Volume 50 — Texas Civil Appeals Reports

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

<p>1. —Damages—Proximate Cause—Evidence.</p> <p>The proximate cause of an event is that which, in a natural and continuous sequence unbroken by any new, independent cause, produces the event, and without which the event would not have happened. In a suit for personal injuries received by a car repairer while in the discharge of his duties, evidence considered, and held to show that the negligence of the master was the proximate cause of the injuries.</p> <p>2. —Negligence—Incompetent Servant—Duty of Master.</p> <p>The duty of using ordinary care to select servants of sufficient care, skill, prudence and good habits to make it probable that they will not cause injury to each .other, and to dismiss servants who show such a want of these qualifications as to give reasonable ground for apprehension that they will injure their fellow servants, are duties personal to the master, and cannot be delegated.</p> <p>3. —Same—Assumed Risk.</p> <p>A servant must not only know of a defect in an instrumentality, whether animate or inanimate, furnished by his master, but must know or be charged with knowledge of the danger that may probably ensue from its use, before he can be held to have assumed the risk of such known defect.</p> <p>4. —Charge—Evidence.</p> <p>A requested charge which assumes the existence of evidence not, in fact, before the jury, is properly refused.</p> <p>5. —Servant—Reputation—Proof.</p> <p>A servant’s general reputation of incompetency is admissible for the purpose of charging his master with knowledge of his incompetency in employing and retaining him in service.</p> <p>6. —Evidence—Exclusion on Motion—Practice.</p> <p>Injurious testimony carelessly or deliberately elicited by a party will not, in the discretion of the court, be thereafter withdrawn from the jury upon the motion of the party eliciting the same.</p> <p>ON REHEABING.</p> <p>7. —Foreign Law—Presumption—Judicial Cognizance.</p> <p>In the absence of evidence to the contrary, the presumption is that the law on a given matter is the same in other States and in the Territories as in this State. Courts will take judicial cognizance of an Act of Congress organizing a Territory, but not of the laws passed by the Legislature of such Territory, nor of the decisions of its courts.</p> <p>8. —Master and Servant—Vice Principal.</p> <p>An employe charged with the duty of keeping a place safe to work in is a vice-principal of the master regardless of the rank of the servant to whom the duty is entrusted, and the negligence of such servant is the negligence of the master.</p> <p>9. —Assignment of Error.</p> <p>An assignment of error should distinctly specify the ground relied upon for a reversal of the judgment, and ought ordinarily to be complete in itself, but if it is not, whatever in the record is essential to an intelligent ruling upon it should be set forth in the statement under the assignment.</p> <p>10. —Evidence—Objection.</p> <p>An objection to evidence that it is “incompetent, irrelevant and immaterial” is too indefinite to require consideration by an Appellate Court, unless the real nature of the objection to the testimony is so plain that the general phrase is sufficient to indicate it.</p> <p>11. —Witness—Expert—Competency.</p> <p>Whether or not a witness is qualified to testify as an expert is a question for the court. Evidence considered, and held sufficient to support the ruling of the court admitting the testimony of a witness as an expert upon the competency of an employe to perform the duties entrusted to him by the master.</p>

<p>Appeal from the District Court of Webb County. Tried below before Hon. J. F. Mullally.</p>

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

<p>1. —Trespass to Try Title—landlord and Tenant—limitation.</p> <p>In 1884 S. purchased a large cattle ranch within the boundaries of which was a section of land belonging to G.; in 1888 S. leased said section from G. for a term of one year, the contract of lease being in writing; said lease was not renewed, and no other lease was ever executed between the parties, and the rental for no other year was ever paid; there was no evidence that the owner or landlord was ever actually notified of any repudiation of the tenancy; in 1899 S. received from one O. a deed to the same section of land, which was duly recorded; C. had no right or title to the land, and the purpose of his deed to S. was to set in motion the statute of limitation; from the date of said deed S. and his heirs openly claimed and used the land as their own, and held adverse possession thereof until 1907, when a vendee of G. filed suit of trespass to try title for the land. Held, because G. was recognized by S. as the owner of the land by lease contract and acts of tenancy, and there had never been any repudiation of tenancy brought home to the knowledge of S. or any surrender of the land, the statute of limitation could not avail the defendants, and the plaintiff was entitled to recover.</p> <p>2. —Application for Continuance—Sufficiency.</p> <p>Where, in trespass to try title, the defendants plead the statutes of limitation, and on the day before the trial the plaintiff filed a plea in avoidance of the same, an application for continuance by defendants to obtain testimony to refute said plea considered, and held insufficient. Chief Justice Conner dissenting.</p> <p>3. —Attorney and Client—Confidential Communications—Evidence.</p> <p>In trespass to try title, the testimony of an attorney as to the character of his client’s possession of the land in controversy considered, and held not subject to the objection that the information of the attorney was obtained through confidential communication from his client. Chief Justice Conner dissenting.</p>

<p>Deed—Interest Conveyed—Unrecorded Deed.</p> <p>Under a deed to a tract of land, constituting an addition to a town, in and by which the grantors convey “all the remaining interest that we now have in and to the property” described, and in which it is recited “that this deed only conveys the lots and blocks in said addition to which the title is in us,” the grantee takes no title to lots or blocks previously sold, even though the grantee had no notice, actual or constructive, of such sales. A fortiori, the grantee takes no title to lots of the sale of which he had notice at the time his deed was executed.</p>

<p>1. —Personal Injury—Imaginary Suffering.</p> <p>If suffering be, in fact, produced by a neurotic condition brought about by a shock, the person by whose negligence the. shock was produced is liable in damages, even though the suffering be from a disease which exists only in the imagination of the sufferer.</p> <p>2. —Medical Expert—Cross-Examination.</p> <p>A medical expert having testified, in effect, that plaintiff’s wife Was not malingering, it was not error for the trial court to refuse to allow the defendant on cross-examination to question the witness concerning a case spoken of in the medical books, but of which the witness had no personal knowledge, the purpose of the testimony being to show that there were instances in which the best of doctors were mistaken.</p> <p>3. —Evidence—Medical Works.</p> <p>In a suit for damages for injury to the nervous system, it was not error for the court to refuse to allow defendant’s counsel to read to one of defendant’s expert witnesses, while upon the stand, an article from a medical work on diseases of the nervous system.</p> <p>4. —Improper Argument—Not Cause for Reversal, When.</p> <p>When, in a suit for damages for personal injuries, neither the liability of the defendant is disputed nor the amount of the verdict complained of, reprehensible conduct and remarks of counsel for plaintiff are not cause for reversal of the judgment.</p>

<p>1. —Railroad—Wild Engine—Negligence—Opinion of Witness.</p> <p>In a suit for damages for the death of a locomotive fireman caused by collision with a “wild” engine, the ruling of the trial court in permitting a witness to testify, in effect, that it was the duty of the hostler to notify somebody as soon as he discovered that the engine had gone out on the main line, if error at all, was not reversible error under the circumstances of this case.</p> <p>2. —Charge—Issue—No Evidence.</p> <p>Where there was nothing in the evidence to indicate that a locomotive fireman would not have been killed by collision with a “wild” engine if the engine on which he was engaged had been running at a less rate of speed, it was not error for the court to refuse a special charge submitting such issue.</p> <p>3. —Death—Damages, not Excessive.</p> <p>Where the deceased was sober, industrious, of splendid habits, twenty-seven years of age, strong and healthy, with a life expectancy of thirty-seven years, and earning from $75 to $100 per month, a verdict of $11,750 for his death is not excessive.</p>

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

<p>1. —Vendor and Vendee—Deferred Payment—Lien—Uncertain Amount.</p> <p>Where a deferred payment of the purchase money of land is to he made in “silver dollars of the coinage of the Republic of Mexico,” such case is not analogous to cases in which the deferred payment is to be made in some commodity of indefinite and uncertain value, and therefore a vendor’s lien would exist to secure the payment in Mexican dollars.</p> <p>2. —Same—Express Lien—Rescission.</p> <p>The rule that the vendor’s lien will not be implied and enforced where the purchase price is payable in some commodity of uncertain value has no application when the vendor expressly reserves a lien to secure such payment. Where the lien is expressly reserved the legal title remains in the vendor, and upon failure of the vendee to perform his contract the vendor may rescind the sale and take possession of the land, even though the deferred payment is to be made in some commodity.</p> <p>3. —Same—Payment of Purchase Money—Presumption.</p> <p>Where a vendee, who had executed notés for part of the purchase money of land, abandons the purchased premisés after a few months’ occupancy, and permits the vendor and his heirs to take possession of the same shortly thereafter and remain in uninterrupted possession for nearly forty years, the burden of proof is upon the vendee or his heirs in a suit of trespass to try title by him or them against one holding under the vendor, in possession of the premises, to prove that the purchase-money notes had been paid, and hence that the vendee had the superior title. It would be otherwise as to the burden of proof if the vendee was in possession.</p> <p>4. —Deed—Description of Land.</p> <p>An administrator’s deed described the land conveyed as 400 acres situated on a certain bayou; as a part of the farm of the decedent; and that a certain part of the tract had been previously sold to a certain party; held sufficient, when taken in connection with evidence that the testator owned only' 400 acres on the bayou named, and of the sale referred to.</p> <p>5. —Trespass to Try Title—Prior Possession.</p> <p>Prior' possession continued for only a few months', and then voluntarily abandoned, without any assertion of right or claim of ownership for thirty-six years, is not sufficient to make a prima fade case for a plaintiff in trespass to try title.</p> <p>6.—Same—Plaintiff Must Prove Title.</p> <p>Proof that an administrator’s deed, under which defendant in trespass to try title claimed the land in controversy, was void, would not avail plaintiff, as in such case the title would be in the estate. Plaintiff must recover on the strength of his own title and not on the weakness of defendant’s.</p> <p>7. —Deed, Hot Quitclaim.</p> <p>A deed which recites as the consideration the full value of the land conveyed, which grants, bargains, sells and releases all of the right, title, interest and claim of the grantor, retains a vendor’s lien to secure deferred payments, and contains a covenant of general warranty, is not a mere quitclaim deed.</p> <p>8. —Husband and Wife—Deed by Survivor—Confirmation, by Heir—Rescission.</p> <p>Where a surviving husband conveyed the entire interest in a tract of land belonging to the community estate of himself and his deceased wife, reciting in the deed that the entire consideration .was to be paid to him, and the only heir of the wife made the following endorsement on the deed: 'For and in consideration of the sum of one dollar to me in hand paid (by the vendee), I hereby convey and quitclaim all my right, title, interest and claim in and to the property described on the reverse side of this deed,” the two instruments must be taken together as the joint deed of the parties for the consideration named, and a failure to pay any part of the purchase money would give the surviving husband the right to rescind the sale.</p> <p>9. —Vendor and Vendee—Cancellation—Presumption—Charge.</p> <p>In a suit of trespass to try title, the issue being whether or not a sale of land had been canceled for nonpayment of the purchase money, a charge upon the presumption of cancellation considered, and held warranted by the evidence, and not upon the weight of the evidence.</p> <p>10. —Same—Hotice of Rescission.</p> <p>When the right to rescind for nonpayment of the purchase money of land is promptly exercised by the vendor, it is not necessary that he give formal notice to the vendee -of his intention to rescind.</p> <p>11. —Estate—Conflicting Claims—Administrator’s Sale.</p> <p>The fact that there may be conflicting claims to land at the time of its sale by an administrator would not affect the right of the administrator to sell.</p> <p>12. —Sale—Cancellation—Evidence.</p> <p>Upon an issue as to the cancellation of a sale of land, evidence considered, and held abundantly sufficient to support a finding in the affirmative.</p>

<p>1. —Evidence—Opinion—Value—Ordinary Care.</p> <p>A witness cannot be permitted to testify as to what would have been the value, at their destination, of live stock shipped by rail, if they had been transported within a reasonable time and with ordinary care, the answer involving his opinion as to what would constitute ordinary care. Following ruling herein on certified question', 101 Texas, 418.</p> <p>2. —Evidence—Usual Time—Responsive Answer.</p> <p>A witness who had stated that he knew the usual time for transporting cattle by rail between certain points, in answer to the question “What is it?” gave the time in hours, and also stated the best.time ever made with his shipment and the time taken on some other occasions. Held, that the answer as to the time of such particular shipments was not irresponsive, and was admissible.</p> <p>3. —Definitions—Ordinary Care—Reasonable Time.</p> <p>See definition of ordinary care held not improper, though differing from the usual, and therefore preferable, form of statement. Reasonable time held to be a term not needing definition.</p> <p>4. —Charge—Evidence.</p> <p>It was error, in a suit against connecting carriers, to submit the issue as to whether plaintiff’s cattle were negligently handled or unreasonably delayed by. one of the defendants, where the only proof was of delay. Also to submit issue as to unreasonable delay by one against whom there was no evidence of delay.</p> <p>5.—Charge—Joint Defendants.</p> <p>A general instruction, in a suit against several connecting carriers of a shipment of cattle, that plaintiff could recover if they were not transported with ordinary care, was not misleading where, in other parts of the charge, it was shown that each was liable only for injury on its own line.</p>

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

<p>1. —Conversion—Usages and Customs—Contract.</p> <p>Parties are always presumed to contract with' reference to a uniform and well-settled custom or usage pertaining to the matters concerning which they contract, where such usage or custom is not in opposition to well-settled principles .of law nor unreasonable.</p> <p>2. —Same—Case Stated.</p> <p>A rule by a smelting company that ore shipped to it to be smelted would be forfeited to the company if the owner or shipper did not give some order as to its disposition within fifteen days after it had been received by the company was unreasonable, and not to be tolerated in the absence of evidence, direct or circumstantial, that the-owner knew of the rule at the time the shipment was made.</p> <p>3. —Principal and Agent—Declarations of Agent—Evidence.</p> <p>Whatever an agent does or says in reference to the business in which he is at the time employed, and within the scope of his authority, is done or said by the principal, and may be proved as if the evidence applied personally to the principal. Hence, the declarations of employes, made to a superior officer while engaged in a search for a lot of ore shipped to and received by a smelting company, and which the company was charged with converting, were competent evidence.</p> <p>4. —Evidence—Entry in Book.</p> <p>Entries in books of a railroad company, made in the regular course of its business, by one whose duty it was to make them, but whose testimony could not be procured, are competent evidence when identified by the proper custodian of the books and verified as having been made by the man whose duty it was to make them.</p>

<p>1. —Evidence—Certificate of Commissioner of Land Office.</p> <p>The certificate of the Commissioner of the Land Office is admissible as evidence only of facts'contained in papers, documents or records of his office, and cannot be used as evidence of any fact otherwise known to the officer but which does not directly appear from the records of the office.</p> <p>2. —Same.</p> <p>The following certificate of the Commissioner of the General Land Office, viz.: “I . . . do hereby certify that the above sketch of a portion of Harris County is a true and correct copy of the map of Harris County, drawn by Geo. H. Bringhurst from actual surveys in the year 1840, and now an archive of this office,” held not admissible as evidence of an actual survey of the land represented on the map.</p> <p>3. —Improper Evidence—Withdrawal from Jury.</p> <p>The admission of improper evidence to the jury becomes harmless when the court instructs them not to consider the same for any purpose, and this without regard to the length of time which may elapse between the admission of the evidence and the instruction of the court.</p> <p>4. —Evidence—Allegations in Pleading.</p> <p>Statements in pleadings are admissible in evidence against the party filing the same, whether such pleadings are sworn to or not. But it is always competent for the party against whom the pleadings are offered to show that the statements were inadvertently made, or were not authorized by him, or were made under a mistake of fact.</p> <p>5. —Boundary—Charge Sustained.</p> <p>In trespass to try title the plaintiff has the burden of proving, by a preponderance of the evidence, his title to the land in controversy. Charge in such suit, upon an issue of boundary, considered, and held not subject to the objection that it conveyed to the minds of the jury a subtile distrust of plaintiff’s contention, as compared to that of defendants, and obscured the rights and magnified the burdens of the plaintiff.</p> <p>6. —Same.</p> <p>In an action against a number of defendants to establish a boundary, and in which the defendants claimed their respective tracts in severalty, charge considered, and held not susceptible of the construction that it required the jury to state, in their verdict, the names of the defendants against whom they found, if any; nor that it required the jury to fix the boundaries of each of the several portions of the land claimed by the defendants which the jury might find the plaintiff entitled to recover; but only that the jury should fix the location of the line in controversy, and this was proper.</p> <p>7. —Brief—Grouping Assignments.</p> <p>When assignments of error which are not germane are grouped and presented together in appellant’s brief, they are not entitled to consideration.</p>

<p>1.—Practice—Withdrawing Pleading—Effect.</p> <p>A defendant lias the right to withdraw a pleading, even though verified, and when withdrawn it cannoj; be considered for any purpose, except as evi- • dence when offered by the opposite party. In a suit fo'r water rent based upon a contract in writing, the defendant plead in reconvention for damages for breach of a previous verbal contract which appeared on the face of the pleading to be barred by limitation. This pleading was withdrawn and another substituted, in which the defendant sought to avoid the effect of the written contract relied on by plaintiff. Held, a general demurrer to the answer last filed, on the ground of limitation, was properly overruled.</p> <p>2. —Appeal—Briefing—Bule 31.</p> <p>A mere reference to a pleading as a whole, with the pages of the record where it is to be found, is not sufficient in assigning error to a ruling of the court in passing upon special exceptions to particular allegations in such pleading. The particular allegations must be pointed out in the statement. The. statement may be brief, but it must be a correct reflection of so much of the record as is necessary to enable the Appellate Court to pass upon the question raised, and, unless contradicted by the opposite party, the statement will be- . taken as true.</p> <p>3. —Pleading as Estoppel.</p> <p>Where, in a suit based upon a written contract, the defendant first answered by plea of non est faotum, and setting up a verbal contract antecedent to the contract declared on, the defendant was not estopped by such answer to abandon said defense, and to rely upon the written contract.</p> <p>4. —Corporation—Evidence of Character.</p> <p>In a suit by a corporation for water rents, the character of the corporation is -sufficiently shown when it appears from the pleading of the plaintiff that the contract on which it sues was one which only a corporation created for purposes of irrigation under our Revised Statutes could appropriately make, and the failure to introduce the charter in evidence was immaterial.</p> <p>5. —Corporation—Eminent Domain.</p> <p>The restrictions and limitations imposed by law upon corporations vested with the power of eminent domain exist and apply to such corporations whether the power is ever exercised or not.</p> <p>6.—Irrigation Companies—Common Carriers.</p> <p>Irrigation companies furnishing water to consumers for compensation, although private corporations, are public or quasi-public carriers, and as such are charged with certain duties to the public, and are subject to reasonable control by the Legislature and the courts, and any attempt on the part of such companies to -use its monopoly of business along its line for the purpose of coercing compliance with unreasonable or exorbitant demands, will be held illegal and void.</p> <p>7. —Same—Contract—Unreasonable Stipulations.</p> <p>Whether or not certain stipulations in a contract by an irrigation company, whereby its liability was limited or altogether avoided, were reasonable or unreasonable, was pi’operly submitted by the court to the jury as a question of fact, and in the present instance properly found by the jury to be unreasonable.</p> <p>8. —Practice—Bill of Exception.</p> <p>When a bill of exception to the exclusion of evidence or to the argument of counsel fails to show what the excluded evidence or the argument was, it cannot be determined whether or not the matter complained of was prejudicial, and hence should not be considered.</p> <p>9. —Same—Affidavit in lieu of Exception.</p> <p>In the absence of a bill of exception approved by the court to an argument of counsel, alleged to be improper, an assignment of error based thereon cannot be considered. Affidavits attached to the motion for new trial cannot take the place of a bill of exception.</p> <p>10.—Improper Argument.</p> <p>In a suit by an irrigation corporation for water rents, argument of counsel for defendant considered, and held calculated to inflame the minds of the jury and prejudice them against the plaintiff, and hence cause for reversal of the judgment.</p>

<p>1. —Corporation de jure and de facto.</p> <p>Performance of all the prerequisites prescribed by the statute, except actually filing the charter with the Secretary of State, is not sufficient to bring a company or association of men into existence as a corporation de jure or de facto. The filing of the charter is a sine qua non.</p> <p>2. —Same.</p> <p>When all the statutory prerequisites have been complied with, and the purposes and objects are those for which a corporation may be formed, the association becomes a corporation de jure. The failure to comply with one or more of the prerequisites makes it a corporation de facto.</p> <p>3. —Corporation—Subscription to Stock.</p> <p>A number of persons agreed to form a corporation; a charter was prepared and sent to the Secretary of State to be filed; the charter was returned for correction; a new charter was prepared, but, through the negligence of the party entrusted with the duty, it was not sent to the Secretary of State until about three months afterwards; at the first meeting directors and officers were elected and subscriptions to stock fully paid in; before the charter was actually filed with and granted by the Secretary of State the subscriptions for stock were expended for expenses and upon obligations incurred prior to the filing of the charter, so that when the charter was granted the -corporation was without assets. Held, the stockholders were liable to the face value of their stock for debts incurred after the charter was granted. The previous payment for their stock did not discharge their liability.</p> <p>4. —Same—Liability of Stockholders.</p> <p>Amounts unpaid on the stock of an insolvent corporation constitute a trust fund for the benefit of creditors, and where the insolvency and nonpayment of subscriptions are undisputed a creditor may sue the stockholders directly.</p> <p>5. —Inchoate Corporation—Liability of Members.</p> <p>Until a corporation is legally organized the associated individual members will, as to third persons, be liable as partners for all debts contracted on behalf of the aggregated body with their consent, express or implied.</p> <p>6. —Same.</p> <p>Where it appears that part of the money paid by an individual as subscription to stock in an intended corporation is on hand, and in the possession of the corporation when it is legally created, such individual should have credit on his liability as stockholder for the money on hand.</p> <p>7. —Conversion—Liability of Directors.</p> <p>An appropriation of property paid by subscribers for stock into a corporation to the payment of debts incurred before the filing of the charter, would be conversion of corporate property, for which the directors authorizing the same would be responsible to creditors of the corporation,</p>

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

<p>Fraud—Insolvent Debtor—loan of Money to Defraud Creditors—Innocent Holder.</p> <p>An insolvent debtor who, for the purpose of concealing his money and placing the same beyond the reach of his creditors, loaned the same to a third party, who was cognizant of and promised to aid in effecting the purpose, taking his promissory notes therefor, cannot recover on the notes through the courts. A contract thus tainted with fraud is contrary to public policy and illegal. But an assignee of the notes would be entitled to recover upon proof that he was an innocent purchaser before maturity, without notice of the vice, and for a valuable consideration.</p>

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

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

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

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

<p>1. —Personal Injuries—Minor—Intelligence—Charge—Burden of Proof,</p> <p>In a suit by a minor for damages for personal injuries the court charged the jury as follows: “The plaintiff, being a minor, is not presumed to possess the judgment and discretion of an adult, but» it is a question for you, under the evidence, as to what degree of judgment and discretion he had. It was his duty to exercise whatever judgment and discretion he had.” Held, not subject to the objection that it put the burden on the defendant to prove that the plaintiff was possessed of sufficient judgment and discretion to be held responsible for his act and chargeable with contributory negligence.</p> <p>2. —Same—Master and Servant—Duty of Master to Warn of Danger—Charge.</p> <p>In a suit by a minor for damages for personal injuries received while attempting to recover a barrel which was about to roll under a moving train, it was error for the court to charge the jury that the master would be liable if it failed to warn the plaintiff of the danger of such an act, since it did not appear from the evidence that such a contingency could have been anticipated or foreseen, nor that there was time for the defendant to give warning after the plaintiff started to recover the barrel. It was a question for the jury whether or not, under all the circumstances, he should have been warned of the danger of loading and unloading freight from a train, and whether, if he had been warned, he would have attempted to recover the barrel.</p> <p>3. —Same—Damages—Future Pain—Charge.</p> <p>In the absence of evidence that the plaintiff will suffer future pain from personal injuries received, it is error to charge the jury to consider the same in a suit for personal injuries.</p> <p>4. —Same—Minor—Deaf Mute.</p> <p>In a suit for personal injuries, the evidence being sufficient to raise the issue whether or not the plaintiff, who was a minor and also a deaf mute, had sufficient intelligence to comprehend the danger in loading and unloading freight from a railroad train, it would have been proper for the court to charge the jury that it was the duty of the defendant to warn the plaintiff of the danger of being about its freight trains, and to have exercised ordinary care to prevent him from assisting in loading and unloading freight, and if the defendant failed to perform this duty, and such failure was negligence and the proximate cause of the injury, the defendant would be liable.</p>

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

<p>Appeal from the District Court of Travis County, 53d District. Tried below before Hon. George Calhoun.</p>

<p>Appeal from the District Court of McLennan County, 19th District. Tried below before Hon. Marshall Surratt.</p>

<p>1. —Life Insurance—Application for—Contemporaneous Declarations.</p> <p>In a suit upon a policy of life insurance the declarations of the father of the applicant for insurance, made at the time the application is being prepared, and in answer to a question by the medical examiner^of the insurance company, as to' the time and place of birth of the applicant, aré competent testimony (the father being dead), and not subject to the objection that they were declarations post litem motam.</p> <p>2. —Testimony—Contradiction—Effect.</p> <p>The testimony of a witness is not rendered inadmissible because in conflict with the testimony of another witness. Such fact only affects its weight.</p> <p>3. —“Preponderance of Evidence”—Definition.</p> <p>The definition in a charge of the phrase “preponderance of the evidence,” as “the greater weight of the evidence,” is correct.</p> <p>4. —Insurance—Verdict—Judgment—Interest.</p> <p>Where, in a suit upon a life insurance policy, a verdict is rendered for the amount of the policy and for the statutory twelve percent damages, it is proper that the entire judgment should bear interest from date.</p>

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

<p>Appeal from the County Court of Angelina County. Tried below before Hon. T. W. Jordan.</p>

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

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

<p>1.—Broker—Revocation of Power—Execution of Contract.</p> <p>The execution of a contract is not complete until it is delivered by the maker or one having authority to d-o so. Where it appeared from the undisputed evidence, in a suit to enforce specific performance of a contract to sell land or for liquidated damages, that the contract in writing for the sale of the land in controversy was not delivered by the broker or agent until after the authority of the agent to sell on the terms stated in the contract had been revoked by the principal, a peremptory instruction to find for the defendant was proper.</p> <p>8.—Principal and Agent—Sale of Land—Power of Agent.</p> <p>Authority granted an agent to sell a certain tract of land at a certain price per acre and on certain terms of payment would not authorize the agent to make a contract of sale whereby the owner was bound to pay a certain amount per day as liquidated damages in case of breach of the contract by him, and to secure said damages by a lien on the land.</p>

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

<p>Broker—Commissions—Contract Construed.</p> <p>By the terms of a contract between the owner of land and a firm of land agents it was agreed that the agents should have the exclusive right to sell said land within a certain time; that the agents would make “all reasonable efforts” to effect a sale of the land, and that the owner would cooperate with and assist them in making sales, or furnish some other person to do so; the agents were to receive two-thirds of five percent commission on sales made; a part of the land was sold within the time stipulated, and the agents received two-thirds of five percent on the purchase money; on the ground that the owner had neither assisted nor furnished any one else to assist in making said sales the agents sued the owner for the remaining one-third of five percent on the sales made. Held, the theory of the suit was erroneous. If the owner failed to comply with his contract to assist in making the sales the agents were entitled to damages, but not to the specific one-third of five percent.</p>

<p>Broker—Commissions—Contract..</p> <p>A broker or land agent is not entitled to commissions on a contract of sale made by him unless the contract is in accordance with the price and terms specified by the owner of the land. Where a land agent undertook, without authority, to bind his principal to pay liquidated damages in case of breach of the contract by the principal and to make such damages a lien on the land, the agent was not entitled to commissions upon refusal of the principal to consummate the sale, although the prospective purchaser was ready, able and willing to do so.</p>

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

<p>Appeal from the District Court of Wood County. Tried below before Hon. E. W. Simpson.</p>

<p>1. —Pleading—Bes Adjudicata.</p> <p>In a suit to recover land and for damages, pleading considered, and held subject to exception that it appeared therefrom that a judgment had already been rendered in the controversy from which no appeal had been taken.</p> <p>2. —Courts—Two in Same County.</p> <p>The. creation of two District Courts in the same county, with concurrent jurisdiction, is not in violation of the Constitution, and . one clerk may lawfully serve both courts. => .</p> <p>3. —Same—Transfer of Causes.</p> <p>Where, the Act. of the Legislature creating two. District Courts in the same county authorizes the transfer of causes from one court to the other, a party cannot afterwards complain of the absence of a formal order making the transfer when he appeared in the court to which a cause was transferred and contested the suit without objection.</p> <p>4.—Litigation—Injunction.</p> <p>Where plaintiffs, in trespass to try title, had already instituted two suits against the same defendants involving the same issues, in one of which suits judgment was rendered against them on demurrer, and in the other judgment was rendered against them after trial on the merits, an injunction was properly granted against the plaintiffs upon cross-bill of the defendants in the third suit restraining the plaintiffs from further litigating the same matters.</p>

<p>1. —Appeal—Dismissal by Appellant—Cross Assignments by Appellee—Practice.</p> <p>Where both parties gave notice of appeal from a judgment, but the plaintiff alone perfected the appeal and filed a transcript in the Appellate Court, a motion by the appellant to dismiss his appeal and the granting of such motion will not deprive the Appellate Court of jurisdiction to consider and pass upon cross-assignments of error duly presented by the appellee. (Chief Justice Pleasants dissenting.)</p> <p>2. —Assignment of Error—Bill of Exception—Variance. .</p> <p>When a bill of exception, referred to in an assignment of error based upon the admission of evidence, fails to show that exception was taken to the action of the court in admitting such evidence, the assignment must be overruled.</p> <p>3. —Same—Value of Property—Qualified Witness.</p> <p>Where it was shown that a witness who undertook to testify as to the value of certain real property in a city had lived in such city for more than forty years, had been engaged in the real estate business in such city for about ten years next preceding the trial, and who was shown by other witnesses to be acquainted with the market value of property in that neighborhood, the court did not err in holding the witness qualified to testify as to the value of the property in question.</p> <p>4. —Continuance—Agreed Testimony—Admissibility.</p> <p>When, in order to prevent a continuance by a defendant in a condemnation proceeding because of the absence of a certain witness, counsel for plaintiff agreed in writing that the witness, if present, would testify to certain facts, and on appeal from the award of the Commissioners to the County Court the agreement was admitted in evidence without valid objection, testimony as to the purpose for which the agreement was made was irrelevant, and properly excluded.</p> <p>5. —New Trial—Number of Witnesses, Immaterial.</p> <p>The mere fact that a party had the greater number of witnesses upon an issue is not of itself sufficient reason for reversing the case on appeal when the verdict was against such party. In a condemnation' proceeding, evidence considered, and held sufficient to support the verdict.</p>

Tried below before Don. J. C. Scott. The' opinions published were delivered upon motions by appellee to dismiss the appeal and to strike out the statement of facts, and upon appellant’s motion for a rehearing upon the ruling striking out the statement. Rehearing having been denied, the appeal was dismissed by agreement on November 25, 1908.

<p>Error from the District Court of Dallas County, 44th District. Tried below before Hon. Bichard Morgan.</p>

<p>Infancy—Deed—Disaffirmance.</p> <p>A girl 17 years old made a deed of her interest in land to her father; two years later her disability as a minor was removed by judicial proceedings; about two years later she refused to join the father in a conveyance of the property, and "claimed an interest in it, her first act of disaffirmance. Held that, if considered of age for the-purpose of ratification on the removal of her disability, her repudiation was within a reasonable time, in view of the fact that she received no consideration; that there was no evidence that the father, meantime, had claimed the sole ownership, and that she was residing with and looked to him for protection.</p>

<p>Appeal from the 57th Judicial District, Bexar County. Tried below before Hon. A. W. Seeligson.</p>

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

<p>1.—Assignment for Creditors—Contesting Claim.</p> <p>Under the statute concerning assignments for the benefit of creditors, a claim allowed by the assignee cannot be contested after eight months from the time of the first publication of the notice of the assignment.</p> <p>2. —Same—Allowance of Claim—Effect.</p> <p>A statutory assignee has a certain discretion in the allowance of claims presented to him by creditors. An allowance by him makes a prim a facie case in favor of the claim, and throws upon the assignor and other creditors, the burden of contesting his action. An assignee would not be protected in the allowance of a claim which he knew to be fraudulent or excessive.</p> <p>3. —Same—Contesting Claim—laches.</p> <p>The failure or refusal of a statutory assignee to furnish to the assignor information concerning claims allowed by him is no excuse for a failure on the part of the assignor to contest such claims within the time prescribed by the statute. The statute guarantees to the assignor and creditors the right to take a copy of any creditor’s statement of his claim, and the desired information could be obtained in this way.</p> <p>4. —Same—Illness of Assignor—limitation.</p> <p>The illness of a party will not suspend a statute of limitation, and hence the illness of a statutory assignor is no excuse for a failure to contest a creditor’s claim within the time prescribed by the statute.</p> <p>5. —Same—Closing Estate.</p> <p>While the statute does not prescribe any particular time within which a statutory assignee must make report of his proceedings under the assignment and close the estate, doubtless a court of equity would compel him to do so if he unnecessarily delayed taking such action.</p> <p>6. —Same—Action Against Assignee—Pleading.</p> <p>In an action against a statutory assignee and his bondsmen to compel the assignee to restate his account; to pay over to creditors any balance in his hands; to reduce the amount of claims allowed by him to various creditors, and for damages, petition of plaintiff considered, and held subject to special exception as to the reduction of claims allowed.</p> <p>7. —Same—Remedies and Proceedings.</p> <p>- Parties interested in a statutory assignment for the benefit of creditors are confined to the remedies prescribed by the statute. Common law rules and remedies are not applicable.</p> <p>8. —Same—Removal of Assignee—Pleading.</p> <p>In an action by an assignor to compel an accounting, and to remove an assignee under an assignment for the benefit of creditors, pleading considered, and held sufficient as against exceptions urged thereto.</p> <p>9. —Same—Statute Constitutional.</p> <p>The provisions of article 85 of the Revised Statutes, concerning the compensation and expenses of an assignee for the benefit of creditors, are not subject to the objection that the same deprive parties of a trial by jury, and are, therefore, unconstitutional.</p> <p>10. —Same—Eailure to Close Estate—Damages.</p> <p>A claim by an assignor against a statutory assignee for damages because of delay on the part of the assignee in closing the estate cannot be sustained. Such damages would be too remote.</p> <p>11. —Same—Attorney’s Eee, when Not Allowed.</p> <p>An attorney’s fee should not be allowed a creditor in a statutory assignment when his claim was not, in fact, placed in the hands of an attorney for collection.</p>

<p>1. —Appeal—Assignment of Error—Practice.</p> <p>An assignment of error which is not a proposition in itself, and which is not followed by a proposition nor a statement from the record, will not be considered on appeal.</p> <p>2. —life Insurance—Benefit Societies—State Regulation.</p> <p>Where, by the laws of a State, benefit societies are defined and required to comply with certain formalities before doing business in such State, a failure to comply with such statutory requirements will preclude them from the benefit of the liberal rules arid laws which apply to such societies, and they will be regarded and treated as regular insurance companies.</p> <p>3. —Same—Suicide as Defense.</p> <p>A benefit society was incorporated in Illinois; it had subordinate lodges in Missouri, and issued benefit certificates therein, but it failed to comply with the laws of Missouri defining and regulating such societies; the benefit certificates issued by it stipulated that the certificate should be void in case of suicide; the laws of Missouri provided that suicide should he no defense to a suit upon a policy of life insurance unless it be shown that the insured contemplated suicide at the time he made application for the policy; the constitution of the Society provided that, in case of suit upon a benefit certificate, the certificate should be construed according to the laws of the State where issued. In a suit in this State upon such a benefit certificate issued in Missouri, the court properly disregarded the defense of suicide, and instructed a verdict for the plaintiff.</p>

<p>1. —landlord and Tenant—landlord’s lien—Assignee—Foreclosure.</p> <p>Ordinarily, when a tenant assigns the unexpired portion of his lease to another with the consent of the landlord, and the landlord accepts the assignee as his tenant, the original tenant is relieved from liability under the lease for future rents, and the goods of the original tenant remaining upon the premises in the possession of the subtenant are not subject to the landlord’s lien for rents accruing after the assignment. But where the tenant sells his goods to the assignee at the time he assigns the lease, such goods are thereafter the property of the assignee, and are liable in his hands for the rent due by the tenant before the assignment, and for the rent which the assignee may afterwards owe. Evidence considered, and held sufficient to support a judgment foreclosing a landlord’s lien upon hotel furniture as against both an original tenant and his assignee.</p> <p>2. —Debtor and Creditor—Acceptance of Draft—Discharge of Debt,</p> <p>The acceptance of a draft for collection, the money when collected to be applied to the payment of an existing debt, will not discharge the debt unless the draft is paid.</p> <p>3. —Promissory Notes—Release of Endorser—Failure to Sue.</p> <p>When a debtor endorses and delivers to his creditor the notes of a third party in satisfaction pro tanto of the debtor’s debt, and the notes are so accepted by the creditor, a failure by the creditor to sue thereon at the first or second term of the court having jurisdiction after maturity will release the endorser from the debt.</p> <p>4. —Junior lienor—Rights and Equities.</p> <p>As between first and second lienholders upon the same property, the second lienholder has the right to see that the debt of the first lienholder is reduced by any offset that the.common debtor has against such debt, to the end that liis security may not be impaired.</p> <p>5. —Same—landlord—Mortgagee—Sequestration—Rents.</p> <p>W. held a landlord’s lien on property of G.; K. held a mortgage upon the same property to secure a debt against G.; during a suit between the three for debt and foreclosure, K. sequestered the property and W. replevied the same and used it for two years. Held, that as against K. the debt due W. by G. should be credited with the reasonable rental value of the property during the time W. held and used it, and this without regard to whether or not W. wrongfully replevied or whether he won or lost his suit against G.</p>

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

<p>Appeal from the District Court of Tarrant County. Trie'd below before Hon. Mike E. Smith.</p>

<p>1. —Contract—Failure to Complete.</p> <p>Where plaintiff contracted to bore a well a certain depth, or until water was found, at a certain price per foot, and before water was found or the depth reached plaintiff rendered the well worthless by exploding dynamite in it, and abandoned the same, he was not entitled to recover anything for the work done.</p> <p>2. —Contract—Construction by Parties.</p> <p>When, in a contract for boring a well for water, the depth to which the boring should continue is not specified, the law would imply a depth reasonably calculated to accomplish the purpose in contemplation of both parties. Evidence considered, and held to show a subsequent agreement by the parties as to the depth to which a well should be bored, and which should be read into and considered as a part of the original contract.</p> <p>3. —Contract—Obligation to Complete.</p> <p>Parties are bound as they bind themselves, and if a contracting party fails to stipulate that the happening of certain contingencies should relieve him from the duty of completing his contract, any loss occasioned by such contingencies must fall upon him.</p> <p>4. —Cross Action—Evidence.</p> <p>Evidence considered, and held sufficient to show that a defendant was entitled on his cross action to recover from the plaintiff the value of rope furnished to him to be used in boring a well for the defendant, and the value of certain well casing destroyed by the negligence of the plaintiff.</p>

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

<p>Appeal from the District Court of Tarrant County. Tried below . before Hon. Mike E. Smith.</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 Bandall County. Tried below before Hon. J. N. Brownifig.</p>

<p>Railroads—Injury While Unloading Car.</p> <p>By placing a freight car upon a side-track for the purpose of being unloaded, a railroad company impliedly invites the consignee and his employes to enter and unload the same, and the duty rests upon the company to exercise care not to injure those so employed. No duty rests upon the consignee to give notice to the company that he is about to unload the ear, and in case of injury to a consignee or his employe while so engaged, caused by moving the car, the burden is upon the company to show facts which would relieve it from, the duty of knowing or anticipating the presence of. such person in the ear at the time.</p>

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

<p>1.—Trespass to Try Title—Defense—Surprise—New Trial.</p> <p>In trespass to try title in the usual form, the defense of estoppel is admissible under the plea of not guilty, and the defendant in such action is not required to disclose to the plaintiff the fact that he will rely on said defense. A motion for new trial, based upon surprise, and charging the defendant with fraud, artifice, unfairness and deceit in withholding from plaintiff notice of the defense of estoppel, considered, and held properly overruled.</p> <p>2. —Same.</p> <p>Although a defendant, in trespass to try title, files an abstract of title in compliance with a demand for the same by the plaintiff, he is not required to disclose therein a defense of estoppel.</p> <p>3. —Same—Surprise—New Trial.</p> <p>Upon a motion for new trial, facts considered, and held insufficient, in that the plaintiff failed to use the necessary diligence to obtain the alleged newly-discovered testimony. A new trial will not be granted on the ground of surprise when it appears that the evidence might have been anticipated and met had the party been diligent in preparing his case.</p> <p>4. —Same.</p> <p>Where the materiality of the testimony of an absent witness is discovered during the trial, and'no continuance is sought in order to procure the same, it is too late to urge it as a ground for new trial. Such a motion is addressed to the sound discretion of the trial court.</p> <p>5. —Trial—Practice—Refusal to.Pass on Issue.</p> <p>Where the trial is without a jury, and the judgment of the court, supported by the evidence, is based on the defense of estoppel, the refusal of the court to pass on the issue of limitation plead by defendant cannot be complained of by the plaintiff.</p> <p>6. —Trial without Jury—Improper Evidence—Harmless.</p> <p>When a trial is before the court without a jury, the admission of improper evidence is harmless when there is other and sufficient competent evidence to support the judgment. ,</p> <p>7. —Estoppel—Sufficient Evidence.</p> <p>Upon an issue of estoppel in pais, evidence considered, and held sufficient to support a judgment based thereon as to the identical land in controversy.</p>

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

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

Tried below before Hon. Clarence Martin. FISHEB, Chibe Justice. Statement of the Hature and Eesult of suit and Findings of Fact. This is an action by appellee Stith in the nature of a bill of review to set aside and annul a certain judgment rendered by the District Court of Llano County, in cause Ho. 901 on December 18, 1895, and to set aside a sale made under an order of court based on that judgment.

<p>Appeal from the 41st Judicial District, El Paso County. Tried below before Hon. J. E. Harper, Judge of the 34th Judicial District.</p>

<p>Appeal from the District Court of Zavala County. Tried below before Hon. E. H. Burney.</p>

<p>Appeal from the District Court of Brewster County. Tried below before Hon. B. C. Thomas.</p>

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

<p>Husband and Wife—Waste of Wife’s Separate Estate—Receiver,</p> <p>In a suit by a married -woman against her husband to establish her separate interest in property in the possession of the husband, and to prevent his disposing of the same and converting the proceeds to his own use, the court has authority to appoint a receiver to manage the property pending the suit, when the character and condition of the property is such that the interest of the plaintiff can be best protected by such appointment.</p>

Tried below before Hon. L. B. Hightower. The suit was trespass to try title brought by W. W. and B. Water-house against the Houston Oil Company, Gallup and Gordon. Hassell and others intervened. Plaintiffs sold to the Houston Oil Company and dismissed their action. The litigation was continued between the defendants and interveners.

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

<p>1. —Deed—Power Coupled with Interest—Statute of Limitation.</p> <p>An instrument in writing which, after appointing the party therein named attorney-in-fact for the maker, conveys to such party absolutely and in fee simple an undivided interest in the land referred to in the instrument, is sufficient basis for the five years’ statute of limitation.</p> <p>2. —Same—Undivided Interest—Limitation—Payment of Taxes.</p> <p>An undivided interest in land may be acquired by adverse possession under the five years’ statute of limitation, and the payment of taxes by a party claiming such interest will be ascribed to his interest.</p> <p>3. —Co-plaintiffs—Costs.</p> <p>Where several plaintiffs in trespass to try title sue jointly, and all of said plaintiffs except one recover part of the land sued for, it is error to tax the entire cost of the suit against the plaintiff failing to recover. Such plaintiff should be taxed only with the cost incurred by him.</p> <p>4. —Deed—Grantees—Construction.</p> <p>A deed to a married woman “and to her children jointly” should be construed as a conveyance to the woman and to each of her children, share and share alike, and not one-half to the woman and the other half to the children.</p> <p>5. —Cotenants—Limitation—Apportionment.</p> <p>Where land was lost to cotenants by limitation, evidence considered, and held to support the judgment apportioning the loss among the cotenants.</p> <p>6. —Appeal—Co-defendants—Practice.</p> <p>An assignment of error by one defendant, complaining of a judgment as between himself and a codefendant, cannot be considered on appeal in the absence of an appeal by such defendant.</p>

<p>Appeal from the District Court of Roberts County. Tried below before Hon. H. G. Hendricks.</p>

<p>1. —Writ of Error—Death of Defendant—Service of Citation—Statutes Construed.</p> <p>After rendition of judgment in his favor in the trial court, and after the defendants in that court had seasonably filed their petition and bond for writ of error, the plaintiff died intestate; thereupon the plaintiffs in error filed an amended petition setting up the fact of the defendant in error’s death, that he left no debts, that there had been no administration, and no necessity for any, and prayed for citation to the surviving wife and children. Held that, upon acceptance of service of citation in error by the surviving wife and children, the plaintiffs in error were entitled to prosecute their appeal. Rev. Stats., arts. 973, 1395, 1689, 1402, 1240 and 1399 construed.</p> <p>2. —Master and Servant—Assumed Risk—Evidence.</p> <p>In a suit by a servant against the master for- damages for personal injuries caused by a smoke stack falling upon the plaintiff while he was engaged in working upon the same, evidence considered, and held to justify the court in submitting the issues of assumed risk and contributory negligence to the jury.</p> <p>3. —Partnership—Dissolution—Assumption of liabilities.</p> <p>• Where, upon the dissolution of a partnership, one of the partners assumed “all liabilities” of the firm, the retiring partner is entitled to a judgment over against such partner upon the rendition thereafter of a judgment against the members of the firm for damages for personal injuries inflicted during the existence of the partnership.</p>

<p>1. —Suit Against County—Preliminary Conditions.</p> <p>While counties are declared by statute to be bodies corporate and politic, they are so closely identified with the sovereign power, the State, that they cannot be sued except upon the terms prescribed by the statute. Under the provisions of article 790, Revised Statutes, a county cannot be sued until the claim has been presented to and rejected by the Commissioners’ Court.</p> <p>2. —Same—Pleading.</p> <p>In a suit by a physician against a county for services rendered during an epidemic, there being no allegation in the petition that the claim had been presented to and rejected by the Commissioners’ Court of the county, a general demurrer was properly sustained to the same.</p>

<p>1. —Appeal—Assignment of Error—Sufficiency.</p> <p>An assignment of error as follows: “Because the court erred in rendering judgment for defendant, and in not rendering judgment for the plaintiff, as prayed for on the findings of fact found by the court and filed herein,” is too general to require consideration on appeal.</p> <p>2. —Good Will—Sale of—Effect.</p> <p>The sale of the good will of a professional 'man carries with it the obligation that he will abstain from practice in future in the territory from which he thus binds himself to withdraw. But evidence of a sale by one doctor to another, of his residence and a certain portion of his business, considered, and held insufficient to show a sale of the good will of the business.</p> <p>3. —Practice—Announcement of Trial—Withdrawal of.</p> <p>When a case is tried before the judge without a jury, and the judge has indicated that his decision would be adverse to the plaintiff, it is not. error for him to refuse to allow the plaintiff to withdraw his announcement for trial and file additional pleadings.</p>

<p>1. —Railroads—Collision—Negligence—Burden of Proof—Charge.</p> <p>Proof of a collision by a passenger train with unguarded cars on the main line of a railway company’s track is prima facie evidence of negligence, and, in the absence of evidence contradicting or explaining the occurrence, will support or even require a finding in favor of a passenger injured in such collision. But when the defendant company has introduced evidence tending to free it from the imputation of negligence it is error for the court to charge the jury that the burden of proof is on the defendant. The burden of proof on the whole case is on the plaintiff, and this can be discharged only by a preponderance of the evidence in his favor. ,</p> <p>2. —Same—Case Stated.</p> <p>In a suit for damages for personal injuries caused by a collision of a passenger train with two freight cars, which had been blown by a storm from a side-track onto the main line of a railroad, evidence considered, and held to raise a question of fact as to defendant’s negligence, which should have been submitted to the jury.</p>

<p>Railroad—Foreign Car—Duty of Inspection.</p> <p>In a suit by a brakeman against a railroad company for personal injuries received in a fall from a freight car, caused by a defective grab-iron, it appeared from the evidence that the car was a foreign car, and had not been inspected by defendant before being incorporated in its train. The court charged the jury that it was the duty of the defendant company to have inspected the car in question. Held, harmless error in the present case, if error at all.</p>

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

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

<p>1. —Fires—Contract of Indemnity—Construction.</p> <p>M. sued a railroad company for the value of cotton burned through the negligence of the railroad company while upon the platform of an adjacent compress company; the compress plant was partly upon land leased by it from the railroad company; the contract of lease contained the following provision: “Said second party (the compress company) hereby covenants to assume all the risks of loss or damage to any building, improvements or property of any kind that may be on or near said premises, that may be occasioned by fire communicated in any manner from the right of way, locomotives or other machinery, or in any manner whatever, by the party of the first part (the railroad company) while this lease is in force, and hereby releases and discharges the party of the first part from any claim, demand or action on account of any such loss or damage.” Held, the indemnity or release applied ■ solely to property of the compress company, and not to property of third parties.</p> <p>2. —Same—Contract—Authorship—Strict Construction.</p> <p>A contract of indemnity should be strictly construed against the party who framed and wrote the same, and with the wording of which the other party had nothing to do.</p> <p>3. —Corporation—Contract of Indemnity—Ultra Vires.</p> <p>A corporation chartered for the purposes of erecting and maintaining a compress and of compressing cotton therein; of storing and handling cotton, and of doing a general cotton storage business, and of generally doing and performing such acts necessary to properly manage and conduct the business of compressing cotton, and for this purpose to purchase, own or lease sufficient real estate for such business, and to erect thereon its compresses, and such sheds, houses, platforms and machinery as were necessary to properly conduct and maintain the business for which the corporation was organized, would have no authority to enter into a contract of indemnity with its lessor against loss or damage to the property of third persons situated on the leased premises.</p> <p>4. —Principal and Agent—Shipper and Compress—Notice.</p> <p>A cotton compress company, in receiving a shipper’s cotton from a railroad company for compression, would be the agent of the shipper so far as the bailment was concerned, and actual knowledge on the part of the compress company of the terms of a contract of indemnity between it and a railroad company would be imputed to the shipper; but such would not be the case where the notice to the compress company was not actual, but only implied or constructive.</p> <p>5. —Contributory Negligence—Proximate Cause.</p> <p>In order to prevent a recovery for loss or injury, contributory negligence must have proximately contributed to the injury. Charge considered, and held defective but harmless.</p> <p>6. —Railroads—Fires—Fuel—Coal or Oil—Negligence.</p> <p>In a suit for the value of cotton burned by sparks from a locomotive, the plaintiff having alleged that the defendant used coal instead of oil for fuel in its locomotive, and that the same was negligence, an issue of fact was thus presented for determination by the jury, and the exclusion of evidence to support the allegation was error.</p> <p>7. —Contributory Negligence—Discovered Peril—Actual Knowledge.</p> <p>Even though an injured party, has, by his own negligence, contributed to his injury, he may still recover if the peril of injury is actually discovered by the wrongdoer in time to avoid the injury by the use of the means or instrumentalities at hand and no effort is made to avert the injury. The question of care or diligence in discovering the peril does not enter into the case. Rule applied to the burning of cotton upon the platform of a compress.</p> <p>8. —Fires From locomotives—Prima Facie Case.'</p> <p>Proof that Are is communicated to adjacent property by sparks from a railroad locomotive makes a prima facie case of negligence against the railroad company, and entitles the owner to recover in the absence of evidence of proper care on the part of the company to prevent the escape of the sparks from the engine.</p> <p>9. —Negligence—Custom—Irrelevant Testimony.</p> <p>The habitual practice of any number of persons for any length of time cannot make a negligent act an act of due care and diligence. Hence, in a suit against a compress company for the value of cotton burned while in its custody by sparks from a nearby railroad, testimony that defendant’s plant was located with reference to the railroad tracks in the same manner as such plants are usually located was irrelevant, and properly excluded.</p> <p>10. —Fires From locomotives—Evidence of Other Fires—Rule. -</p> <p>When the particular locomotive which caused a fire cannot be identified, evidence that sparks and burning coals were frequently dropped, or fire set out by engines passing upon the same road, on other occasions, at about the time of the fire in question, is admissible to show habitual negligence, and to make it probable that the fire in question was caused in the same way. But when the particular engine which caused the fire is known the inquiry must be confined to the construction and condition of said engine.</p> <p>11. —Same—Construction of locomotive—Expert Testimony.</p> <p>Upon the issue of proper care in the selection and use of spark arresters for a locomotive, the testimony of a witness who had been a locomotive engineer for more than forty years, and worked on seven different roads, was competent as to the efficiency of the arrester used by the defendant, although he had never seen or used the kind used by the defendant. The testimony, however, of a witness who obtained his information from railroad publications as to the kind of spark arresters in general use by first-class roads would be incompetent.</p>

<p>Land Agent—Sale—Commission.</p> <p>Defendant authorized plaintiff to sell a tract of land at $20 per acre, agreeing to pay 5 percent commission, and also agreed to protect him in such commission in case the land was sold through any other agent to B., with whom plaintiff was negotiating. Afterwards defendant sold the land to B. for less. Held, that it was not necessary for plaintiff, suing for his commission, to allege or prove that defendant made the sale with intent to defraud plaintiff out of his commission, nor that he had procured B. as a purchaser ready and willing to take and pay for the land at $20. It was sufficient that plaintiff was the agent procuring the sale to be made, and at a price satisfactory to defendant.</p>

<p>Partnership—Praud—Assumption oí Debt.</p> <p>Evidence considered in an action on notes given in the name ofj a firm for the debt of a previous partnership, defendant having been induced by fraud to buy out one of the former partners and assume the debts, which contract he canceled after discovering the fraud, it being held that he was entitled to such rescission, and not estopped to claim such right against the payee of the notes, which were executed by the other partner without his authority, aúd that his testimony, there being no effort made to contradict it, could not be disregarded, though it was that of an interested party.</p>

<p>Appeal from the County Court of Falls County. Tried below before Hon. D. H. Boyles.</p>

<p>Will—Executor—Delay in Qualification.</p> <p>A will naming an alternative executor, in case the one first selected failed to qualify within three months, is held not an absolute time limitation on the right of the first named to receive letters, and circumstances considered are held not to show such unreasonable delay in his probating the will and applying for letters as to defeat his right to appointment at a later time in preference to that of the alternate named.</p>

<p>Appeal from the District Court Coryell County. Tried below before Hon. N. E. Lindsey.</p>

<p>Appeal from the Comity Court of Presidio County. Tried below before the Hon. H. H. Kilpatrick. '</p>

<p>1. —Appeal—Statement of Facts—Act Construed,</p> <p>Under the requirements of the Act of 1907 (Gen. Laws 1907, page 509 et seq.) a statement of facts should not be copied into the record on appeal, but the original should be sent up. This provision is mandatory, and applies to every statement of facts, whether made by the parties or by the official stenographer, or by the court in case of disagreement.</p> <p>2. —Trial without Jury—Admission of Improper Evidence—Harmless, when.</p> <p>When a case is tried by a court without a jury, the admission of incompetent testimony will not require a reversal of the judgment when there is sufficient evidence to sustain the judgment, regardless of the improper evidence.</p> <p>3. —Contested Election—Appointment of Supervisors.</p> <p>The law concerning the time within which application must be made for the appointment of supervisors of an election is not merely directory.</p> <p>4. —Same—Evidence.</p> <p>In an action contesting an election, evidence considered, and held insufficient to justify the court in setting aside the election or ousting the contestee from office.</p>

<p>Appeal from the County Court of Harris County. Tried below before Hon. A. E. Ammerman.</p>

<p>1. —Negligence—Rotten Telegraph Pole.</p> <p>Evidence considered and held sufficient to support a submission of the question of defendant’s negligence in case of a telephone lineman injured by the fall of a telephone pole from decay beneath the surface of the ground.</p> <p>2. —Personal injury—Pleading—Harmless Error.</p> <p>Overruling special exceptions to allegations of personal injury because not sufficiently specific, was not ground for reversal where such general pleading was followed by more specific statements of the injuries, and the recovery was limited to these items.</p> <p>3. —Master and Servant—Inspection—Evidence—Charge.</p> <p>Evidence as to the general duty, under the master’s rules, of linemen employed by a telephone company to inspect the .condition of its poles, was in- ^ sufficient to require the submission of a requested charge imposing this duty on the injured plaintiff, where he was employed for a day only, to do certain special work, and nothing was said to him about inspection.</p> <p>4. —Same.</p> <p>Where the method of inspection of its poles practiced by a defendant telephone company would not have discovered the defect, and was in fact used by the injured servant without discovering it, and the charge relieved defendant from liability if the danger was obvious or should have been known to plaintiff, a charge requiring of him the duty to inspect was properly refused.</p> <p>5. —Argument of Counsel.</p> <p>Where improper language of counsel in argument was promptly withdrawn on objection, the jury instructed to disregard it, and the verdict apparently not excessive, no cause for reversal therefor is shown.</p>

<p>1. —Negligence—Moving Cars on Switch.</p> <p>Evidence considered and held to present questions of fact as to the negligence of defendant and due care of plaintiff, in a case where the employees operating an engine on defendant’s lumber road, without warning or precaution, backed same against cars standing on a siding, injuring plaintiff, an employee of a boarding house for mill hands, who was standing behind a water car getting water from the tank thereof.</p> <p>2. —Same—Pleading.</p> <p>The petition need not negative the negligence of plaintiff unless the same prima facie appears from its allegations. Pleading held not subject to demurrer on the ground that it showed such negligence.</p> <p>3. —Negligence—Choice of Unsafe Position.</p> <p>Circumstances considered in case of one, not an employee, injured by the movement of a water car while drawing a bucket of water therefrom, and held not to justify a peremptory instruction that plaintiff assumed the risk, or was to be held negligent as matter of law, in choosing a dangerous position behind the car, instead of a safe one at a faucet on the side of another car- Also instructions held to properly present such question as one of contributory negligence and an issue of fact.</p> <p>4. —Negligence—Evidence.</p> <p>Where defendant furnished water in tank cars for the use of its employees and others in the neighborhood of its lumber mill, evidence that the usual and customary place to draw water from the tank was at the rear of one of the cars was admissible as bearing on the care due from defendant to avoid injury to persons so engaged when running its locomotive in on the same track.</p> <p>5.—Negligence—Question of Pact.</p> <p>Where it was known that employees of a lumber company and others, including the keepers of a boarding house for mill hands, obtained water from a tank car placed by the mill company on a siding for that purpose, and from a faucet at the end of such car, it was a question of fact whether due care to avoid injury to such persons on the part of those running a locomotive onto such siding did not demand a warning by whistle from such locomotive, its bell being cracked, or an examination to discover whether' anyone was in a place of danger, before permitting the engine to strike such water car.</p>

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

<p>1.—Negligence—Defects in Track—Switching Cars.</p> <p>Evidence in case of a brakeman falling under moving ears in switching by catching his foot under a projecting splinter of a cross tie in the station yards of a railway held sufficient to support a recovery for negligence.</p> <p>3.—Charge.</p> <p>The use of the words “if you so find,” in applying the law to the facts by instructions to the jury, can not be taken as intimating that in the opinion of the court the evidence established the existence of such facts.</p> <p>3. —Charge—Master and Servant,</p> <p>The uncontroverted evidence showing that a certain employe, a section foreman, was charged with the maintenance of defendant’s track at -the point where defects therein caused injury to another, it was not improper to charge that defendant was liable for injury caused by his negligence in maintaining it.</p> <p>4. —Damages—Future Mental Suffering.</p> <p>Future mental suffering was properly submitted as an element of damages in case of a brakeman whose injuries by defendant’s negligence resulted in the amputation of both legs. There was no need of evidence of a fact necessarily resulting from such facts proved.</p> <p>5. —Assumed Risk—Moving Cars.</p> <p>Evidence considered and held to warrant the refusal of a charge that plaintiff, injured while attempting to cross the track in front of moving cars and acting in an emergency for the protection of defendant’s property, assumed the risk of injury, the question of his contributory negligence in so doing having been properly submitted.</p> <p>6. —Requested Instructions.</p> <p>It is not error to refuse a requested charge substantially covered by instructions already given.</p> <p>7. —Evidence—Rules of Employment—Acting in an Emergency.</p> <p>A rule of a railway company that, “in case of danger to the company’s property employees must unite to protect it,” was admissible in .evidence as bearing on the conduct of a brakeman injured by falling under moving cars, in the endeavor to catch and check cars switched by another train crew which were about to escape down grade and threatening damage.</p> <p>8. —Damages—Personal Injury.</p> <p>A recovery of $22,500, sustained as not excessive, in case of a brakeman 24 years old, suffering the loss of both legs.</p> <p>9. —Master and Servant—Duty to Inspect.</p> <p>A charge that it was not the duty of a railway brakeman to inspect the " track for defects was proper; and if its qualification as to the effect of obvious defects was desired a special instruction thereon should have been requested.</p> <p>10. —Charge—Assuming Fact.</p> <p>Instructions considered and held not to assume the existence of defects in the defendant’s track.</p>

<p>1.—Telegraph—Misdirected Message—Question of Fact.</p> <p>Misdirection of a telegram to “Holenville,” there being no such place, instead of “Holdenville,” a railway and telegraph station and the intended destination, did not, as matter of law, show that there was no undertaking by the company to deliver at the latter place, or justify an instruction to find for defendant in a suit for damages for failure to transmit the message, where the receiving agent was advised of the true destination, looked up and found the correct station on a list of offices, and there was evidence to support the conclusion that he himself wrote the message and was responsible for the misspelling.</p> <p>2. —Same—Idem Sonans.</p> <p>“Holenville” for “Holdenville” is so far idem sonans as to present a question of fact as to its sufficiency to identify the destination named in a telegram.</p> <p>3. —Same—Agency—Offices—Duty to Give Information.</p> <p>Though the dispatcher acts as agent of the sender in reducing to writing at his request the message desired to be sent, it is the duty of • the company to know and correctly inform senders as to its offices- and stations; and the agent represents the company in giving such information, especially where the rulés require him to do so and to exercise care to see that the destination is correctly given.</p>

<p>1. —Injunction—Appeal.</p> <p>In an appeal from an interlocutory order granting an injunction, taken under the Act of April 16, 1907 (Laws, 30th Leg., p. 206), the case is to be determined on the pleading and evidence before the trial court when the injunction was granted, and answer and affidavits filed after the order was made can not be' considered; the Act confers only appellate jurisdiction.</p> <p>2. —Injunction—Pleading.</p> <p>Pleading in support of an injunction is to be taken most strongly against the petitioner seeking such relief, and must negative every reasonable inference arising from the facts stated which might defeat the right claimed.</p> <p>3. —Same—City—Contract to Supply Water—Non-resident.</p> <p>A city has no power, under the general incorporation law, to contract to furnish water to one residing outside the city limits and for use beyond those limits. Nor did the city of Paris possess such power under its Special Charter granted by the Act of March 15, 1905 (Special Laws, 29th Leg., p. 31), which prohibited the extension of such rights to persons living beyond its limits.</p> <p>4. —Same—Case Stated,</p> <p>A petition seeking to enjoin a city from disconnecting plaintiff with its water system, though alleging generally a connection made at petitioner’s expense and a valid contract by the city to furnish him water, was insufficient to support the right to injunction where it showed that plaintiff’s premises were situated partly within and partly without the city limits, and that the meter was placed on the part of such premises within them, but failed to allege that the plaintiff resided and that the water was to be used within such limits.</p>

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

<p>Appeal from the County Court of Harris County. Tried below before Hon.- A. E. Amerman.</p>

<p>1. —Liquor Dealer’s Bond—Signature of Principal.</p> <p>The collection of penalties for violation of a liquor dealer’s bond in local option territory, can not be enforced when the bond is not signed by the principal; and this, though the bond was delivered by the principal in person to the county judge, and his approval secured.</p> <p>2. —Same—Statutory Bonds—Construction.</p> <p>In a suit for a penalty upon a statutory bond neither the principle of estoppel, nor the rule of equity, which regards that as done which ought to have been done, has any application.</p>

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

<p>Appeal from the 55th Judicial District, Harris County. Tried below before Hon. W. P. Hamblen.</p>

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

<p>1. —Dismissal—Plea in Reconvention.</p> <p>In a suit for injunction, upon the announcement by the court of its decision sustaining a motion to dissolve the temporary injunction theretofore issued, the plaintiffs then and there dismissed their petition, excepted to the ruling of the court in dissolving the temporary injunction, and gave notice of appeal; thereafter the defendant filed a plea in reconvention for damages for the suing out of the injunction; plaintiffs objected to the court’s entertaining the plea because their suit had been dismissed; the court overruled the objection and heard the plea. Held, error. Defendant had the right to institute an independent suit, but could, not reconvene after the dismissal of the original suit.</p> <p>2. —Same—Application for Continuance—Effect.</p> <p>After plaintiff has exhausted all proper efforts to resist the filing and hearing of a plea in reconvention on the-ground that the original suit had been dismissed before such plea was filed, he can not be held to have waived his contention by filing an application for continuance as to the said plea</p>

<p>Error from the County Court of Brown County. Tried below before Hon. A. M. Brumfield.</p>

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

<p>Carrier—Demurrage—Cotton Compress—Privity of Contract.</p> <p>On the arrival at a town in which a compress was situated of cotton consigned to various dealers, it was customary for the railway company to notify the compress company thereof, which, in turn, when ready to receive it, notified the carrier what cars were to be switched to its platforms for that purpose. There the compress company unloaded it and the consignees weighed, classified and marked it; it was then compressed and the compress company, as agent of the owners, reloaded it and collected from the carrier the charges for compressing. Held, that the compress company stood in no privity to the contract of shipment with the carrier and was not liable to it for demurrage on the cars while they waited on the carrier’s side tracks between the time the latter notified the compress of their arrival and it notified the carrier of its readiness to receive and unload them.</p>

<p>Appeal from the 41st Judicial District, El Paso County, Tried below before Hon. J. M. Goggin.</p>

<p>1. —Railroad—Defective Step on Caboose—Personal Injury—Charge Approved.</p> <p>In a suit by an employe against a railroad company for damages for personal injuries caused by a defective step or stirrup to a caboose, charge considered, and held not subject to the objection that it authorized a recovery by plaintiff if the step or stirrup was defective and dangerous and plaintiff knew such to be the case, even though defendant was not guilty of negligence in the premises.</p> <p>2. —Same—Inspection—Reasonable Diligence—Charge.</p> <p>In a suit by an employe against a railroad company based upon the negligence of the defendant in inspecting its cars, a charge which instructed the jury to return a verdict for the defendant if they believed from the evidence that the defendant exercised ordinary care to see that the equipment of the car in question was in reasonably safe condition “and was not guilty of negligence,” was not subject to the objection that the words quoted added something to the duty of defendant beyond the exercise of, ordinary care.</p> <p>3. —Same—Refusal of Special Charge—Practice.</p> <p>The refusal of a requested charge which, though proper in itself, is already embraced in the main charge, is not error.</p> <p>4. —Same—Charge Approved.</p> <p>In a suit for personal injuries, the following charge, to wit: “And if the permitting of the nut or lag screw fastening said step or stirrup to the sill of said car to become so loose and insecure and infirm as to permit said step or stirrup to move out of place, if such was the case, was under the facts negligence, etc.” held, not subject to the objection that it assumed certain facts and was misleading.</p> <p>5. —Same—Contributory Negligence—Question of Fact.</p> <p>The refusal of the trial court to grant a new trial on the ground that the verdict of the jury against the defendant was contrary to the following charge, to wit: “You are charged that if you believe from the evidence that plaintiff attempted to get upon a moving car, and that in so doing he caught hold of a lower round of the ladder on said car with his foot in the stirrup, and placing himself in a stooping or squatting attitude, and that such attitude was a dangerous one, and that in taking such position plaintiff was guilty of negligence which caused or contributed to his injury, then you will find a verdict for the defendant,” was not reversible error. The facts stated did not constitute contributory negligence as matter of law.</p> <p>6. —Same—Assumed Risk—Burden of Proof.</p> <p>In a suit for personal injuries, the burden is upon the defendant to develop and sustain a defense of assumed risk, and in the absence of any evidence upon the issue it will not be presumed.</p> <p>7. —Same—Master and Servant—Servant not Required to Inspect.</p> <p>It is not the duty of a railroad employe to inspect the cars which he is required to use. He has the right to rely on the employer having exercised care to have them in a condition safe for use.</p> <p>8. —Same—Manner of Injury—Improbability.</p> <p>Although the manner in which a personal injury occurs, as testified to by the plaintiff and his witnesses, may seem improbable, the finding of the jury should not be disturbed unless it appears from the testimony that the occur- ' rence was a physical impossibility.</p> <p>9. —Same—Measure of Damage—Charge Approved.</p> <p>In a suit for personal injuries, charge considered, and held not subject to the following objections:</p> <p>(1) That it authorized double damages, and was confusing, indefinite and uncertain as to the damages which plaintiff was entitled to recover.</p> <p>(2) That it authorized a recovery for loss of time both before and after the trial, when the pleadings did not allege such damage.</p> <p>(3) That it failed to instruct the jury to take into consideration the earnings of plaintiff in other employment since the injury.</p> <p>(4) That it was erroneous in not giving the jury every item which should be considered by them in arriving at the amount of the damages.</p>

<p>Appeal from the 41st Judicial District, El Paso County. Tried below before Hon. J. M. Goggin.</p>

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

<p>Appeal from the County Court of Harris County. Tried below before Hon. A. B. Amerman.</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 Dewitt County. Tried below before Hon. James C. Wilson.</p>

<p>1. —Carrier—Passenger Leaving Seat—Contributory Negligence—Pleading.</p> <p>The mere fact of leaving his seat for the purpose of walking upon the platform of a station at which his train had stopped would not cause a passenger to lose his status as a passenger, nor could it be said as matter of law that he was guilty of contributory negligence in doing so if he was injured by the negligence of the carrier while he was attempting to leave the train. A plaintiff is not required to negative contributory negligence unless the facts which he pleads raise that issue.</p> <p>2. —Evidence—Relevancy.</p> <p>When a fact offered in evidence presents a reasonable inference in .support of a material issue in the case it is relevant and should be admitted; its weight is for the jury. In an action for personal injuries caused by a sudden and violent movement of a railroad train, evidence tending to prove the negligence of th’e defendant, considered, and held admissible.</p> <p>3. —Passenger—Intoxication.</p> <p>In an action by a passenger against a railroad company for damages for personal injuries caused by a sudden and violent movement of the train, evidence of the intoxication of the plaintiff on prior and subsequent occasions would be irrelevant as evidence in chief of intoxication on the occasion in question. The mere fact that a passenger is intoxicated will not relieve a carrier from the consequences of its own negligence.</p> <p>4. —Appeal—Assignment of Error—Insufficiency.</p> <p>When a motion for new trial contained eight special grounds why it should be granted, an assignment of error that the court erred in overruling appellant’s motion for new trial, is too general to require consideration.</p>

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

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

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

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

<p>1. —Evidence—Interrogatories Taken as Confessed—Waiver.</p> <p>When á defendant in a civil suit fails and refuses without excuse to answer ex parte interrogatories propounded to him by the plaintiff, the plaintiff has a right to have such of them as are in form to be confessed, to be so taken and read to the jury. The filing of a motion to that effect and a failure to call the same to the attention of the court before announcement for trial will not operate as waiver of this right.</p> <p>2. —Urban Homestead—Renting Room—Business or Calling.</p> <p>Upon the same lot in a city a debtor had two dwelling houses, one of which he occupied as a home for himself and wife and the other he rented to tenants and used the income as a means of support; he was aged and had no other occupation or support. Held, the renting of rooms in such manner was not a “business” or “calling” within the meaning of the Constitution defining a homestead.</p> <p>3. —Same—Abandonment—Evidence.</p> <p>The building of a rent-house upon a homestead lot in a city or town does not necessarily constitute an abandonment of that portion of the lot as a part of the homestead. Evidence considered, and held to present a question of fact for the jury.</p>

<p>1.—Trial—Juror—Overruling Challenge for Cause—Harmless Error.</p> <p>The mere denial of the right to challenge a disqualified juror does not entitle the complaining party to a new trial. It must appear in addition to such denial that some injury was sustained in' consequence of the ruling, and the mere fact that the challenging party had exhausted his challenges in the selection of the jury is not sufficient to show injury.</p> <p>2. —Evidence—Conclusion of Witness, when Admissible.</p> <p>In a suit for damages for personal injuries alleged to have been caused by the negligence of defendant in failing to furnish sufficient light in the place where plaintiff was required to work, it was proper to allow the plaintiff to state that the light furnished him by the defendant was insufficient to enable him to see the objects around him. When a certain situation can not be made clear to a jury by any attempted description of the conditions, the conclusion or opinion of the witness will be received in evidence.</p> <p>3. —Same—Question, not Leading.</p> <p>The following question held not leading or suggestive of the answer desired, viz.: “Do you know why it is the day fireman placed the ladder in position</p> <p>back there, and arranged things for the night fireman,” and “State just what Bob Johnson said to you.” A question which is not itself leading should not be excluded simply because it follows and is put in lieu of one which was leading and suggestive, but which was withdrawn or excluded.</p> <p>4. —Master and" Servant—Ladder as Place to Work—Charge.</p> <p>When the duties of an employe require him to use a ladder, the ladder is a “place” within the meaning of the law concerning the duty of an employer to furnish the employe a reasonably safe place in which to perform the duties assigned him. Charge considered and approved.</p> <p>5. —Charge—Separation of Issues.</p> <p>It' is proper in framing a charge not to complicate an instruction upon one issue or phase of the case with reference to another issue or phase.</p> <p>6. —Personal Injury—Assumed Eisk—Charge.</p> <p>In a suit for damages for personal injuries caused by a fall from a ladder, charges considered and approved; requested charges considered, and held erroneous in that they took from the jury the issue whether or not plaintiff knew the danger attendant upon the use of the ladder under the circumstances.</p>

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

<p>1. —Electric Wires—Negligence—Act of God—Lightning.</p> <p>Evidence considered in case of animals killed by contact with a telephone wire burned and broken by a stroke of lightning and dangerously charged by falling across a trolley wire, and held to show a case of injury by act of God, unaccompanied by negligence, and in which a peremptory instruction in defendant’s favor should have been given.</p> <p>2. —Same—Insulation.—Proximate Cause.</p> <p>No negligence appeared from the failure of an electric car line to have its trolley wires protected by insulating covering, the necessary conditions of their use making this impossible; nor from a like failure by the telephone company, where such insulation, being ineffective when wet, would not have prevented the happening of the accident in the storm.</p>