Volume 47 — Texas Civil Appeals Reports

<p>liquor Dealer’s Bond—Adoption of local Option—Effect.</p> <p>The effect of the putting in force in a given territory of local option is to suspend, not to repeal, previous laws governing liquor selling in such territory. Hence a suit upon a liquor dealer’s bond for infractions of the same occurring before the adoption of local option is not abated by the adoption of local option in the county in which the infractions occurred.</p>

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

<p>1. —Discharged Employee—Competency—Evidence.</p> <p>In a suit by a discharged employee for breach of contract of employment, the issue being as to the competency of the employee to perform the duties he had undertaken, namely, the refining of oil, the testimony of experts in that business who had seen plaintiff many times engaged in the discharge of his duties, was competent. The rule that a witness will not be permitted to give his opinion upon matters which the jury can as well determine from the facts before them, has no application in such case.</p> <p>2. —Same—Condonation.</p> <p>An isolated dereliction of an employee may be condoned, but the rule does not apply to continuing incompetency.</p> <p>3. —Stenographer’s Transcript—Briefs. .</p> <p>The law authorizing the sending up of the stenographer’s transcript on appeal did not change the rule requiring condensed statements from the record to follow each proposition in the briefs; on the contrary, it emphasizes the necessity for observance of the rule.</p>

<p>1. —Juror—Educational Qualification.</p> <p>The fact that a juror was not sufficiently educated to calculate interest by the rule of partial payments is not a statutory cause for challenge, and the discretion exercised by the trial judge in passing on- such objection will not be revised unless it appears that the ruling resulted in preventing a fair and impartial trial. Rev. Stats., arts. 3139 and 3140..</p> <p>2. —Trial—Opening and Conclusion.</p> <p>Where the defendant admits plaintiff’s right to recover unless it be defeated upon the affirmative grounds set up in his answer, and this admission is entered of record, the defendant has the right to open and conclude the evidence and the argument.</p> <p>3. —Payments—Evidence of.</p> <p>Where the defendant pleads a number of payments on the notes sued on and offers evidence in different forms of the same items of payments, as for instance by statements of account and by receipts, it will not be presumed that the jury credited such items twice, .and the admission of the evidence is not cause for reversal.</p> <p>4. —Note—Compound Interest.</p> <p>When the interest on a note is payable annually legal interest should be allowed on past due installments of interest.</p> <p>5. —Application of Payments.</p> <p>The debtor has the right to say to what account payments made by him should be applied, and in the absence of such direction the creditor may make the application, provided it be not inequitable or unjust to the debtor, and this right of the creditor is not limited to the very time the payment is made, but may be exercised at any time before a controversy arises about the matter.</p> <p>6. —Charge—Issue.</p> <p>It is error to give a charge which ignores a material issue raised by the evidence, and likewise to submit an issue not raised by the evidence.</p> <p>7. —Mortgagee—Purchase of Mortgaged Property—Credit.</p> <p>When mortgaged property is owned by several persons and the mortgagee acquires the interest of one of such persons in the property, in the absence of an agreement to the contrary the mortgage debt should be credited with only a proportionate part of the debt, and not with the full value of the interest acquired.</p>

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

<p>Appeal from the District Court of Travis' County, Tried below before Hon. George Calhoun.</p>

<p>Railway—Fire—Prima Facie Case—Charge.</p> <p>An instruction upon the proof necessary to rebut the prima facie case of negligence raised by showing that fire was communicated to plaintiff’s property by sparks escaping from defendant’s engine, is erroneous if it omits the requirement that the appliances for preventing the escape of sparks must be shown to have been kept in good order; and this is true though the only evidence as to their condition was testimony of defendant’s employees that they were so kept.</p>

Tried below before Hon. J. E. Dillard. The .fitnesses, Hibler and others, of the admission of whose opinion evidence complaint was made in the fifteenth assignment of error, were farmers residing in the neighborhood and familiar with Cottonwood Creek before the construction of the railway and since, and, over objections that they had not shown qualifications for expressing an opinion, were permitted to describe the overflow of plaintiff’s premises from ordinary rainfalls and…

<p>1. —Charge—Statement of Case.</p> <p>In stating the case to the jury the court is not required to recite in its charge any more of the pleadings than it deems necessary. Any supposed omission or deficiency in this respect should be supplied by a requested instruction.</p> <p>2. —Carrier—Passenger—Alighting from Train at Unusual Place.</p> <p>If a passenger leave a railroad train without the invitation of the conductor, at a place which is not a station for the delivery of passengers, there being no prior agreement on the part of the railroad company that he may alight there, and is injured in so doing, it is ordinarily a question of fact for the jury whether or not such act was negligence.</p> <p>3. —Special Charges—Properly Refused, when.</p> <p>Where the proposition of law embraced in a special charge is already embraced in the main charge, it is proper for the court to refuse to give the same. Charges considered, and held properly refused for this reason.</p> <p>4. —Negligence—Pleading—Charge.</p> <p>Where, in a suit for personal injuries, the defendant specially plead each and every act of contributory negligence relied upon as a defense, and the court submitted each and all of such issues to the jury in its main charge, it was not error to refuse a special charge on contributory negligence so general in its terms that it might be construed to include acts of negligence not pleaded by defendant.</p> <p>5. —Same.</p> <p>Where, in a suit for personal injuries, the defendant plead contributory negligence, and the court submitted the issue, but did not use' the expression “contributory negligence” in its charge, the refusal of a special charge defining contributory negligence was not reversible error.</p> <p>6. —Carrier of Passengers—Negligence as Matter of Law.</p> <p>Where a carrier, knowing that a female passenger is in the act of alighting from its train, suddenly puts the same in motion, it would be so wanting in that high degree of care due from a carrier to its passengers as to make it guilty of negligence as matter of law, and a special charge submitting as an issue such state of facts was properly refused.</p> <p>7. —Personal Injuries—Damages—Charge.</p> <p>In a suit for personal injuries, charge considered (see appellant’s brief), and held not to be on the weight of the evidence nor to assume that plaintiff’s injuries were permanent, when read and construed as a whole.</p> <p>8. —Leading Question—Testimony.</p> <p>The answer of a witness to a question in proper form is not to be excluded because a previous question concerning the same matter, was leading.</p> <p>9. —Personal Injuries—Expert Testimony.</p> <p>In a suit for personal injuries it was not error for the court to sustain an objection to a question propounded to a doctor as to whether or not he concurred in the opinion of another doctor concerning the extent of the plaintiff’s injuries. Each witness should give his professional opinion independently of the other and the jury should determine whether or not they concurred.</p> <p>10. —Personal Injuries—Expert Testimony.</p> <p>A doctor, acquainted with the injuries to plaintiff’s ankle, was competent to give his opinion that plaintiff could not have used her leg and ankle without the aid of crutches sooner than she did.</p>

<p>1.-—Telegram—Failure to Deliver—Notice to Company.</p> <p>In a suit for damages for failure on the part of a telegraph company to deliver a death message, the defense being that they could not find the addressee, evidence to the effect that at the time of sending the message the sender told the agent that the addressee was employed in some hardware store, was admissible, and not subject to the objection that it served to vary the message which was a written instrument, and which contained no specific address.</p> <p>2.—Time Card as Evidence.</p> <p>Time cards furnished by a railroad company to the general public for their guidance are competent evidence as to the schedules of its trains.</p>

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

<p>Citation—Judgment by Default—Nature of Plaintiff's Demand.</p> <p>The statutory "requisites of a citation are mandatory, one of such requisites is that it shall state “the nature of plaintiff’s demand;” a want of fullness in such statement in a citation to a defendant without the county in which the suit is filed, may be supplied by the accompanying petition, but a citation, even in such case, which states an entirely different cause of action from that alleged in the petition, will not support a judgment by default.</p>

<p>1. —Telegram—Nondelivery—Special Damages—Pleading and Proof.</p> <p>To render a telegraph company liable for special damages for the nondelivery of a message, it must be alleged and proved that the special damage was in contemplation of both the parties to the contract at the time it was made, as a contingency that might follow its nonperformance. A telegram as ■ follows, “You can make big money next month—come at once,” was not of itself notice to the telegraph company that a failure to deliver the same would cause the sender to lose the commission on a sale of land.</p> <p>2. —Contract—Breach—Pleading.</p> <p>In a suit against a telegraph company for damages for failure to deliver a message, it should be distinctly alleged that the defendant agreed to transmit and deliver the message.</p>

<p>1. —City Council—Authority—Selling Electric Power.</p> <p>Even though portions of a city may be without street lights, if this condition is caused by the lack of funds on the part of the city to establish more lights, the city may sell any surplus electric power to private parties for private purposes, under the general law of this State incorporating cities and towns.</p> <p>2. —Same.</p> <p>As long as the affairs of a city are conducted fairly and in a reasonably judicious manner by the mayor and board of aldermen their acts will not be interfered with by the courts.</p> <p>3. —Municipal Corporation—Injunction—Burden of Proof.</p> <p>Where plaintiffs sought to enjoin city authorities from selling eleciric power to private parties on the ground, in substance, that such sale impaired the public service, the burden of proof was upon them to establish such ground.</p> <p>4. —City—Current Funds.</p> <p>Where the proceeds arising from the sale of water by a city are more than sufficient to pay the expenses of maintaining the system as installed, the surplus money or profits become current funds and the city has the right to apply such profits to other needs of the city.</p> <p>5. —City Franchise, not Exclusive.</p> <p>The fact that a city has granted a franchise to a person or corporation to furnish the inhabitants with lights, will not prevent the city from selling lights itself or from granting a similar right to some one else.</p>

<p>Error from the County Court of Bell County. Tried below before Hon. W. R. Butler.</p>

<p>1. —Limitation—Evidence—Fact Case.</p> <p>Where a defendant entered upon a tract of 141 acres and enclosed and cultivated four acres thereof, evidence as to the character and continuity of his claim to the entire tract considered, and held sufficient to support a verdict upon his plea of limitation, as to the entire tract.</p> <p>2. —Charge—Construed in its Entirety.</p> <p>Where one portion of a charge, on the issue of limitation, standing alone, was subject to the criticism that it tended to lead the jury to believe that mere uninterrupted possession for ten years would give title by limitation, but such portion of the charge referred the jury to another part which contained full instructions on all the elements necessary to establish title by limitation, the charge as an entirety was not calculated to mislead the jury.</p>

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

<p>1. —Principal and Agent—Ratification.</p> <p>A principal can not be held to have ratified the unauthorized act of his agent unless at the time he does the act from which ratification is sought to be implied he had full knowledge of all the facts. Evidence considered, and held insufficient to show ratification.</p> <p>2. —Destruction of Crop—Measure of Damage.</p> <p>The general measure of damage for the destruction of a growing crop is its market value at the time of its destruction, and this value is fixed by what it would have been worth in the market had it matured, less the costs of cultivating, harvesting and marketing.</p> <p>3. —Written Contract—Evidence to Vary.</p> <p>Parol evidence is not admissible to change or vary the terms of a contract in writing, except under allegations of fraud, accident or mistake.</p> <p>4. —Contract—Proof of Consideration.</p> <p>Parol evidence is admissible to contradict and vary the recited consideration in a written contract of sale or lease, and to prove the true consideration for such contract.</p>

<p>1. —Personal Injuries—Fellow Servant.</p> <p>Members of a section gang who are engaged in loading steel rails upon a push-car, pushing the car a certain distance along the track and then unloading the rails, are not fellow servants under the provisions of the statute defining who are fellow servants. Lakey v. Railway Co., 75 S. W. Rep., 566, distinguished.</p> <p>2. —Negligence—Fact Case.</p> <p>In a suit for personal injuries received by a section hand while loading steel rails upon a push-car, evidence considered and held to indicate that the accident fell in the category of risks incident to the particular employment, and not to indicate negligence on the part of anyone.</p> <p>ON REHEARING.</p> <p>3. —Section Hands—Fellow Servant.</p> <p>Where the proof showed that the plaintiff was a member of a section gang and that in loading steel rails upon a hand-car he was subjected to no greater or different danger than he was daily as a section hand; that in the absence of the car, rails were daily lifted and carried from one place to another, and that on the occasion in question the presence of the car upon the track, as the ultimate destination of the rail, had no more to do with his injury than if it was not intended to load the car, the plaintiff and the other members of the section gang were fellow servants while engaged in such work.</p> <p>4. —Negligence—Loading Rails—Fellow Servant.</p> <p>Where the evidence showed that the members of a section gang while engaged in loading rails upon a car stepped upon a loóse rail on the ground when there was a safe place for their feet and it was obvious that the rail-would likely turn if stepped upon, it was sufficient to support a finding of negligence.</p>

<p>1. —Trespass to Try Title—Prior Possession.</p> <p>A plaintiff in trespass to try title sequestrated the land in controversy, dispossessed the defendant, replevied the land, took possession of the same and then dismissed his suit. The defendant in said suit then filed suit of trespass to try title against the plaintiff in said suit for the same land. Held, that the plaintiff in the second suit was not required to deraign title from the sovereignty of the soil, but was entitled to recover on his former possession.</p> <p>2. —Same—Pleading Title Specially—limitation.</p> <p>Where a plaintiff in trespass to try title specially pleads a title by limitation, the rule confining a party to the title specially pleaded, does not apply.</p> <p>3. —Charge—Omission—Requested Charge.</p> <p>Where the charge of the court entirely omits an issue made by the pleading and the evidence, a requested charge upon the issue, although in itself erroneous, will be sufficient to call the 'attention of the court to the omission and require a correct charge upon the issue.</p> <p>4. —limitation—Boundaries of Possession.</p> <p>A mere naked claim by limitation to 160 acres, without anything to show where it was located further than tnat it was to include the improvements, is not sufficient to extend the claimant’s possession beyond the land actually enclosed.</p>

<p>1. —Carrier of live Stock—Station Agent—Authority.</p> <p>The station agent of a railroad company at one station has no implied authority to order cars for the shipment of cattle from, another station.</p> <p>2. —Pleading and Proof—Variance.</p> <p>In a suit for damages to a shipment of cattle resulting from delay in furnishing cars, plaintiff having alleged that the cars were ordered by his agent at a certain station, evidence that plaintiff himself ordered the cars from a different station, will not support a judgment for plaintiff, although it appeared that the railroad company, acting upon the order given by the plaintiff himself, took steps to furnish the cars.</p> <p>3. —Cattle—Market Value—Evidence—Hearsay.</p> <p>Information received from cattle salesmen will qualify a witness to testify as to the cattle market on the day the enquiries were made and the information received, but not as to the state of the market on any other day.</p>

<p>Obstructing Sidewalk—Liability for Personal Injuries.</p> <p>Where a city ordinance prescribed a penalty for unnecessarily obstructing a sidewalk in such city with any boxes, barrels, vehicles, etc., one who is injured by stumbling over a truck, knowingly and unnecessarily left upon the sidewalk by the owner, may recover from the owner the damages sustained.</p>

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

<p>Appeal from, the District Court of Deaf Smith County. Tried below before Hon. Ira Webster.</p>

<p>1. —Peremptory Charge—When Permissible.</p> <p>It is only when fair minded men can rightfully reach but one conclusion from the evidence that the court may properly instruct a verdict. Evidence considered, and held not to warrant a peremptory charge.</p> <p>2. —Insolvent Debtor—Life Insurance.</p> <p>A debtor’s wife and children have an insurable interest in the life of the husband and father, and under the statute of 13 Elizabeth, they are entitled as against the creditors to the proceeds of a life insurance policy upon the life of the husband and father in their favor even though the insured was insolvent and paid the premiums out of his own property.</p> <p>3. —Fraudulent Conveyance—Subsequent Creditor.</p> <p>A subsequent creditor may maintain an action to set aside a conveyance as fraudulent when there have been, at all times, creditors who could have maintained such an action, and the indebtedness has been continuous, having been merely shifted from one .creditor to another or changed in form.</p> <p>4. —Insolvent Debtor—Life Insurance—Statute Construed.</p> <p>Under section 4623, Mansf. Dig. (Arkansas), which limits to $300 the amount which an insolvent debtor might expend in life insurance for the benefit of his wife and children, creditors of the insured would have an interest in the insurance money if the amount expended for premiums exceeded $300 and the insured was financially embarrassed at the time the premiums or any of them were paid, such interest would be only in the excess over the insurance which $300 would buy, and in the proportion which the premiums paid by the insured while insolvent bore to the premiums paid by him while solvent.</p> <p>5. —Solvency—Burden of Proof.</p> <p>In a contest over insurance money between the beneficiaries in the policy and creditors of the insured, the burden of proof is on the beneficiaries to show a financial condition which would warrant the insured in making the gift.</p> <p>6. —Insurance Company—Attorney’s Fee.</p> <p>Where in a contest over insurance money between the beneficiaries in the policy and creditors, the insurance company is made a party defendant, but makes no contest, the company should be allowed its reasonable attorney’s fees, to be deducted from the fund, or charged against the unsuccessful plaintiff, as the case might be.</p>

<p>Beneficiary Certificate—Forfeiture.</p> <p>The laws of a benefit society provided that a failure to pay the monthly dues and assessments to the local lodge or its collector within the time provided by the constitution should operate as a suspension of the member without notice. The proper amount of dues and assessments was sent in proper time by the beneficiary to one who had been the collector of the society, but who had ceased to be such at the time of the remittance. The money was never received by the lodge or its duly authorized collector. Held, the remittance by the beneficiary was not a payment to the society, and was not sufficient to prevent the suspension of the member.</p>

<p>Error from the County Court of Bowie County. Tried below before Hon. Sam. H. Smelser.</p>

<p>1.—Contract—Agency.</p> <p>In a letter by a saw mill company proposing to a physician that he move to the saw mill for the purpose of giving such medical attention to the employes and their families as they might need, the language, “we will collect for you one dollar from all single employees and one dollar and fifty cents from all employees with families on the mill grounds, etc.,” when properly and fairly construed in the light of the evident intention of the parties and the purpose of the mill company to subserve its own interest, as appeared from the whole letter, imported an absolute promise on the part of the mill company to pay such sums, and not merely to act as agent in the collection of the same from the employees.</p> <p>2. —Breach of Contract—Damages.</p> <p>In a suit for damages for breach of a contract of employment, evidence considered, and held to sustain the judgment.</p> <p>3. —Contract—Statute of Brands.</p> <p>Where, upon the face of a contract, a contingency is expressed which might happen within the space of one year and the contract be thereby fully performed, such contract is not obnoxious to the statute of frauds.</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 Harris County. Tried below before Hon. W. P. Hamblen.</p>

<p>Appeal from the County Court of Grayson County. Tried below before Hon. G. P. Webb.</p>

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

<p>1. —Independent Contractor—Definition.</p> <p>An independent contractor is one who, in rendering service, exercises an independent employment or occupation, and represents his employer only as to the results of his work, and not as to the means by which it is to be accomplished. By the word “results” is meant a production or product of some sort, and not a service. A reservation by the employer of the right, by himself or his agent, to supervise the work for the purpose merely of determining whether it is being done in conformity to the contract, does not affect the independence of the contract. Evidence considered, and held to sustain the defense of independent contractorship.</p> <p>2. —Same—Liability of Employer.</p> <p>Where the work contracted to be done is necessarily attended with danger however skilfully and carefully performed, or is intrinsically dangerous, the employer is responsible for any injury resulting from its execution, although the act to be performed be lawful.</p> <p>3. —Same—Subcontractor.</p> <p>A subcontractor may be an independent contractor as between himself and his employer, the contractor.</p> <p>4. —Same—Verbal Contract—Effect.</p> <p>The mere fact that the contract is verbal does not require that the question of independent contractorship vel non should be submitted to the jury. The testimony as to such contract being clear, unambiguous and undisputed it is the duty of the court to determine the legal effect of the same. Where, however, the evidence as to the nature or character of the contract is conflicting, it is error to refuse to submit the issue to the jury as to the relationship of the parties.</p> <p>5. —Eellow Servant—Remote negligence.</p> <p>An employer can not be relieved of liability on the ground that the injury is due to the negligence of a former fellow-servant of the injured person where the injury occurs some time after the act of negligence, and after the injured person has left the employment of the master.</p> <p>6. —Contributory negligence too Remote.</p> <p>Where deceased was one of eight or ten persons who worked together in tearing down a wall, a portion of which fell and injured the deceased about a week afterwards as the result of the negligent manner in which the work was done, the possibility or probability that the accident may have been occasioned by the negligence of the deceased himself, was too remote to require the submission of the issue of contributory negligence on the part of the deceased.</p>

<p>Error from the County Court of Dallas County. Tried below before Hon. Hiram F. Lively.</p>

<p>Error from the County Court of Dallas County. Tried below before Hon. Hiram E. Lively.</p>

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

Petition for the appointment of a receiver and for other relief, to the Court of Civil Appeals for the Third District, in the pending appeal of the Waters-Pierce Oil Company v. State of Texas, from the District Court of Travis County.

<p>Appeal from the District Court of Wharton County. Tried below before Hon. Samuel B. Dabney, special judge.</p>

<p>Appeal from the District Court of Lubbock County. Tried below before Hon. L. S. Kinder.</p>

<p>Appeal from the District Court of Floyd County. Tried below before Hon. L. S. Kinder.</p>

<p>1.—Carriers of Live Stock—Inherent Vices—Charge.</p> <p>Carriers of live stock are not insurers against injuries arising from or attributable to the natural vices, propensities and habits of the animals themselves and which could not be prevented by foresight and care. In a suit for damages to a shipment of cattle, charge considered, and held erroneous.</p> <p>2—Same—Unavoidable Damage.</p> <p>In the shipment of cattle some damage naturally and unavoidably occurs even when transported by the railroads in the most careful and prudent manner. For such damage the railroads are not liable.</p> <p>3.—Inherent Vice—Definition.</p> <p>A charge which defines inherent vice as “a fault not possessed by the ordinary of its kind,” is too restrictive.</p>

<p>1. —Deed—Boundaries—Ambiguity—Testimony.</p> <p>When, in the description contained in a deed, there is ambiguity as to the boundaries, parol evidence is admissible as to the declarations of the grandor at the time of purchase as to the boundaries of the land conveyed, and the true position of the boundaries becomes a question of fact for the jury.</p> <p>2. —Market Value—Testimony.</p> <p>Although a witness may not be able to give the depreciation in the market value of certain property in dollars and cents, he may still testify as to the per cent of depreciation.</p>

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

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

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

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

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

<p>Appeal from the County Court of Ellis County. . Tried below before Hon. F. L. Hawkins.</p>

<p>Appeal from the District Court of Wheeler County. Tried below before Hon. B. M. Baker.</p>

<p>1. —Injury to Crop—Value—Evidence.</p> <p>Where a cotton crop was destroyed by overflow when only partly up, evidence of the cost of preparing -the ground and planting the crop is admissible and furnishes evidence as to its value.</p> <p>2. —Charge—Exhortation to Eind a Verdict.</p> <p>Oral exhortation by the judge to the jury to continue their consideration of the case in the endeavor to reach a verdict held not improper.</p>

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

<p>1. —Master and Servant—Assumed Risk.</p> <p>In a suit by a servant for injuries caused by the breaking of a rope and the falling of a chute, it was the duty of the master to use ordinary care in the selection, maintenance and inspection of the rope; but a failure by the master to inspect the rope would not render the master liable for injuries resulting from its breaking if the defect which caused the injury would not have been discovered by a proper inspection. Such occurrence fell in the category of assumed risks.</p> <p>2. —Personal Injuries—Pleading.</p> <p>In a suit for personal injuries the allegations of plaintiff’s petition were that plaintiff “was struck by said chute on the head and rendered unconscious and that he received severe cuts, wounds and bruises, and was hurt in the neck, shoulders and spine. . . . That his neck and spine are injured for life.” Defendant’s special exception to the effect that “the allegations with regard to the injuries do not specify the nature of the alleged hurts in the neck, shoulders and spine as it should do,” should have been sustained.</p> <p>3.—Concurring Negligence.</p> <p>Where an injury is caused by the concurring negligence of the master and plaintiff’s fellow servants, the master is liable.</p>

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

<p>1. —Community Estate—Indebtedness—Heirs—Fact Case.</p> <p>In a suit by the heirs of a deceased wife against the surviving father for the interest of their mother in the community estate, evidence considered, and held to support the judgment of the trial court that the community indebtedness at the date of the wife’s death exceeded the value of her interest in the community estate; that in the settlement of the community estate the surviving father acted in good faith and that the heirs had no interest in the property sued for.</p> <p>2. —Community Debt—Extension—Power of Survivor.</p> <p>After the death of his wife a surviving husband has the power, in good faith, to secure the extension of a community debt evidenced by notes, before the notes are barred by limitation, even though the debt is increased by compounding the interest, and such action will not release the interest of the heirs of the wife in the community estate from liability for such debt.</p> <p>3. —Finding of Fact—Assignment of Error—Insufficiency.</p>

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

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

<p>Appeal from' the County Court of Johnson County. Tried below before Hon. J. D. Goldsmith.</p>

<p>1. —Fast Driving—Personal Injury—Charge.</p> <p>In a suit for personal injuries caused by fast and unlawful driving on the street of a city, charge considered, and held not subject to the objection that it was upon the weight of the evidence.</p> <p>2. —Same—Speed Ordinance.</p> <p>The violation of a speed ordinance in a city is negligence per se. and for any damage proximately resulting therefrom a person violating such ordinance is "liable without regard to the degree of care he may have been exercising otherwise in the management of his horse.</p> <p>3. —Same—Malice—Exemplary Damages.</p> <p>Where negligence is so gross as to evince a conscious indifference to consequences, exemplary damages may be awarded. It is not necessary that the injury be willful. Evidence considered, and held sufficient to support a verdict and judgment for exemplary damages in a suit for damages resulting from fast driving in a city.</p> <p>4. —Defective Pleading—Absence of Exception—Evidence.</p> <p>Because a petition may be subject to special exception is no reason for the exclusion of evidence upon issues fairly made by its averments, in the absence of such exception.</p> <p>5. —Pleading—Supplemental Petition, Office of.</p> <p>The office of a supplemental petition is to present matters in avoidance of defenses pleaded by the defendant, and such pleading should not be used to amend or cure a defective statement of the cause of action.</p> <p>G.—Compromise Verdict—Hew Trial.</p> <p>Where a new trial was sought on the ground that the jurors each wrote the sum he thought ought to be assessed against the defendant and agreed that the verdict should be the average of such sums, and upon hearing the motion for new trial the court, upon sufficient evidence, overruled the same, the ruling of the court will not be disturbed on appeal. Act of Twenty-ninth Legislature, General Laws, 1905, page 21, criticised.</p>

<p>1. —Carrier—Bill of Lading—Delivery—Custom.</p> <p>In a suit by a shipper against a railroad company for the value of goods delivered by the railroad company without presentation or surrender of the bill of lading, and so lost to the shipper, evidence considered, and held to show that the company surrendered said goods upon the personal guaranty of the person to whom they were delivered to indemnify the company, and not because of a certain custom of dealing with the shipper, and hence the shipper was not estopped by such custom, and the railroad company was liable.</p> <p>2. —Special Charge—Omission of Issue.</p> <p>A requested charge which omits a material issue, is properly refused.</p> <p>3. —Charge—Preliminary Statement.</p> <p>An inaccurate expression occurring in the preliminary portion of a charge is not ground for reversal when it is apparent from the whole charge that the jury were not misled by such expression.</p> <p>4. —Statement of Facts—Delay in Filing—Fault of Trial Judge.</p> <p>Where a statement of facts, through the misapprehension of the trial judge as to the date upon which the time expired, was filed one day too late, it will be considered on appeal.</p>

<p>1. —Landlord and Tenant—Lien—Interest in Crop.</p> <p>Whether or not one who lets premises to another in consideration of a part of the crops to be grown thereon as rent has a specific undivided interest in the crops when gathered, as distinguished from a lien, depends entirely upon the terms of the agreement between the parties.</p> <p>2. —Same—Pleading.</p> <p>When the record discloses no contract other than an ordinary one of renting land on shares and the landlord sues for a personal judgment for supplies and advances with foreclosure of his lien therefor, such lien being inconsistent with ownership in him, neither the pleading nor the evidence authorizes an instruction to award plaintiff a half interest in specific property sold by the tenant with foreclosure of bis lien therefor.</p> <p>>ti</p> <p>3. —Lien—Question of Fact.</p> <p>It is for the jury to determine the existence of a lien and the right to its foreclosure.</p> <p>4. —Lien—Waiver—Permission to Sell.</p> <p>The mere fact that a landlord permits the tenant to sell some portion of the crops in the market without objection, is not alone a sufficient reason for purchasers to conclude that he has waived his lien on the entire crop.</p>

<p>Appeal from the County Court of Red River County. Tried below before Hon. J. M. Heaver.</p>

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

<p>1. —Connecting Carrier—Shipment of Cattle—Refusal to Receive.</p> <p>It seems that a connecting carrier which has no feeding and watering facilities at the junction point, has the right to refuse to receive from a prior carrier a shipment of cattle, which have already been on the cars between twenty-six and twenty-seven hours, until such cattle are fed and watered by the prior carrier.</p> <p>2. —Joint Wrongdoers—Recovery Over.</p> <p>Where two connecting carriers have both been guilty of negligence in handling a shipment of cattle over their roads, neither can recover over against the other for any part of the damages adjudged against it. One concerned in the commission of a wrong can not recQver of another likewise guilty.</p>

<p>Passenger—Ejection from Train—Excessive Verdict.</p> <p>In a suit for damages by a minor female passenger for wrongful ejection from a railroad train, evidence considered, and held that a verdict for $1,000 was excessive, and a remittitur of $900 required.</p>

<p>1.—Master and Servant—Railroad Bridge—Negligent Construction—Evidence.</p> <p>In a suit against a railroad company for the death of a fireman on one of its locomotives, caused by the striking of the fireman’s head against the post of a bridge over the track, evidence considered, and held suflicient, although circumstantial, to require the submission to the jury of the question of negligence on the part of the defendant in the matter of the construction and maim tenance of its bridge, and track adjacent thereto, and sufficient to support a finding of the jury that the defendant was negligent in said matters.</p> <p>- 8.—Same—Assumed Risk—Contributory ¡Negligence—Issue.</p> <p>When the evidence does not conclusively establish thaJ' a risk was known to a servant or was open to common observation, or that in the performance of his duty at the time of the accident he failed to exercise ordinary care, it is the duty of the court to submit to the jury the issues of assumed risk and contributory negligence.</p>

<p>Unlawfully Issuing Marriage license—Parent’s Action for Damages.</p> <p>No action lies against a county clerk and his sureties for the loss by a father of the services of his daughter, fourteen years of age, by the unlawful issuance of a marriage license, though she would not have married without it. The marriage was valid irrespective of the license, and terminated the parent’s right to service.</p>

<p>1. —Carriers—Connecting Lines—Nondelivery.</p> <p>On an interstate shipment of freight on a contract limiting the liability of each of the connecting lines in its transportation to losses on its own line of road, the terminal carrier is not liable for goods lost by the preceding carrier and never delivered to it.</p> <p>2. —Practice on Appeal.</p> <p>In an action for loss of certain goods and delay of others in their transportation by connecting lines a recovery against the terminal carrier, where there was no evidence of damage to plaintiff by the delay, will he taken to be for the loss only, and this being found unwarranted, the judgment will be reversed and rendered in favor of such carrier.</p>

<p>1. —Land Agent—Commissions—Set-Off.</p> <p>Where, in a suit by a land agent for commissions on sales made by him, it appears from plaintiff’s petition that he is indebted to the defendant in a sum greater than the amount of the commissions, it is proper to deduct the amount of such commissions from the admitted indebtedness and to render judgment for the defendant.</p> <p>2. —Same—Resale.</p> <p>Where an agent is paid his commission upon a sale of land and the vendee sells the same land to a third party who pays the agent another commission, and by agreement between the first and second vendee the first vendee re-conveys the land to the original vendor 'who then conveys it to the second vendee, the agent is not again entitled to a commission from the vendor.</p>

<p>1.—Bankruptcy—Garnishment Lien—Statute Construed.</p> <p>In order to render a garnishment lien null and void against a bankrupt’s estate it must be shown, not only that the lien was created within four months prior to the filing of the petition in bankruptcy, but also that the debtor was insolvent at the time the lien was created. These facts must concur.</p> <p>2. —Garnishment—Practice.</p> <p>The refusal of the trial court to postpone a garnishment case until a pending motion for new trial and a probable appeal from the judgment in the main case is disposed of, is not reversible error when it appears from the record that the motion for new trial was overruled and no appeal was ever taken from said judgment.</p> <p>3. —Debt—Judgment Before Maturity—Practice.</p> <p>The fact that a judgment was rendered on a debt not then due can not be urged as ground for reversal of a judgment in a garnishment proceeding based on such debt when the point was not made in the trial court either in the main case or in the garnishment suit.</p>

<p>1. —Charges—Submission of Issues—Construction.</p> <p>Where the court in one paragraph of its charge affirmatively submitted the facts necessary to be found by the jury before a verdict could be rendered in favor of plaintiffs, and in the next paragraph stated the facts which if found by the jury to exist, would entitle the defendant to a verdict, the charge was not subject to the objection that it was contradictory and confusing. In the construction of charges all parts 'of the charge must be construed together, including special charges given at the request of either party.</p> <p>2. —Same—Abstract law—Application of Facts.</p> <p>It is a correct proposition that although the trial judge should give charges correctly stating the law on a given issue, if he fails to apply the same to the evidence the defendant has the right to prepare and have given a special charge requiring the jury to find whether the evidence establishes the existence of any specified group of facts which, if true, would in law establish a defense. But, special charge considered, and held to have no application to the facts of the case on trial, and therefore properly refused.</p> <p>3. —Death—Negligence—Evidence.</p> <p>In a suit for damages for the death of a switchman while engaged in the discharge of his duties in the yard of a railroad company, evidence considered, and held to support a finding that the defendant company was guilty of negligence, that the deceased was not guilty of contributory negligence, and that his death did not result from any risk that he assumed.</p> <p>4. —Negligence—Presumption.</p> <p>As the negligence of the master is never presumed, so the contributory negligence of the servant will not be presumed. Each must be proved.</p> <p>5. —Risk—Assumption of.</p> <p>The principle that a servant engaged in performing work in a manner known to him to be negligent must be held to have assumed the risk involved in performing the work that way, is subject to the qualification that a servant does not assume the risk of a known negligent method unless he participated in it. Evidence considered, and held not to support the contention that the servant assumed the risk of the negligence which caused liis death.</p>

<p>1. —Intoxicating Liquor—Search and Seizure—Replevy Bond—Penalties and</p> <p>Forfeitures—Jurisdiction.</p> <p>Under the Act of April 5, 1907 (Laws 30th Leg., p. 156), upon a search and seizure of intoxicating liquors kept for sale in violation of the local option prohibitory law and the execution by the claimant of a replevy bond therefor, the subsequent procedure under such Act for judgment against claimant upon the bond is a suit in behalf of the State for penalty and forfeiture, within the meaning of article 8, section 5 of the Constitution, which confers exclusive jurisdiction over such actions on the District Court. So much of the Act as attempts to confer such jurisdiction on the Justice or the County Court, according to amount, is invalid.</p> <p>2. —Same—Pleading.</p> <p>The Act of April 5, 1907 (Laws 30th Leg., p. 156), does not require the filing of a petition for condemnation of intoxicating liquors seized thereunder or recovery on the replevy bond therefor; the complaint required by section 1 of the Act is the basis of the judicial procedure, and this should state every material fact necessary to constitute the offense of maintaining the nuisance, “storing liquor for the purpose of sale in violation of law” does not define the nuisance; it must be charged to be done in a locality where such sales have been prohibited—the adoption of the law must be alleged and proven.</p>

<p>Appeal from the County Court of Bowie County. Tried below before Hon. Sam H. Smelser.</p>

<p>Appeal from the District Court of Nacogdoches County. Tried below before Hon. James I. Perkins.</p>

<p>X.—School Trustees—Exclusive Power.</p> <p>Under the laws of this State school trustees in independent school districts are given full management and control of the free schools in their respective districts, and any attempted disposition of the school fund by any other authority is invalid.</p> <p>2.—School Tax—Offset. '</p> <p>In a suit against an ex-treasurer of an independent school district for delinquent school taxes levied for a special purpose, the defense that defendant while such treasurer had paid out on vouchers issued by the board of trustees more money than he had received, and that his report showing this fact had been approved by the Commissioners’ Court of the county, and later by the State superintendent of education, could not avail as an offset to taxes due by him individually.</p>

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

<p>Trial—Absence of Party and Attorney—New Trial.</p> <p>Where it appeared from the averments of a motion for new trial that the defendant and his attorney were nonresidents of the county in which the suit was pending; that by the railroad schedule, they left their homes in ample time to reach the place of trial in time for the trial, but because of delays in the trains they failed to arrive until after the ease was disposed of adversely to defendant, and that defendant probably had a good defense to the action, these and other facts considered, and held, the court erred in overruling the motion.</p>

<p>1. —Street Car Conductor—Assault by—Self-Defense—Evidence.</p> <p>In a suit against a street car company for damages for an alleged assault and battery by one of its conductors, evidence considered, and held to require the submission to the jury of the issue of self-defense on the part of the conductor.</p> <p>2. —Same—Right of Self-Defense.</p> <p>The fact that a man is a street car conductor does not deprive him of the right of self-defense, but the right must be exercised only in a bona fide effort to save one’s self from an impending danger, real or apparent. If the danger be not real, but only apparent, the party relying on the same must not only honestly believe himself in immediate danger, but must have reasonable ground for such belief.</p> <p>3. —Same—Corporation.</p> <p>When a street car conductor is justifiable in using force to repel an assault, real or apparent, no liability can attach to his employer because of the same.</p> <p>4. —Assault—Physical Pain—Proof.</p> <p>Where, in a suit for damages for an alleged assault and battery, the evidence as to physical injury was so slight as not to justify the inference of pain therefrom, in the absence of the proof of pain, it was error for the court to submit to the jury the issue of physical pain.</p>

<p>Appeal from the District Court of Dallas County. Tried below before Hon. E. B. Muse.</p>

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

<p>1. —Issue of Fact—Appeal—Practice.</p> <p>The .Appellate Courts will not reverse a case on an issue of fact passed upon by a jury if there is any evidence in the record, which, viewed in the light most favorable to the appellee, is sufficient to support the verdict.</p> <p>2. —Possession—Limitation—Fact Case.</p> <p>In a suit of trespass to try title, involving boundary, evidence as to " the nature and extent of defendant’s possession considered, and held sufficient to support a finding in favor of defendant’s plea of ten years’ limitation.</p> <p>3. —Possession—Interruption—Limitation.</p> <p>C. and M. each claimed title to a strip of land which was in the actual possession of M. C. built a fence so as to include the land in his own enclosure; a short time thereafter M. removed the fence; the possession of M. was in no other way disturbed than by the building of the fence. Held, the building of the fence did not so break the continuity of M.’s possession as to interrupt the running of the statute of limitation in his favor.</p> <p>4. —Error in Judgment—Correction—Practice.</p> <p>Where a disclaimer was ambiguous in its description of the land to which it referred, and the trial court misinterpreted the description, the matter should have been brought to the attention of the trial court, else no complaint can be considered on appeal.</p>

<p>1.—Personal Injuries—Repeated Charges.</p> <p>When the court has once submitted to the jury the question of proximate damages from an injury, a requested instruction substantially repeating the submission is properly refused.</p> <p>2— Same—Aggravation of Injury.</p> <p>One who has been injured by the negligence of another must take such care of his wounds as a reasonably prudent person would have employed under like circumstances, and can not recover such damages as are attributable to a want of such care.</p> <p>3.—Loss of Finger—Damages.</p> <p>Evidence considered, and held to justify a verdict for $2,750 for the loss of an index Anger, and incidental suffering.</p>

<p>Appeal from the B ¡strict Court of Dallam County. Tried below before Hon. Ira Webster.</p>

<p>1. —Pleading—Trespass—Description and Value.</p> <p>In an action for trespass resulting in plaintiff’s loss of numerous articles of personal property it is not necessary that each specific article be enumerated and the particular value thereof stated.</p> <p>2. —Trespass—Loss of Goods—Proximate Result.</p> <p>One who unlawfully broke into the locked house of another containing his household goods, for the purpose of taking therefrom a piano claimed by him, and left the door unlocked and the property therein a prey to trespass and theft by others was liable for loss of articles taken therefrom by others, as being a proximate result of his own wrong.</p> <p>3. —Evidence—Communication by Telephone.</p> <p>It was admissible to prove for the purpose of showing authority from defendant, for its agent to commit a trespass, a communication by telephone from defendant’s general manager to its local agent directing him to do the act though this involved a statement of information received by the manager from a third party on which he acted in giving such direction.</p> <p>4.—Trespass—Authority of Agent.</p> <p>Defendant corporation was liable for a trespass committed by its agent by order of its general manager (taking a piano from plaintiff’s house), though done by mistake under a claim which had no foundation, plaintiff having had no dealings with defendant in relation to such property nor defendant any right thereto.</p> <p>5. —Trespass—Evidence.</p> <p>It was admissible to prove by whom the trespass ordered by defendant was performed, and the condition in which the premises were left by the trespassers and the loss of property by reason thereof though not taken by the original trespassers.</p> <p>6. —Same—Authority of Agent.</p> <p>Evidence considered and held to show that an act of trespass by agents of a corporation was authorized by the corporate representatives and the corporation liable therefor, though, by mistake, they acted in a matter in which the corporation had no interest.</p>

<p>Appeal from an interlocutory order of the District Court of Robertson County dissolving a temporary- injunction. Tried below before Hon. J. C. Scott.</p>

<p>Appeal from the District Court of El Paso County. Tried below before Hon. S. P. Wusiger, Special Judge.</p>

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

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

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

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

<p>Appeal—Security for Costs—Suit by Next Friend.</p> <p>A minor suing by next friend can not prosecute an appeal without giving security for costs upon an affidavit that he is unable to pay or secure them (Rev. Stats., art. 1401). The next friend is. liable for costs and his inability should also be shown (Sayles’ Stats., art. 349Su).</p>

<p>1. —Continuance—Materiality.</p> <p>An application for continuance to obtain the testimony of an absent witness alleged to be material should show how or why it was material (Rev. Stat., art. 1278, as amended by Laws, 1897, p. 117).</p> <p>2. —Liquor Dealer’s Bond—Orderly House—Vulgar Pictures.</p> <p>In a prosecution upon a liquor dealer’s bond, on the question of its violation by the exhibition of “vulgar” pictures, it was not necessary for the court to define the word “vulgar,” it being in common use and without technical meaning, but, undertaking to define it, the court must do so correctly.</p> <p>3. —Same—Definition.</p> <p>An instruction holding a liquor dealer liable for breach of his bond to keep an • orderly house if it displayed pictures of nude women and the same were “vulgar or obscene,” improperly defined “vulgar” in such connection as “mean, rustic, rude, low, unrefined,—used as the opposite of refined, enlightened and scientific,” its significance as used in the statute being “offensive to a common sense of decency and modesty.”</p> <p>4. —Same—Obscene.</p> <p>An instruction defining “obscene,” among other meanings, as something which “delicacy” forbids to be exposed was also erroneous as requiring extreme and fastidious propriety.</p> <p>5.—Same—Mature in its Simplicity.</p> <p>A requested charge instructing the jury that pictures in order to he vulgar or obscene must be “something more than nature in its simplicity, as God made it,” was properly refused, as on the weight of evidence. It can not be said that the exhibition of a “master-piece of art,” or reproduction thereof in a liquor saloon was, as matter of law, no violation of the dealer’s bond. It is a question for the jury.</p>

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

<p>Original application for mandamus.</p>

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

<p>Appeal from the District Court of Midland County. Tried below before Hon. James S. Shepherd.-</p>

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

<p>Appeal from the District Court of Lubbock County. Tried below before Hon. L. S. Kinder.</p>

<p>Appeal from the 44th District Court, Dallas County. Tried below before Hon. Eichard Morgan.</p>

<p>Appeal from the District Court of Shelby County. Tried below before Hon. James I. Perkins.</p>

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

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

<p>1.—Master and Servant—Safe Appliance.</p> <p>The duty of the master with regard to appliances furnished the servant for performing his work is to exercise ordinary care to furnish, not an absolute obligation to furnish, such as are reasonably safe.</p> <p>8.—Same—Fellow Servants.</p> <p>A laborer, for the purpose of raising a heavy timber, drove a chisel therein and called a fellow laborer in his employer’s service to prize upon same to lift the timber, and the latter fell and was injured by the giving way of the chisel which was insecurely fixed for the purpose. Held that the negligence, if any, was that of a fellow servant, and the injured person could not recover from the master.</p>

<p>Appeal from the District Court of Orange County. Tried below before Hon. W. B. Powell.</p>

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

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

<p>1. —Contract to Buy—Breach—Charge.</p> <p>In a suit for damages for breach of a contract to buy a lot of cotton, the owner having sold the cotton at a reduced price and it being a controverted issue whether or not he used due diligence in making said sale, it was error for the court to charge the jury that the measure of damage was the difference between the contract price and the price obtained, thus taking from them the question of diligence in reselling the cotton.</p> <p>2. —Same—Diligence.</p> <p>Where the buyer of property refuses to receive the same as per contract, and the seller adopts the remedy of reselling, it is his duty to resell in a reasonable time and at the best price he can reasonably obtain, and' when the evidence leaves any room for controversy as to whether he has pursued this course, the issue is one of fact for the jury.</p> <p>3. —Pleading—General Denial.</p> <p>Where an issue is tendered or raised by plaintiff’s petition, a general denial is sufficient to admit defensive evidence.</p>

<p>Appeal from the District Court of Parmer County. Tried below before Hon. J. FT. Browning.</p>

<p>1. —Express Trust—Statute of Frauds—Registration Statutes.</p> <p>In pursuance of an agreement between P. and M. that P. should buy a certain tract of land for M., P. bought the land, taking the deed in his own name and executing his notes for part of the purchase money. M. furnished part of the money with which to pay the notes and rendered certain valuable services to P. After the notes were all paid P. conveyed the land to M. in consummation of the agreement; but before this deed was recorded a creditor of P. fixed an attachment lien on the land and bought in the same at sheriff’s sale. In a suit of trespass to try title for the land by M. against the creditor, held, that M. was entitled to recover. The agreement between M. and P. constituted a parol, express trust which was subject neither to the statute of frauds nor to the registration statutes.</p> <p>2. —Execution Sale—Innocent Purchaser.</p> <p>A judgment creditor who buys in land at sheriff’s sale and merely credits the amount of his bid on his judgment, can not invoke the doctrine of innocent purchaser for value.</p> <p>ON REHEARING.</p> <p>3. —land—Trust Estate.</p> <p>The rule that the facts which show a trust in land must exist at the instant the title passes, and that no prior or subsequent agreements of the parties will create a trust, is true only of resulting trusts and not of parol express trusts.</p> <p>4. —Parties—Unnecessary Joinder of Wife—Judgment Conclusive.</p> <p>Where the wife unnecessarily joins with the husband in a suit for community land and no objection is interposed by the defendant, the judgment rendered will conclude both husband and wife, and the misjoinder is not cause for reversal.</p>

<p>1. —Bankrupt—Right to Sue.'</p> <p>Ordinarily the title to the property of a bankrupt passes to the trustee in bankruptcy and the trustee alone is authorized to sue for the same; but a trustee in bankruptcy is not bound to accept property of an- onerous or unprofitable character, and as to such property if the trustee refuses to accept the same the title remains in the bankrupt and he may maintain suit for it notwithstanding the pendency of the bankruptcy proceedings. Evidence considered, and held to authorize a bankrupt to sue for property of his estate pending the bankruptcy proceedings.</p> <p>2. —Limitation—Possession not Adverse.</p> <p>In a suit by A. against B. for the rent of a certain gin sité and water power, evidence considered, and held to sustain a finding that B. took and held possession of said property under A., and hence that limitation did not run against A.’s title.</p> <p>3. —Conveyance—Gin Site and Water Power—Realty.</p> <p>A conveyance of the right to erect and operate a gin and use the water power at a specified place carries with it the right to the land upon which the gin is to be erected and upon which ' the water power is situated, and vests in the grantee an assignable estate in land.</p>

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

<p>Surface Water—Obstructing Flow—Evidence.</p> <p>In a suit against an adjacent property owner for damages alleged to have been caused by obstructing the flow of surface water and thus flooding plaintiff’s lot, evidence considered, and held not sufficient to support a verdict against the defendant.</p>

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

<p>1. —Fraud—Partnership.</p> <p>Where the husband being insolvent, misapplied and devoted to his own use assets of his business partnership in Texas, a portion of which, in money and due to his partner on settlement of their accounts, he gave to his wife before his death and which she retained in her possession in another State, a personal judgment for the amount was properly rendered against her, on personal service obtained in Texas, at suit of the surviving partner.</p> <p>2. —Same—Homestead and Exemption.</p> <p>One partner can not, by diverting or misapplying partnership funds, build up such title thereto as will entitle his surviving wife to hold them as exemptions or in lieu of exempted property.</p> <p>3. —Error—Cross Assignment—Failure to Except.</p> <p>An appellee can not, by cross assignment, assert error in rendering judgment in his favor for an insufficient amount where he has not preserved his rights by objecting to the judgment in the lower court.</p>

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

<p>1. —Briefs—Ruling on Exceptions.</p> <p>The Appellate Court will not consider errors assigned on the overruling of exceptions which are not set out in the brief.</p> <p>2. —Evidence.</p> <p>The fact that plaintiff suing a carrier for damages to a car load of onions from alleged unsuitableness of car and delay in transportation would not have shipped in that car had he not been instructed to do so by the consignee was pertinent to defenses pleaded that he bought and shipped merely as agent of the consignee and that he accepted the car with knowledge of its condition, and proof thereof was improperly excluded.</p> <p>3. —Carrier—Refusal of Consignee to Receive.</p> <p>The consignee can not, by refusal to accept goods damaged or delayed in transit, hold the carrier for the entire value of the shipment, and an instruction that the latter was not liable for the additional damage caused by the consignee’s refusal to receive was improperly refused.</p> <p>4. —Argument of Counsel.</p> <p>It was improper for counsel to refer in argument to the jury to previous proceedings in the case, not in evidence, and relating only to the discharge from liability of a codefendant.</p> <p>5. —Instructions—Explanation by Counsel.</p> <p>Where the jury asked explanation of a charge of the court, such explanation, if given, should be by the court and not by counsel.</p>

<p>Benefit Insurance—Trust—Assessments Paid by Creditors—Change of Beneficiary.</p> <p>A fraternal beneficiary association,- the laws of which provided that the beneficiaries must be members of the family or related by blood to the assured; that they had no vested right in the certificate till his death; that it constituted no part of the estate of assured; and that he had no right in or control over the same except to designate the beneficiaries and to change such designation while living at any time, in accordance with the rules of the association, could not be enjoined, at suit of a creditor, who had kept the certificate alive by payment of assessments under an agreement transferring it to a trustee for securing repayment, from changing the certificate, in accordance with its laws, by making, at direction of assured, a new designation of beneficiaries, and defeating thereby the claim of the creditor to reimbursement from its proceeds.</p>

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

<p>1. —Deed—Consideration—Evidence.</p> <p>The recited consideration in a deed is not conclusive, and may be enquired into.</p> <p>2. —Deed—Breach of Warranty—Measure of Damage.</p> <p>In a suit for damages for a partial breach of warranty of title to land, the.measure of damage is the reasonable market value of that portion of the land the title to which has failed, provided such value does not exceed the proportionate part of the total consideration.</p> <p>3. —Deed—Intention of Parties—Evidence.</p> <p>The issue being whether or not certain land was intended by the grantor to be embraced in his deed, evidence of statements made by him as to the number of acres of prairie land in the tract, the particular tract in controversy being prairie land, was material and competent.</p> <p>4. —Contradiction of Witness—Evidence.</p> <p>A grantor having testified that he had never warranted the title to a certain tract of land and never intended to do so, two deeds of trust executed by him on said tract, containing covenants of warranty, were admissible for the purpose of contradicting him.</p> <p>5. —Breach of Warranty—Remedy.</p> <p>The fact that a contract for exchange of lands provided the mode of relief and the measure of damages in case of rescission of the contract, would not prevent the warrantee from suing upon the covenant of warranty for partial breach of the same.</p> <p>6. —Deed—Shortage in Acreage—Breach of Warranty.</p> <p>Where several distinct tracts of land are embraced in a deed containing a general covenant of warranty, and the title to one of the tracts fails, it constitutes a breach of the warranty and not merely a shortage in acreage.</p> <p>7. —Breach of Warranty—Proof.</p> <p>In a suit for breach of warranty of title, it is ordinarily necessary to prove eviction, and proof that the land in controversy is in the adverse and exclusive possession of a third party is not sufficient; the plaintiff must show that the occupant of the land was holding under a superior title. But where the particular tract in controversy was unenclosed at the time of the sale, and the defendant warrantor testified on the trial that he told the plaintiff pending the trade that “every acre I owned was under fence and that I didn’t own anything besides what was under fence,” it relieved the plaintiff of the necessity of proving the superior title of the occupant. The fact that the warrantor himself had only a quit-claim deed to the land would not establish that he did not have the title.</p>

<p>Telegram—Free Delivery Limits—Duty to Deliver. "</p> <p>Where a telegraph company accepts and agrees to deliver a message, it is bound to use reasonable diligence to deliver the same whether the person to whom it is addressed lives within the free delivery limits established by the company or not, even though the contract stipulates for an extra charge for such delivery. Such stipulation does not require that the extra charge shall be prepaid.</p>

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

<p>Appeal from the District Court of Franklin County. Tried below • before Hon. P. A. Turner.</p>

<p>1. —Husband and Wife—Wife’s Separate Property—Gift Causa Mortis.</p> <p>As an incident to the husband’s power of exclusive management and control of the wife’s separate property (Rev. Stats., art. 2967), his consent to the exercise of the power of sale or gift by the wife of her separate personal property during marriage is necessary to its validity, and her gift causa mortis with delivery of possession of money and notes, without his consent, did not pass title thereto, though possession remained with the donee till after her death.</p> <p>2. —Executory Sale—Legal Title—Descent and Distribution.</p> <p>The legal title remaining in the grantor who reserves an express vendor’s lien for purchase money, by its descent to collateral kindred of the wife, ■while the purchase money notes, as personalty, were inherited by the husband, will not suffice to make the husband liable to such heirs of the legal title for conversion of the notes or their proceeds.</p>

<p>Appeal from the District Court of Nacogdoches Countv. Tried below before Hon. Jas. I. Perkins.</p>

<p>1.—Trespass to Try Title—Description of Land—Uncertainty.</p> <p>In a suit of trespass to try title, a description of the land sued for considered, and held insufficient to identify the same.</p> <p>2.—Same—Pleading—Judgment.</p> <p>In the absence of allegations of uncertainty in or misdescription of the land claimed by plaintiff in his title papers, the trial court is not authorized to consider testimony tending to correct the description or to identify the land claimed and sued for, and a judgment containing an uncertain description will be reversed.</p>

<p>Boundary—Question of Fact.</p> <p>When the evidence is conflicting upon a question of boundary it is the duty of the trial court to submit the question to the jury. In a boundary suit, evidence considered, and held to present a question of fact which should have been submitted to the jury, and a peremptory instruction was therefore erroneous.</p>

<p>1. —Railroads—Trespasser—Personal Injuries—Evidence.</p> <p>In an action by parents against a railroad company for damages for fatal injuries to tbeir minor child while riding upon one of defendant’s freight trains, evidence considered, and held insufficient to raise an issue of negligence on the part of the defendant, and hence the trial court properly instructed a verdict for the defendant.</p> <p>2. —Same—Negligence—Inference.</p> <p>The mere fact that a trespasser was injured while riding on a railway train will not support an inference that the injury was caused by the negligence of the railway.</p>

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

<p>!•—Attorney and Client—Negligence of Attorney—Limitation—Pleading.</p> <p>In an action by a client against the executors of his attorney for damages for the failure of said attorney to file suit upon a note placed in the hands of the attorney for collection, whereby the note became barred by limitation and the value thereof lost to plaintiff, pleading of plaintiff considered, and held not subject to a special exception interposing the statutes of limitation.</p> <p>2. —Same—Misrepresentations of Attorney.</p> <p>The relationship between client and attorney is one of trust and confidence, and the client has the right to rely upon the statements of his attorney to the effect that he has performed his duty in the matter of his employment, hence, in an action by the client against his attorney for damages resulting from the negligence of the attorney, the statute of limitation will not begin to run until the client discovers that the representations of his attorney upon which he relied, were untrue.</p> <p>3. —Same—Same.</p> <p>Where a note becomes barred in the hands of an attorney with whom it is placed for collection, it is proper for the client to endeavor to collect the note by suit before suing the attorney for damages, in order to ascertain whether or not the debtor will interpose the statute of limitations when such defense is available.</p>

<p>1. —Insurance—Beneficiary Certificate—Nullity—Fraud.</p> <p>Where the constitution and by-laws of a benefit society specify the classes of persons in whose favor the beneficiary certificate might be issued, and a member of such society by false and fraudulent representations that the beneficiary named by him came within one of the classes specified, procures the certificate to issue in favor of such person, the certificate is a nullity, and the society will not be bound thereby.</p> <p>2. —Same—Benefit Society—Beneficiaries—Statute.</p> <p>The statute of this State (General Laws, 1899, page 195) defines fraternal beneficiary societies and designates the classes of persons who can receive benefits from them, and benefit societies have no power or authority to issue beneficiary certificates to any other than the classes named.</p> <p>3. —Same—Change of Beneficiary.</p> <p>Where the laws of a benefit society provide a method for changing the beneficiary, that method is exclusive and must be complied with. Attempted change, not in conformity with the laws of a society, considered, and held ineffectual.</p> <p>4. —Insurable Interest—False Representation.</p> <p>Under the Act of 1899 a cousin, being a blood relative, has an insurable interest in the life of a member of a fraternal benefit society, and hence a false representation by such member that the beneficiary was his cousin was such a material misrepresentation as would avoid the contract of insurance.</p> <p>5. —Same.</p> <p>Where one named as a beneficiary in a benefit society was not included in any of the classes designated in the constitution and by-laws of said society, nor in the statutes of this State, the fact that such person afterwards became the common law wife of the member would not entitle her to the benefit.</p>

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

Tried below before the Hon. George Calhoun. The 19th assignment of error was based on the refusal to grant a new trial because three of the jurors, while the trial was in progress, went upon and personally viewed the locality where the existence of a way was in issue and the conditions existing there.

<p>Appeal—Bond—Jurisdiction.</p> <p>Where a case in which defendants, against whom plaintiff recovered judgment in Justice Court, appealed to the County Court, and plaintiff, in turn, appealed from a judgment therein in favor of defendants, an appeal bond or affidavit of inability, made by defendants on their appeal, was necessary to give jurisdiction to the County Court, and when it does not appear in the record plaintiff’s appeal from the County Court must he dismissed.</p>

<p>Injunction—Payment of Tax Judgment.</p> <p>Injunction will not lie at suit of the county tax collector to prevent the payment of a judgment for delinquent taxes to -attorneys who recovered same in the name of the county under contract with it. If the contract was unauthorized such payment would not discharge the judgment nor prejudice the county.</p>

<p>1. —Deed—Delivery and Acceptance.</p> <p>Both delivery and acceptance of a deed may be shown by circumstances; the delivery may be to another for benefit of the grantee; and acts of the latter showing an intention to receive the title may establish acceptance; the paper need not be actually transferred, and the question of delivery becomes sometimes one of intent to be determined by the jury.</p> <p>2. —Same—Proof—Peremptory Charge.</p> <p>Evidence in relation to a deed of gift by a mother to a son and daughter reserving a life interest in the grantor, and which, after acknowledging, she placed in a trunk accessible to the daughter as well as herself, with declarations before executing it that it would be delivered to the daughter for execution for her and the son, and after execution that it was in possession of the daughter ' who could have had it recorded, held sufficient to justify the submission of the issue as to its delivery and acceptance, and rendered a peremptory instruction on the assumption that there had been no delivery when it was afterwards - burned by the grantor, improper.</p> <p>3. —Same—Estoppel.</p> <p>Where a former statement by a party deraigning title under a deed, now claimed by him to have been delivered, accepted and to have passed title, that he did not claim title under it, relied on as estopping him from asserting title against one purchasing on the strength of such disclaimer, was explained by him as having been only that he then claimed no present right as against the grantor because she had retained a life interest and was still living, the question of estoppel was one for the jury, and a peremptory " instruction against him was unwarranted.</p> <p>4. —Estoppel—Evidence—Hearsay.</p> <p>On the issue of plaintiff’s estoppel by testimony given in a suit between other parties disclaiming title in himself to the land in controversy, what he was reported to defendant by others to have testified to on that trial, was hearsay and inadmissible.</p> <p>5. —Evidence—Agreed Judgment.</p> <p>A judgment by agreement between third parties was not admissible to tax defendant with knowledge that the matters so settled by agreement had been judicially determined.</p>

<p>Jurisdiction—Amount in Controversy—Appeal—Amendment.</p> <p>Where a suit in Justice Court was for more than $100, but, on appeal, plaintiff, in the County Court, reduced his claim by amendment to less than $100, the amount in controversy was determined by his amended petition, and no appeal lay to the Court of Civil Appeals.</p>

<p>1. —Transportation of láve Stock—Negligence—Charge.</p> <p>In an action for damage to live stock in transportation, consisting of distinct injuries to different animals from distinct causes alleged as negligence, the issues should have been distinguished and separately submitted by the charge, and it was error to authorize recovery on proof of any of the acts of negligence alleged where in the case of the damage to one of the animals there was no evidence sufficient to show negligence.</p> <p>2. —Same—Sickness of Animal—Sufficiency of Proof.</p> <p>Evidence in case of a mule transported by rail and delivered at destination sick of pneumonia, from which it died, considered and held insufficient to support the submission of the issue as to its death being due to negligence in transportation.</p> <p>3. —Same—Wounds in Transportation—Burden of Proof.</p> <p>The delivery by the carrier of an animal suffering from wounds received in transit, carries with it, though delivery sick with pneumonia does not, evidence sufficient to submit the issue of the carrier’s negligence as cause of the injury, if unexplained, and the burden of proof ia not shifted by the fact that the owner accompanied the shipment during a part only of the transit.</p> <p>4. —Carrier—Contract—Consideration.</p> <p>A written contract for transportation, with limited liability, is prima facie, but not conclusively, on good consideration; and where no rate was offered the shipper except under a form of contract limiting the liability the question whether there was a reduction of rate affording a consideration for the limitation may be left to the jury.</p> <p>5. —Defective Car—Acceptance by Shipper.</p> <p>Where but one car is offered the shipper, he does not, by making use of it, nor by efforts to make it safer for his stock, relieve the carrier from liability for failure to furnish a proper car.</p>