Volume 54 — Texas Civil Appeals Reports

<p>1. —Deed—Acknowledgment of Married Woman—Rotary as Agent of Vendee.</p> <p>An acknowledgment of a married woman to a deed would not be invalidated by the fact that the notary who took her acknowledgment had been employed by the vendee as an attorney at law to collect from her husband a debt for the partial payment of which the said deed was afterwards executed, the agency of the notary being limited to the collection of the debt in money; nor under such circumstances would knowledge of the notary of fraud in procuring the wife’s acknowledgment be imputed to the vendee.</p> <p>2. —Same.</p> <p>The mere fact that the notary is generally employed as an attorney at law by a certain person would not necessarily disqualify such notary from taking an acknowledgment to a deed in which said person was the vendee. The disqualification would depend upon the scope or character of the employment.</p> <p>3. —Same—Duty of Rotary to Explain.</p> <p>The fact that a married woman may be already fully informed from other sources of the character of the deed executed by her would not relieve the officer taking her acknowledgment of the duty to explain the same to her privily and apart from her husband.</p> <p>4. —Conveyance of Homestead—Option to Repurchase.</p> <p>The fact that the husband is given the right to repurchase the homestead within a certain time and at a certain price would not give the wife a right to set aside a conveyance of the same, otherwise valid, in which she joined.</p>

<p>1. —New Trial—Delay in Filing Motion.</p> <p>Although the statute provides that a motion for new trial shall be filed within two days after the rendition of judgment, the trial court has the discretion to grant a meritorious motion filed after that time.</p> <p>2. —Same—Absence of Party.</p> <p>Where a judgment was rendered against defendant during the absence of himself and counsel, motion for new trial excusing such absence on the ground of sickness, considered, and held meritorious.</p>

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

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

<p>1. —Limitation—Privity of Claim—Evidence. '</p> <p>Under a plea of title by limitation under the ten years statute of limitation, evidence as to privity of claim and possession considered, and held sufficient to support a finding that there was continuous and adverse possession, such as is required by the statute, by successive claimants holding in privity, each with his predecessor, and that they all claimed and held to the same boundaries.</p> <p>2. —Same—Adverse Possession—Knowledge of Boundaries.</p> <p>When one buys and' occupies a tract of land by a certain name or designation the boundaries of which are definitely established, it is not essential to a title by limitation that he should know the precise boundaries of the tract.</p> <p>3. —Title—Declarations as Evidence.</p> <p>Testimony as to the declarations of one not in possession of the land in controversy to the effect that he owned said land, is properly excluded upon objection that said testimony is hearsay.</p>

<p>1. —Trial—Distinct Submission of Defense.</p> <p>A party is entitled, when he requests it by proper instructions, to have the facts establishing his cause of action or ground of defense and the law applicable to them, affirmatively stated by the court to the jury. In an action for damages for personal injuries received while working in a saw mill, the refusal of the court to give certain charges requested by defendants, held, reversible error under the foregoing rule in view of the pleading, evidence and main charge of the court.</p> <p>2. —Evidence—Negligence—General Use of Appliance.</p> <p>While evidence of the general use of a certain appliance by other persons engaged in the same business is admissible upon the issue of ordinary care, it is not conclusive of the question, and will not warrant an instruction to the jury to that effect. In an action based upon negligence it is always a question for the jury under the facts of each ease whether or not there has been an absence of ordinary care.</p> <p>3.—Measure of Damage—Elements—Charge.</p> <p>An instruction on the measure of damages to allow compensation for mental and physical suffering past and future, and also for diminished capacity to labor and earn money in the future, did not authorize the assessment of double damages.</p>

<p>1. —Master and Servant—Negligence—Contributory Negligence—Pleading.</p> <p>Where a flagman at a street crossing was flagging a switch engine on a siding and stepped back on the main track and was struck and injured by a train, his allegations in a suit against the railway company that it was his duty to flag the trains over the crossing and that on the occasion in question he failed to discover the approach of the train which struck him, had the legal effect, standing alone, to establish prima facie negligence on his part as a matter of law; but further allegations that it was also his duty to keep a lookout for the safety of pedestrians at the crossing, that the safety of himself and others required that only one train or engine pass over said crossing at a time; that the passing of more than one rendered it dangerous to them; that the company and its servants owed him the duty to ring, the bell on all engines passing the crossing and to sound the whistle on all engines to apprise him of their approach; that a city ordinance required persons in charge of engines to ring the bell continuously while the engines were in motion; that those in charge of the engine which struck him failed to sound the whistle • or otherwise signal its approach; that he was the only flagman and could flag only one train at a time; that he did not expect the train to pass the crossing at the same time the switch engine was crossing, and that while engaged in flagging the switch engine the engineer in charge of it caused hot steam to escape ■ upon him thereby frightening and blinding him and causing him to step back and near the time where he was struck by the other engine of the presence of which he was until then unaware, were' sufficient to charge negligence on the part of the company and rebut any presumption of contributory negligence which otherwise might have arisen.</p> <p>2. —Negligence—Contributory Negligence—Street Crossing—Failure to See Approach of Train.</p> <p>Where a flagman at a street crossing was struck and injured by a train passing the crossing, the mere fact that he could have seen the approaching train several hundred feet before it reached the crossing would not prevent a recovery. The jury had the right to take into consideration the facts pleaded and proved by him to excuse his apparent want of ordinary care in not seeing or hearing the approach of the train, and to determine under proper instructions whether in failing to see it he was or was not, under all the circumstances in evidence, guilty of negligence.</p> <p>3. —Same—Operation of Trains—Street Crossing.</p> <p>Whether it was negligence on the part of the railway in running a train over the street crossing in a city at the same time a switch engine was being flagged across on another track, was an issue for the jury to determine under all the facts and circumstances in evidence.</p> <p>4. —Same—Speed of Train—Withdrawal of Issues—Charge.</p> <p>Where the court did not submit the speed of the train as one of the grounds of negligence, and instructed the jury that “all allegations of negligence contained in the petition other than- those hereinbefore submitted for your consideration are expressly taken from your .consideration, and1 you are not to consider the same or any of the same in arriving at a verdict,” this was sufficiently specific to withdraw from the consideration of the jury the speed of the train as a ground of negligence, and it was unnecessary to give, a special charge having the same purpose.</p> <p>5. —Verdict—Damages—Personal Injuries.</p> <p>Verdict for five thousand dollars for personal injuries caused by being struck by a locomotive engine, held not excessive under the facts of this case.</p> <p>ON REHEABING.</p> <p>6.—Contributory Negligence—Charge.</p> <p>An instruction that contributory negligence “means a want of ordinary care on the part of a person injured by the actionable negligence of another, combining and concurring with that negligence and contributing thereto as a direct and proximate cause therefor, without which the injury would not have occurred,” held, inaccurate, but not misleading in view of an instruction that the plaintiff could not recover if the jury believed from the evidence that at the time he was struck by the engine, or just before that time, he could have discovered the approach of said engine by the use of orGmary care by using his sense of hearing or seeing, or if they believed that an ordinarily prudent person, situated as he was at the time, could or would have discovered the approach of said engine in time to have avoided contact therewith.</p>

<p>1. —Vendor’s Lien—Assumption of Debt.</p> <p>One who purchased land in consideration of assuming the payment of a note given by the grantor and secured by vendor’s lien on the property, could not plead limitation or homestead in defense of a suit to foreclose such lien, against the will of his vendor who insisted on waiving such defense.</p> <p>2. —Same—Costs.</p> <p>The holder of a title in trust for another is not exempt from personal liability for the costs of litigation over the property where in his own interest he unsuccessfully asserts a defense thereto in which the other refuses to join.</p>

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

<p>Appeal from the 45th Judicial District, Bexar County. Tried below before Hon. J. L. Camp.</p>

<p>1. —Liquor Dealer—Sale to Minor.</p> <p>In an action on a liquor dealer’s bond for selling to plaintiff’s minor son, he makes a prima facie case by showing the sale and that the son was a minor; the defense may then show that the sale was made in good faith and with the belief that the' purchaser was twenty-one years of age; but this is not supported by proof tnat the minor had stated to others that he ■ was of age and that he looked to be so, where defendant, though sworn as a witness, did not testify that he was ignorant that the purchaser was a minor or that he believed him to be of age.</p> <p>2. —Charge—Admission.</p> <p>A formal admission of facts (made to avoid continuance and read in evidence) does not demand an instruction as to its effect, where no evidence to modify or contradict such admission is introduced; and if the court undertakes to state it, as undisputed evidence, it should be stated in the language adopted by the parties or its clear equivalent.</p> <p>3. —Appeal—Record—Agreement.</p> <p>Orders and rulings made in the trial court should appear by authenticated copies of the proceedings, embraced in the transcript. They cannot be shown by agreement of counsel except in agreed eases prepared under the statute regulating such form of appeal (Rev. Stats., arts. 1411, 1414) ; still less by an agreement not approved by the judge, and embraced in the transcript in the form of an unauthenticated copy by the clerk.</p> <p>4. —Appeal—Final Judgment—Sureties.</p> <p>In a suit against a principal, a single surety, and the representatives of a surety deceased, a judgment that plaintiff take nothing by his suit is a final judgment, from which appeal will lie. The defendant surety cannot complain, by cross-assignment, that the liability on the bond was joint, and that there was error in also holding that there could be no recovery against the representatives of the deceased surety because of their plea in abatement of the action as to him by his death.</p> <p>5. —Sureties—Death—Abatement.</p> <p>On the death of one of two sureties pending suit against both joined with the principal, the suit as to the deceased surety may be dismissed and the cause proceed to judgment against the principal and the surviving surety.</p> <p>ON MOTION TO REVERSE AND BENDER.</p> <p>6. —Reversal—Rendering Judgment.</p> <p>Where the right of plaintiff to recover and the amount were shown by the undisputed evidence, the court, reversing a judgment for defendant, renders judgment for the appellant plaintiff, declining to remand for the purpose of enabling defendant to testify to facts to which he had opportunity to testify on the former trial, but did not.</p>

<p>1. —Negligence—Master and Servant—Pleading.</p> <p>Where the only negligence alleged in plaintiff’s petition as a ground of recovery was that of E., a foreman under whom he was working, a charge that the laborers engaged other than E. were fellow servants of plaintiff for whose negligence the master was not responsible, was not prejudicial to plaintiff.</p> <p>2. —Assignment of Error—Brief.</p> <p>The grouping of assignments of error relating to distinct matters, and their presentation in appellant’s brief under a single proposition, is not in accordance with the rules.</p> <p>3. —Negligence—Requested Charges—Assumed Risk.</p> <p>A charge on negligence which would entitle plaintiff to recover, requested by him, was properly refused when it ignored the issue of risk assumed by him, which was raised by the evidence; also a requested charge which made defendant liable for the omission of a specified act by its foreman, irrespective of whether it was possible for him to have averted the injury thereby.</p>

<p>1. —Negligence—Pleading—Variance.</p> <p>Evidence of negligence by a section foreman (getting foot caught in wheel and being drawn under car) causing the derailment of a hand car and injury to a section hand, considered and held, to support the substance of the allegations of the petition, to present no variance, and to justify submission of the issue and refusal of a peremptory charge for defendant.</p> <p>2. —Charge—Omission.</p> <p>Failure of the charge to present all the defenses does not present reversible error in the absence of a requested instruction supplying such omission.</p> <p>3. —Negligence—Evidence.</p> <p>It is for the jury to draw the inference of negligence from the facts proven. It is neither necessary nor proper that witnesses testify that the act was negligent.</p> <p>4. —Negligence—Definition.</p> <p>On the issue of negligence of a section foreman the care required was properly defined as “that which a person of ordinary prudence would exercise under the same or similar circumstances.” No less degree was required of a foreman.</p> <p>5. —Briefs—Assignments—Propositions.</p> <p>An assignment of error cannot be treated as a proposition where .it is too general to constitute one.</p> <p>6. —Master and Servant—Assumed Risk—Pleading.</p> <p>The defense that the risk of negligence by a foreman was assumed by a section hand because of his knowledge of previous similar acts of negligence, must be pleaded by defendant in order to raise such issue.</p> <p>7. —Negligence—Acting to Avert Peril.</p> <p>Evidence considered and held not to raise the issue nor justify a charge on excusing the negligent act of a section foreman as done to avert peril.</p>

<p>1. —Electricity—Telephone—Lightning—Negligence.</p> <p>Evidence considered and held to support a recovery of damages against a telephone company for negligence in failing to provide a lightning-arrester device with a ground wire, where its wires entered the house of a subscriber, whereby one of the inmates received a shock from electricity carried into the building by the telephone wires during a storm.</p> <p>2. —Injury to Person—Pleading—Deafness.</p> <p>An allegation that by an electrical shock incurred through defendant’s negligence, plaintiff suffered “serious, painful and permanent bodily injuries,” held not limited to particular injuries subsequently described in the petition, and to support the prbof of impairment of hearing as a result of the shock, though deafness was not specially alleged as a result.</p> <p>3. —Same—Simulated Injuries—Bebutting Evidence—Damages.</p> <p>Evidence of deafness resulting from injury to the person, if not admissible because not alleged as one of the particular results enumerated, was receivable in rebuttal as showing permanent injury, where defendant introduced evidence to show that the injuries were only slight and temporary. The question whether such impairment could then be considered as an element of damages would not arise on objection to the introduction of the testimony, but only on objection to the charge of the court on damages.</p> <p>4. —Evidence—Expert—Qualifications.</p> <p>The question of the qualification of a witness to testify as an expert must be largely left to the discretion of the trial court, and his decision will be held error only where abuse of such discretion appears. The competency of the witness is determined by the qualifications he exhibits, and not by his own opinion as to whether or not he deserves to be called an expert.</p> <p>5. —Evidence—Declarations of Servant—Harmless Error.</p> <p>Testimony as to statements of a telephone operator, in response to a request to call the house of E., who wanted a physician, that his telephone was “torn up by lightning,” held admissible as part of the res gestae, though made twenty-five minutes after the accident at E.’s house, an electrical shock, which was the subject of investigation; but if error, its admission was not ground for reversal where the same facts appeared from other testimony.</p> <p>6. —Electricity—Negligence—Charge.</p> <p>_ Instruction upon the issue as to negligence of a telephone company in failing to provide, for arresting the entry of dangerous currents of electricity from its wires into the house of1 a patron, proper devices at the point of entry, held not subject to the objections: (1) That it denied defendant protection from liability if other sufficient devices for the patron’s protection had been employed by it; (2) that it was unsupported by evidence that the device in question would have averted the injury; (3) that it imposed an absolute duty to select the best device, instead of mere exercise of reasonable care to do so.</p> <p>7. —Bequested Instructions.</p> <p>Charges are properly refused where they ignore an hypothesis supported by evidence and justifying a verdict for plaintiff in spite of the facts which the requested charges hold to constitute a defense.</p>

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

<p>Error from the Eleventh Judicial District, Harris County, Tried below before Hon. Chas. E. Ashe.</p> <p>D. F. Rowe and A. H. Jayne, for plaintiffs in error.—The court erred, as a matter of law, in finding that the independent executors of the estate of B. A. Shepherd had no right to release said lien, and that the release so executed by them was void. Because, as such independent executors, they were clothed with full power to do that which B. A. Shepherd could have done if alive, and, having carried out the expressed wishes of the testator, they could only be looked to, personally, if they have betrayed their trust. Dwyer v. Kalteyer, 68 Texas, 563; Roy v. Whitaker, 92 Texas, 346, 351-355.</p> <p>The court erred in overruling plaintiffs’ pleas in answer to defendant’s cross-action, to the effect that if any right of action existed for the said $3,500 note, or any part thereof, said right was in the executors of B. A. Shepherd, and not in Frank T. Shepherd or his guardian. Art. 1869, Rev. Civ. Stat.; Wiess v. Goodhue, 98 Texas, 274.</p> <p>The court erred as a matter of law in finding that O. L. Cochran, the guardian of Frank T. Shepherd, did not have authority to sign the quitclaim deed to F. D. Dechard, trustee, for the reason that said deed was a mere release, and not in fact a deed, and was, therefore, valid, it being in the nature of a receipt, which said guardian was authorized under the circumstances to sign, and his acts therein are binding on his ward. Gulf, C. & S. F. Ry. Co. v. Dunman, 74 Texas, 625; Chicago, Texas & Mexican Central Ry. Co. v. Titterington, 84 Texas, 218; s. c., 31 Am. St. Rep., 39, and note, p. 46; Raley and Johns v. Umatilla County, 15 Oregon, 172; 3 Am. St. Rep., 142.</p>

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

<p>1.—Tax Suit—Citation by Publication—Judgment—Collateral Attack.</p> <p>A judgment in a suit for taxes recited that citation had been duly made by publication; the affidavit for citation by publication by the county attorney was in statutory form, affiant stating that the owners of the land in controversy were unknown to him and after diligent inquiry could not be ascertained. An attack upon the judgment on the ground that said affidavit was fraudulently made and the judgment was therefore void, was a collateral attack based upon facts dehors tne record and could not be allowed.</p> <p>2. —Same—Cases Distinguished.</p> <p>Where the evidence fails to show that the owner was in possession of the land when the foreclosure suit for taxes was filed and citation by publication to unknown owners was issued, the cases of Hollywood v. Wellhausen, 28 Texas Civ. App., 541, and Bingham v. Matthews, 39 Texas Civ. App., 41, have no application.</p> <p>3. —Same—Cases Distinguished.</p> <p>The cases of Babcock v. Wolffarth, 35 Texas Civ. App., 512; Stoneman v. Bilby, 43 Texas Civ. App., 293; and Earnest v. Glaser, 32 Texas Civ. App., 378, are applicable only in cases where the judgment assailed fails to recite service of citation.</p> <p>4. —Judgment—Recital of Service.</p> <p>When a judgment recites service of citation, it is not subject to collateral attack for lack of proper service in the absence of some recital identifying the precise writ of citation upon which the court acted.</p> <p>5. —Citation by Publication—Requirements.</p> <p>Citations by publication in tax suits are not required to be addressed to any officer and need not require any officer to make return thereof.</p> <p>6. —Tax Suit—Judgment.</p> <p>A judgment in a tax suit decreeing that the order of sale to be issued thereon should have the force and effect of a writ of possession and that the officer making the sale of the land by virtue thereof should place the purchaser in possession, was erroneous, but such error did not invalidate the entire judgment, the erroneous portion should be treated as surplusage.</p> <p>7. —Tax Sale—Purchase by County Attorney.</p> <p>In the absence of proof of fraud in making the purchase, a purchase of land at tax sale by a county attorney who represented the State in the suit, is not contrary to public policy. Such rule applies only when the purchase is made by the officer who is conducting the sale.</p>

<p>Appeal from the County Court of Tarrant County. Tried below before Hon. John L. Terrell.</p>

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

<p>1. —Injunction—Cloud upon Title—Vendee of Married Woman— Sale under Execution,</p> <p>Where a married woman purchases land and the conveyance is to her but does not state that the land is to be her separate property, the law presumes it to be community property and subject to the husband’s debt; and, if in fact it is purchased and paid for out of her separate means and is to become her separate property, a sale under an execution against her husband will cast a cloud upon her title, which cloud can only be shown by evidence dehors the recitations in the deed, and an injunction will lie to prevent such sale at her suit or that of her vendee.</p> <p>2. —Community Property—Gift of Cattle to the Wife—Increase.</p> <p>When a woman acquires title by gift during coverture the increase becomes community property, and if land be acquired by her during the marriage and is paid for by the cattle and increase or money realized by the sale of same, the community will own an interest in the land in proportion to the increase. •</p> <p>3. —Same—lands Acquired During Marriage.</p> <p>Where land is conveyed to a woman during her coverture and same is paid for in part out of her separate funds and in part by funds borrowed by her on the note of herself and husband secured by tbeir deed of trust on the land, the land becomes community to the extent of the loan in the absence of evidence that the lender agreed to look to her alone for payment, or that it should be paid out of her separate estate.</p> <p>4. —Same—Earnings of Married Woman.</p> <p>Money earned by a woman during her coverture by teaching school, is community property, and, in the absence of any agreement between herself and her husband that same shall become her separate estate, land purchased therewith is community.</p> <p>ON BEHEABINQ.</p> <p>5. —Injunction—Sale under Execution.</p> <p>Where land was conveyed to a married woman during her coverture but the deed did not recite that it was for her separate use and benefit, her vendee, paying a valuable consideration and taking a deed from the husband and wife which was recorded, was entitled to an injunction to restrain a sale under an execution against the husband under a judgment against him existing at the time of such vendee’s purchase but which constituted no lien at that time upon the land, though the land may have been community property of his vendors, in the absence of any attack on the validity , of the deed or on the sale as being in fraud of creditors.</p>

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

<p>Error from the County Court of Dallas County at Law. Tried below before Hon. W. M. Holland.</p>

<p>1. —Limitation—Adverse Possession—Notice to Owner.</p> <p>The possession of land by one claiming adversely to the owner, in order to give title to such claimant by limitation, must be of such character as is sufficient in itself to give notice to the owner of the adverse claim.</p> <p>2. —Same—Inclosure—Notice.</p> <p>The inclosure, cultivation and enjoyment of a small strip of land by the owner and occupant of an adjoining tract who has extended his inclosure a short distance over his line, whether such extension was by design or mistake, is not sufficient to give notice to the owner whose property is thus invaded that the -person so occupying such strip is asserting a claim to any portion of the land outside of his inclosure.</p> <p>3. —Judgment—Trespass to Try Title—Description of Land.</p> <p>A judgment rendered upon pleadings which fail to describe the land attempted to be awarded by the judgment cannot be sustained.</p> <p>4. —Same.</p> <p>Where, in trespass to try title, the petition described by metes and hounds a tract alleged to contain 320 acres, and the evidence showed that the tract so described contained about 200 acres, and under his plea of limitation the defendant claimed “the land described in the petition,” a judgment in favor of defendant for “160 acres, to include his improvements,” was not supported, for without further description it could not be determined what part of the land was adjudged to him.</p>

<p>1. —Negligence—Handhold on Car—Charge.</p> <p>Where the railway company was charged with negligence in allowing a handhold on a car to remain in an unsafe and defective condition, causing it to give way when used by an employe, and there was evidence tending to show that it gave way because of defects other than the insufficient length of the screws which fastened it, which might have been discovered by the exercise of proper care and -which, combined with the insufficient length of the screws, contributed to the instability of the fastening, a requested charge to return a verdict for defendant if the jury believed that the handhold was originally fastened by screws of insufficient length, and that the cause of the handhold giving way was the insufficient length of the screws and this condition could not have been discovered by the exercise of ordinary care in inspecting same, was properly refused.</p> <p>2. —Charge—Special Charges.</p> <p>Special charges are properly refused when they are sufficiently embraced in and covered by the general charge.</p> <p>3. —Pleading—Defective Appliances—Railways.</p> <p>A plaintiff is not ordinarily presumed to know the condition of the track, machinery and equipages of a railroad so as to specify what particular defect brought about the disaster by which he was injured; and if the allegation points out the particular place and thing which were insufficient and needed repair, it is not necessary to detail their faults and imperfections.</p> <p>4. —Same—Defective Handhold.</p> <p>An allegation that the handhold gave way because of its unsafe and defective condition, was not subject to special exception on the ground that it was too general and did not point out the particulars in which or in what respect it was in an unsafe and defective condition.</p> <p>5. —Same—Negligence.</p> <p>An allegation that the defective condition of the handhold was the result of the defendant’s negligence and carelessness, was not subject to special exception on the ground that it was too' general to apprise defendant how or in what respect it was claimed that the condition was the result of its negligence.</p> <p>6. —Personal Injuries—Damages—Pleading.</p> <p>In suits for personal injuries the rule is that, in legal contemplation, all damages which will be sustained as the effect of the injury are sustained immediately; the future effect of the injury is not special damages which must be alleged, but general damages which necessarily flow from the injuries received.</p> <p>7. —Pleading—Damages.</p> <p>The general allegation of damages will suffice to let in proof and to warrant recovery of all such damages as naturally and necessarily result from the wrongful act complained of; the law implies such damages.</p> <p>8. —Same—Damages—Future Suffering.</p> <p>Under allegations showing that the plaintiff was seriously crippled in a manner affecting his future comfort and capacity, the law, even in the absence of an allegation as to mental and physical pain, would infer that he has suffered damages in those respects, and proof was admissible to show the character, extent and probable duration of such suffering without specific allegation thereof.</p> <p>9. —Same—Future Suffering—Evidence.</p> <p>An allegation that in consequence of plaintiff’s injury his hand has been practically destroyed and that he has thereby been caused to suffer great mental and physical pain, did not restrict the right to recover to such suffering only as occurred prior to the filing of the suit; and testimony as to the condition of the hand at the time of trial and the pain then suffered, was admissible over objection that it was in the nature of future pain and there was no allegation of that kind.</p> <p>10. —Same—Case Distinguished.</p> <p>Lodwick Lumber Company v. Taylor, 39 Texas Civ. App., 302.</p> <p>11. —Evidence—Expert Testimony—Conclusion.</p> <p>Testimony of an expert car inspector, on cross-examination, that if a lag screw is loose in the wood to a point where the handhold will pull off in the ordinary use of it, a close inspection would disclose such condition, was admissible over objection that it was the conclusion of the witness and an invasion of the province of the jury.</p> <p>12. —Same—Inspection—Conclusion.</p> <p>Where an expert was asked to tell the proper method of inspecting handholds based on his experience, and his reply was that the only way he ever found to inspect handholds to know whether they were securely fastened was to climb the ladder and shake them, the testimony was admissible over objection to the question on the ground that it called for the conclusion of a witness about a matter not the subject of expert testimony.</p> <p>13. —Verdict—Damages for Personal Injuries.</p> <p>A verdict awarding damages for personal injuries in the sum of twelve thousand dollars held not so large as to warrant the conclusion that the jury were actuated by prejudice, passion or other improper motives.</p> <p>14. —Trial—Argument—Remarks of Counsel.</p> <p>Remarks of counsel for plaintiff held not ground for new trial, in view of the fact that the court twice admonished the jury not to consider them, and the further fact that counsel making them explained to the jury that he did not intend the remarks to be taken seriously and requested the jury not to consider them, and the court to so instruct.</p>

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

<p>1. —Growing Timber—Sale by land Owner—Personal Property.</p> <p>Growing timber, when the title thereto has been transferred by the owner of the land upon which it stands, and the right given the transferee to enter and remove the same, becomes the personal property of the transferee and can no longer be regarded as a part of the realty.</p> <p>2. —Taxation—Timber Growing on County School lands.</p> <p>Under the provision of the Constitution exempting from taxation the property of counties held for public purposes only, timber growing upon county school land is exempt from taxation if the timber is the property of the county on the first of January next preceding the date upon which the taxes sought to be collected were levied; but if at such time it was the property of a private person holding under a sale and transfer from the county, it is subject to taxation as personal property. Constitution, art. 11, sec. 9; art. 7, sec. 6; Acts 29th Leg., p. 72.</p> <p>3. —Judgment—Fundamental Error—Pleading.</p> <p>A judgment based upon pleadings which affirmatively show that the case made by the party in whose favor the judgment is rendered is not founded in justice and in law should be reversed for fundamental error notwithstanding the appellant in such case has failed to present an assignment pointing out the error.</p> <p>4. —Same—Taxation—Timber on County School lands—Ownership.</p> <p>Where the petition to enjoin the collection of taxes on timber growing upon county school land alleged that previous to the levy the county duly and legally transferred such timber together with the right to enter and remove it for a valuable consideration in cash paid and vendor’s lien notes, which notes had been paid and fully discharged before the first day of January of the year for which the taxes were levied, and that plaintiff had acquired all the rights of the county’s vendee by proper conveyance, it appeared from the allegation that the timber was subject to tax as plaintiff’s personal property, and a judgment in his favor was fundamentally erroneous.</p> <p>5. —Growing Timber—Ownership—Appeal—Reversal.</p> <p>Where the statement of facts and the court’s finding only showed that the plaintiff had acquired from the county through mesne conveyances, for a consideration fully paid, the right to cut and remove the timber from the county school land until a certain date, this did not show title in the timber while it remained on the land, so as to subject it to taxation; and this required the Appellate Court to remand the case on reversal, although the petition on its face showed that the plaintiif was not entitled to the relief sought and obtained below.</p>

<p>1. —Self-Defense—Provoking Difficulty.</p> <p>The extent and limits of the right of self-defense by one who has himself provoked the assault discussed and authorities thereon reviewed. Charges on the subject considered and approved.</p> <p>2. —Same—Injuries Resulting in Death.</p> <p>In an action by the widow and children of deceased for damages caused by defendant shooting and killing him, defendant could not justify on the ground of self-defense where it appeared, that, being informed of improper advances made by deceased to his wife, he armed himself, sought out deceased with the avowed purpose of “calling” him, engaged in an altercation using violently abusive language, and shot deceased when, under such provocation, the latter attacked him with a knife. «</p> <p>3. —Same.</p> <p>Where it appeared that defendant had unlawfully provoked and brought on an assault on himself by deceased and killed him in resistance thereto, a civil action lay against him in favor of the widow and children of deceased for the wrongful killing, though the difficulty was not provoked with such intention, and irrespective of the degree of guilt attached to the homicide by the penal law.</p> <p>4. —Same—Demand for Autopsy.</p> <p>The evidence showing that the defendant killed the husband and father of plaintiffs in an unlawful altercation which he had himself provoked, there was .no error in refusing his demand for the appointment by the court of a commission of physicians to ascertain by autopsy certain facts going to prove whether deceased was shot from in front or from behind, the tendency of such evidence being only to determine the degree of defendant’s guilt under the penal laws, and not to'show that his act was a lawful one. Gray v. State, 55 Texas , Crim. Rep., 90, involving the same facts and demand in a criminal prosecution, distinguished.</p> <p>5. —Evidence—Demand for Autopsy.</p> <p>The demand of defendant for an autopsy on the body of deceased whom he was charged with unlawfully killing, it having been refused, was not competent to be read in evidence in his favor before the jury.</p> <p>6. —Jury.</p> <p>Where, in a case not reached while the regular jurors selected for the term by jury commissioners were in attendance, defendant demanded a jury, it was proper practice for the court to set a day for trial, and have the sheriff summon other jurors for that day.</p> <p>7. —Deposition—Returning into Court.</p> <p>Where a deposition was quashed on motion for irregularities in the required indorsements on the envelope by the officer taking them, no error appeared, where' there was no appearance of alteration, in having it returned to the officer taking it and remailed by him to the clerk with the proper indorsements.</p> <p>8. —Evidence—Earnings of Deceased.</p> <p>Witnesses personally familiar with deceased and the returns he was receiving for his labor may testify to such earnings in an action for injuries resulting from causing his death.</p> <p>9. —Opinion—Expert—Gunshot Wounds.</p> <p>Opinion of a physician as to whether a bullet would have passed through or remained in the body of deceased held properly excluded because, (1) the inference sought to be drawn from the answer desired would establish no defense for the party offering the testimony; (2) the opinion of the witness on the question asked was not competent under the facts in evidence.</p> <p>10. —Charge—Self-Defense—Apparent Attack.</p> <p>An instruction submitting the issue of self-defense against attack was not erroneous in failing to submit the issue as to an apparent attack because, (1) it allowed defense as to any attack; (2) the evidence presented no issue as to apparent but not actual attack; (3) if there was an omission, a charge to supply it should have been requested.</p> <p>11. —Charge—Death—Damages—Expected Benefits.</p> <p>An instruction allowing recovery of damages by minor children for loss of the nurture, care and education they would have received from a father “had he lived,” was not objectionable because not limited to such benefits as they would have received had he not been “killed by defendant, taking into consideration the uncertainties of life.”</p>

<p>Statement of Facts—County Court.</p> <p>The Act of May 25, 1907, Laws, 30th Leg., p. 509, requiring original statements of facts to be sent up on appeal, and not copied in the transcript, applies to appeals from the county as well as the district courts.</p>

<p>Appeal from the District Court of McLennan County. Tried beIbW-before “Hon! Marshall Surratt.</p>

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

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

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

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

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

<p>1. —Note—Attorney’s Fees.</p> <p>In an action on a note providing for the recovery of ten percent of its amount “as collection fees,” if “it is placed in the hands of an attorney for collection or suit brought on same,” plaintiff cannot have judgment for such fee without alleging and proving payment or agreement to pay it to his attorneys. The contract is for indemnity, not for liquidated damages, and such contract with the attorney could not be presumed.</p> <p>2. —Charge—Error—Motion for New Trial.</p> <p>It is not necessary, in order that errors in the charge may be ground for reversal, that they be urged in support of a motion for new trial.</p> <p>3. —Interpleader—Guarantor.</p> <p>Plaintiff had no right to join as a party defendant one who was interested in the litigation only by an agreement with defendant to indemnify him against any judgment plaintiff might recover; nor, having alleged such contract to indemnify, could he introduce evidence to prove it; it was irrelevant, and, under circumstances here shown, prejudicial to defendant.</p>

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

<p>1. —Bankruptcy—Corporation—Unpaid Subscription—Suit by Creditor.</p> <p>To warrant a creditor of a bankrupt corporation in suing the stockholders for unpaid balances upon their stock subscriptions, it must be alleged and proved by such creditor that the trustee in bankruptcy had failed and refused to file such suit.</p> <p>2. —Same—Statute Construed.</p> <p>So long as an insolvent estate is being administered by the courts, the receiver or trustee in bankruptcy alone has the right to pursue the remedy provided by article 671, Rev. Stats., for the collection of unpaid stock subscriptions.</p>

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

<p>1.—Damages-Sequestration—Judgment in Forcible Entry and Detainer.</p> <p>In a suit for damages for suing out a writ of sequestration and ejecting plaintiffs from premises held by them under a rental contract for one year, evidence that defendant had brought an action of forcible detainer in the Justice Court against plaintiffs and obtained judgment in that court which was set aside, and on another trial judgment was-for plaintiffs, and that defendant appealed to the County Court and, after the case was docketed, asked and obtained a dismissal of the case, did not authorize the court to direct a verdict for the defendant in the damage suit.</p> <p>55.—Judgment in Justice Court—Appeal, Effect of.</p> <p>The effect of the appeal from the justice’s judgment was to annul that judgment, and the case stood in the County Court for trial de nova, and not having been dismissed for some illegality or insufficiency in the manner of bringing it up, said judgment had no legal effect, and the case for damages stood alone upon its merits.</p> <p>3.—Charge—Rental Contract.</p> <p>The testimony being conflicting as to whether the plaintiffs held the premises under a rental contract for a year or by the month only, this issue should have been submitted to the jury.</p>

<p>Appeal from the County Court of Wise 'County. Tried below before Hon. C. V. Terrell.</p>

<p>1. —Contract—Fraud—Rescission—Ratification.</p> <p>One who seeks to rescind a contract on the ground of fraud must act promptly in disaffirming the contract. If after discovering the fraud he ratifies it or affirmatively acquiesces in it by distinctly treating the contract as of continuing force, claiming its benefits, he cannot thereafter repudiate it.</p> <p>2. —Same.</p> <p>Where one who has been defrauded in a contract elects to affirm same and to resort to his remedy for damages, the equitable remedy by rescission will be thereby lost. The complaining party will not be allowed to delay and speculate upon the chances of the situation.</p> <p>3. —Ratification—Evidence.</p> <p>In an action to rescind a contract for exchange of certain town lots for shares of stock in a mercantile company, evidence considered, and held sufficient to warrant the trial court in instructing a verdict for the defendant, on the ground that the plaintiff had failed to act promptly after discovering the alleged fraud and had in effect ratified the contract.</p>

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

<p>Appeal from the County Court of Taylor County. Tried below before Hon. T. A. Bledsoe.</p>

<p>Appeal from the District Court of Wichita Comity. Tried below before Hon. A. A. Hughes, Special Judge.</p>

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

<p>Appeal from the County Court of Limestone County. Tried below before Hon. James Kimbell.</p>

<p>Appeal from the District Court of Dallas County. Tried below before Hon. E. J3. Muse.</p>

<p>1. —Personal Injury—Mental Shock.</p> <p>Where it appears that the natural tendency of a mental shock is to produce the character of injury charged and shown, it will be regarded in law as one which should have been foreseen.</p> <p>2. —Same—Physical Injury Resulting from Fright.</p> <p>In order to constitute a physical injury resulting from fright, it is not essential to show that the mental emotion produced an actual rupture or change in the substance of some organ or part of the body.</p> <p>3. —Saíne.</p> <p>Where it was shown by the testimony that plaintiff’s wife suffered a severe shock from the fright occasioned her by the wrongful act of the operatives of a train in backing it while she was upon a crossing; that she was about five months advanced in pregnancy; that almost immediately after receiving the fright she experienced severe pains in her back; that on reaching her home, a short distance away, she was unable to alight without assistance and was confined to her bed for one month, during which time she suffered with pain in the back, "head and other parts of her body and was so seriously threatened with a miscarriage that it was only averted by medical treatment and absolute quiet; that although the birth of her child was normal she was compelled to remain in bed longer than is usual, and that her trouble was neurasthenia, a disease produced by shock to the nervous system, it was for the jury to determine whether she had received any physical injury as the result of the fright, and whether such injury ought to have been foreseen by those operating the train.</p>

<p>1. —Measure of Damages—Personal Injuries—Past and Future Suffering—Earning Capacity—Charge.</p> <p>A charge allowing damages for mental and physical suffering and also for lost capacity to earn money is not subject to the objection that it permits a double recovery in that each element is embraced within and is inseparable from the other.</p> <p>2. —Same.</p> <p>Mental and physical suffering, past and future, in so far as reasonably probable, is an element ,of damage of itself, and the reasonable value of lost time or capacity to attend to one’s business or domestic affairs or to earn money, past or future, is an element of damage of itself, and both of these separate elements may be considered in fixing the damages.</p> <p>3. —Jury—Selection of Jurors—Statute—Repeal—Talesmen.</p> <p>The Act of 1907, commonly known as the Jury Wheel Law, does not repeal by implication the statutory provisions relating to the summoning of the talesmen by the sheriff. Gen. Laws 1907, p. 269; Revised Statutes, art. 3219.</p> <p>4. —Same—Talesmen.</p> <p>Where it appeared that when the names of the jurymen who were to serve for the week were placed on the list there were on it the names of only eighteen that had been drawn from the wheel, and that thereupon the sheriff, under the order of the court, summoned six talesmen to fill the panel and bring it to the required number of twenty-four, from which the parties were required to make their peremptory challenges, objection that under the law no talesmen could be summoned by the sheriff, was properly overruled.</p> <p>5. —Trial—Errors in Procedure—Failure to Make Objection with Clearness.</p> <p>Fairness to the trial judge and fairness to the opposing litigant requires that no party litigant shall make a point in vague and uncertain language not apt to draw the minds of the trial court and opposing counsel to it, when, had the point been called plainly to the trial court’s attention, the error would have been obviated.</p> <p>6. —Jury—Selection of Jurors.</p> <p>Where the number of jurors drawn from the wheel was eighteen, it was error for the court to direct the talesmen to be summoned before the eighteen drawn had been passed upon by the parties, and require their names to be added to,the list to be passed upon (Revised Statutes, art. 3219; Gulf, Colorado & Santa Fe Railway Company v. Greenlee, 70 Texas, 559) ; but, objection on that ground not being called to the attention of the court below and not comprehended by the assignment of error, the ruling is not ground for reversal.</p> <p>7.—Damages—Verdict.</p> <p>Verdict awarding damages for personal injuries in the sum of ten thousand dollars held, under the evidence, not to be so large as to indicate that the jury were influenced by improper motives.</p>

<p>Public Lands—Sale—Lease—Collateral Attack.</p> <p>Where the fact that orphan asylum lands which plaintiff had applied to purchase from the State were subject to sale, was dependant upon the existence of a lease of other lands to other parties, and the validity of such lease was recognized by the Land Office, defendant could not defeat plaintiff’s right to purchase by showing that such lessee had not the qualification of being an actual settler on other lands, necessary to entitle him to lawfully take the lease. His rights, being recognized by the State, could not be collaterally attacked in an action between third parties.</p>

<p>1. —Change of Venue—Rulings on Demurrer.</p> <p>An application by plaintiff for change of venue to another county in the . same district, its court presided over by the same judge, on the ground of prejudice caused by a combination of influential persons, was filed and not contested. Held that it was proper, before passing upon such application, for the court to dispose of the case upon a general demurrer to plaintiff’s petition which was held to show no cause of action.</p> <p>2. —Mandamus—Public Officer—Successor—Abatement of Action.</p> <p>A county judge-against whom .there was pending an action for mandamus, requiring him to order an election, which he had refused to do, resigned his office. A successor was elected and was made a party to the suit. Held that the office of the writ sought was to compel the performance of a personal duty by the defendant; the action abated on his retirement from office; it could not be continued by the substitution of his successor as defendant, and should h'ave been dismissed; no right arose to prosecute for the writ against the successor until his refusal, upon request, after coming into office, to perform ’ his own personal duty; he was not in privity with his predecessor nor his predecessor’s personal representative.</p> <p>3.—Mandamus—Injunction.</p> <p>Where a proceeding for writ of mandamus fails, the suit for an injunction to restrain action pending the proceeding for mandamus falls with that action.</p>

<p>Appeal from the County Court of El Paso County. Tried below before Hon. Albert S. Eylar.</p>

<p>1.—Evidence—Expert Opinion—Expert.</p> <p>Where a witness testified that he had been a locomotive engineer for seventeen years and that he was familiar with the construction of engines and tenders and their coupling apparatus, and with the coupling apparatus of three-bar engines, and then explained that the bars were rounded at the ends so that they would enter the sockets; that when they so entered that they would move toward each other with great force; that no inexperienced man should undertake to couple the tender to such an engine and that it would take three men to safely perform such a coupling; but on cross-examination it was elicited that his testimony was based on a coupling he saw made with such an engine after the institution of the suit, there was no error in refusing to strike out his expert opinion. He was an expert, and the matter pertained to his trade or calling, and the fact that he had seen the coupling made only once might go to the weight, but not the competency of his testimony.</p> <p>2. —Same—Objection to Evidence—Waiver.</p> <p>When a party after objecting to the testimony of a witness, brings out on cross-examination all the evidence objected to, he is not in a position to complain.</p> <p>3. —Same.</p> <p>A party has no right to object to evidence brought out in response to his questions on cross-examination.</p> <p>4. —Same—Personal Injuries—Impairment of Mind—Pleading.</p> <p>A general allegation that the plaintiff was permanently incapacitated to perform any mental or physical labor, was sufficient, in the absence of a special exception, to authorize the admission of evidence that his mental condition was impaired in every way.</p> <p>5. —Negligence-*—Coupling—Dangerous Service—Contributory Negligence.</p> <p>Where the servant, in obedience to an order from the foreman to assist in making a coupling of the tender and engine, placed his back toward the tender with his head between the bars and guided them to the socket, and when they slipped in they were suddenly brought against his head inflicting injury; and it appeared that he was young and inexperienced; that it was the first time he had ever performed such a service which was outside of his regular duties and that these facts were known to the foreman, it was the latter’s duty to have warned him of the danger incident to the service, and, failing this, it could not be held as a matter of law that he was guilty of contributory negligence in attempting to perform the service in the manner he did.</p> <p>6. —Assumed Risk—Inexperienced Servant.</p> <p>A servant cannot be held to have assumed risks which Ms ignorance and inexperience prevented him from knowing.</p> <p>7. —Same—Coupling—Charge.</p> <p>An instruction that if the jury believe from the evidence that the danger of making the coupling in the position as attempted by plaintiff was a risk that was known to him, or that it was one so open or obvious that persons of ordinary intelligence, with such knowledge and experience as plaintiff had, if any, would have learned of and avoided by the use of ordinary care in the performance of his duties, then plaintiff is deemed in law to have assumed the risk, and if you so find, let the verdict be for defendant, was correct and sufficient on the issue of assumed risk, and a requested charge thereon which ignored the facts that plaintiff was ignorant, had never before undertaken such a task, and could have known nothing of the dangers attending the service, was properly refused.</p> <p>8. —Charge—Special Charges—Withdrawal of Issue.</p> <p>A special charge is properly refused when its effect will be to inject an issue not made by the evidence and which has been withdrawn from the jury in the charge of the court.</p> <p>9. —Argument—Appeal to Race Prejudice—Harmless Error.</p> <p>A statement by counsel for the plaintiff in the closing argument before a white jury in a suit for personal injuries, that his client was a negro and that he felt sure they would not permit racial prejudice to influence their verdict, and that the client was entitled to the same rights in court as the white man and stood on the same plane and was the equal of the white man before the law, was not an appeal to race prejudice but to justice, and does not seem improper. If it was not a legitimate appeal, it was rendered harmless by an instruction that the race of plaintiff had nothing to do with the case.</p> <p>10.—Damages—Verdict.</p> <p>Verdict awarding damages for personal injuries in the sum of nine thousand dollars held not excessive.</p>

<p>1. —Garnishment—Lien.</p> <p>Garnishment proceedings are purely statutory and cannot be extended beyond reaching the effects of a defendant in a suit for debt in the garnishee’s hands. The writ gives the creditor a lien on the debt in so far as it restrains the garnishee from paying it over to the original debtor, but no further.</p> <p>2. —Same—Service—Liability of Garnishee.</p> <p>Service of the summons on the garnishee renders him liable to plaintiff from the time of service for all debts owing by him to defendant at the time of service; and he cannot escape liability to the plaintiff therefor by afterwards paying it to defendant or any one else.</p> <p>3. —Same—Lien—Payment without Notice—Assignment.</p> <p>A railway company settled a suit by the debtor and authorized his attorney to draw for the amount, which he did on April 2, 1903, and received the amount on April 14, the draft being paid by the company on April 13. On April 4, 1903, the plaintiff sued the debtor and sued out a writ of garnishment against the company which was served on its local agent on the same day, but the treasurer had paidT the draft before he or any officer had notice of service of the writ on the local agent, the latter having failed to notify them. On April 10, the debtor in payment of debts drew an order in favor of the Hardware Company and an order in favor of another creditor on his said attorney, both to be paid when the latter received the money from the railway company, the latter order being assigned to the Hardware Company and both orders were presented to the attorney on April 16, and left with him. On April 16, the plaintiff in garnishment sued out a writ of garnishment against the attorney, and it was served on the same day after he had received the orders. Held, that the money paid by the railroad company to the attorney was the money of the debtor, whose right to it was not affected by the writ sued out against and served on the railway company, that is, no lien extended to the money in the hands of the attorney after it had been paid, and, the execution and delivery of the two orders prior to the service of the writ of garnishment on the attorney being an absolute assignment and transfer of the debtor’s interest in the fund in the attorney’s hands, the Hardware Company was entitled to the money so assigned it as against the plaintiff in garnishment.</p>

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

<p>1. —laborer’s lien.</p> <p>The lien given by art. 3339a of the Revised Statutes, in favor of certain enumerated classes of artisans and laborers extends only to persons whose employment falls within the classes enumerated; one who,, by his personal employment falls within one of the enumerated classes has a lien for all his wages, though some of the service performed does not fall within the line of duties of such class; one whose personal employment does not bring him within one of the enumerated classes has no lien for any wages, though he may perform some duties by reason of his employment belonging to the grade or character entitled to lien.</p> <p>2. —Same.</p> <p>One who is employed by a brick manufacturing company as superintendent and general manager of its business has no statutory, lien under article 3339a of the Revised Statutes, though incident to such employment he performed at times some manual labor,</p> <p>3. —Same.</p> <p>One employed as superintendent and general manager of a brick manufacturing company at a monthly salary was not entitled to a lien for services rendered in that employment falling within the class of a laborer or other 1 enumerated craftsman, there being no way to segregate the value of those services from such as he rendered as superintendent, and the lien given by the statute being for all his wages or none.</p> <p>4. —Corporation—Director—Contract—Public Policy.</p> <p>Whether the public policy would permit a director in a corporation to recover upon a contract by the directors employing him as superintendent and manager, is questioned but not decided.</p> <p>5. —Lien—Conversion of Property.</p> <p>The right of an employe to recover wages due against one converting the property of the employer depends upon the existence of the statutory lien upon such property for his wages.</p> <p>6. —Lien—Pleading.</p> <p>Allegations considered and held not to show plaintiff to be entitled to a lien upon the property of his employer entitling him to recover against a purchaser thereof or one converting it to his own use.</p> <p>7. —Amount in Controversy.</p> <p>Where plaintiff is not entitled under his pleading to recover anything on account of certain items of his claim and the other items claimed are not sufficient in amount, the court is without jurisdiction.</p>

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

<p>1. —Railway—Drainage—Measure of Damages.</p> <p>For destroying or depreciating' the value of land by causing it to be overflowed, plaintiff may, if the structure creating the overflow is permanent and cannot be abated, recover at once the difference in the value of his land before and after the change in .the railroad, the action arising and limitation beginning to run on the change being made. But if the damage was not permanent and immediate, either because the wrong was one which could be abated, or, because injury by overflow was caused only occasionally and at irregular intervals, the action would be for damages for such injuries, accruing as each overflow occurred, and limitation running against each cause of action from its date. The damages would be the value of the land, if rendered valueless, the decrease in value, if permanently injured, or the rental value loss, if the injury was temporary. But in no case could plaintiff recover both for total or partial destruction of the value of the land and for loss of its rental value.</p> <p>2. —Same.</p> <p>A railway company having filled in a trestle on its roadbed, making culverts insufficient for the drainage, an owner of adjoining land sued for and recovered both damages to the land and an injunction requiring the abatement of the obstruction to the drainage. A charge in such case which permitted the recovery of the rental value of the land during the years plaintiff was prevented by the overflow from using it, and also the depreciation in the value of the land caused by deposits of sand from the overflow was erroneous as allowing double damages.</p>

<p>Appeal from the District Court of Panola County. Tried below before Hon. W. C. Buford.’</p>

<p>Appeal from the District Court of Grimes County. Tried below before Hon. Gordon Boone.</p>

<p>1. —School Land—Purchase of Additional Land—Occupancy—Statute Construed.</p> <p>Articles 4218f and 4218iff, Sayles Civil Statutes, do not require that the purchaser of additional school lands should aver in his sworn application therefor that he is an actual resident upon his home section or “other lands.”</p> <p>2. —Same—Limitation—Case Followed.</p> <p>An award of school land by the Commissioner of the Land Office after it has once been sold and while the sale continues in force, cannot confer upon the second purchaser such title or color of title as will support the three years statute of limitation. The Commissioner has no power to sell while a valid sale subsists. The efficacy of a purchase depends on a compliance with the law and not upon the consent of the Commissioner. Pohle v. Robertson, 102 Texas, 274.</p>

<p>Appeal from the District Court -of Midland County. Tried below before Hon. W. K. Homan.</p>

<p>1. —Mistake—Contract—Equitable Relief.</p> <p>In order for a court of equity to relieve one from the obligation of a contract on account of mistake, it is essential that the fact concerning which the mistake is made must be material to the transaction, affecting its substance, and not merely- its incidents; and the mistake itself must be so important that it determines the conduct of the mistaken party or parties.</p> <p>2. —Same—Negligence.</p> <p>The proposition that a mistake resulting from the complaining party’s negligence will never be relieved, is not sound. It is more accurate to say that where the mistake is caused entirely by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence and the absence of which would be the violation of a legal duty, a court of equity will not interpose its relief; but even then each instance of negligence must depend to a great extent upon its own circumstances.</p> <p>3. —Same.</p> <p>Where the mistake is solely due to the defendant but without his fault, equity will refuse specific performance only where the mistake is of a vital part of the contract—of the corpus of the agreement—and of such nature that the enforcement would be a great hardship; and the principle applies when the suit is for damages for failure to perform.</p> <p>4. —Same—Rescission of Contract—Unilateral Mistake.</p> <p>Where a contract in writing is executed under a mistake by only one of the parties as to a fact which is of the essence of the contract, the mistake constitutes a ground for a court of equity to rescind and cancel the apparent contract as written and place the parties in statu quo.</p> <p>5. —Same.</p> <p>Where the court is satisfied that the result which hears so hard upon the defendant, though legally a constituent part of the contract, was not intended by the parties at the time of the agreement—in fact, was not in contemplation as the effect of the agreement which was expressed in terms too unqualified—it will not specifically enforce the agreement; and the principle being that obligor is entitled to be relieved from the obligation of his contract, it applies when the suit is for damages for failure to perform.</p> <p>6. —Same—Case Stated.</p> <p>Where a contract by its terms conveyed to a railway company so much of the land, clay and gravel upon the land of the plaintiff as should be removed during five years, and bound it to remove and pay for at a stipulated price as much as 5000 cubic yards per month during the term; and it appeared that at the time the contract was made it was supposed by both parties that there existed a quantity of gravel, clay and sand suitable for the purpose of ballasting and filling the company’s roadbed and so situated that it could be worked in the manner provided in the contract at a reasonable expense, not in excess of its value for such purpose; that the company contracted under the mistake as to the existence of material of the quality desired and so located and in such quantities that it could be removed at an expense not in excess of its value when removed, and that as the work progressed it was found that this condition did not exist, but that the material was so scattered and in such small quantities in each place as that it could not be removed except at a ruinous expense, the company was entitled in equity to be relieved of the obligation to perform the contract.</p> <p>7. —Same—Negligence.</p> <p>Where the gravel which the railway company undertook to remove and pay for was under the surface and not exposed to view, and only an actual working of the deposit would be likely to reveal the deficiency in either quantity or quality, the failure of the company to discover the deficiency was not such negligence as would close the door of equity to it in seeking to be relieved of the obligation of the contract.</p> <p>8. —Paroi Evidence—Written Contract.</p> <p>Parol evidence tending to show that the gravel bed was undeveloped; that the quantity and quality and the situation of the gravel was undetermined; that it was contemplated by both parties that it should be removed in a certain manner and used for a certain purpose; that it was impossible to get it out except at an expense largely in excess of its value when removed; and that the obligor contracted under a mistake as to these matters, did not vary or contradict the terms of the written contract, and was admissible.</p>

<p>1. —Pleading—Plea in Abatement—Amendment—Due Order of Pleading.</p> <p>When a plea in abatement filed in due order is defective it may be amended after answer to the merits, and in so far as the question of due order of pleading is concerned the amended plea must be considered as of the date of the filing of the original plea.</p> <p>2. —Briefs—Assignments of Error—Statement.</p> <p>Where the assignment of error complained that “The court erred in sustaining defendant’s plea in abatement and dismissing plaintiff’s suit on the evidence,” and the proposition was that “The action of the County Court in appointing the receiver (plaintiff) was neither void nor subject to attack in a collateral proceeding,” a statement thereunder, viz.: “Defendant’s plea in abatement seeks to invalidate this receiver’s appointment on account of the manner in which that appointment was made,” was clearly insufficient to entitle the assignment to consideration.</p> <p>3. —Same.</p> <p>Under a proposition that “The receiver (plaintiff) had authority to bring and maintain the suit as §hgwn by his Mte-l'S PÍ appointment and application therefor,” a statement only showing that the order of appointment authorized him “To enter into a contract for the lunatic with attorneys to recover any real property to which he may be entitled,” in absence of the plea in abatement or its substance, was insufficient to require consideration of an assignment complaining that it was error to sustain the plea in abatement.</p> <p>4.—Same.</p> <p>An assignment complaining of the refusal to allow plaintiff to amend his petition, could not be considered in the absence of a showing that a request for leave to amend was made and refused by the court.</p>

<p>1. —Evidence—Deed—Imperfect Description—Identity.</p> <p>An administrator’s deed describing the land as “lying and being situated in the county of Harris in the Republic of Texas . . . 320 acres of land, part of a tract of 1,280 acres surveyed on Green’s Bayou for said McAuley, deceased, on his bounty land warrant, bounded on the east by a part of the said 1280 tract sold to Noland, and on the west also by a part of the 1280 tract sold to Pannell,” was admissible in evidence over objection that the description of the land sought to be conveyed was uncertain, indefinite and ambiguous, and that the ambiguity was patent, and the deed void. The description was imperfect, and standing alone might not be sufficient to identify the land, but other proper evidence was admissible to show the boundaries and prove its •identity. Evidence considered and held sufficient.</p> <p>2. —Charge—Harmless Error—Clerical Error.</p> <p>The use of the word “defendant” instead of “plaintiff” in a charge, will not be held fatal error when from the context the error is patent, and from the connection it appears that the jury could not have been misled.</p> <p>3. —Subsequent Purchaser—Prior Conveyance—Notice—Burden of Proof.</p> <p>Ordinarily a person claiming under a junior title in a suit between himself and a person claiming under a prior conveyance, must allege and prove that he paid value and bought without notice of the prior conveyance; but where a valuable consideration has been paid for land, and the parties to the transaction are dead, and no direct proof can be made that the subsequent purchaser had or had not notice of a prior conveyance, upon proof being made that such subsequent purchaser paid a valuable consideration, the presumption may be indulged that he bought without notice of the prior conveyance.</p> <p>4. —Same—Want of Notice—Presumption.</p> <p>In the absence of the means of making direct proof of want of notice on the part of the subsequent purchaser, such want of notice will be presumed from evidence of the payment of a valuable and adequate consideration,</p> <p>5. —Deed—Presumption.</p> <p>The contention that a presumption of a deed should never be indulged in any case unless there is in evidence a deed or other writing upon which to base it, is not sound.</p> <p>6. —Same—Trespass to Try Title.</p> <p>Where, in trespass to try title, defendant sought to defeat plaintiff’s title by showing an outstanding title, and to that end sought to show by circumstances the execution and delivery of a deed from the original grantee, and plaintiff claimed under a deed from the administrator of the original grantee, evidence that the latter died in 1843; that subsequent to the alleged sale he asserted ownership and sold to another; that in 1884 the administrator was appointed and qualified; that the land was inventoried; that public notice was given of its sale and the sale was at auction; that the administrator’s deed and others constituting plaintiff’s chain were recorded; that one party through whom plaintiff claimed paid the taxes for several years; and that there had been an entire want of any ownership asserted by the alleged purchaser or any one claiming under him, was sufficient to authorize a charge permitting the jury to presume the execution and delivery of a deed reconveying the land from the prior purchaser to the decedent or to his administrator prior to the latter’s deed.</p>

<p>Appeal from the County Court of Williamson County. Tried below before Hon. T. J. Lawhon.</p>

<p>County Court—Jurisdiction—Amount in Controversy—Pleading.</p> <p>A petition seeking damages for the unlawful seizure and conversion, by execution sale, of two horses of the alleged value of $150 each, for injury to plaintiff’s credit and reputation $950, and for deprivation of the use of the property $45, set forth a claim for recovery of $1,295 and was beyond the jurisdiction of the County Court.</p>

Tried below before Hon. T. J. Lawhon. Petitioner sued the Missouri, Kansas & Texas' Bail way Company of Texas, and the Missouri, Kansas & Texas Bailway Company, and defendants appealed from a judgment recovering damages against them.

<p>Discovered Peril—Negligence—Charge.</p> <p>A charge which imposed a liability for negligence on defendant railway, in case of imminent peril to one discovered on the track by the engineer, if he, by the use of the means at his command, could have stopped the engine before striking such person, but failed to do so, was not erroneous in requiring a higher degree of care than the law imposed.</p>

<p>1. —Injuries Resulting in Death—Private Corporations—Liability—Case Followed—Statute.</p> <p>Under the provisions of article 3017, Rev. Stats., all persons, natural and artificial, are liable in damages on account of injuries causing the death of any person when such injuries are the result of a wrongful act, negligence, unskillfulness or default in the performance of a duty. San Antonio G. & E. Co. v. Badders, 46 Texas Civ. App., 559.</p> <p>2. —Same—Railway—Indemnity—Recovery over—Pleading.</p> <p>Where a railway company was sued for damages for the death of an employe alleged to have been killed by its negligence, and interpleaded an electric company and sought to recover over against it in case plaintiffs recovered, a demurrer to the pleading could not rightfully be sustained on the ground that the statute giving actions for death has no application to persons or corporations other than such as were carriers of goods or passengers, and that the electric company, not being a carrier, could in no way be held liable in damages for injuries resulting in death.</p> <p>3. —Contribution—Indemnity—Tort Feasors.</p> <p>The general rule that there can be no contribution or indemnity as between wrongdoers is founded on the maxim that no one can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrongdoing the law will not relieve him; for it cannot recognize a right as springing from a wrong in favor of one concerned in its commission.</p> <p>4. —Same.</p> <p>There is an exception to the general rule under which, although the law holds all the parties liable as wrongdoers to the injured party, if, as between themselves, one of them is blameless, equity requires the one guilty of the wrong to indemnify the one who is guiltless for all damages that may be recovered against him by reason of his (the wrongdoer’s) wrongful act. This exception is as well established as the rule itself.</p> <p>5. —Same.</p> <p>It is not necessary that the plaintiff’s damage should have resulted immediately from the defendant’s negligence; it is enough if the plaintiff, being legally liable though not personally at fault, for a third person’s injuries due to defendant’s negligence, has been compelled to answer therefor to the person injured. In such a case, the principal delinquent is bound to indemnify his co-delinquent, their fault being unequal; and this, whether any contractual relation exists between them or not.</p> <p>6. —Pleading—Indemnity—Recovery over—Injuries Resulting in Death—Liability—Primary Negligence.</p> <p>Answer, in an action against a railway company to recover for the death of its servant resulting from an electric shock caused by a defective wire heavily charged coming in contact with a metallic tank under which deceased was working, making the electric company furnishing the wire and power a party, held sufficient on demurrer to show that the latter’s negligence was primarily the proximate cause of the death, and that if the railway company was guilty of negligence it was passive and secondary, and to state a cause of action.</p> <p>7. —Dismissal of Party—Appeal—Reversal.</p> <p>Where the original defendant impleaded a third party and sought a recovery over against it, stating a cause of action, error in sustaining general demurrer of such third party and dismissing it from the suit, entitled the original defendant tó a reversal of that judgment on appeal therefrom and from the judgment on the merits in favor of the plaintiff, regardless of the evidence as developed on the trial.</p> <p>8. —Railway Companies—Negligence—Release from liability—Contract.</p> <p>It seems that a contract releasing a railway company from liability for injuries to an employe caused by the company’s negligence, is void.</p> <p>9. —Same—Case Overruled.</p> <p>The case of International & G. N. Ry. Co. v. Hinzie, 82 Texas, 623, holding valid a contract by which the parents of a minor servant of a railway company released said company for injuries to the minor, is in conflict with the latter ease of Texas & Pacific Ry. Co. v. Putman, 63 S. W. 910, which holds, in accordance with the great weight of authority, that such a contract is void, and the former is no longer authority on the question.</p> <p>10. —Same—Contract—Consideration.</p> <p>In jurisdictions where a contract relieving the railway company from liability for injuries to the servant caused by its negligence is recognized as valid, it is held that there must be a good consideration for such a contract, and if made while the servant is in its employment, without a new consideration, it is void. The consideration must be reasonable, that is, there must be a just proportion between the consideration for the waiver of the damages and the amount of damages actually sustained.</p> <p>11. —Same.</p> <p>A contract between the parents if a minor and the railway company by which they, in consideration of the employment of said minor, waived any and all claims they might have against the company for damages in the event the minor was killed or injured while in the employment of said company, was void for want of consideration, and constituted no defense to an action by such parents against the company for negligently killing the son.</p> <p>12. —Charge—Submission of Issues—Negligence—Damages.</p> <p>If there is evidence making actionable negligence and damages resulting therefrom issues, it becomes the duty of the trial court to submit them to the jury, although it may be of such slight probative force as to require of that court or the Appellate Court to set aside a verdict found upon such evidence.</p> <p>13. —Negligence—Master and Servant—Dangerous Appliances—Electric Shock.</p> <p>Where it was undisputed that the minor servant was killed by an electric shock while at work in the course of his employment and that the electric current entered his body by reason of his coming in contact with a metallic tank highly charged with electricity communicated by an extension cord used by the master about the place of work, and there was evidence tending to show that the cord was defective by reason of the master’s failure to exercise ordinary care to have and maintain its insulation in such condition as not to admit of the escape of a sufficient amount of voltage of electricity to render its premises or anything thereon dangerous or unsafe to its servants employed there, the issue of actionable negligence was for the jury.</p> <p>14. —Damages—Death of Minor Son—Verdict.</p> <p>Evidence held sufficient to show that the parents suffered some damages by reason of the death of the minor son, but not to support a verdict awarding damages in the sum of ten thousand dollars.</p> <p>15.—Same.</p> <p>In an action by the parents for the death of the minor son, the measure of the relief was whatever pecuniary benefit they had a reasonable expectation of receiving from their son, had he lived.</p>

<p>1. —Damages—Breach of Contract.</p> <p>Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach should be such as may fairly and reasonably be considered as either arising naturally, that is, according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.</p> <p>2. —Same.</p> <p>Damages which may fairly and reasonably be considered as naturally arising from a breach of contract, according to the usual course of things, are always recoverable.</p> <p>3. —Same—Elements of Damages.</p> <p>In actions based upon breach of contract the losses sustained do not, by reason of the nature of the transactions which they involve, ordinarily embrace any other than pecuniary elements; there is, however, no reason why other natural and direct injuries may not justify and require compensation.</p> <p>4. —Same—Contract of Carriage—Breach—Personal Injuries—Passenger.</p> <p>In an action by a passenger against a carrier for breach of a contract of carriage, damages for personal injuries proximately resulting from a derailment of the train are recoverable.</p>

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

<p>1. —Forfeit—Contract—City Ordinance.</p> <p>Where a city ordinance granting a franchise to construct, operate and maintain a street railway system, provided that a sum of money should be placed in the hands of the mayor to be forfeited to the city if the grantees failed to “commence the work of building said railway system within sixty days from the date of acceptance of the franchise,” and the evidence, in a suit by the grantees to recover the deposit, left no doubt that it was the intention ,of the parties to the contract that the grantees should demonstrate their good faith in undertaking the construction of the railway by some visible showing of actual work in the physical construction of the system, the placing of six poles along one street on the day before the expiration of the sixty days for the purpose of demonstrating the work, was not a commencement of the work within the meaning of the contract, but clearly an attempt to prevent a forfeiture by subterfuge; and an instruction to the effect that the sum was forfeited to the city was authorized. -></p> <p>2. —Forfeiture—Franchise—City Ordinance.</p> <p>Where an ordinance granting franchises for a street railway and a light and power plant, prescribed conditions under which the rights should be forfeited, but contained no provisions for forfeiture by the city, the rights thereby conferred became vested on acceptance by the grantees, and could only be declared forfeited by a court of competent jurisdiction in a suit for that purpose; and, for that reason, an attempted forfeiture by the city council did not destroy the franchise or give an action by the grantees against the city for the value of the franchises.</p> <p>3. —Damages—City—Attempt to Revoke Franchise.</p> <p>Where the grantees of a franchise sought to recover damages for an attempt on the part of the city council to revoke the franchise by resolution, casting a cloud upon it, but no evidence was offered to show what the damage was, the court properly instructed a verdict for the city on that claim.</p> <p>4. —Evidence—Contract—Conclusion—Intention.</p> <p>Where the ordinance granting a franchise for a street railway provided for a forfeiture in case the grantee failed to commence work of construction within sixty days from the date of acceptance, testimony of the grantee that it was not the intention of the city council that the physical work of building the railway was to commence within such period, was a conclusion and inadmissible.</p> <p>5. —Same.</p> <p>The fact that the members of the city council knew at the time the ordinance was passed that the rails for the construction of the railway could not be procured within the sixty days, was immaterial, since the actual work of building the system could have been commenced before the rails were received; and there was no error in excluding testimony as to such fact.</p> <p>6. —Charge—Instructing a Verdict—Conflict of Evidence—Findings.</p> <p>In determining whether an instruction to return a verdict for a party is error, no issue of fact upon which there was a conflict in the evidence should be found in favor of the defendant.</p>

<p>1. —Negligence—Discovered Peril—Person Lying on Track.</p> <p>Questioning the correctness of a charge which held defendant liable for failure of employes operating a train and discovering an unidentified object on the track only from the time they were able to recognize such object as a human being lying down, the court decline to reverse a judgment for defendant, because the undisputed evidence showed that the train could not have been stopped in time to avoid striking him when the object was first discovered.</p> <p>2. —Same—Contributory Negligence.</p> <p>A person run over while lying unconscious upon a railway track at night is prima facie guilty of contributory negligence, and in the absence of evidence rebutting such presumption the railway company is not liable for failure of those operating its train to sooner discover him.</p> <p>3. —Same—Injury to Licensee.</p> <p>A license to use a railway track as a footpath does not authorize its use as a place to lie or sit down upon, and one so doing cannot invoke the care due to a licensee.</p> <p>ON MOTION FOB BEHEABING.</p> <p>4. —Same—Unconsciousness from “Providential Cause.”</p> <p>The presumption that one run over at night while lying unconscious on a railway track was guilty of contributory negligence is not rebutted nor an inference that he was disabled from “providential causes” warranted by evidence that he had previously been subject at times to “spells” of helplessness and suffering (acute attacks following overeating) where the proof also showed that he left town to walk home on the track that night in a condition of intoxication variously described by the witnesses as “drinking,” “drunk,” or “staggering.”</p>

<p>1. —Briefs—Statement under Assignment of Error.</p> <p>An assignment of error complaining that a verdict was not supported by the evidence could not be considered when the statement thereunder stated no evidence, but consisted only of references to the pages of the stenographer’s .transcript upon which the testimony of several witnesses could be found.</p> <p>2. —Negligence—Carriers of Passengers—Insult to Passenger by Passenger.</p> <p>Conceding the undisputed facts to be that a white passenger on the train came into the colored compartment where plaintiff and his wife were riding as passengers and in the presence of the brakeman used vulgar, indecent and profane language to them, and that the brakeman heard the language, and, after being appealed to by plaintiff and wife for protection, he tapped the white passenger on the shoulder and told him he must get out of there, and made no effort to remove or eject him, but left him there cursing plaintiff and wife while he went in search of the conductor, it could not be held as matter of law that the employees of the carrier were negligent in allowing the white passenger to enter the negro car, or that the brakeman was guilty of negligence in not forcibly removing him therefrom immediately upon his misbehavior, even conceding that a brakeman has under such circumstances the right to forcibly eject a passenger. The issue of negligence vel non was for the jury.</p> <p>3. —Briefs—Assignment of Error—Charge.</p> <p>An assignment of error complaining of a charge which, as copied in the assignment, is so incomplete that it is impossible to say what instruction was given on the facts recited therein, and which is unaided by the statement, which merely refers to the pages of the record where the testimony and charge may- be found, is not entitled to be considered.</p> <p>4. —Same—Charges Refused.</p> <p>An assignment of error complaining of the refusal of charges, will not be considered when the statement thereunder merely refers to the pages of the record where the charge and testimony may be found.</p>

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

<p>1. —Damages—Personal Injuries—Charge.</p> <p>In a suit for damages for personal injuries caused by being run over by a street car, a requested charge upon the issue of contributory negligence, considered, and held properly refused because sufficiently embraced in the main charge of the court, and because it authorized a verdict for defendant if plaintiff was guilty of negligence, whether such negligence proximately contributed to his injuries or not.</p> <p>2. —Pleading—Contributory Negligence.</p> <p>Only the phase of contributory negligence pleaded by the defendant in an action for personal injuries should be submitted to the jury. Requested charge considered, and held properly refused because in violation of this rule.</p> <p>3. —Charge—Issues—Pleading of Both Parties.</p> <p>In determining whether or not an issue is raised by the pleading, it is proper to consider the pleading of the defendant as well as that of the plaintiff.</p> <p>4. —Negligence—Crossing Railroad Track—Charge—look or listen.</p> <p>Upon the issue of due care upon the part of the plaintiff in crossing a railroad track, it was not reversible error for the court to use the expression “look or listen” instead of “look and listen”. The use of either sense might, under circumstances, be sufficient. The sufficiency of the care used was a question of fact for the jury.</p> <p>5. —Street Car—Violation of Ordinance—Evidence.</p> <p>Where a street ear company is charged with negligence in propelling its oars at a greater rate of speed than that allowed by the city ordinance, the ordinance is admissible in evidence.</p>

<p>1. —Railroads—Failure to Furnish Cars—Statute—Cases Followed.'</p> <p>Articles 4497 to 4502, of the Revised Statutes, as amended by the Act of 1899, authorizing the recovery of penalties against railroad companies for failure to furnish cars upon demand, are not subject to the objections:</p> <p>(1) That said articles are contrary to the 14th amendment to the Constitution of the United States in that they make no provisions for exempting the carrier from damages resulting from circumstances beyond its control, and hence authorize the taking of property without due process of law. Allen v. Texas & P. Ry. Co., 100 Texas, 525 followed.</p> <p>(2) That article 4502 is void for uncertainty in the requirement that the shipper must “have on hand at the time any demand for cars is made” the necessary freight with which to load them. The expression “have on hand” must be held to mean that the person making the demand is the owner or manager of such freight and has such possession of it or control over it as that he can and will be ready and able to load the cars so ordered within the time given him by the statue.</p> <p>2. —Same—Statute Construed.</p> <p>By the terms of article 4499, Rev. Stats, as amended by the Act of 1899, fixing a penalty against railroads for failure to furnish cars, at “the sum of $25. per day for each day failed to be furnished,” is meant that the penalty is to be inflicted at the rate of $25. per day for each car and to be continued for the whole time of the carrier’s delinquency.</p> <p>3. —Same—Penal Statutes—Construction.</p> <p>Articles 4497 to 4502, Rev. Statutes are highly. penal in their nature, and the rule of strict construction should be applied to them, but it should not be so applied as to destroy the intention of the law-makers, that intention being manifest.</p> <p>4. —Same—Owner—Parties to Suit.</p> <p>One of two joint owners of live stock may sue alone for the statutory penalty for failure to furnish cars when he had the actual custody and control of the property and made the demand for cars and shipped the stock in his own name.</p> <p>5. —Railroads—Intrastate Shipment.</p> <p>A contract for the transportation of freight from a point in this State to a point upon the border of the Republic of Mexico is not an international shipment, and this, though the shipper intended to and did in fact have the freight shipped from its first destination to a point in said Republic. Hence, under the first contract of shipment the railroad company was subject to the statutes of this State imposing a penalty for failure to furnish cars.</p> <p>6. —Same—Penalty—Computation of Time.</p> <p>In computing the time for which a railroad company is liable for the statutory penalty for failure to furnish cars after demand duly made, the day on which the cars were to be furnished and the day on which they were actually furnished should be excluded from the computation.</p>

<p>1. —Trustee’s Sale—Chattels—Delivery of Possession.</p> <p>The fact that at the time of a sale of personal property by the trustee in a deed of trust, the property was not present at the place of sale but was within the possession of a sheriff of another cotinty who was holding the same under legal process, would not render the sale invalid in the absence of evidence that by an agreement between the parties delivery of possession was a condition precedent to the validity of the sale.</p> <p>2. —Same—Foreclosure of Mortgage.</p> <p>A sale of mortgaged property under a deed of trust divests the mortgagor of his title to the property and vests' the same in the' purchaser, and thereafter, when the mortgagee becomes the purchaser of the property, his relation to the same is that of owner and not of lien-holder. The lien is merged into title.</p> <p>3. —Same—Foreclosure—Parties.</p> <p>Mortgaged property was seized and sold under execution; thereafter the mortgagee caused the said property to be sold by the trustee in accordance with the terms of the mortgage and he became the purchaser. In a suit by the mortgagee against the mortgagor for his debt and to foreclose the mortgage lien, held:</p> <p>(1) By reason of the trustee’s sale, the mortgagee had no lien; the lien had been merged into title.</p> <p>(2) The purchaser at the sheriff’s sale was not a proper party to the suit by the mortgagee against the mortgagor for debt and foreclosure.</p> <p>(3) A plea of privilege by the purchaser at sheriff’s sale to he sued in the county of his residence when joined in said suit by the mortgagee against the mortgagor, should have been sustained.</p> <p>4. —Judgment—Absence of Pleading.</p> <p>When in a suit for debt the defendant filed no answer asking for such relief, it was error for the court to allow the defendant credit for an amount which the evidence may show he was entitled to.</p> <p>5. —Plea" of Privilege—Jurisdiction—Statute Construed.</p> <p>Under provisions of the Act of the 30th Legislature (Gen. Laws, 1907, •p. 248) when a plea of privilege is sustained, the cause should not he dismissed but should be transferred to the proper county and court.</p> <p>6. —Cases Distinguished.</p> <p>Cardwell v. Masterson, 27 Texas Civ. App., 591, and Cobb v. Barber, 92 Texas, 309, distinguished.</p>

<p>On motion for rehearing.</p>

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

<p>Appeal from the District Court'of Panola County. Tried below before Hon. W. C. Buford.</p>

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

<p>1. —Homestead—Mortgage—Subrogation.</p> <p>Where husband and wife" executed a deed of trust on the homestead to secure a loan for the purpose of taking up or extending vendor’s lien notes and a mechanic’s lien, with the understanding that these were to be assigned to the mortgagee, and the notes and lien were so assigned together with the superior title of the vendor, the mortgagee became subrogated to all the rights arising from these liens and was vested with the superior title, and the deed of trust was not void.</p> <p>2. —Same—Mortgage—Foreclosure—Tax Lien—Redemption.</p> <p>The husband and wife having submitted to a judgment foreclosing the lien under the deed of trust, and the mortgagee having become the purchaser at the foreclosure sale, one claiming under a judgment against the mortgagors foreclosing a lien for taxes, could not, in a suit by the mortgagee to enforce the right of redemption, set up the claim that the deed of trust was void because of the homestead character of the property. The judgment established conclusively both the debt and the lien.</p> <p>3. —Homestead—Foreclosure of Lien—Pleading.</p> <p>In an action to foreclose a deed of trust on homestead property it was unnecessary to allege in the petition the facts which rendered the lien valid, unless to meet a defense that the property was the homestead of the mortgagors.</p> <p>4. —Judgment—Foreclosure of Tax Lien—Redemption—Statute—City Charter.</p> <p>Where the statute provides that the proper persons shall be made parties defendant in suits to foreclose tax liens, and that in case of foreclosure an order of sale shall issue and the land be sold thereunder as in other cases of foreclosure, which order of sale shall have all the force and effect of a writ of ' possession between the parties to the suit and any person claiming under the defendant by any right acquired after the filing of the suit; and further provides that the deed made under such sale “shall be held in all courts of law or equity in this State to vest a good and perfect title in the purchaser,” the latter provision must be held to mean a good and perfect title as against the parties to the suit, and one not made a party, who holds under a junior incumbrance, has the same right to redeem from the tax lien which is the superior encumbrance, as he had before the sale. Charter of City of Houston, art. 3, sec. 8 (Special Laws 29th Leg. p. 148).</p> <p>5. —Redemption—Sale for Taxes by Collector—Sales under Foreclosure of Tax Lien—Statute—City Charter.</p> <p>Section 11, art. 3 of the charter of the city of Houston applies solely to summary sales of property delinquent for taxes by the tax collector, and the redemption thereof. When the sale is under a judgment of foreclosure of the tax lien, the procedure and right to redeem is governed by section 8, art. 3, of the charter, and in such case one having the right to redeem is required only to pay the amount of the claim for taxes, penalties and costs, not to include the costs of the tax suit or the costs of the sale, with interest from the date of the sale to date when the amount is tendered with an offer to redeem.</p> <p>6. —Same—Rents.</p> <p>Where the statute provides that the sheriff making a sale under a judgment foreclosing a tax lien shall put the purchaser in possession under the authority of the order of sale in twenty days, a purchaser can not be required to account to one enforcing by suit the right to redeem for rents while in possession under the process.</p>

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

<p>1.—Partners—Note—Power to Borrow Money.</p> <p>A member of a partnership entered into merely for the purpose of operating a cotton gin, not for trading, has no implied authority to bind the firm by a promissory note for borrowed money.</p> <p>2. —Same—Question of Fact.</p> <p>Evidence considered and held to present a question of fact as to whether the business engaged in by a partnership in running a cotton gin embraced also the purchase of cotton and cotton seed-on account of the firm; the power of one partner to borrow money on its note should have been left to the jury. Reed Bros. v. Wallace & Reed, 101 S. W., 1198, distinguished.</p> <p>3. —Statement of Facts—Costs.</p> <p>Costs on appeal occasioned by the appellant’s failure to bring up a lawful statement of facts, and by his proceedings to correct such mistake, should be taxed against appellant, though he was successful.</p>

<p>Appeal from the County Court of Williamson County. Tried below before Hon. T. J. Lawhon.</p>

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

<p>1.—Contract—Executory Contract—Consideration—Promise.</p> <p>A promise to do, forbear or suffer given in return for a like promise is a consideration for an executory contract, provided that the promise is not illegal or against public policy.</p> <p>it.—Notes and Bills—Default of Payee—Burden of Proof.</p> <p>Where the defendant contracted to buy from plaintiff certain land and other property and executed and delivered his promissory note to plaintiff which was taken by the latter as so much cash in lieu of the sum mentioned in the contract as paid and stipulated to be taken as a forfeit and retained by plaintiff as liquidated damages in case defendant failed or refused to comply with the contract, and suit was on the note, prima facie the defendant was liable, and the burden Was on him to show such default or refusal of plaintiff to perform his promise or part of the agreement as would excuse him from performance.</p> <p>3.—Contract—Eorfeit—Sale of Land—Homestead.</p> <p>Where suit was upon a note executed and delivered to plaintiff by defendant, and it appeared from the pleadings and evidence that at the same time the note was executed the parties entered into a contract in writing by which plaintiff agred to sell and convey, and the defendant agreed to buy certain lands, including the homestead of the former, at a stipulated price; that the note sued on was taken by the plaintiff as part of the cash payment recited in the contract, and that it was stipulated that such sum was to be taken as forfeit and retained by plaintiff in case defendant defaulted on the contract; and the undisputed evidence was that plaintiff was ready, willing and able to perform the contract at the time and place stipulated, but defendant failed to meet him and wholly ignored his part of the agreement and offered no reason or excuse, the latter could not be heard to say there was no consideration for the note, and the plaintiff was entitled to recover thereon and also retain what other sum he received as a part of the cash consideration paid.</p>

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

<p>Error to the District Court of Denton County. Tried below before Hon. Clement B. Potter.</p>

<p>1. —Attachment—Damages—Evidence.</p> <p>In an action for damages for wrongfully, unlawfully and maliciously suing out an attachment under which the plaintiff’s stock of merchandise was seized and detained, evidence that when the levy was made there was no more goods than was sufficient to pay the debt was immaterial and inadmissible.</p> <p>2. —Same.</p> <p>In an action for damages for wrongfully, unlawfully and maliciously suing out an attachment, evidence that the officer executing the writ had no intention to injure the defendant therein in making the levy, was immaterial and should have been excluded.</p> <p>3. —Same—Report of Mercantile Agency—Rebuttal.</p> <p>Where, in an action for damages for suing out an attachment, the plaintiff testified as to his rating in Dun’s Agency, the report of the agency was admissible for the purpose of contradicting him.</p> <p>4. —Same—Grounds of Attachment—Affidavit.</p> <p>In an action for damages for suing out a writ of attachment, the plaintiff, upon the issue of whether the writ was sued out without probable cause, had the right to show the falsity of the grounds stated in the affidavit for attachment and that there was no probable cause to believe them true, and in thM connection the affidavit was admissible as showing the grounds.</p> <p>5. —Agency—Proof—Declarations of Agent.</p> <p>Where the party making the affidavit for attachment testified that he was the agent of the plaintiff in the proceedings and was authorized to make it, a charge that the jury should not consider the declarations of such party as to the extent of the authority given him, was error. The rule that proof of agency cannot be made by the declaration of the agent to a third party had no application.</p> <p>6. —Same—Ratification—Husband and Wife.</p> <p>Where in an action for damages for suing out an attachment it appeared that the only bond in the attachment proceeding was one signed by the wife of the plaintiff therein, but that the husband ratified her acts by adopting the attachment and seeking to have the same foreclosed, an instruction that the wife was not the agent of the husband unless she was expressly authorized, was erroneous.</p> <p>7. —Attachment—Affidavit—Bond—Judgment.</p> <p>A judgment quashing the attachment on the ground that no affidavit or bond was made before the issuance or levy was conclusive of that fact in an action for wrongfully suing out the writ.</p> <p>8. —Measures of Damages—Attachment.</p> <p>In an action for suing out an attachment and detention of goods under the writ until same is quashed, the measure of damages is the legal interest upon the value of the goods during the time they are detained under the illegal process. If there be deterioration or 'depreciation in the goods, this is an element of actual damages, but not ground for exemplary damages.</p> <p>9. —Charge—Weight of Evidence.</p> <p>A charge collating all the evidence interposed as a defense to the claim for exemplary damages, and directing the attention of the jury thereto in emphatic manner, was upon the weight of the testimony and reversible error.</p> <p>10. —Exemplary Damages—Advice of Counsel.</p> <p>That the plaintiff in attachment acted on the advice of counsel will not affect his liability for exemplary damages, unless he in good faith made a full and free disclosure of all the facts within his knowledge.</p>

<p>1. —Negligence—Master and Servant—Dangerous Work—Warning.</p> <p>As a general rule it is not the duty of the master to instruct the servant as to the rules of the service or warn him of the dangers incident thereto unless information be asked; but this rule is subject to some qualifications.</p> <p>2. —Same—Extraordinary Risks.</p> <p>The master is prima facie bound to instruct a servant as to all risks which are abnormal or extraordinary and at the same time of such kind that the servant cannot be held chargeable with an adequate comprehension of their nature and extent or of the proper means by which to safeguard himself. The presumption is that all risks which belong to this category are not known to the servant; and the question whether the servant should have been warned is always for the jury where the evidence is fairly susceptible of the construction that the peril to which his injury was due was one of this description, and there is no positive evidence tending to charge him with actual or constructive knowledge of that peril.</p> <p>3. —Same—Contributory Negligence—Obeying Orders of Superior.</p> <p>When an act is done by one in obedience to the order of his foreman, the law will not declare the act of obedience negligence per se unless the danger of obeying the order was so obvious and glaring from the servant’s standpoint at the time he undertook to obey it that no prudent man would have undertaken it, but will leave it to the jury to say whether he ought to have obeyed it or not.</p> <p>4. —Same.</p> <p>Where the servant was called from his regular work and under direction of the foreman struck on the end of an axle with a heavy hammer, and thereby caused a portion of soft metal in the end of the axle to fly out and strike him, and it appeared that the danger was known to the foreman and unknown to the servant, and that if the servant had struck truly in the center of the axle the metal would not have spurted out, but the fact that- he did not so strike was not because of carelessness, but because of the impossibility of any one striking with such an implement in the same place at every blow, it could not be held that he was guilty of negligence either in obeying the order or in the manner in which he struck the blow, and the issue of negligence vel non was for the jury.</p> <p>5. —Same.</p> <p>See charge held to contain no errors of which the appellant could complain, and to sufiiciently embrace the law applicable to the facts.</p> <p>6. —Evidence—Admission of Evidence—Harmless Error.</p> <p>A party will not be heard to complain of the admission of evidence when he has permitted like evidence to be introduced without objection.</p>

<p>1.—Warranty—Breach—Judgment—Independent Executrix of Vendor—Personal liability—Pleading.</p> <p>Where a vendee sought to recover over on a breach of warranty against the independent executrix of his deceased vendor, who was the surviving wife,' and alleged that property of the vendor’s estate of a certain amount had come into her hands, of which there was still in her hands property of certain value, which was subject in her hands to the payment of the incumbrance, and there was no allegation that she was devisee, and no attempt to state a case upon the theory that the property was community or upon the theory that she, as executrix, had converted or disposed of the property, the case made was one seeking to charge her as executrix, and a personal judgment against her was not supported by the pleading. That she was sole devisee and a personal judgment was prayea for, can not affect the question.</p> <p>2. —Limitation—Actions against Independent Executors.</p> <p>There is no limit of time upon the right of a creditor to bring suit against an independent executrix upon the valid and existing debt of the deceased, except that such a suit would not lie against her after she had fully administered and disposed of the estate.</p> <p>3. —Same—Jurisdiction—Judgment.</p> <p>Where the case made hy the pleading was against the independent executrix in her representative capacity, to recover on a warranty of the decedent; and.there being no question as to the debt and amount; and the evidence showing that she qualified as independent executrix in 1892; that she was sole devisee; and that there remained property coming into her hands as independent executrix more than enough to satisfy the debt, without any termination of her relation as executrix, judgment should have been rendered against her as executrix. The contention that the court was without power or jurisdiction to render such a judgment because of the lapse of time, cannot be sustained.</p>

<p>1. —Statement of Pacts—Correction after Piling—Refusal to Allow Correction— Harmless Error.</p> <p>Where the statement of facts was made by the trial judge upon disagreement of counsel, and the same day it was filed counsel for the appellant filed a motion to correct it and asked that the court stenographer be required to present his notes of the testimony and be sworn as to the same, it was the duty of the court to lend all the assistance possible in determining whether there were any errors in the statement of facts and, if there were, to correct the same; and the refusal to consider the motion was grave error which would require a reversal but for the fact that, assuming that the correction asked was made, the evidence still would be such that no judgment could have been rendered other than the one rendered for appellee.</p> <p>2. —Assignments of Error—Brief.</p> <p>Where assignments of error were addressed to the refusal of the court to entertain a motion to correct the statement of facts, and presented matters involving a grave abuse of judicial discretion, the same were entitled to be considered although not in strict compliance with the rules.</p> <p>3. —Bill of Exceptions—Qualification by Judge—Statute.</p> <p>The trial judge has no right to qualify a bill of exceptions without the consent of the party presenting it, but should sign the same or, if not correct, endorse his refusal thereon, and then make out and file what he considers a proper bill, leaving the party to his remedy of a bill by by-standers if he is not satisfied. Revised ^Statutes, art. 1367-8-9.</p> <p>4. —Brief—Assignment of Error—Admission of Evidence.</p> <p>Where several assignments addressed to rulings of the court in- the admission of evidence of certain maps, were presented together, and each presented a different question, and there was no showing thereunder that error was committed or reference to bills of exception, the same could not be considered.</p> <p>5. —Same.</p> <p>Where the assignment was addressed to the admission of testimony of certain witnesses, and there was no reference thereunder to the testimony objected to or to any bill of exception, the same could not be considered.</p> <p>6. —Streets—Dedication—Use by the Public—Acceptance.</p> <p>The undisputed evidence being that the owner of the fee dedicated a street fifty feet wide and that the same had been used by the public as a street since such dedication, evidence that the actual use by the public for travel had been confined to a narrow strip in the middle which had been graded and worked, could neither affect the right of the public to use the entire fifty feet whenever it chose, nor the effect or extent of dedication and acceptance. The contention that to preserve its rights to a highway the public must use for the purpose of travel every foot of it, is not sound.</p> <p>7. —limitation—Eive Years—Payment of Taxes—Harmless Error.</p> <p>Where the plaintiff asserted title from the sovereignty and especially from one who acquired title in 1852, and who, it was alleged, had title under the statutes of limitation of five and ten years, and there was no evidence of payment of taxes by any one except the plaintiff who had never been in actual possession, it was error to submit the issue of title under the statute of limitation of five years, but the plaintiff being otherwise entitled to the judgment on the undisputed evidence, such error was harmless.</p> <p>8. —Briefs—Assignment of Error.</p> <p>When the grouped assignments of error complain of the refusal of special charges and are not followed by any statement showing either the form or substance of the charges referred to, the same will not be considered.</p> <p>9. —Charge—Undisputed Facts.</p> <p>Where the undisputed evidence establishes a fact, it is not error for the court to so instruct the jury.</p> <p>10. —Limitation—Charge—Submission of Issue.</p> <p>Where the plaintiff claimed to own a lot fronting on a street and sued to abate a nuisance caused by the erection of a wall on such street cutting off his entrance to the lot and thereby rendering it unfit for a home, and on the issue of title to the lot the court instructed that if the jury believed that one of the owners in plaintiff’s chain of title had peaceable and adverse possession of the premises, cultivating, using and enjoying the same and claiming against all other persons, they should find for plaintiff on that issue, an objection that under the charge a finding in favor of plaintiff as to such possession required a general finding for him on the whole case, was not tenable.</p> <p>11. —Limitation—Ten Years.</p> <p>Evidence held sufficient to authorize the court to instruct that title had been shown under the statute of limitation of ten years.</p> <p>12. —Nuisance—Abatement—Title.</p> <p>In a suit by the owner of premises fronting on a public street to abate a nuisance created by the erection of a wall in the street, he is not required to show such title as would be required to entitle him to recover in an action of trespass to try title.</p> <p>13. —Same—Action to Abate—Ownership—Naked Possession.</p> <p>Where, in an action to abate a nuisance created by the erection of a wall in a street upon which the premises of the plaintiff fronted and so preventing entrance, the undisputed evidence introduced by plaintiff established title under the ten years statute of limitation in one of his remote vendors, and showed that his premises fronted oil a public street as dedicated and accepted, and that the wall interfered with access to and convenient use of his property, he was entitled to maintain the action both by virtue of such title and by virtue of his naked possession, and, there being no evidence in rebuttal except such as tended to show that only a portion of the strip dedicated as the street had ever been used by the public as a highway and this portion did not extend to plaintiff’s lot but left a vacancy on which the wall was erected, the court was authorized to instruct a verdict for plaintiff on all the issues in the case.</p>

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

<p>1. —Carrier—Damage to Goods—Charge.</p> <p>In a suit against a railroad company for damage to a shipment of household goods, charge considered, and held érror in that it authorized a verdict for plaintiff if the goods were shipped over plaintiff’s line and were lost or damaged, without regard to the question of negligence on the part of the carrier.</p> <p>2. —Same—Several Carriers—Presumption.</p> <p>Where goods are shipped over the lines of more than one carrier, the presumption is that any damage to such goods was1 done on the line of the last carrier.</p> <p>3. —Same—Measure of Damage.</p> <p>In a suit against the carrier for damage to a shipment of household goods, the court charged the jury as follows: “In case of damage to goods the measure of damage is the difference in the value of the goods in the condition in which they are received and the value of such goods if received in good order.” Held error in that the jury was thereby authorized to include in their estimate the injuries necessarily incident to the transportation, and to compare the value of the goods at the place of shipment with their value at destination.</p>

<p>Error from the County Court of Eastland County. Tried below before Hon. E. A. Hill.</p>

<p>Appeal from the District Court of Henderson County. Tried below before Hon. B. H. Gardner.</p>

<p>Appeal from the County Court of Hunt County. Tried below before Hon. J. W. Manning.</p>

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

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

<p>1. —Evidence—Withdrawal from Jury.</p> <p>The admission of incompetent evidence is not ground for reversal where the party presenting it afterwards expressed doubts of its admissibility and asked that it be excluded and the court assented thereto.</p> <p>2. —Evidence—Objections.</p> <p>Objections to certain testimony as a whole, where only a part is objectionable, is not available for reversal. The court was not required to segregate the legitimate evidence from such as was inadmissible.</p> <p>3. —Will—Undue Influence—Declarations of Testator.</p> <p>Where upon the issue of the validity of a will independent evidence is introduced tending to show undue influence over the testator at the time of its execution, it is competent to show declarations of the testator, both before and after the execution of the will, indicating his dissatisfaction with the disposition of the property made thereby for the purpose of showing the state of his mind and the effect of the undue influence exercised upon him.</p> <p>4. —Briefs—Proposition—Charge.</p> <p>A charge which is upon the weight of evidence does not present fundamental error, and objection to it on that ground must be raised by a sufficient proposition in the brief.</p> <p>5. —Briefs—Amendment.</p> <p>A proposition not urged in the original brief cannot be presented by an amendment thereto upon the submission of the case, over the objection of opposing counsel.</p> <p>6. —Same—Notice.</p> <p>Notice to the opposing counsel on appeal of an additional authority to be relied upon on the hearing will not authorize the amendment of a brief so as to present a proposition for reversal supported by that authority but not previously urged.</p> <p>7. —Charge—Receiving Law from Court.</p> <p>There is no error in instructing the jury that they “should” receive the law from the court and be governed thereby, instead of making the direction imperative by the use of the word “must”.</p>

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

<p>Appeal from the District Court of Travis County. Tried below by Hon. Chas. A. Wilcox.</p>

<p>1. —Railway—Killing Stock.</p> <p>Evidence that animals were found killed and injured near a railway track considered and held sufficient to prove by the circumstances that their injuries were caused by being struck by a passing train.</p> <p>2. —Pleading—Value.</p> <p>A general allegation that articles were of a certain value, means ordinarily market value; but in the absence of exception may be held to include also their intrinsic value, in the absence of a market price.</p> <p>3. —Same.</p> <p>Under a general allegation that stock injured or killed were of a certain “reasonable value”, evidence may be admitted to show their market value, or their intrinsic value in the absence of a market price, but not of their value to the owner.</p> <p>4. —Value—Damages.</p> <p>The damages recoverable for destruction of personal property are measured by its market value, if one exists, or by its intrinsic value or cost to replace or reproduce it, in the absence of a market value. Evidence of its value or usefulness to the owner is admissible only in case of the absence of a market or intrinsic value, and where it cannot be reproduced or replaced.</p>

<p>1. —Corporation—Forfeiture of Charter.</p> <p>A statutory provision that in a certain event a corporation “shall forfeit its charter”, or “its charter shall be forfeited”, is not self executing, and a judicial establishment of the forfeiture is necessary to terminate the corporate existence,</p> <p>2. —Same.</p> <p>A corporation created for the purpose of raising, buying and selling livestock and which had acquired real property for that purpose, failed to enter upon such business during a period of three years after filing its charter, confining its operations to holding and renting out the land so acquired. Held that its corporate existence was not terminated under the provisions of article 681, Hev. Stats., in the absence of a judicial determination of the corporate dissolution; and that a stock holder could not maintain action for partition of the real estate against the other stock holders on the ground that the corporation was dissolved and that they had become joint owners of the property.</p> <p>3. —Cases Discussed.</p> <p>Galveston, H. & S. A. Railway Co. v. State, 81 Texas, 572, followed. By waters v. Paris & G. N. Railway Co., 73 Texas, 624, distinguished.</p> <p>4. —Corporation—Dissolution—Amendment of Statute.</p> <p>The Act of April 23, 1907, (laws 30th Leg. p. 311) whereby the failure of a corporation to commence active operations within three years was declared of itself to effect a forfeiture of its charter, cannot be construed as a legislative construction of article 681 of the Revised Statutes. The use of words differing from those of the former law was a recognition that an amendment thereof was necessary.</p> <p>5. —Statute—Retroactive Effect.</p> <p>The Act of April 23, 1907 (Laws 30th Leg. p. 311) declaring a forfeiture of the charter of a corporation failing to commence business within three years is not retroactive, but applies to future omissions alone.</p>

<p>1. —Appeal Bond—Amendment.</p> <p>An appellant who has failed to file bond within the time allowed by law, cannot be permitted to file a new bond in lieu of one that is defective.</p> <p>2. —Same.</p> <p>Where the term of court continues in session more than eight weeks and appeal bond was filed more than twenty but within 30 days of notice of appeal, a' non resident appellant may correct a defect therein (insufficiency in amount of bond) by filing a new bond, though the appeal of his co-appellants, residents of the county, is dismissed because the bond was not filed within twenty days.</p>

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

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

<p>1. —Probate Proceedings—Guardian’s Account—Limitation.</p> <p>A proceeding under article 2766 of the Kevised Statutes to compel a final accounting and settlement by a guardian, is not on “action” within the meaning of art. 3358, and is not barred by limitation thereunder within four years from the time that the ward comes of age.</p> <p>2. —Statement of Facts.</p> <p>Under the Act of May 25, 1907 (Laws 30th Leg. p. 509) a certified copy of the statement of facts cannot be used on appeal in place of the original, which is required by that law to he sent up.</p> <p>3. —Guardian—Bond—Judgment.</p> <p>In a proceeding to secure accounting and settlement by a guardian, judgment for the amount found due and for the costs on appeal by the guardian was properly rendered against him and the sureties on his bond, where the latter had voluntarily made themselves parties to the proceedings in opposition to the settlement.</p> <p>ON BEHEABING.</p> <p>4. —Guardian and Ward—Education and Maintenance.</p> <p>The guardian cannot be allowed credit for expenditures in the education and maintenance of the ward made without direction of the court and in excess of the clear income of the estate. (Eev. Stats, art. 2630.)</p> <p>5. —Guardian—Failure to Loan Money.</p> <p>A guardian who fails to use reasonable diligence to loan the money of the ward (Eev. Stats, art. 2639) but makes personal use of the same, is properly charged with interest thereon at the rate of 10 percent from the time he so neglected to loan it.</p> <p>6. —Guardian—Expenses Incurred.</p> <p>A guardian was properly refused credit for the expenses of a trip to Washington incurred before he qualified as guardian and made not solely in ■ the interest of the minors.</p>

<p>1. —Sale—Assignment of Proceeds—Parties.</p> <p>One who has advanced to another money for the purchase of cattle under an agreement that when sold the proceeds should be paid direct to him to reimburse him for such advances, becomes entitled to recover such proceeds from the commission merchants making sale; and they, with the knowledge of the rights of the person advancing the money, having paid it to another, (the trustee in bankruptcy for the one so buying them with the money advanced and consigning them to the commission merchants for sale) became liable to him therefore and were properly joined as defendants in a suit by him against the trustee to determine his right to the proceeds of such sale.</p> <p>2. —Trustee—Bankruptcy—Action—Jurisdiction.</p> <p>Under the Act of Congress, August 13, 1888 (4 Fed. Stats. Ann., p. 387) a trustee in bankruptcy could be sued in the State courts to determine the right to property taken possession of by him as that of the bankrupt, in an action by an adverse claimant thereof, the judgment not seeking to disturb the possession of the bankrupt court but providing for certification to that court for observance.</p> <p>3. —Same.</p> <p>It seems, though not so held, that action of the trustee in bankruptcy in seeking by his answer affirmative relief against plaintiff would be a waiver of his objection to the jurisdiction of the State court.</p> <p>4. —Venue—Waiver.</p> <p>The presumption is in favor of the correctness of the ruling of a trial court against defendant’s plea of. privilege to be sued in his own county, and his original answer, afterwards amended, should appear in the record in order to rebut the presumption that it may have waived such plea.</p> <p>5. —Venue.</p> <p>Where a State Court had jurisdiction over an action against a trustee in bankruptcy in the county of his residence, proper co-defendants with him residing in another county might be joined in the action and were not entitled to be sued in their own county.</p> <p>6. —Bankruptcy—Preference.</p> <p>Plaintiff advanced money to another for the purchase of cattle under a verbal contract that the proceeds when sold should be paid to him for his reimbursement; they were sold by commission merchants who held the proceeds with knowledge of this contract; thereafter the one to whom the advancements were made became a voluntary bankrupt. Held that plaintiff was entitled to such proceeds in the hands of the commission merchants as against the trustee in bankruptcy, and that the transaction was not a preference in violation of the bankruptcy act nor invalid for want of record.</p> <p>7. —Same—Garnishment.</p> <p>Plaintiff’s rights in such case were also superior to those of a creditor of the bankrupt seeking to reach the proceeds of the cattle by garnishment, and to the rights of such garnishing creditor when asserted by the trustee in bankruptcy.</p>

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

<p>1. —Venue—Privilege—Misjoinder—Parties.</p> <p>Where suit was on a note against the makers and the independent executrix of an endorser, and was brought in the county of the latter’s residence, and the evidence and findings were that the note was transferred by the deceased endorser to the plaintiff in payment of, or as security for, a debt due him by deceased, the plaintiff became the legal holder and owner in either event, and could maintain a suit against the deceased endorser if he were living, and against his executrix after his death; and while the latter was not a necessary party she was a proper party, and pleas by the makers of the note of privilege to be sued in the county of their residence and of misjoinder of parties, were properly overruled.</p> <p>2. —Notes—Non est factum—Delivery—Innocent Purchaser.</p> <p>Where the makers signed the note and placed it in the possession of the payee who became the endorser, and under their plea of non est factum the evidence presented only the issue of delivery, they could not be heard to say, as against an innocent purchaser from the payee, that the note was never executed because not delivered to the payee, and the plea was properly overruled.</p> <p>3. —Delivery—Possession by Payee—Innocent Purchaser.</p> <p>The makers of a note in placing it in the payee’s safe or in a safe under his control, put the payee in possession: and an agreement between the parties that the payee should hold the note until an examination of the books of the business purchased by the makers should determine what amount, if any, they should be credited with, could not affect one who purchased the note from the payee without notice of the agreement.</p> <p>4. —Assignment of Error.</p> <p>An assignment of error complaining of the verdict on the ground that it is contrary to the evidence is too general to require consideration.</p>

<p>Appeal from the County Court of Grimes County. Tried below before Hon. T. P. Buffington.</p>

<p>1. —Charge—Construction.</p> <p>One part of a charge may be looked to for the purpose of qualifying another.</p> <p>2. —Same—Submission of Issues.</p> <p>The rule that it is error to charge upon an issue not presented by the pleadings or evidence, has no application where the substance of the issue as stated by the charge is presented by both the pleadings and evidence.</p> <p>3. —Same—Harmless Error.</p> <p>The appellate court will look to the state of the proof in determining whether some slight error either of law or procedure is harmless; and the fact that the evidence strongly preponderates in favor of the verdict is of weight in such an inquiry.</p> <p>4. —Negligence—Collision—Open Switch—Railways—Charge.</p> <p>A railway company being charged with negligence in that a switch was left open and caused a collision, the court instructed as follows: “Guided by these instructions, if you believe from a preponderance of the evidence that the said switch being open and said train being so deflected, was the result of the negligence of defendant’s servants in not properly closing the switch or in not keeping the same closed; and further believe that plaintiff’s injuries, if any, were the direct result of the negligence, if any, of defendant’s servants in regard to said switch, and that he did not assume the risk, then you will find for the plaintiff.” Held, (1) the charge did not assume that the servants were guilty of negligence in not properly closing the switch, and, in view of another instruction to find for defendant if they believed that the switch being open was not the result of negligence of defendant’s servants, could not have misled the jury; (2) there being no evidence presenting any ground for a distinction between “closing” and “properly closing” the switch, there was no error in submitting the issue of negligence in not properly closing it; (3) the charge did not assume negligence in not keeping the switch closed; (4) it being established beyond question by the undisputed testimony that the switch was open, error, if any, in submitting the issue of failing to keep it closed was harmless, for the jury must have found according to the undisputed proof.</p> <p>5. —Negligence—Burden of Proof.</p> <p>Charge in its entirety considered, and held not to shift the burden of proof and place it on defendant to show that the switch being open was not due to its negligence.</p> <p>6. —Evidence—Impairment of Mental Processes.</p> <p>Where counsel for the plaintiff, seeing that the latter in testifying stopped and apparently thought or studied before answering questions, asked why he did so, and the answer was that he did not know any reason except that his mind was not as accurate as it was before he was hurt, objection on the ground that the explanation was self-serving, and it was for the jury to determine from the appearance of the witness and his manner his credibility and the weight of his testimony, was properly overruled.</p> <p>7. —Same—Photographs Taken with X-Ray,</p> <p>Photographs of the bones of the plaintiff’s injured leg, taken with an X-Ray instrument were admissible in evidence in connection with the testimony of an expert that the instrument used was a correct one of the kind and had been frequently used by the witness.</p> <p>8. —Same—Common Knowledge.</p> <p>It is a matter of common knowledge that photographic views of the bones of a living body by means of the X-Ray, when properly taken, accurately represent what they purport to show, and the courts may take cognizance of the fact.</p> <p>9. —Evidence—Comment by the Court.</p> <p>Where the defendant was examining its witness, and counsel for the plaintiff stated that he did not object to a question and answer but thought the question improper, a remark by the court that he did not think that the question was proper, afterwards explaining that he meant that the evidence was inadmissible, was improper but not, under the evidence, reversible error.</p> <p>10. —Charge—Submission of Defenses.</p> <p>While a defendant is entitled to a charge affirmatively presenting his defenses, the refusal of special charges so presenting them does not violate the rule when the substance and effect of the general charge is the same as those requested.</p> <p>11. —Same—Negligence.</p> <p>Charge considered and held to correctly submit the issue whether a switch was left open by a servant of defendant or was tampered with after it was closed by him by some unauthorized person.</p> <p>12.—Verdict—Personal Injuries—Excessive Damages.</p> <p>Damages in the sum of twenty-five thousand dollars awarded by the verdict for personal injuries held, so unreasonably large in view of all the evidence as to indicate that the amount was not the result of a fair consideration of the evidence; and remittitur of seven thousand five hundred dollars required.</p>

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

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

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

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

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

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

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

<p>Appeal from the District Court of Bell County. Tried below before Hon. John M. Furman.</p>

<p>1. —Contract—Warranty—Cancellation—Return of Property—Tender.</p> <p>Where, under the contract of sale and the warranties, the purchaser had the right at a proper time to return the machinery in case the same was defective and thereby cancel the notes for the price, the facts that after use he expressed dissatisfaction with the machine and complained to the seller and offered to return it and, after the seller had expressed his unwillingness to take it back, continued to use it through subsequent seasons and then traded it off, did not operate to relieve him from paying for the machine, as a positive and sustained tender might have done. In such case he must be taken to have receded from his offer to return and acceded to the seller’s refusal to allow him to do so.</p> <p>2. —Same—Breach of Warranty—Damages—Waiver.</p> <p>Where the contract for the sale of a -machine prescribed the remedies in case of a breach of one of the warranties, and provided that the failure to follow them waived and settled all claims for damages for any cause, and that in case the machine should prove defective the purchaser should have the right to return the property and thereby cancel the purchase money notes, by the failure to return the machine the purchaser was precluded from claiming consequential or other damages on account of defects, in an action by the seller on the notes.</p> <p>3. —Same—Warranty.</p> <p>Where the original contract for the sale of a machine prescribed the remedies in case of a breach of any of the warranties, and provided that a failure to follow them waived and settled all claims for damages for any cause, a subsequent statement by the seller that the machine would give satisfaction and thresh from 350 to 400 sacks of rice daily, if taken as a warranty, could only have the effect to add it to the category of warranties in the original contract, and the remedy would be the same as therein prescribed.</p>