiff, a widow, agreed to release certain land to one G. if he would pay off an indebtedness due thereon, and also stated to defendant that she intended to abandon the property and would not pay the indebtedness, and that if he wished to purchase it he would have to do so from G., and defendant, relying on such representation, bought the land from G., who had- paid off the indebtedness as agreed, plaintiff was estopped to claim any further interest in the land.</p> <p>2. —Same—Community Property and Debts.</p> <p>The land being community property of plaintiff and her deceased husband, ■ she was authorized to contract for its sale in consideration of the payment of a community debt due thereon, and her act in so doing was binding upon her children as well.</p> <p>3. —Judgment—Presumptions on Appeal — Findings.</p> <p>A judgment rendered upon special issues submitted to the jury imports such further findings of fact as are necessary to support it, provided there is evidence in the record sufficient to authorize such findings.</p>

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

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

<p>Appeal from the County Court of Lavaca. Tried below before Hon. C. J. Gray.</p>

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

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

<p>Appeal from the County Court of Houston. Tried below before Hon. Porter Newman.</p>

<p>Appeal from the District Court of Galveston. Tried below before Hon. Geo. B. Mann, Special Judge.</p>

<p>1. —Cancellation of Deed — «Tender of Consideration — Joint Purchasers.</p> <p>Plaintiff, seeking cancellation of deeds made to defendant in settlement of his supposed interest in property which they had purchased jointly, on the ground that defendant had no interest therein because he had, under secret contracts Avith the seller, received back from him part of the purchase price, for making the sale, which he had negotiated by representing that the property could not be had for less and. inducing plaintiff to make the purchase Avith him, Avas not bound to tender back the part of the consideration paid by defendant, where the latter had already got, out of the transaction, under such secret agreement, all he had paid, or more.</p> <p>2. —Same—Fiduciary Relation. .</p> <p>The relation of joint purchasers is fiduciary, and one will not be permitted to acquire a secret' advantage in the purchase over his associates.</p> <p>3. —Fraud—Representations of Fact.</p> <p>A representation, made as an inducement to plaintiff to enter into a joint purchase of property with defendant, that it could not be had for less than a certain sum, Avlien defendant knerv that it could be bought for less and had an agreement with the seller to pay him back the difference for making the sale, was a material misrepresentation of existing facts, and not of mere opinion.</p> <p>4. —Question of Fact — Peremptory Instruction.</p> <p>Plaintiff’s right to recover being dependent on his claim that defendant was a joint purchaser Avith him of certain property, and therefore standing in a fiduciary relation, which he had abused by secret agreements with the seller, a peremptory instruction to find for the plaintiff was unwarranted where the evidence Avas sufficient to raise an issue as to whether he purchased for himself alone, or jointly with defendant, Avhich it is here held to do.</p>

<p>1. —Appeal in Forma Pauperis — Disqualification of Judge.</p> <p>An affidavit by a party desiring to appeal under the statute authorizing him to do so, though unable to pay costs or give security therefor, on making proof of his inability before the trial court or the county judge (Rev. Stats., art. 1401), can not be made before the county judge, who is his counsel in the litigation, since the act of such judge in determining the matter is judicial, and the statute forbids that any county judge shall sit in any case wherein he may be interested or shall have been of counsel (Rev. Stats., art. 1129), and the fact that there was no actual contest as to the affiant’s inability does not alter the case.</p> <p>2. —Same—Practice on Appeal — Affidavits—Jurisdiction.</p> <p>The question as to appellant’s right to appeal on the affidavit so made, having risen after the final judgment below and being one which could not have been put in issue in the lower court, is properly raised in the Appellate Court by affidavits showing the facts affecting its jurisdiction.</p>

<p>1. —Expert Evidence — Physician’s Opinion — Personal Injury.</p> <p>Where a physician, the principal expert witness for the injured party, was asked on cross-examination, “If a man was injured a year and a half ago, and he was for more than a year prior to the present time seen doing ordinary farm work, and if he looked to be in a condition that Mr. Hartón seems to be, what would be your opinion as to whether he had suffered from a fracture of the inner table of the skull 1” it was error for the court to sustain an objection thereto on the ground that the question was- not in the proper form. The question was competent, and the hypothetical case stated being based on the evidence, the answer of the witness was improperly excluded.</p> <p>2. —Same—Injury to Brain.</p> <p>It was also competent to further ask the physician on cross-examination for his opinion, based on the fact that the injured party was doing farm work for more than a year and seemed to be in' good health, as to whether the injury had affected his brain.</p>

<p>1. —Usury—National Bank — Payment.</p> <p>The mere discharge by a party of a note executed by himself and another by giving his own note in renewal thereof will not uphold a recovery from the bank on account of usurious interest in the former note, since the payment contemplated by the federal statute authorizing a recovery of twice the amount of usurious interest paid the bank is an actual payment, and not a further promise to pay. Following ruling in this case in Bank v. Lasater, 196 U. S. 115.</p> <p>2. —Same—Renewal Note by Surety — Principal Released.</p> <p>Where the renewal note was executed by a surety and the principal on the former note thereby released, the subsequent payment of the renewal note with usurious interest by the surety would not operate to give the principal a right of recovery against the bank under such statute.</p>

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

<p>1. —Mandamus—Writ of Prohibition — Jurisdiction of Courts of Civil Appeals.</p> <p>Where suit was brought in the District Court to restrain the defendant therein from buying and selling railroad tickets, and upon a regular hearing the restraining order was granted, the Court of Civil Appeals had no jurisdiction, pending a motion for new trial in the District Court, and in the absence of a showing that the district judge refused to hear and determine such motion or to proceed with the case, to issue a writ of mandamus compelling him to proceed with the case, nor had it jurisdiction to issue a writ of prohibition restraining the plaintiffs in such suit .from asserting or claiming any rights under the restraining order, neither of said writs being invoked in aid of appellate jurisdiction. Const., art. 5, sec. 6.</p> <p>2, —Same—Mandamus—Statute Construed.</p> <p>In the provision authorizing the Courts of Civil Appeals to issue the writ of mandamus to compel a district judge to proceed to trial and judgment in a cause agreeably to the principles and usages of law, the terms “agreeably to the principles and usages of law” have reference only to the procedure in the Appellate Court in granting the writ, and the writ will not lie to control in advance the discretion of the trial court. Rev. Stats., art. 1000.</p>

<p>1. —Court and Jury — Instructing Verdict — Conclusiveness of Evidence.</p> <p>The court is not authorized to withdraw a case from the jury by instructing a verdict unless the evidence is such that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.</p> <p>2. —Negligence Causing Death — Evidence Raising Issue.</p> <p>Evidence - held sufficient to raise the issue of negligence on the part of a railroad company causing the death of a person whose body was found near the track where an engine had passed, although no eye-witness testified as to how the deceased was killed.</p> <p>3. —Railroads—Licensee—Walking Along Track.</p> <p>A person on a railroad company’s right of way and walking along a track habitually used by the public with the knowledge of the officers and agents of the company is not a trespasser, Jmt a licensee, to whom the company owes the duty of keeping a lookout to discover his presence there.</p> <p>4. —Contributory Negligence — Licensee.</p> <p>A person who, as a licensee, is walking on a railroad right of way is not, as a matter of law, guilty of contributory negligence in being there.</p>

<p>1. —Superior Title — Vendor’s lien — Remedies—Refunding Price.</p> <p>Upon default in payment of the purchase money of land the vendor, if he has reserved in the note or deed a vendor’s lien in express terms, has the election of suing on the note and to foreclose his lien or to sue for the land itself, and in the latter case he is not compelled, in order to recover the land, to refund any purchase money that may have been paid by the vendee.</p> <p>2. —Same—Release of lien — Effect.</p> <p>Where the vendor executes a release of the lien reserved in his deed the superior title passes to the vendee, and the vendor can not thereafter, upon default of payment by the vendee, who had agreed to execute a new note, recover the land, but is entitled only to recover the purchase money and foreclose the lien.</p> <p>3. —Attorney Fees — Note—Pleading.</p> <p>Where a note stipulates for ten percent attorney fees if placed in the hands of an attorney for collection, the holder is not entitled to judgment for such fees unless his pleadings allege that the note was placed in the hands of an attorney for collection.</p> <p>4. —Sale of land — Assumption of Mortgage — Time of Payment.</p> <p>Where defendants purchased land subject to a mortgage, and with an understanding that they would not he called on to pay the purchase price until the mortgage had been paid, and they secured, without the knowledge or consent of the vendor, an extension of the mortgage debt. This could not operate to delay the vendor in the collection of his debt.</p>

<p>1. —Negligence—Circumstantial Evidence,</p> <p>While negligence may be proved by circumstantial evidence, the circumstances must be such as to reasonably lead up to and establish the fact sought to be proved.</p> <p>2. —Same—Death of Railroad Brakeman — Cause not Shown.</p> <p>Evidence considered in an action for the death of a railroad brakeman who fell from a moving train and was run over, and held not to show any causal connection between the death and defects in a car coupler, the steps of the pilot and the track, it not being shown that the deceased was using the coupler and pilot steps at the time and was caused to fall thereby.</p>

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

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

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

<p>1. —Assignment of Error — Proposition.</p> <p>Where an assignment of error was that the court erred in sustaining a motion to quash a writ of garnishment, because the application for same was in full compliance with the law, a proposition thereunder that: “In construing garnishment papers the court looks to all papers filed in the garnishment case, and also to papers in the original case; and all affidavits filed in the garnishment for the purpose of obtaining the writ of garnishment must be construed together in ascertaining if all papers necessary to authorize issuance of garnishment have been filed,” was insufficient as not showing the specific ground of error complained of.</p> <p>2. —Same—Accompanying Statement.</p> <p>A statement accompanying the proposition, that plaintiff filed two papers, not named nor described, further than that, taken together, they contain all the requirements of certain designated articles of the Revised Statutes, is the statement of a legal conclusion, and not of facts taken from the record, as required by the rules.</p>

<p>Appeal from the District Court of Bosque. Tried below before Hon. "Telson Phillips.</p>

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

<p>1. —Negligence not Proximate Cause.</p> <p>A door to one of defendant’s coal bins was out of repair. A fellow servant of plaintiff’s tied- it up with a rope, bringing the rope diagonally across a gangway. Plaintiff tripped over the rope at night and was injured. Held, that the negligence of defendant in failing to keep the bin door in repair was not the proximate cause of the accident.</p> <p>2. —Negligence of Pellow Servant.</p> <p>If the act of a fellow servant was the sole proximate cause of the injury, the defendant would not be liable whether said act was one of negligence or not.</p>

<p>1. —Judgment—Limitation.</p> <p>A judgment was rendered on December 8, 1893; execution issued for the first time on November 4, 1895; the next execution issued on February 12, 1904. Held, the judgment was barred by ten years’ limitation on February 12, 1904, and a sale of property by virtue of an execution issued on that date conveyed no title.</p> <p>2. —Same—Appeal—Supersedeas.</p> <p>An appeal with supersedeas bond by one of several defendants, suspends the enforcement of the judgment only as to the party appealing, and limitation will begin to run in favor of the other defendants from the date of the judgment.</p>

<p>1. —Telegram—In Care of a Corporation-.</p> <p>The sending of a message to an individual in care of a corporation constitutes such corporation the agent for the sendee to receive such message. The delivery to the corporation would relieve the telegraph company of responsibility. It is not necessary that the name of some officer of the corporation should be given; nor is it necessary that the addressee be connected in any way with said corporation.</p> <p>2. —Comparative Mental Anguish — Irrelevant.</p> <p>If the defendant by its negligence occasioned the addressee mental suffering by reason of absence from the burial of her son, it is liable, notwithstanding she would have suffered other anguish by witnessing that scene.</p> <p>3. —General Demurrer — Sufficient Allegation.</p> <p>As against a general demurrer, an allegation that defendant negligently failed to deliver the message to the addressee includes the allegation that it negligently failed to deliver to her agent.</p> <p>4. —Manifestation of Grief on Witness Stand.</p> <p>Alleged misconduct of party on witness stand during the trial is peculiarly for the determination by the trial judge. The Appellate Court can not say that plaintiff’s wife was guilty of any misconduct in appearing upon the witness stand in deep mourning or in giving way to her emotions, there being no evidence that this was done for an improper purpose.</p>

<p>1. —Testimony—Supporting Circumstances.</p> <p>Defendant’s inspector of engines and tenders was allowed to testify that he inspected the tender in question shortly prior to the wreck, and that he knew at the time that his son, who was killed in the wreck, would go out as fireman on said engine on its next trip. Defendant was also allowed to prove by the same witness and others that the method of inspection in use by defendant was the same in use among all up-to-date railways. To this testimony it was objected that it was incompetent, and the inspector not having been impeached or contradicted his testimony could not thus be supported. Held, these were circumstances relevant to the issue of negligence charged, and in the absence of criticism of the method of inspection could not constitute error.</p> <p>2. —Facts—No Evidence of Negligence.</p> <p>Facts considered, and held, no phase of the proof would have authorized a verdict for plaintiff.</p>

<p>Appeal from the County Court of Tarrant. Tiled below before Hon. R. F. Milam.</p>

<p>1. —Contributory Negligence — Charge.</p> <p>Where the defendant pleaded contributory negligence and the evidence raised .the issue and the court had failed to define contributory negligence in the main charge, a requested charge on the subject, though not strictly correct, was sufficient to call the court’s attention to the omission and require the giving of a correct charge on that issue.</p> <p>2. —Same—Driving Team Near Railroad Tracks.</p> <p>Where plaintiff, whose team was frightened by a passing car, had driven the team near the railroad tracks in order to speak to some parties, the question of his contributory negligence in so doing did not depend on whether it was necessary for him, instead of walking over to the parties, to have driven there, but the test was whether, in so doing he acted as an ordinarily prudent person.</p> <p>3. —Same—Charge.</p> <p>Where under the facts shown the jury could have inferred that both plaintiff and defendant were negligent, the court should have given a requested charge instructing that if plaintiff was guilty of contributory negligence which proximately caused or contributed to bring about the injury, he could not recover, notwithstanding the defendant was also negligent.</p> <p>4. —Charge—Assuming Fact — Frightening Team.</p> <p>Where it was a controverted issue whether plaintiff’s team was frightened by the approach of defendant’s handcar, it was error for the charge to assume that this was the cause of the fright.</p> <p>5. —Proximate Cause — negligence—Frightening Team.</p> <p>It being a question for the jury whether defendant’s negligence in the approach and speed of its handcar was the proximate cause of plaintiff’s team becoming frightened, and the court’s charge having stated that the running of the car faster than seven miles an hour was negligence, with no definition of proximate, cause, a requested charge properly defining proximate cause should have been given.</p>

<p>Appeal from the District Court of Grayson. Tried, below before Hon. B. L. Jones.</p>

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

<p>1. — Jurisdiction—Personal Judgment — Service Beyond State.</p> <p>No jurisdiction is obtained to render a personal judgment against a nonresident corporation by notice served upon it in another State under Eev. Stats., arts. 1230-1233, though it is alleged to have done business and contracted to deliver goods in the State.</p> <p>ON REHEARING.</p> <p>2. — Writ of Error — Service on Attorney.</p> <p>Service of citation in error must be upon the defendant in 'error unless he appears of record to be a nonresident or is not found in the county of his residence. If made upon his attorney of record, in the absence of such conditions, the writ of error will be dismissed.</p>

<p>Appeal from the County Court of Caldwell County. Tried below before Hon. Jno. H. Gambrell.</p>

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

<p>Rulings on Evidence — Statement of Facts — Bill of Exceptions.</p> <p>Where no statement of facts is brought up on appeal, the exclusion of evidence will not be held to be error unless presented by a bill of exceptions disclosing the issues and the state of the evidence thereon with sufficient fullness to show with reasonable certainty that appellant was injured by the rulings; thus such bill must, it seems, show that there was no other evidence introduced to the same effect as that excluded and that appellant had no knowledge of any facts which might render harmless the exclusion of that sought to be proved.</p>

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

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

<p>1. —Carriers of Passengers — Unwarmed Coach Near Depot — Degree of Care.</p> <p>Where a coach was placed near the depot for persons to go on board at night to await the train which was to take the coach out several hours later, plaintiff’s wife became a passenger upon entering such coach under the direction of the carrier’s agent, and in an action for injury sustained by her because of the coach being cold the charge of the court properly imposed on the carrier the duty to exercise that high degree of care that very cautious and prudent persons would have exercised under the circumstances.</p> <p>2. —Same—Double Damages — Charge.</p> <p>Where one instruction permitted damages for the cold and suffering which plaintiff’s wife sustained while in the coach, and another authorized damages for physical and mental pain she suffered and would thereafter suffer in consequence of disease proximately caused by the condition of the car, the charge did not authorize double damages.</p> <p>3. —Same—Failure to Keep Coach Warmed.</p> <p>Evidence considered and held to sustain a finding of negligence in failing to keep a coach warmed whereby a passenger was caused to suffer and contract disease.</p> <p>4. —Proximate Cause — Charge.</p> <p>Charges upon proximate cause in a case where a passenger suffered from cold and contracted disease because a coach was unwarmed, held correct.</p> <p>5. —Personal Injury — Predisposition to Disease.</p> <p>A carrier is not relieved of liability for exposing a passenger to cold, thus bringing on disease, by reason of the fact that the passenger was in such condition as to predispose her to dangerous consequences from being exposed to cold.</p>

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

<p>1. — Attachment—Probable Cause — Seizing Property of Another.</p> <p>On the issue of liability for the seizure and conversion by virtue of an attachment of the property of a person other than the attachment defendant, the existence of probable cause for the issuance of the attachment is foreign to the question.</p> <p>Z. — Same—Malice—Definition.</p> <p>Any unlawful act done wilfully and purposely to the injury of another is, as against that person, malicious. It need not imply malignity or even corruption in the appropriate sense of these words. Any improper motive constitutes malice as the term is used with reference to a wrongful seizure of property by virtue of an attachment.</p> <p>3. — Same—Exemplary Damages — Pact Case.</p> <p>Evidence held to warrant a judgment for exemplary as well as actual damages against plaintiffs in attachment and the officer levying the writ upon the property of a person other than the attachment defendant after notice of the owner’s claim to the property.</p>

<p>Injunction — Judgment for License Tax.</p> <p>An injunction will not lie to restrain the enforcement of a judgment for a city license tax on the ground that the judgment was void because the ordinance forming the basis of the action was penal and had never been published.</p>

<p>1. —Boundary—Call for Unmarked Line.</p> <p>It is not true without exception that a call for an unmarked line will not extend a call for course and distance, since where the unmarked line called for is also the line of another survey, it may under certain conditions be given the dignity of an artificial object.</p> <p>2. —Same—Presumption.</p> <p>Where there is no evidence as to how the survey was made, the presumption will be indulged that the surveyor ran out the lines of the adjoining surveys called for by him.</p> <p>3. —Same—Marked line.</p> <p>A line marked at the beginning and the end or along its course comes within the definition of a marked line.</p> <p>4. —Same—Calls for Adjoining Surveys, Course and Distance.</p> <p>Case presented where calls for adjoining surveys are held to prevail over course and distance.</p>

<p>Appeal from the County Court of Harris. Tried below before Hon. Blake Dupree.</p>

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

<p>1. —Broker—Double Agency — Compensation.</p> <p>It is generally true that the double agency of a real estate broker, undertaking to represent the vendor and vendee, will not be countenanced; but the objection to such agency disappears when each party knows of and assents to the double employment.</p> <p>2. —Contract—Statute of Frauds.</p> <p>A contract of partnership to be begun within a year is not within the statute of frauds.</p> <p>3. —Contract of Partnership — Breach—Measure of Damage.</p> <p>S. agreed to purchase one thousand head of good cows and furnish pasturage from them for five years. A. was to manage, care for and control them for that length of time; at the end of that period the stock and its increase was to be divided, one-fourth to A. and three-fourths to S. S. refused to purchase the cows, or in any way to consummate the contract. Held, the measure of damage was the value of one-fourth the cows which S. refused to furnish. The value of the original stock and their increase at the end of five years was too speculative and uncertain to be used as a measure of damage.</p> <p>4. —Contract—Quantum Meruit.</p> <p>A party will not be permitted to accept valuable services rendered under a contract, and then escape liability on the ground that the contract was unlawful.</p> <p>ON MOTION FOB REHEARING.</p> <p>5. —Practice.</p> <p>Where a general demurrer is erroneously sustained the fact that valid special exceptions were also urged will not justify an affirmance.</p>

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

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

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

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

<p>1. —Master and Servant — Assumed Bisk.</p> <p>A stonemason engaged in building the wall of a railway culvert did not assume the risk of injury by negligence of a member of a piledriver gang working under a different foreman and engaged in constructing the same culvert.</p> <p>2. —Master and Servant — Negligence.</p> <p>Facts considered and held to support a recovery against the master by a stonemason hurt while laying the wall of a railway culvert by the negligence of a member of a piledriver gang engaged at the construction of a tressle, in shoving a plank' from the scaffold without warning, striking plaintiff therewith.</p> <p>3. —Charge.</p> <p>An instruction that the jury were bound to receive the law. from the court “as given in this charge” was not erroneous as leading them to disregard the law as-given in a special instruction at request of appellant.</p>

<p>Appeal from the County Court of Galveston. Tried below before Hon. Lewis Fisher.</p>

<p>1. —Argument of Counsel — New Trial.</p> <p>A violation of the rule which requires argument to be confined to the evidence and argument of opposing counsel, whether such violation is intentional, reckless or willful, is ground for new trial unless it appears probable that the verdict was not influenced by the improper argument, and the court’s action in allowing it to pass without notice, or in restraining and rebuking counsel and instructing the jury to disregard it, is to be considered only in determining what effect or influence the argument had upon the jury.</p> <p>2. —Same—Railroad’s Ability to Pay Damages.</p> <p>Statements to the jury by counsel for plaintiff in an action for personal injury, that if they should allow damages in the full amount sued for, it would not in the least affect the salary of $25,000 that counsel for defendant draws annually from such corporation, nor the running of a single train, nor interfere with a single employe, nor the clipping of a coupon from a single bond, held a gross violation of the rights of the defendant.</p> <p>3. —Carrier of Passengers — Defective Depot Platform.</p> <p>A passenger has the right to make a proper use of a station platform, although it may be in a defective condition, provided he uses it with care proportioned to the risk arising from its known or obviously defective condition.</p> <p>4. —Same—Obvious Condition — Charge.</p> <p>Where the court charged as to contributory negligence upon the theory that plaintiff knew of the defective condition of the platform, but did not charge as to its unsafe condition being so open and apparent that a reasonably prudent person would have discovered it, it was error to refuse a requested charge presenting that proposition where the evidence warranted it.</p> <p>5. —Personal Injury — Medical Expenses — Reasonableness—Remittitur.</p> <p>In an action for personal injuries where there is no evidence that expenses iscurred by plaintiff for medical and surgical treatment were reasonable in amount, a charge allowing recovery therefor is error, which may be cured, however, by a remittitur of the amount claimed in the petition for such expenses.</p> <p>6. —Assumed Risk — Passenger—Defective Platform.</p> <p>Where there was no evidence that a railroad station platform upon which plaintiff went was so defective that it would be dangerous to go upon it, the doctrine of assumed risk was not applicable, and a charge upon contributory negligence as to the effect of plaintiff’s going upon the platform and moving about on it without the exercise of such care and caution as a person of. ordinary prudence would use in view of the known or obvious and apparent defective condition, was as favorable to the defendant company as it could require.</p> <p>7. —Carrier of Passengers — Station Platform — Ownership—Use.</p> <p>Where a platform is used by a railway company as a station platform, or by its passengers with its knowledge and consent in getting on and off trains, the company is bound to use ordinary care to keep it in a reasonably safe condition for such, use, although the platform was built by, and is under the control of, a third person.</p> <p>8. —Same—Passenger’s Right of Use.</p> <p>An intending passenger at a flag station has as much right to go upon the platform there for the purpose of flagging the train as for that of taking passage on the train when it stops.</p> <p>9. —Personal Injury — Evidence—Habits of Injured Person.</p> <p>Where the suit was for personal injuries, evidence as to plaintiff’s use of intoxicants five years prior to the injury was properly excluded where counsel offering it stated that he was not prepared to show any effect upon plaintiff’s present physical condition by reason of such use.</p> <p>10. —Witness—Bias—Unfriendly Feelings.</p> <p>A witness testifying for one party may properly be shown, either on his own cross-examination or by the testimony of another, to have unfriendly feelings for the opposing party, since this affects the weight to be given to his testimony.</p>

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

<p>1. —Evidence—Receipt of Check Sent by Mail.</p> <p>Evidence that a check was made out by a debtor the day before an account was due and was enclosed in an envelope with his return card thereon and addressed to the creditor, and that same was then duly stamped and mailed, was sufficient to raise the issue of the receipt of the check by the creditor and its acceptance or his negligent failure to collect or return it.</p> <p>2. —Same—Presumptions—Circumstantial Proof.</p> <p>The rule forbidding the piling of one presumption upon another does not forbid the legal inferences and presumptions which may arise from a fact established alone by circumstances.</p> <p>3. —Same—Negligence—Creditor’s liability.</p> <p>Although the receipt of the check was proved by circumstantial evidence, the debtor could further show negligence on the part of the creditor rendering him liable for resulting loss by evidence that the check was neither returned nor presented to the bank for collection, and that the bank, which would have paid it, failed shortly thereafter.</p> <p>4. —Waiver of Claim — Bankruptcy.</p> <p>Where, through plaintiff’s neglect to present and collect a check on a bank prior to the bank’s failure, defendant lost the amount of the check, the presentment by defendant of a claim for his deposit to the trustee in bankruptcy of the bank did not constitute a waiver of his claim against plaintiff for the loss resulting from such negligence.</p>

<p>Appeal from the District Court of De Witt. Tried below before Hon. James C. Wilson.</p>

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

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

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

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

<p>I. —Agency—Power to Appoint Substitute Trustee. •</p> <p>A deed of trust provided that the appointment of a substitute trustee should be evidenced by an instrument signed and acknowledged by the payee or holder of the note. A substitute trustee was appointed by an attorney in fact who was duly authorized by the holder of the note to sell and convey all lands belonging to his principal, to collect the money and notes given therefor, to release all mortgages, and giving and granting to him “full power and authority to do and perform all» and ever;; act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes” as the said principal might or could do if personally present, “with full power of substitution and revocation.” Held, the appointment of the substitute trustee by the attorney in fact was unauthorized, and a sale of land by such trustee under the deed of trust, was void.</p>

<p>Appeal from the District Court of Eastland. Tried below before Hon. J. J. Butts, special judge.</p>

<p>1. —Evidence—Opinion—Nonexpert.</p> <p>The opinion of a nonexpert witness, that from what he saw and observed of plaintiff his physical condition was such that he could not work, was not admissible in the absence of the facts upon which the opinion was based.</p> <p>2. —Same—Physician—Declaration.</p> <p>A physician can not testify as to a declaration made to him by plaintiff as to his (plaintiff’s) ability to hear, where the occasion of the declaration was prepared by plaintiff for the sole purpose of furnishing the witness, as an expert, with information on which to base an opinion "favorable to plaintiff.</p> <p>3. —Practice on Appeal — Bill of Exceptions.</p> <p>The Appellate Court is not required to look to the statement of facts in aid of a bill of exceptions.</p> <p>4. —Negligence—Charge—Personal Injury.</p> <p>Where in a suit for personal injury to a section hand the pleadings alleged and the evidence tended to show only one act of negligence, on the part of a foreman, upon which defendant could be held liable, it was error for the court to refuse a charge instructing that if the foreman did not do such act alleged, plaintiff could not recover.</p> <p>5. —Assumed Bisk — Statement of Buie.</p> <p>A servant does not assume a risk arising from the negligence of the master, but does assume the ordinary risks incident to the particular work he engaged to do, and those obvious or known to him, or knowledge of which he must have acquired in the prosecution of the work, whether arising from the nature of the work or the manner in which it is conducted.</p> <p>6. —Release of Damages — Fraud—Charge Without Evidence.</p> <p>Where defendant pleaded a written release of damages purporting to he i signed by the plaintiff, by making his mark, and plaintiff testified that he never signed it and never saw it until the trial, the sole issue was whether or not | plaintiff executed the release, and it was error to submit the issue whether . or not the release was procured by false and fraudulent representations.</p> <p>7. —Same—Effect of Release.</p> <p>Under the evidence the court should have given a requested charge that the release was a bar to the action, requiring a verdict for defendant, unless it was not executed by plaintiff, and that he executed it if his name was signed thereto by another and he made his mark by touching the pen with which the mark was made.</p>

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

<p>Error from the District Court of Kaufman. Tried below before Hon. j. E. Dillard.</p>

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

<p>1. — Argument of Counsel.</p> <p>This case is reversed for comment of counsel in argument on the fact that plaintiff was a poor girl and defendant a rich corporation, excepted to and not corrected by the court.</p> <p>i$. — Opinion Evidence — Effect of School Teaching.</p> <p>On the question of the cause of physical conditions appearing in plaintiff, who had taught school for ten years and was suing for personal injuries received in an accident on a street car, it was permissible to ask a medical expert as to the effect of such confinement in the school room as a possible cause- of the conditions in question.</p> <p>3. —Personal Injury — Pleading.</p> <p>Injuries to the person should be specifically described or the petition so framed as to show that they could not be.</p> <p>4. —Pleading—Street Railway — Negligence—Banana Peeling.</p> <p>Allegations of negligence on the part of a street railway company, in leaving a banana peeling on the floor of its car, held sufficient.</p>

<p>1. — Credits and Offsets — Pleading—Suit Against Administrator,</p> <p>While defendants in general are required to plead payments, credits or offsets against plaintiff’s demand, the rule in regard to claims against estates which requires the claimant to swear that all such, known to him have been allowed puts upon him the like burden of proof in suits to establish a claim rejected by the administrator, and the latter is not required to plead such defenses.</p> <p>it. — Agency—Accounts—Charge.</p> <p>In a suit to recover against an estate- claims for money advanced or expended by plaintiff as a general agent for decedent, managing his business, it was error to instruct the jury to find for plaintiff the .amounts so advanced or expended less such sums as he had collected for the decedent, regardless of the disposition he had made of such collections, there being evidence that the collections had been used for decedent’s benefit.</p>

. Appeal from the District Court of Travis County. Tried below before Hon. George Calhoun.

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

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

<p>1. —Incumbent of Public Office — Threats to Oust — Injunction.</p> <p>Title to an office can not be tried through the medium of an injunction, but the remedy by injunction can be invoked to protect the, possession even of officers de facto against the acts of intruders on such possession.</p> <p>2. —Tenure of' Office — Charter Construed.</p> <p>The charter of the city of San Antonio provides that the police and fire departments of the city shall be controlled by a board of civil service commissioners, “and all persons selected by said board to serve as policemen or firemen shall hold their positions during good behavior, and shall not be discharged for political reasons, and in no event except for good cause, and after charges have been filed and due hearing had thereon.” Held, it will not be supposed the Legislature intended to violate the provisions of the Constitution, and by the expression “during good behavior” the Legislature did not mean good behavior during life, but good behavior during the constitutional term of two years.</p> <p>3. —Charter Construed — Provisions Reconciled.</p> <p>By certain sections of the city charter it is provided that any appointive officer, employe, agent or servant of the city employed under the authority of the council may be discharged from service by the mayor for any reason he may deem sufficient, and the council is given the care, management and control of the city and its property, and the authority to establish a police force and regulate the same, and to establish, regulate and maintain a fire department. By another section the charge, management and control of the police and fire departments and the selection, management, control and discharge of the appointees therein is given to the board of civil service commissioners. Held, there is no conflict in the grant of powers:</p> <p>4. —Money Value of Office — Jurisdiction of District Courts.</p> <p>Under the Constitution of Texas District Courts have the power and authority to issue writs of injunction in all cases, irrespective of the amount in controversy, in which courts of chancery could have issued them under the rules of equity jurisprudence.</p> <p>4. — Term of Office — Until Successor Qualifies.</p> <p>The Constitution fixes the duration of all offices, not otherwise fixed by it, at two years; but it also provides that “all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.”</p>

<p>1. —Claim of Office — Threats to Oust — Injunction.</p> <p>It is settled law that an incumbent of a public office may by injunction restrain unauthorized persons from exercising his functions, undertaking to remove him, or interfering with the office or with what appertains to the office.</p> <p>2. —Charter of City of San Antonio — Powers of Police and Pire Commissioners.</p> <p>There is no conflict between the provisions of the city charter giving the council power to establish a police force and regulate the same, and to establish, regulate and maintain a fire department, and those provisions which confer upon the police and fire commission the charge, management and control of said departments and the selection, management, control and discharge of all persons serving in same and to make rules and regulations for its management and for the selection and discharge of all persons serving in same.</p> <p>3. —Tenure of Office — Charter Construed.</p> <p>The charter providing that “all persons selected by said board to serve as policemen or firemen shall hold their positions during good behavior, and shall not be discharged for political reasons, and in no event except for good cause, and after charges have been filed and due hearing thereon given,” held, not to give life tenure to appointees.</p> <p>4. —Value of Office — Jurisdiction of District Court.</p> <p>If the office was of no money value, the District Court would have had jurisdiction' under the clause of the Constitution giving the District Court . jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided; if it had a money value this would depend not only on the monthly salary, but the length of time the term would continue.</p>

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

<p>Contributory Negligence — Switching in Railroad Yards — Injury to Foreman.</p> <p>While a railroad yard foreman was directing the cutting and switching of cars in the yards a car was kicked onto a side track, but it stopped too short to entirely clear the track it was moved from. The foreman then directed the next car, which he mounted, to be backed down the track, and when it struck the standing car at the switch intersection he was injured by the displacement of heavy timbers on the moving car. That the other car had not cleared the track was open and obvious. Held, that the foreman was guilty of contributory negligence debarring a recovery, although, but for negligence in improperly loading the timbers with no cleats across the top to hold them in place, the injury would not have occurred.</p>

<p>•Jury — Peremptory Challenges — Joint Defendants.</p> <p>Where the suit was against two railway companies for the value of lost freight and both denied the loss, but each pleaded that if the freight was lost the other was alone responsible therefor, they were each to be considered a party to the suit within the purview of the statute allowing each party to a civil suit in the County Court three peremptory challenges. Rev. Stats., art. 3213.</p> <p>2. —Same—Harmless Error.</p> <p>Where it did not appear that the challenges allowed to the defendants were exhausted or that any person objectionable to appellant sat on the jury, the refusal to allow each of the defendants three peremptory challenges was harmless error.</p> <p>3. —Charge on Weight of Evidence — Loss by Connecting Carriers.</p> <p>In an action by a shipper against two connecting carriers for the loss of eight barrels of syrup from an alleged consignment of fifty-eight barrels — the consignee having received but fifty barrels — the initial carrier’s witnesses testified that the car of syrup, the barrels not having been counted by its agent, was sealed up at once after it was loaded and that the seals were unbroken when it was delivered to the connecting carrier, and that it was impossible for any of the syrup to have been taken therefrom without breaking the seals. The connecting carrier’s witnesses testified that the seals were unbroken when it received the ear and when it delivered the car to the consignee. Each carrier pleaded that if any syrup was lost, it was due to the negligence of the other. The court charged that if the jury believed that plaintiff delivered fifty-eight barrels to the initial carrier to find against that defendant, with a peremptory instruction to find for the other carrier. Held, on the weight of evidence as between the testimony adduced by the respective carriers.</p> <p>4. —Carriers—Delivery to Consignee — Connecting Carriers.</p> <p>Where the consignee of a carload of syrup received the car sealed on the initial carrier’s transfer track and had a connecting carrier to transfer and deliver it to the warehouse of another party to whom he had sold it, the shipper, being a stranger to the contract with such connecting carrier, could not recover from it for any loss of part of the freight occurring after her consignee had accepted delivery from the initial carrier.</p> <p>5. — Same—Issue" Raised — Loss of Goods.</p> <p>Evidence held to raise the issue of a loss of goods shipped and whether it occurred on the line of the initial or of the connecting carrier.</p>

<p>1. —Death Message — Delay in Delivery — Notice to Company.</p> <p>Upon receipt of a death message the telegraph company is put upon notice that the addressee would most likely attend the funeral and would employ all reasonable or necessary means of doing so. Facts considered and held to have been reasonably in the contemplation of the parties.</p> <p>2. —Briefing Case — Proposition and Statement.</p> <p>The Appellate Court will consider only such propositions as are followed by a statement germane thereto.</p>

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

<p>Appeal from the District Court of Hunt. Tried below before Hon. E. L. Porter.</p>

<p>1. —Replevy Bond in Sequestration — liability for Rents.</p> <p>The liability for rents incurred by reason of the execution of a replevy bond in sequestration proceedings does not terminate with the rendition of the judgment in the trial court, but continues during the period of appeal, and until said appeal is finally disposed of by the court of last resort, and for such time thereafter as necessarily elapses before the owner obtains possession of his property.</p> <p>2. —Suit Upon Administration and Replevy Bonds — Jurisdiction of District Court.</p> <p>An administratrix obtained from the Probate Court an order to replevy property claimed by the estate and which had been sequestrated. It was finally adjudged that said property did not belong to the estate. The District Court had jurisdiction of an action subsequently instituted upon the administration and replevy bonds to recover rents of the property, accrued during the litigation, and this, although the claim for rents had neither been presented to the administratrix for allowance or rejection, nor had the administration been closed. Buchanan v. Bilger, 64 Texas, 592, distinguished.</p> <p>3. —liability of Administratrix for Rents.</p> <p>An administratrix and her bondsmen are liable for the rental value of property replevied by the administratrix in her official capacity, and it is immaterial that it may afterwards develope that the property did not in law belong to the estate, and that the rents were not assets of the estate.</p> <p>4. —Books—Best Evidence.</p> <p>The court refused to exclude the testimony of a witness who stated that he was “testifying to what the books showed,” Held, error, but immaterial ynder -the facts of this case,</p>

<p>1. —Cities—Payment of Taxes — Paving Certificates.</p> <p>Where a city charter required the payment of city taxes in money only, except that coupons and scrip, made receivable on the face for taxes, should be receivable for all taxes except the bond tax, an ordinance making paving certificates receivable in payment of the bond taxes was void.</p> <p>2. —Same—City Claiming Invalidity of Ordinance.</p> <p>The city, as trustee for the bondholders in the collection of taxes levied to pay the bonds, could interpose any objection to the validity of the ordinance making the paving certificates receivable for taxes which the bondholders might interpose had they been parties to the suit.</p> <p>3. —Same—Void Settlement as Admission of Debt — Compromise Offer.</p> <p>A settlement between the city and a taxpayer as to the amount of taxes due which is in the nature of a compromise and is void because of an unauthorized agreement by the city to receive paving certificates in payment, can not be treated as an admission by the taxpayer that she owed the amount so agreed upon.</p> <p>4. —Same—Proof of Taxes Due — Assessment Rolls — Void Settlement.</p> <p>In an action by a city for taxes the city could, as provided in its charter, show a prima facie valid levy and assessment by the introduction of the assessment rolls, and an entry of payment made on the rolls by virtue of a settlement which was void did not affect their admissibility nor their probative force.</p> <p>5. —Same—Assessment for Taxation — Separate City Lots — Estoppel.</p> <p>A taxpayer owning several lots not used together for one purpose and as one piece of property is entitled to have them assessed separately, but where he renders them himself in bulk he is estopped thereafter from claiming that such an assessment is illegal.</p> <p>6. —Same—Limitations—Suit for Taxes.</p> <p>A city charter provision giving to any delinquent taxpayer the right to plead the four years’ statute of limitations in any suit for taxes due the city is valid except as it applied to suits pending at the time it was passed, and with the qualification that a reasonable time would be allowed the city in which to institute suits for taxes due prior to its passage.</p> <p>7. —Same—Estoppel—Limitations.</p> <p>The taxpayer was not estopped to so plead limitations by the fact that her son and general agent was attorney for the city and failed to bring any action to recover the taxes for the city, there being no allegation of fraud or collusion between the defendant and the City Attorney.</p> <p>8. —Same—Rights of Bondholders — Limitations.</p> <p>A plea that the application of the statute of limitations would offset the rights of the bondholders, not parties to the suit, was without merit, since their rights would necessarily be barred along with that of the city to enforce the collection of the tax.</p> <p>9. —Same—Plea in Reconvention — Pleadings—Limitations.</p> <p>Defendant’s plea in reconvention claiming a commission on judgments obtained for the city by the City Attorney and assigned to her was insufficient where it failed to show when the judgments were paid, as plaintiff was entitled to have the plea show whether any part of the claim was barred.</p> <p>10. —Same—Limitations—Claim by Officer for Commissions.</p> <p>Such claim, the commissions having been earned under a city ordinance fixing the City Attorney’s salary and fees, was not founded on a written contract, so as to be governed by the four years’ statute of limitations.</p> <p>11. —Same—Attorney Fees — Tax Suits,</p> <p>A city charter provision entitling the City Attorney to a fee of five percent of the amount of the taxes collected by suit, which should be taxed as costs against the property, could not have a retroactive effect so as to charge the property of delinquent taxpayers with an additional five percent on taxes due prior to such provision.</p> <p>12. —Same—Commissions for Collecting.</p> <p>The city council had authority to allow the City Attorney, as compensation, a commission of ten percent on all sums collected by him by action to enforce taxes due prior to the time the charter provision for five percent took effect. The fact that judgments obtained by him for taxes were paid after he went out of office did not affect his right to the commissions, and he was entitled to a pro rata share of commissions due on judgments collected by the city in suits brought by him, but not decided when he went out of offitie.</p> <p>13. —Same—City Warrant — Signature of Officer.</p> <p>Where a city warrant is signed by the assistant auditor, instead of the auditor, it will be presumed, in the absence of evidence as to the powers of the assistant auditor, that he had' authority to act in the premises, and it is Immaterial that his signature appears across the face of the warrant, instead of at the bottom. ' „</p> <p>14. —Same—Evidence—Assessment Rolls.</p> <p>Objection to the manner in which the assessment rolls have been prepared should be made to their introduction in evidence, and not to the testimony of the assessor identifying them as the records of his office.</p> <p>15. — Same—Printed City Ordinances.</p> <p>A printed pamphlet which bore upon the cover the indorsement, “The City Charter of the City of Houston, together with the Revised Code of Ordinances Prepared by Direction of the City Council, and Adopted by Resolution on the 27th day of December, 1866,” sufficiently purported to have been published by authority of the city council and was admissible in evidence — following Railway v. Washington, 63 S. W. Rep., 538 — where it appears that the city charter requires the city council to publish its ordinances and gives to the published ordinance, as evidence, the same effect as the original ordinance.</p> <p>16. — Same—Tax Rolls as Proof of Liability — Prima Facie Case.</p> <p>Where a city charter provision made the tax rolls prima facie evidence that the tax is due and that the facts stated therein are true and that all prerequisites required by law pertaining to the levying and assessing of the tax have been complied with, the city is not required to do more, in a suit for taxes than introduce the tax rolls in order to make out its case, unless defendant can show that the rolls were illegally prepared, or that the prerequisites of the levy and assessment have not been complied with.</p> <p>17. — Costs—Apportionment.</p> <p>The trial court has authority under the statute to apportion the costs in any case if good cause for not following the ordinary rule exists, but the reason for so adjudging cost must be stated in the record. Rev. Stats., art. 1438.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. Edward Dwyer.</p>

<p>1. —Cause of Action — Insulting Language — Mental Suffering.</p> <p>A carrier is liable for the consequences of mental suffering, humiliation, etc., caused by the language and conduct of an employe, even though no physical injury results from such wrongs.</p> <p>2. —Taking of Depositions — Presence of Interested Parties.</p> <p>While the presence and participation of interested parties during the taking of depositions is irregular, and perhaps improper, yet under the decisions of this State, in the absence of facts showing fraud, or actual injury to the opposite party, it was not ground for the suppression of the deposition.</p> <p>3. —Res Gestae.</p> <p>Remarks or exclamations of plaintiff’s child, made while the carrier’s servant was uttering the abusive language complained of, are admissible as parts of the res gestae.</p> <p>4. —Evidence—Expressions of Feelings.</p> <p>Where bodily and mental feelings are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence.</p>

<p>Appeal from the County Court of Mitchell County. Tried below before Horn W. B. Crockett.</p>

<p>1. —Attachment—Wrongful Issuance — Wrongful Levy — Distinction—Damages.</p> <p>Irrespective of whether a writ of attachment was rightfully or wrongfully procured the defendant would be entitled to damages if it was levied on exempt property. If wrongfully procured, the defendant’s right to damages does not depend on the character of property seized.</p> <p>2. —Same—Liability of Officer.</p> <p>In the absence of facts showing that the officer participated in the procurement of the writ, he is not liable for the unlawful issuance of the same.</p> <p>3. —Same—Actual and Exemplary Damages.</p> <p>For the unlawful issuance and levy of the writ the plaintiff would be liable in actual damages. If the writ was procured maliciously and without probable cause, he would be liable for exemplary damages.</p> <p>4. —Same—Sureties.</p> <p>The sureties on the attachment bond could not ordinarily be held for anything beyond actual damages. So also as to the officer’s official sureties and his indemnitors.</p> <p>5. —Exemplary Damages.</p> <p>Malice and want of probable cause must concur to authorize a recovery for exemplary damages in attachment suits.</p>

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

<p>Charge of Court — Abstract Legal Propositions.</p> <p>The court instructed the jury that if they believed from the evidence that for a valuable consideration the defendant made and entered into a contract with the plaintiff, etc., and that thereafter the plaintiff complied with his part of the contract, if any, and that said property was sold at a price and upon terms acceptable to defendant, they would find for plaintiff. The plaintiff requested a special charge presenting the issues of fact, which was refused. Held, under the circumstances of this case, it was error to give the main charge and refuse the special charge, because the main charge did not separate the questions of law from questions of fact.</p>

<p>1. —Defective Crossing Over Railroad Tracks — Liability of Company.</p> <p>In the absence of ordinary care, a railroad company is liable to those using a defective crossing over its tracks, who, by reasonable implication, are invited to use the same and are injured thereby.</p> <p>2. —Same.</p> <p>One who is expressly or impliedly invited by the railroad company to use a crossing over its tracks is not required to exercise ordinary care in selecting the same, since he had the right to assume that the railroad company had discharged its duty to supply him with a reasonably safe crossing, unless he is himself chargeable with knowledge of its bad condition.</p>

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

<p>1. — Lost Shipment — Invoice—Bill of Lading — Insufficient Evidence.</p> <p>Plaintiff sued for the loss of a shipment of goods between New York and Paris, Texas. An invoice of the goods purchased, together with a bill of lading executed by the steamship company for one case of clothing, was received by the plaintiffs from the consignors. There was evidence that this case of clothing was delivered to the defendant railroad company at Galveston; there was testimony that it was never received by the plaintiffs; there was no direct evidence showing the contents of the case of clothing. Held, the evidence was insufficient to support the verdict in that it failed to show that the clothing described in the petition was contained in the ease of clothing for which the bill of lading was given.</p>

<p>1. — Appeal—Reversal on the Facts.</p> <p>The power of the Appellate Court to reverse a case on the facts will not be exercised unless the verdict is against such a preponderance of the evidence that it is clearly wrong.</p> <p>Í2. — Defective Appliance — Question for Jury.</p> <p>Where one of the stay chains of a spout for watering engines was broken and had been for several days, the spout being eight feet long and the chain only eighteen inches, and a fireman injured in using the spout testified that he did not know the chain was broken and had not watered an engine there for several months, it could not be said as a matter of law that the defect in the chain was patent and obvious, the question being one for the jury.</p> <p>3. —Personal Injury — Measure of Damages — Difference of Wages.</p> <p>The measure of damages where a party is negligently injured and entitled to recover for impaired capacity to earn money, is the difference between the wages he was capable of earning before the injury and those he was capable of earning thereafter.</p> <p>4. —Same—Wages—Expenses Deducted — Hospital Fees.</p> <p>In determining the wages earned, hospital fees, insurance, etc., are not to be considered unless they are incident to the employment and are estimated in fixing the wages and go toward the increase of the salary by reason of being incident to such employment.</p>

<p>1. —Corporation Court — County Attorney.</p> <p>Under the provisions of the Act of the 26th Legislature creating corporation courts (Laws, 1899, p. 42, sec. 8), and of sec. 21, art. 5, of the Constitution, a county attorney has .the exclusive right, and is charged with the duty, to represent the State in all prosecutions instituted for the violation of the criminal laws of the State in a Corporation Court, notwithstanding such prosecutions may appear to be for violation of ordinances of the city covering the same ground.</p> <p>2. —Same—Fees.</p> <p>A county attorney is not entitled to fees, or any other compensation, for the prosecution of cases in a Corporation Court,</p> <p>3. —Title of Act — Subject.</p> <p>The regulation of county attorney’s fees was directly connected with, and incidental to the organization of corporation courts, and the title of the Act creating said courts sufficiently embraced this subject.</p> <p>4. —Res Adjudicata.</p> <p>A judgment to have the effect of res adjudicata must be upon the merits, and must be final.</p>

Tried below before Hon. Marshall Surratt. The fifth paragraph of the court’s charge was as follows: “If you believe from the evidence . . . that the heavy load on said car and steep declivity of the grade of said track after it was so started by said motorman so accelerated its movement that it was run by him at a. high and dangerous rate of speed, and that he could not or did not control the movements thereof, nor stop the same, nor slacken its speed, so that when it…

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

<p>Sale of Liquor to Minor — Person Aggrieved — Loco Parentis.</p> <p>The uncle of an orphan minor without legal guardian, with whom such minor is living as one of his family, and who has assumed the custody, control and moral training of his nephew has no such legal status of one standing in loco parentis as to give him the right to sue upon a liquor dealer’s bond to recover the statutory penalties for selling intoxicating liquor to a minor.</p>

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

<p>Error from the County Court of Jefferson. Tried below before Hon. D. P. Wheat.</p>

<p>1. — Evidence—Admissibility—Tending to Prove Issue.</p> <p>To render testimony admissible it is not necessary that it should be direct and positive; it is sufficient if it tends to prove an issue.</p> <p>Í2. — Bill of Exceptions — Qualification by Judge.</p> <p>In a qualification appended to a bill of exception to the exclusion of certain testimony, the trial judge gave other and different reasons from those urged on the trial by the opposing party. Only the objections urged on the trial can be considered.</p> <p>3. — Measure of Damage.</p> <p>A part of a shipment of cattle destined originally for sale upon the St. Louis market were, upon their arrival at St. Louis, shipped on to Chicago because there was no market for such cattle at St. Louis. The measure of damage for those cattle would be the difference in their market value at St. Louis in the condition and at the time they should have reached that market by the exercise of ordinary care upon the part of the carriers, and what they sold for in Chicago after deducting the necessary expense of getting them to that market.</p>

<p>Appeal from the County Court of Potter County. Tried below before Hon. Sam R. Merrill.</p>

<p>Error from the District Court of Young County. Tried below before Hon. A. H. Carrigan.</p>

<p>1. —Contract—Acceptance of Offer — Deposit in Mail.</p> <p>In the absence of an agreement, express or implied, that the mails may be used as a means of acceptance of the terms of an offer, the one employing such means constitutes it his agent, and the offer or acceptance, as the case may be, may be recalled at any time before an actual delivery of the communication.</p> <p>2. —Constitution of Sovereign Camp W. O. W. — Change of Beneficiary.</p> <p>The constitution of the Sovereign Camp of the Woodmen of the World, in the matter of a change in the beneficiary, contained the following provision: “In the event the beneficiary’s certificate is lost.....before the change shall be made the member shall furnish the Sovereign clerk satisfactory proof under oath of the facts of the loss of the certificate, . . . , and waiving for himself and beneficiary or beneficiaries all rights thereunder, whereupon on payment of twenty-five cents the Sovereign clerk, if such proof is satisfactory to him, shall issue to said member a new certificate in lieu of the old one with the desired change of beneficiary.” A member whose certificate had been lost made application three days before his death for the issuance of a duplicate certificate and a change in the beneficiary, and caused the same to be mailed to the Sovereign clerk, but the application was not received by the clerk until after the death of the member. Held, that mailing the application was not such an actual delivery to the clerk as the constitution required, and there was no change in the beneficiary.</p> <p>3. —Same.</p> <p>The constitution of a benefit order becomes a part of the contract of insurance, and where that instrument points out the method by which a change of beneficiary may be effected, it is exclusive of all others and must be substantially complied with.</p> <p>4. —Same—Assignment—Gift.</p> <p>The attempted change of beneficiary could not be treated as an assignment or gift because there was no delivery or written transfer of the certificate, and the only authority of disposition held by the member was through a change of beneficiary in the method prescribed by the constitution.</p>

<p>1. — Bill of Exception — Insufficiency.</p> <p>Where the bill of exception does not show affirmatively that the judge of an adjoining district who granted an application for certiorari had not been designated by the Governor to act in the place of the regular judge who was disqualified, the question whether or not a judge of one district can grant a writ of certiorari to a justice of the peace of another district is not presented for consideration.</p> <p>2. —Same.</p> <p>Where a bill of exception does not show that the deposition had been on file for the requisite time under the statute to require a motion in writing to suppress it, the action of .the court in sustaining a verbal motion during the trial to strike out an answer in said deposition because not responsive to the interrogatory, can not be reviewed.</p> <p>3. —Conflicting Testimony — Peremptory Charge — Error.</p> <p>In a suit to recover a sum of money alleged to have been paid by mistake, the evidence being conflicting, it was error to give a peremptory instruction.</p> <p>4. —Intemperance of Bookkeeper — Pertinent Testimony.</p> <p>Where a question was raised as to the correctness of defendant’s books of account, it was error to exclude testimony as to the drinking habits of defendant’s bookkeeper.</p> <p>5. —Settlement—Ignorance of Pact.</p> <p>A settlement made in ignorance of a material fact is not conclusive between the parties.</p> <p>6. —Setoff—Bes Adjudicata.</p> <p>The rule of law that matters which ought or might have been included in a former suit between the parties can not be made the basis of a subsequent suit, has no application where the matter claimed to be merged in the former judgment is a set-off or counterclaim.</p>

<p>1. —Deposition—Officer’s Name Across Seal.</p> <p>Where the officer’s name, endorsed upon an envelope containing depositions, extended across and over that portion of the envelope which contains the mucilage forming the seal, it was a sufficient compliance with the statute which required the officer’s name to be across the seal.</p> <p>2. —Damage to Cattle During Transportation — Cause of Injury — Opinion of Witness.</p> <p>In a suit for damage to cattle during transportation witnesses were asked “if from their experience in handling cattle they could tell whether or not the condition of the cattle at their destination was brought about by improper transportation and handling the cars, or from other causes,” and having answered in the affirmative, were then asked “what was the cause,” to which they replied “it was due to improper transportation and handling on the cars, and from being detained too long on the cars, and being jerked and switched about improperly.” Held, the objections of defendant that it was not a proper question for expert testimony, that the question and answer called for a conclusion of the witness and that the facts sought to be proved by the question and answer were exclusively for the jury, should have been sustained.</p> <p>3. —Market Value — Competent Witness.</p> <p>Even though a witness had not seen the cattle in question before, their arrival at destination he may testify, if otherwise qualified, as to their market value at destination if they had been shipped with reasonable dispatch and care.</p> <p>4. —Through. Bill of Lading — Befusal of Agent to Issue.</p> <p>It is error to admit testimony of the refusal of defendant’s agent to issue a bill of lading to a point beyond defendant’s line where it appeared that said agent had no authority to issue such bill.</p> <p>5. —Connecting Carrier — Place of Delivery.</p> <p>Where a shipment of cattle is to be delivered by one carrier to a connecting carrier and.certain pens are used by the two roads for that purpose a shipper has no right to require that said cattle be unloaded in other pens than those used for said purpose.</p> <p>6. —Insufficient Pens — Damage to Cattle — Termination of Liability.</p> <p>A carrier is liable for damage to cattle resulting from a crowded condition of its unloading pens, and this liability continues until the cattle are delivered or tendered to a connecting carrier.</p> <p>7. —Bush of Business no Defense.</p> <p>A rush of business is no defense for failure to transport freight or cattle with reasonable care, diligence and dispatch. Only the act of God or other vis major can excuse a carrier from compliance with its contract.</p>

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

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

<p>1. — Carrier of Passengers — Notice of Departure of Trains.</p> <p>In the absence of a request for the information it is not actionable negligence in a railway company to fail to inform one who has purchased a ticket over its road of the time of the departure of the earliest train upon which he can make the trip.</p> <p>3. —Same—Vestibuled Cars — Proximate Cause.</p> <p>Where a passenger was injured by the sudden and premature start of a . train, throwing her from the steps of the car while she was attempting to alight at a station, negligence of the carrier in failing to have vestibuled cars was not a proximate cause of the injury, since the entrance to vestibuled cars must necessarily be kept open at stations.</p> <p>4. —Same—Passenger Alighting — Sudden Jerk.</p> <p>Evidence considered in a case where a passenger claimed to have been injured, while alighting from a train, by reason of a sudden jerk of the train, and held to present a conflict of evidence as to the carrier’s negligence such as did not warrant the court in instructing a verdict for the defendant.</p> <p>4. — Court and Jury — Instructing Verdict — Negligence.</p> <p>The judge is authorized to take the case from the jury only where it is susceptible of but one just opinion, and where the facts are such that reasonable minds may differ upon the question as to whether or not there was negligence, the determination of the matter is for the jury.</p>

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

<p>Appeal from the District Court of Harris County. Tried below before Hon. W. P. Hamblen.</p>

<p>Appeal from the District Court of Brown County. Tried below before Hon. John W. Goodwim</p>

<p>Injury to Person — Examination by Physicians.</p> <p>Though plaintiff can not be required to submit to an examination of his person by physicians, his unwillingness to submit to such an examination when he claims injuries not perceptible to ordinary observation is a circumstance which the jury may consider, and it was error to exclude a question as to whether he was willing that it be had.</p>

<p>Venue — Plea of Privilege — Question of Pact.</p> <p>The evidence herein is held to raise an issue of fact as to whether the allegation of fraud committed in the county where suit was brought, relied on to defeat defendant’s plea of privilege to be sued in the county of its residence, was untrue and merely made to obtain jurisdiction, which should have been submitted to the jury, and not determined by the court, which had instructed a verdict for defendant on that plea.</p>

<p>Shipment of Live Stock — Injury—Evidence—Charge.</p> <p>A horse was shipped over several lines of railroad, all of which were made defendants. The plaintiff plead aggravation of the injury received on one road, by delay on another, but there was no evidence of aggravation by such delay. The court charged the jury that they should find against the company on whose line the injury occurred. Held, that the charge was not subject to the objection that it put upon the road, on which the horse was actually injured, the consequences of delay on the other road.</p>

<p>1. —County Court — Injunction.</p> <p>Since the amendment of 1891 to section 16, article 5 of the Constitution, the power of the County Courts to issue writs of injunction is not limited to the enforcement of their jurisdiction, but is a general power which might be exercised in all eases where the amount in controversy gives the court jurisdiction.</p> <p>2. —Same—Execution from Justice Court — Amount in Controversy.</p> <p>Plaintiff sued in the County Court to restrain the sale of a piano, worth $350, under execution from the Justice Court upon a judgment for $15, alleged to have been fraudulently procured, to cancel said judgment and, in addition, to recover $400 damages for the wrongful and malicious acts of defendants in procuring the judgment and execution and making the levy. Held, the County Court had jurisdiction of the suit.</p>

<p>1. —Divorce—Pleading—Bona Fide Inhabitant of State.</p> <p>An allegation in plaintiff’s petition for divorce that “she is now and has been a bona fide resident citizen of Smith County, Texas, for more than six months” sufficiently averred that, as required by the statute, she was “an actual bona fide inhabitant of the State.” Rev. Stats., art. 2978. ,</p> <p>2. —Same—Pleading and Judgment — Money Recovery.</p> <p>Where in an action for divorce plaintiff alleged that defendant was in possession of the community and separate property, stating its value and the ownership of the parties therein, and that defendant was about to dispose of it, and would do so unless enjoined, asking that he be required to render an account of his disposition of the property, with prayer for partition and general relief, this was sufficient to sustain a money judgment in her favor for the value of property disposed of by defendant after the service of the writ of injunction.</p>