Volume 55 — Texas Civil Appeals Reports

<p>1. —Evidence—Opinion—Usual and Customary Manner of Doing Work.</p> <p>Where the witness, in answer to a question as to whether the manner in which he was shoving the plank to a rip saw at the time he was injured was unusual or a usual and customary manner, testified that “It was the usual and customary manner I was doing it,” this was the statement of a fact and admissible over objection that it was .the expression of his opinion.</p> <p>2. —Negligence—Defective Appliance—Charge.</p> <p>Where the injured servant charged the master with negligence in that the guide to a rip saw and its connections were defective, an instruction that it was the duty of defendant to use ordinary care to furnish plaintiff with a guide to the rip saw reasonably safe for the purpose for which it was designated, and a failure to use such degree of care in this respect would be negligence, but defendant was not required by law to furnish an absolutely safe guide, was correct and applicable, and, occurring in that part of the charge devoted to stating rules of law and which undertook to submit nothing, it was not objectionable because it did not instruct that such negligence must have been the proximate cause of the injury, that being done in submitting the issues.</p> <p>3. —Same—Master and Servant—Dangerous Work—Warning—Pleading.</p> <p>Where the petition, in a suit by a servant for injuries received while operating a saw, contained allegations of dangers in the use of the saw connected with certain alleged defects, that plaintiff was a minor and inexperienced in the use of the machine because of which he did not know of the defects and dangers, and that defendant by the exercise of ordinary care could and would have known of said defects and dangers, and could and did know of plaintiff’s youth and inexperience and failed to warn him, the court was authorized to submit the issue of negligence in failing to give warning. Charge considered and held correct.</p> <p>4. —Same—Defective Machine—Warning—Charge.</p> <p>Where the allegation was of dangers in the use of the machine with certain alleged defects, and the only defect of which there was proof was that the guide was out of square, and the only negligence alleged had reference to such defect, a charge authorizing the jury to find for the plaintiff upon the theory of peril incident to the operation of the machine and the duty to warn in respect thereto, was error.</p> <p>5. —Charge—Invited Error—Negligence.</p> <p>Where the petition did not allege that there were dangers incident to the operation of the machine as a dangerous machine, but it appeared from the pleadings of defendant that it considered that the issue of dangers ordinarily incident to the operation of such machine apart from defects was involved, and that upon this idea it tried the ease and asked instructions which were not relevant except on such theory, it could not be heard to complain of an instruction submitting such theory, and ask reversal of a verdict which might have been found on the theory that was properly involved.</p> <p>6. —Master and Servant—Negligence—Defective Machinery—Injury to Servant.</p> <p>Any servant is entitled to recover for damages arising from defects in machinery given him for use if the presence of the defect is due to the master’s negligence and it is the proximate cause of the injury, conditioned of course that it was not an assumed risk, or not due to contributory negligence. See charges held correct.</p> <p>7. —Same—Defective Machinery—Negligence—Knowledge of Defects.</p> <p>An instruction that charged the injured employe with the consequences of a defect in the machine of which he knew or in the exercise of ordinary care would have known, was properly refused. An employe is not charged with knowledge of defects in machinery because the exercise of ordinary care would disclose them, as the duty to exercise care to discover them does not rest upon him.</p> <p>8. —Same.</p> <p>Requested charges held properly refused because they ignored the theory of the youth and inexperience of the injured servant.</p> <p>9. Damages—Verdict Held Excessive.</p> <p>Verdict awarding damages for personal injuries in the sum of ten thousand dollars held excessive.</p> <p>ON REHEARING.</p> <p>10.—Charge—Negligence—Permitting Defects.</p> <p>A charge submitting the issue of negligence on the part of the master in permitting the guide to the machine to be and remain in a defective condition, was not subject to objection as ignoring the issue of knowledge of the defect. The term “permitting” presupposes the idea of knowledge.</p>

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

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

<p>1. —Carriers of Passengers—Negligence—Assistance in Alighting.</p> <p>Evidence considered and held to support a finding of negligence on the part of a railway company in failing to furnish a step-stool and assistance in alighting, to a passenger, an aged woman of defective eyesight.</p> <p>2. —Continuance—Harmless Error.</p> <p>Error in overruling an application for continuance for absent witnesses is cured where such witnesses appear and testify during the progress of the trial.</p> <p>3. —Continuance—Discretion of Court.</p> <p>A second application for continuance on account of want of testimony of a witness who was present at the opening of the trial, but left without consent of the party summoning him before being called to testify, was addressed to the discretion of the court. Case held to show no abuse of such discretion in view of the testimony of the absent witness as compared with the undisputed facts otherwise established.</p> <p>4. —Evidence—Opinion—Permanency of Inquiry.</p> <p>No error appeared in admitting testimony of plaintiff that she believed her injury was for life where such injury, consisting in a shortening of the injured leg, was permanent necessarily, and as obviously so to a layman as to a medical expert.</p> <p>5. —Practice on Appeal—Damages—Medical Attention—Remittitur.</p> <p>Error in permitting recovery of damages for medical attention, held, cured by remittitur covering the amount attributable to such element of damages.</p> <p>6. —Charge—Damages—Future Suffering.</p> <p>An instruction permitting recovery for damages on account of such future suffering as the jury might find from evidence that plaintiff “will undergo in the future” was more favorable to defendant than one limiting the damages to such “as she will reasonably and probably undergo.”</p> <p>7. —Carriers of Passengers—Charge—Utmost Care.</p> <p>An instruction requiring of a carrier of passengers the utmost care is not erroneous where such degree of care is further defined as that which “would be execised by a very careful, prudent and competent person under the same or similar circumstances.”</p> <p>8. —Charge—Affirmative Submission of Defense.</p> <p>A charge which, after directing a verdict for plaintiff in case of finding of defendant’s negligence, instructs the jury “if you do not so find and believe from the evidence your verdict will be for defendant” is a sufficient affirmative submission of the defense.</p> <p>9. —Practice on Appeal—Remittitur—Costs.</p> <p>Where there is error which requires a remittitur to cure it, the costs of appeal will be taxed against appellee upon affirmance on remittitur.</p>

<p>1. —Contract—Building Plans—Agreed Price.</p> <p>Evidence considered and held insufficient to support a submission of plaintiff’s right to recover for an agreed price for furnishing building plans to defendant.</p> <p>2. —Same—Verdict.</p> <p>The submission of the issue of liability for an agreed price for furnishing building plans, in the absence of evidence of an undertaking to pay a fixed sum, was not made harmless error by the fact that there was proof of an agreement to pay a percentage of the cost of the building and that this was greater than the agreed price submitted, where the evidence as to cost was conflicting and the verdict obviously based on finding an agreement for the fixed sum.</p> <p>3. —Evidence—Contract.</p> <p>On the issue as to whether a certain contract was made by defendant, evidence of his financial ability to carry out such undertaking was inadmissible.</p> <p>4. —Same—Pleading.</p> <p>Plaintiff cannot be impeached by contradicting his evidence on immaterial matters, though pleaded by him without exception and proved without objection made.</p> <p>5. —Contract—Novation—Estoppel—Pleading.</p> <p>The acceptance by defendant of architect’s plans for a building to cost more than contemplated by the original agreement could be proved in support of an allegation that he agreed to pay for such plans. It was a novation, and not an estoppel against disputing plaintiff’s performance which would require special pleading.</p> <p>6. —Attachment—Non-resident.</p> <p>Attachment may issue against the property of a non-resident of the State, though the petition shows that he is temporarily within the jurisdiction where personal service of citation may be had.</p> <p>7. —Attachment—Certainty of Amount.</p> <p>An attachment will lie on a debt by contract where the demand shown by the affidavit arises on contract and is for actual damages capable of estimation by the usual means of evidence and not resting wholly or in part on the discretion of the jury.</p>

<p>1.—Hotes and Bills—Sureties—liability—Recovery Over,</p> <p>Where the trustee of the estate of a bankrupt sued the payee to recover the amount received by him from the bankrupt in payment of the note of the bankrupt which was a preference, and the defendant made the sureties on the note parties and sought recovery over against them, and thereafter compromised and settled with the plaintiff, the sureties were liable to him for the amount so paid, and he was entitled to judgment against them if the pleadings authorized such a judgment.</p> <p>5$.—Same—Pleading.</p> <p>Where the payee was sued to recover the amount received by him in payment of a note; which payment was a preference, and made the sureties on the note parties and sought recovery over against them for the amount that was adjudged against him, and thereafter compromised and settled with the plaintiff but failed to amend his pleadings, but the sureties set up such compromise and settlement and prayed that they should not be held liable, if at all, -for more than the amount paid in settlement, their pleadings supplied the deficiency in those of the original defendant, and the pleadings together supported a judgment in his favor in that amount.</p> <p>3. —Kotice—Principal and Agent.</p> <p>If the agent has knowledge of a fact at the time he acts for the principal, notice will be imputed to the latter, notwithstanding the agent had such knowledge prior to the beginning of the agency.</p> <p>4. —Judgment on Undisputed Evidence—Procedure—Harmless Error.</p> <p>When under the undisputed evidence no other judgment than the one rendered could have been properly rendered, errors of procedure occurring on the trial are immaterial.</p>

<p>5. —Findings of Fact.</p> <p>Appeal from the District Court of Harris County. Tried, below before Hon. Charles E. Ashe.</p>

<p>1. —Charge—Assumption of Fact—Error.</p> <p>Where, in a suit against several railroad companies for the entire value of an automobile shipped over tlieir lines, the evidence tended to show that the automobile was not entirely destroyed in value but was only damaged, it was reversible error for the trial court to assume in its charge upon the measure of damages that the machine was valueless.</p> <p>2. —Carriers of Freight—Connecting Carrier—Prepayment of Charges.</p> <p>Where each of several connecting carriers bound itself.to carry a shipment of freight only over its own line, and limited its liability to damage done on its own line, one of such carriers to which the freight was tendered in a damaged condition could not demand of the carrier tendering the same that it guaranty or prepay the entire freight charges from the point of shipment‘to destination.</p> <p>3. —Same—Demurrage.</p> <p>Pleading and evidence considered and held sufficient to require the court to submit to the jury the issue ot demurrage presented thereby.</p>

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

<p>1.—Railroads—Failure to Furnish Cars—Statute Construed.</p> <p>Articles 4497, Rev. Stats, does not impose upon railroad companies the duty of supplying a particular kind of car, and the shipper who, in his requisition for cars, imposes upon the 'company that duty does not bring himself within the letter of the statute giving the penalty for failure to supply cars, and therefore cannot recover the same.</p> <p>2. —Same.</p> <p>When a requisition upon a railroad company is for ten cars of a certain kind and of a certain capacity or “their equivalent in different capacity cars,” the company is entitled to more than three days notice within which to furnish the cars.</p> <p>3. —Same—Requisition for Cars Construed.</p> <p>A certain demand upon a railroad company for ten gondola or coal cars “that is, such cars as are suitable to be loaded with crushed stone,” means that the shipper desired gondola or coal cars, which he considered suitable for his purpose.</p> <p>4. —Same—Statute Construed.</p> <p>The statute (article 4502. Rev. Stats.) requiring the shipper to prove that he had on hand at the time of making his order for cars the necessary freight for loading them, forbids any character of speculation and precludes a shipper from recovering the penalty when such freight in form and condition to be shipped is not then on hand, even though such shipper may otherwise be able to show that he could have had the property ready at the time and place to load the cars if they had been furnished on his order.</p> <p>5. —Same—Case Stated.</p> <p>Where it appeared from the evidence that at the time a shipper made demand upon a railroad company for a certain number of cars in which to ship crushed stone, the stone had not been crushed, but the shipper had intended to crush the same after the cars were placed and to load them directly from the crushing mill, the shipper was not the “owner”, within the meaning of the statute, of any crushed stone when the order was made, and did not have such freight “on hand” with which to load the cars, and therefore was not entitled to the penalty for the company’s failure to furnish the cars demanded.</p> <p>6. —Evidence—Reports of Railroad Companies.</p> <p>A report of a railroad company to the Railroad Commission of this State is competent evidence in a suit against such company when the report purported to be the act of the company through its auditor, and the handwriting of the auditor is proved.</p> <p>7. —Measure of Damages—Cost of Production.</p> <p>In arriving at the cost of a manufactured article the items of taxes, insurance, repairs or depreciation of value of the plant, etc., should be added to the value of the labor employed in its immediate manufacture. This rule applies in estimating the cost of crushed stone.</p>

<p>1. —Jury—Peremptory Challenges—Case Followed.</p> <p>Where, besides their common ground of defense against the plaintiff, there is a controversy between the defendants themselves, each defendant is entitled to six peremptory challenges in the selection of a jury. First National Bank of Cuero v. San Antonio & Aransas Pass. Ry. Co., 97 Texas, 201, followed.</p> <p>2. —Practice—Objection to Evidence—Waiver.</p> <p>When an objection to testimony is waived after the objection has been sustained by the trial court, the objecting party cannot complain of its admission in evidence. See proceeding held to amount to a waiver of objections.</p> <p>3. —Same.</p> <p>When testimony is admitted without objection at the term, appellant cannot afterwards complain.</p>

<p>Appeal from the District Court of Tarrant County. Tried below before Hon. W. T. Simmons.</p>

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

<p>1. —Venue—Privilege—Private Corporation—Statute.</p> <p>Where, in a suit against a private corporation, the petition alleged and the court found on sufficient evidence, that the defendant entered into a written contract of sale which was to be performed in part at least in the county of the suit, and that for a breach thereof by defendant a cause of action arose in plaintiff’s favor in that-county, an assignment complaining of the action of the court in overruling the defendant’s plea of privilege to be sued in the county of its residence, could not be sustained. Revised Statutes, art. 1194, subd. 23.</p> <p>2. —Evidence—Offer to Compromise.</p> <p>An offer to compromise a prospective suit, if expressly or impliedly made without prejudice cannot be admitted in evidence when objected to. The reason of the rule is that the law favors the compromise and settlement of controversies without litigation and as the admission in evidence of such offers tends to discourage such settlements, it is against the policy of the law.</p> <p>3. —Same.</p> <p>In a suit for breach of a contract of sale, the admission in evidence of an offer by the plaintiff to waive the claim for damages if the defendant would comply with the original contract, was reversible error, although the defendant made no reply to the offer.</p> <p>4. —Evidence—Sale—Contract in Writing—Pleading—Agency.</p> <p>Where the contract for the sale of oil was not signed by either party but by the broker alone, and the latter testified to conversations had by him with the manager of the seller on the day of sale tending to show authority from the latter to sell and also confirmation of sale, testimony of the manager of the seller that he held several conversations with the broker on that day, that he gave an option to the broker to sell on that day up to midnight, that the broker made no report to him of a sale or confirmation, and that he did not at any time receive any written notice of a sale of the oil or the writing called “confirmation of sale,” and heard nothing of such sale until several days thereafter, was admissible in evidence in connection with the undisputed fact that under the rules of the association to which both parties belonged, when an option is_ given a sale must be confirmed before midnight of the same day or it is iiot binding on either party; and it was not necessary to deny the authority of the broker to execute the contract in behalf of the seller, to render it admissible.</p>

<p>1, —Interest—Contract—Loan—Commissions.</p> <p>Where a bank negotiated a loan for which the borrower agreed to pay interest at the rate of 8 percent, and executed a series of notes for the principal with interest at 6 percent, and a second series representing 2 percent of the principal, each series being secured by a separate mortgage, the money in fact being that of a third party who was made payee and mortgagee, the facts that the second series on their face stated that they were given for a part of the interest on the loan, and that the borrower did not know that the loan was being made for some one else, and his testimony that the contract was made with the bank, the rate of interest to be eight percent, and that when drawing up the papers he objected to the form, but was told that such was the bank’s form and the way they loaned all their money, authorized a finding that the second series was for interest and not commissions due the bank, though it was the custom of the bank in like transactions to take a second mortgage to cover pay for services, expense, and commissions to agents through whom the business comes, and this prompted the form of the contract.</p> <p>2. —Same—Case Followed.</p> <p>Where the mortgage to secure the payment of notes covered property upon which the improvements were insured against fire in favor of the lender as his interest appeared, and provided that the legal holder of the notes should have the right to apply the money collected from the insurance in payment of the debt secured whether due or not, and after the improvements were destroyed by fire the holder collected a certain sum as insurance and applied it to the extinguishment of the principal debt, no greater amount, of interest was collectible than had accrued at the date of the collection of the insurance. Dugan v. Lewis, 79 Texas, 246, followed.</p>

<p>1. —Fire—Water Company—Contract with. City—Failure to Furnish Water-Liability.</p> <p>A property owner cannot hold a water company liable for loss of his property by fire because of its breach of its contract with the city to supply water for fire purposes. That the city in question is incorporated under the general law (Revised Statutes, art. 418), and the contract with the city is to supply the city “and the inhabitants thereof,” does not affect the question.</p> <p>2. —City—Contract—Implied Contract—Loss by Fire—Water Company—Liability—Case Followed.</p> <p>A contract between a city and a water company stipulating that the latter should be liable, under its contract to furnish water to the city and the inhabitants for fire and other purposes, to individual citizens for loss of property sustained by reason of its breach of the contract, would be void; and it follows that no such implied liability could arise out of the contract to supply water to the city for fire and other purposes. House v. Houston Water Works Co., 88 Texas, 233.</p>

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

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

<p>1. —Statutory Construction.</p> <p>A statute penal in its character will be strictly construed.</p> <p>2. —Railway—Railroad Commission—Requiring Information—Blanks,</p> <p>Under article 4571 of the Revised Statutes, the Railroad Commission, in requiring of a railway company information as therein provided, is required to furnish to such company blanks to be filled out in making such answers. A specification in the order of the commission of the matters required to 6e answered does not comply with the requirement that such blanks be furnished; and the petition in an action to recover the penalties provided in case of failure to furnish information as requested by the commission must allege that proper blanks were furnished the railway for that purpose or be subject to demurrer.</p>

<p>1. —Innocent Purchaser—Partners—Notice—Pleading.</p> <p>Plaintiffs, who had sold property to M. which he had sold to others, sued to recover it, claiming that M. had obtained it from them by fraud. Defendants claimed it as innocent purchasers from M. Under this issue evidence offered by plaintiff to show that defendants were partners of M. should have been admitted in rebuttal of defendant’s claim to be innocent purchasers, though plaintiffs had no pleadings supporting the admission of such proof.</p> <p>2. —Same—Pleading.</p> <p>It is no objection to a pleading filed in reply to a plea by defendant of innocent purchaser, that the facts set up are inconsistent with those alleged in the petition; nor to evidence offered under a denial of such plea of innocent purchaser that it is inconsistent with the case made by plaintiffs’ alleged petition. Plaintiffs are permitted to file inconsistent pleas.</p> <p>3. —Charge—Argumentative—Undue Prominence.</p> <p>A charge as to the effect which the jury are to give to certain evidence invades their province though the rule given be not contrary to logic or reason.</p>

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

<p>"Appeal from the District Court of Houston County. Tried below before Hon. Benj. H. Gardner.</p>

<p>Appeal from the County Court of Edwards County. Tried below before Hon. B. P. Allison.</p>

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

<p>1. —Broker—Commissions.</p> <p>In the absence of any usage or contract express or implied, or conduct of the seller preventing the completion of a bargain by the broker, an action by a broker for liis commissions will not lie until it is shown that he has effected or produced a sale of the property. It is not enough that the broker has devoted his time, labor or money in the interest of his employer, unsuccessful efforts however meritorious afford no ground of action; and where his acts effect no agreement or contract between his employer and the purchaser, the loss must be his own.</p> <p>2. —Same—Sale of Land.</p> <p>Where the broker under the contract had no exclusive agency for sale of land, the owner was not liable for commissions on a sale made by himself in good faith without the agency of the broker.</p> <p>3. —Same.</p> <p>Under the contract the broker was to receive a certain commission for bringing the owner a purchaser for land at a certain price per acre, or as near that as possible, and was te submit a good bid if he had it. He brought one, 0., to see the owner and the land, and 0. through the broker made an offer at less than the listed price, which the owner rejected, and there all efforts of the broker to effect a sale ceased. The offer to purchase by G. was made with the intention of buying for himself. About one year later the owner in an accidental meeting with a member of the firm of which 0. was a member, gave said firm the exclusive agency to sell for a fixed period, for a fixed price, for a certain commission, this being regarded as an option, the intention of the member being to sell at a profit to certain parties. Failing a sale, the firm made an offer to the owner to buy at a certain price per acre net, the same price offered by C., and the owner accepted and a sale was made to the firm, which then had a member who was not such when C.’s offer was made. Held, that the broker was not the procuring cause of the sale, though but for his attempt to sell to 0., the sale to the firm would not have taken place, and he could not recover.</p> <p>4. —Same.</p> <p>If without effecting an agreement or accomplishing a bargain, the broker abandons the effort, or his authority is fairly and iii good faith terminated, he gains no right to commissions. In such event it matters not that after his failure and the termination of Ms agency, what he has done proves of use and benefit to the principal.</p>

<p>1. —Subsequent Purchaser—Duty of Inquiry—Notice—Evidence.</p> <p>If a subsequent purchaser of land has knowledge of any fact or circumstance sufficient to put a prudent man upon inquiry which, if prosecuted with ordinary diligence, would lead to actual notice of a prior deed to said land, he will be charged with the knowledge 'which, might have been acquired by such diligence. The favorable opinion of an attorney upon the abstract of title will not relieve him of the consequences of his own knowledge.</p> <p>2. —Same.</p> <p>The issue being whether or not a subsequent purchaser of land was a bona fide purchaser without notice, held, that the fact that the person offering to sell him the land as agent of the vendors was to receive one-half of the purchase money for making the sale, and the further fact that said subsequent purchaser offered to buy the land from the prior purchaser after such purchaser’s deed was put on record, were sufficient to require the court to submit to the jury the issue of bona fides on the part of the subsequent purchaser in making the purchase.</p> <p>3. —Same—Synonymous Terms—Charge.</p> <p>While the expressions “prior claim” and “prior deed” are not necessarily synonymous, -still, in an action of trespass to try title between a subsequent and prior purchaser of the land in controversy the use of the term “prior claim” instead of “prior deed” in the charge of the court was not reversible error when the only evidence of a prior claim on the part of the defendant was under and by virtue of a prior deed.</p> <p>4. —Principal and Agent—Notice to Agent when not Notice to Principal.</p> <p>The rule that the principal is chargeable with notice, of all facts that come to the knowledge of his agent while acting within the scope of his agency, does not apply when the agent has a personal interest in the matter which would likely lead him to conceal his knowledge from his principal.</p>

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

<p>1.—Cotenancy—Waste—Liability.</p> <p>A cotenant of land who cuts and appropriates, or authorizes another to cut and appropriate the timber growing upon the common estate, is liable to the other cotenant for the value of his portion of the timber appropriated.</p> <p>2.—Same—Liability of Purchaser—Cases Distinguished.</p> <p>One who with knowledge of the cotenancy purchases from a cotenant the timber growing upon the common estate and appropriates the same, is liable to the other cotenant for his share of the value of the timber so appropriated. The cases of Gillum v. Railway, 6 Texas Civ. App., 338, and McClanahan v. Stephens, 67 Texas, 354, distinguished.</p>

<p>1. —Master and Servant—Electric Wires—Assumed Risk.</p> <p>An experienced lineman, climbing a telephone pole on either side of which ran wires of the city electric light system and of a light and power company, was shocked and caused to fall by placing his hand on an iron spike in the pole for use in climbing it. This was charged with an electric current by contact with one of the city wires which had sagged against it, such wire, not ordinarily carrying a current by day, being charged by contact elsewhere with a live wire of the light and power company, and a circuit for the current being closed by plaintiff’s contact at the same time with the messenger wire supporting the telephone company’s cable. The situation and relation of the respective wires and the spike were obvious, and though plaintiff did not know that the city wire was charged, he testified that it was his duty to see whether it was safe to climb the pole and that electricians consider all wires as possibly charged and dangerous. Held that the risk was one assumed by plaintiff as a servant and he could not recover against his employer, the telephone company.</p> <p>ON MOTION FOB BEHEABING.</p> <p>2. —Practice on Appeal—Verdict—Judgment—Apportionment of Damages.</p> <p>In a suit against a city, an electric light and power company, and a telephone company, by an employee of the latter, for personal injuries, plaintiff had a verdict against the telephone company for $3,000,' and the light and power company for $1,000, and judgment was rendered in his favor for $4,000 apportioned between defendants in accordance with the verdict. Both appealed, but only the telephone company presented a brief, and on this the judgment as to it was reversed and rendered in its favor. In a motion for rehearing appellee sought to have the judgment reformed and rendered against the light and power company for $4,000 on the ground that both defendants were equally liable for the tort and the apportionment of damages was unwarranted. Held, that such relief could not be granted in the appellate court in the absence of complaint of the judgment by appellee in the trial court or cross-assignment by him on appeal.</p>

<p>1. —Master and Servant—Negligence—Contributory Negligence—Assumed Bisk.</p> <p>Evidence considered, in case of a minor employed in a cotton oil mill and injured while endeavoring to set a belt upon a revolving shaft, being drawn into the machinery by his clothing catching upon a projecting set-screw upon a collar of the shaft, and held to present questions of fact upon the issues of negligence, contributory negligence and assumed risk justifying the submission of each of those issues to the jury.</p> <p>2. —Evidence—Negligence—Alteration of Machinery after Injury.</p> <p>Admissions of evidence that the projecting set-screw by which plaintiff was caught and drawn into a revolving shaft had been removed by defendant after the injury, were not erroneous where such proof was offered, not as evidence of negligence, but as excuse for plaintiff’s inability to have such set-screws exhibited for examination upon the trial.</p> <p>8.—Evidence—Master and Servant—Knowledge of Defects.</p> <p>Testimony by a minor employee that his attention had never been called to a projecting bolt in the machinery which he was operating which caused him to be caught and injured, was admissible on the Question of his knowledge or means of knowledge of its existence,</p> <p>4. —Evidence—Argument—Harmless Error.</p> <p>Errors in admitting evidence and in the comment of counsel thereon become harmless where the issue to which they referred was not submitted to the jury.</p> <p>5. —Master and Servant—Obvious Dangers.</p> <p>Evidence as to defect in machinery (a projecting set-screw) held not to show a danger so obvious as to make immaterial the failure to instruct or warn a minor employee in regard to the danger from its use.</p> <p>6. —Requested Instruction—Definition.</p> <p>The refusal of a requested charge defining negligence was not error where same was sufficiently and correctly defined by the charge given.</p> <p>7. —Argument of Counsel.</p> <p>Objectionable remarks of counsel were not ground for reversal where the court instructed the jury not to consider or be influenced by them.</p> <p>8. —Requested Instructions.</p> <p>Refusal of requested charges applying the law specifically to the facts of the case was not ground for reversal where the law was fully and affirmatively applied by the main charge given.</p> <p>9. —Juror—Qualification.</p> <p>The objection that a juror had served more than six days in the District Court within the six months preceding the trial comes too late after a verdict.</p> <p>10. —Damages—Personal Injuries.</p> <p>A recovery of damages in the sum of $10,000, for personal injuries involving loss of right arm, held not excessive.</p>

<p>1. —Carriers of Passengers.</p> <p>Evidence considered and held to support a recovery for wrongfully requiring a passenger to leave the train.</p> <p>2. —Damages—Remittitur.</p> <p>Error in submitting the issue of plaintiff’s damage by loss of time held cured by remittitur.</p> <p>3. —Same.</p> <p>A recovery of $200 as damages for wrongfully requiring a passenger to leave train, resulting only in a delay of a few hours with no special inconvenience, held excessive, and a remittitur of $100 required.</p>

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

<p>Appeal from the District Court of Comanche County. Tried below before Hon. U. R. Lindsey.</p>

<p>5. —Findings of Fact—Bill of Exceptions—Practice.</p> <p>Appeal from the District Court of Hunt County. Tried below before Hon. R. L. Porter.</p>

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

<p>Appeal from the District Court of Hill County. Tried below before Hon. B. T. Cummings, Special Judge.</p>

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

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

<p>1. —Homestead—Abandonment—Removal.</p> <p>The question of abandonment of a homestead once used and occupied as such, by removal therefrom, is dependent upon the intention of the parties, and whether such removal was with the fixed intention of not returning to the place as a home.</p> <p>2. —Same—Evidence—Intention—Declarations.</p> <p>Where, under a decree partitioning the estate of a decedent, the homestead, which was the separate property of the decedent, was set apart to the surviving wife as a homestead so long as she might elect to use or occupy the same as such, the fact that after her second marriage she and her husband rented the property and removed to another county where they remained until suit was brought by the heirs, did not unmistakably manifest their true intent, and their -declarations of their intention accompanying such acts and explanatory thereof wrere admissible in evidence notwithstanding they may seem self-serving.</p> <p>3. —Same.</p> <p>The fact that the wife and her husband removed from the homestead to another county and there resided on a place to which title was taken in the wife’s name, would not constitute an abandonment of the homestead if they at all times retained the intention not to make their home on the new place, but to return to the first home and resume their occupancy of it.</p> <p>4. —Same.</p> <p>An offer by husband and wife to sell the property was not necessarily inconsistent with their intention to return to it and reoceupy it as a home if they did not sell.</p> <p>5. —Same—Case Followed,</p> <p>Facts held to support a finding that the homestead had not been abandoned. Following Foreman v. Meroney, 62 Texas, 723.</p> <p>6. —Findings—Reversal.</p> <p>That the evidence tends strongly to support a conclusion contrary to that of the trial judge, will not authorize the appellate court to set aside the judgment.</p>

<p>1. —Contract—Personal Services—Breach—Damages—Evidence.</p> <p>A contract for personal services merely, to be compensated in part by commissions on business done, is distinguished from one where other than personal services are expended for a similar return; the latter is a contract for profits as such; the former is for compensation for services, not profits, and in reduction of the damages for breach of the contract by the hirer, depriving the hired of the employment and its compensation, evidence is admissible to show that other employment1 was secured after the breach and what compensation plaintiff received therefor. Wells v. National Life Ass’n of Hartford, 99 Fed., 222, 53 L. R. A., 1, distinguished.</p> <p>2. —Same—Case Stated.</p> <p>Plaintiff was employed by an insurance company for a term of ten years, as an actuary and superintendent of agencies, for a salary and expenses and also a commission on gross premium receipts during the term, and further commission on policies written by him personally. In an action for damages by his wrongful discharge it is held that the compensation agreed on was for personal services, as distinguished from profits, and that evidence offered by defendant of other employment obtained by him after his discharge, and of the compensation received therein was improperly excluded. Kramer v. Wolf Cigar Stores Co., 99 Texas, 597, followed.</p> <p>3. —Servant—Definition.</p> <p>Servant, in law, is in most cases synonomous with employee, and the relation exists whenever the employer retains the right to direct the manner in which the business shall be done, whatever the rank or position of the employee.</p> <p>4. —Damages—Waiver.</p> <p>A contract of employment for a term of years retained in the employer a right to terminate the contract sooner if found not to be profitable, fixing a compensation to the employee in such case. Plaintiff sued for breach, claiming that it had been terminated wrongfully and in bad faith, and waived all claims arising under the contract by its rightful termination. Held that his action being one for wrongful breach of the contract of employment, defendant was entitled, notwithstanding such waiver, to show in reduction of damages, that plaintiff afterward obtained other employment during the term, and at what compensation.</p> <p>5. —Evidence—Good Faith.</p> <p>On the issue of good faith in the discharge of an employee, evidence of the amount of expense accounts submitted by him for allowance under his contract of employment should have been received.</p> <p>6. —Employment—Eight to Discharge—Ambiguous Contract—Question of Fact.</p> <p>A contract by which an insurance company retained the right to discharge one employed for a term of ten years as its actuary and superintendent of agencies in case the business produced by him was insufficient to be profitable to the company, on which question the vote of its directors should be final, is held ambiguous as to whether the right to discharge was absolute, with or without cause, and a submission of that question to the jury held to be proper.</p> <p>7. —Employment—Eight to Discharge—Contract—Good Faith.</p> <p>Where the right to discharge an employee is, by the contract, not an absolute one, but to be exercised for cause, though the directors of the employing corporation are made by the contract the final judges of such cause, suit will lie for their action in so discharging if it was without cause and done in bad faith.</p>

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

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

<p>1. —Evidence—Declaration of Agent.</p> <p>The declarations of an agent in respect to a matter within the scope of his apparent authority, in the line of his duty and at the time and place a negligent act complained of occurred, are competent evidence. It is otherwise as to such declarations in the nature of a narrative after the act has occurred.</p> <p>2. —Same—Harmless Error.</p> <p>The admission of improper evidence over objection of a party becomes harmless when other evidence to the same effect is in the record without objection.</p> <p>3. —Carrier of Freight—Conversion—Measure of Damage.</p> <p>When a carrier of cattle negligently put the cattle in infected pens en route to destination, whereby the cattle could not lawfully be carried to destination and the carrier sold them at said pens, the shipper’s measure of damage was the market value of the cattle at their destination at the time they should have arrived there.</p> <p>4. —Depositions—Objections—Practice.</p> <p>Objections to the manner and form of taking depositions should be made before the trial commences.</p>

<p>1. —Contract—Written Contract—Contemporaneous Verbal Agreement.</p> <p>When parties reduce their contracts to writing such writing is to be taken as embodying all previous negotiations and understandings about its terms, and they can not be varied by parol; but the rule does not apply where it can be made to appear that the instrument was not intended to be a complete and final settlement of the whole transaction.</p> <p>2. —Note—Final Settlement—Intention.</p> <p>A note given for an amount stated by the payee to be due, was not a final settlement between the parties if they did not intend that it should be.</p> <p>3. —Evidence—Writen Contract—Parol Agreement.</p> <p>A verbal promise by one of the parties at the making of a written contract, if it was used to obtain the execution of the writing, may be given in evidence.</p> <p>4. —Pleading—Note—Equitable Defense—Parol Agreement as to Credits.</p> <p>An answer, in a suit by the payee to recover on a'note, alleging that the note was given for the amount stated by the payee to be due him on account of various transactions; that the maker signed the note in order to relieve the payee from financial stress; and was induced thereto by the verbal agreement and promise of the payee that there should be an accounting between them, and that if the note was in excess of the indebtedness of the maker the latter should have credit on the note for such excess, and that the amount for which the note was given was in excess of what the maker owed in a certain sum, set up an equitable defense and it was error to sustain a demurrer thereto.</p>

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

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

<p>1. —Fire Insurance—Contract to Keep Books—Breach.</p> <p>A policy of fire insurance contained a stipulation and covenant that the insured would keep a set of books which would present a complete record of the business transacted including cash sales; the books kept by the insured failed to show any entry of the cash sales for about six weeks prior to the burning of the insured property. In an action upon the policy, held, that an inventory of the stock of goods taken two or three days before the fire would not render an account of the cash sales unnecessary and immaterial in arriving at the amount of the loss, and the failure to keep such an account vitiated the contract of insurance.</p> <p>2. —Same—Statute Construed.</p> <p>The provisions of the Act of 1903 concerning contracts of insurance (Gen. Daws 1903, p. 94; Sayles Supplement art. 3096aa) apply only to the truth or falsity of answers or statements in the application or contract, and not to what was agreed in the contract to be performed; and hence, in an action upon a policy of fire insurance, said provisions constituted no answer to a defense that the plaintiff had breached the contract by failing to comply with the covenants of the contract in the matter of keeping books.</p> <p>3. —Same—Increased Hazard—Failure to Give Notice.</p> <p>A policy of fire insurance contained the following stipulation “The entire policy......shall be void......if the hazard be increased by any means within the control or knowledge of the insured”; a short time before the property was destroyed by fire an attempt was made to burn the same; the insured knew of this fact but gave the company no notice of it. Held, a failure to notify the company of a continuing danger would probably vitiate the policy, but whether or not a single effort to burn the property would cause the assured to consider it likely to be repeated until successful, would involve a presumption of fact which should be left to the jury.</p> <p>4. —Same—Forfeiture—Waiver.</p> <p>A policy of fire insurance contained, besides the usual iron safe clause, the following stipulations, in substance, viz.: that the assured as often as required should exhibit to any person designated by the company all books of account, bills, invoices and other vouchers, etc., and should submit to an examination under oath concerning the same, and .that the company should not be held to have waived any provision or condition of the policy or any forfeiture thereof by reason of the foregoing requirement. Held, in the absence of any act or word on the part of the company signifying an intention to waive its rights under the foregoing provisions, the fact that the company required the assured to submit to an examination and exhibit his books on three different occasions extending through a period of nearly two months after the fire, was not a waiver of its right to claim a breach of the contract by the assured for causes known to the company at the time of the examinations.</p>

<p>Appeal from the District Court of Johnson County. Tried below before Hon. O. L. Lockett.</p>

<p>1. —Usury—Statute.</p> <p>The Act of April 19, 1907, Laws 30th. Leg., p. 277, amending article 3106, Rev. Stats., provided, as did the article amended, for the recovery in an action therefor of double the entire interest paid upon an usurious contract, and was not limited to a recovery of double the amount paid in excess of the lawful rate.</p> <p>2. —Same.</p> <p>The use of the words “if usurious interest as defined in the preceding articles,” in article 3106, Rev. Stats., limited the right to recover double the interest collected to that received on a written contract, no other class of contracts being declared unlawful “by the preceding articles,” the omission of that clause from the amended article enlarges rather than restricts the meaning to be given to the words “usurious interest” as used in the Act of 1907.</p> <p>3. —Same—Constitution—Cases Distinguished.</p> <p>By article 16, section 11 of the Constitution as amended in 1891, all contracts for a greater rate of interest than 10 percent per annum are deemed usurious, and this provision is self-executing. The former Constitution had defined as usurious “all interest charged above” 12 percent per annum, making only the excess of interest usurious. Cases arising under this provision distinguished from those under present Constitution.</p> <p>4. —Usury—Written or Verbal Contract.</p> <p>Where notes provided for interest at 10 percent per annum, but interest at a greater rate was by the lender collected or deducted from the amount loaned in advance, the usurious payment was upon a written contract within the meaning of article 3106, Rev. Stats., and the manner of its collection, though by an oral arrangement, was a mere device to avoid the effect of a statute.</p> <p>5. —Usury—Penalty—Interest on Interest.</p> <p>The penalty provided "on recovery for exacting unlawful interest is double the amount of the interest paid, and being a judgment in a civil action, bears statutory interest from the date of its recovery. But interest cannot be recovered on penalties in the absence of statutory provision, and it is erroneous to direct a recovery for interest upon the usurious payments between the date suit was filed and the date of judgment.</p> <p>6. —Excessive Judgment—Reformation and Affirmance.</p> <p>Error in directing a recovery of interest upon interest in addition to double the amount of usurious interest paid may be cured in the appellate court by reducing the judgment so as to exclude from the amount recovered the interest improperly allowed.</p>

<p>Appeal from the District Court of Bosque County. Tried below before Hon. O. L. Lockett.</p>

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

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

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

<p>1. —Railroads—Failure to Furnish Cars—Constitutionality of Statute.</p> <p>Under the construction given to articles 4497-4502 Rev. Stats, by the Supreme Court in the case of Allen v. Texas & Pacific Ry. Co., 100 Texas, 525, said statute is not subject to the constitutional objections that it deprives the railroad companies of their property without due process of law, and authorizes the imposition of excessive fines and punishment.</p> <p>2. —Same—Statute Construed.</p> <p>Under the provisions of articles 4497, (as amended by the Act of 1899, p. 67) and of article 4498, it is manifest that the Legislature intended to authorize the shipper to name the day on which he desired cars to be delivered for his use, subject only to the qualification that the railroad company should have at least the number of days after notice designated by the statute. Such periods are minimum periods which must in all cases be allowed by the shipper, but, subject to this limitation, the shipper has the right and it is made his duty to designate the time when the cars are desired. Chief Justice Conner, dissenting.</p> <p>3. —Same—Case Stated.</p> <p>The plaintiff, desiring to ship cattle from a station on defendant’s railroad, made demand in writing upon defendant, as provided by statute, on November 26th for eight ears to be furnished him on December 8th, thereafter. Held, that the plaintiff had a right to designate a date for the delivery of the cars more than three days after the date of the demand, and, in the absence of a valid excuse, was entitled to recover the statutory penalty for failure to furnish the cars on the day designated. Chief Justice Conner, dissenting.</p>

<p>1. —Putative Wife—Personal Injuries to Husband—Case Followed.</p> <p>A putative wife living with her supposed husband in good faith is entitled after the death of her supposed husband to sue for and recover in her own right damages for personal injuries not resulting in death inflicted upon the husband during such cohabitation. Such damages are community property. Barkley v. Dumke, 99 Texas, 150, followed.</p> <p>2. —Same—Statute Construed.</p> <p>A woman who marries and lives with a man in good faith, without knowledge that any impediment to the marriage exists, should be included within the terms “heirs and legal representatives” as used in art. 3353a, Rev. Stats.</p> <p>3. —Same—Statute of Limitation.</p> <p>A husband received personal injuries on March 28, 1906; he filed suit in April 4. 1907, he died in August, 1907; that suit thereafter was abandoned; in September, 1907, his putative wife filed suit to recover damages in her own right as surviving wife; on June 11, 1908, she learned for the first time of the existence of another living wife and on the same day filed a trial amendment asserting her rights as a putative wife to the damages sued for. Held, the 'defendant’s plea of two year limitation was properly overruled.</p>

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

<p>1. —Pleading—Damages—Negligent Failure to Deliver Message—Petition.</p> <p>Petition, in an action against a telegraph company for damages caused by its negligence in failing to promptly deliver a message advising the plaintiff that his daughter was expected to die at any time, considered, and held to state a good cause of action. .</p> <p>2. —Damages—Negligence—Failure to Deliver Telegram—Continued Anxiety-Pleading.</p> <p>Where the plaintiff received a message advising him that his daughter was expected to die at any time, and in reply to a-message of inquiry from him an answer was sent which told him that she was no better, there could be no recovery for negligent failure to deliver the answer, as it did not convey any information other than what he already knew, and, had he received it, it would not have tended to relieve or lessen the existing anxiety. Allegations held to show no cause of action.</p>

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

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

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

<p>1. —Venue—Actions in Justice Courts—Nonresident—Privilege—Statute.</p> <p>Where suit against a nonresident of the State was brought in Justice Court for services rendered under a contract in writing performed in the county of the suit, and the contract stated no place of payment, and the plaintiff resided in another county, a plea of privilege of defendant that suit should have been brought in the county of plaintiff’s residence should have been sustained. The venue was fixed by subdivision 8 of article 1585, Revised Statutes. Subdivision 4 did not apply.</p> <p>2. —Venue—Change of Venue—Justice Courts—Statute.</p> <p>When, in an action brought in Justice Court, a plea of privilege is sustained, the court should order the venue changed to the proper court of the county having jurisdiction of the parties and cause as provided in article 1194c, Rev. Stats. (Gen. Laws, 1907, p. 249.) While the statute does not in terms apply to Justice Courts, it applies by virtue of article 1677, Revised Statutes.</p> <p>3. —Attachment—Return—Amendment—Officer.</p> <p>Where the attachment sued ont against the nonresident defendant was executed by a deputy sheriff, but he signed his return as deputy constable of the precinct and county of the suit, there was no error in allowing the sheriff himself to correct the return so as to show that the writ was executed by the officer as deputy sheriff, and, when so corrected, refusing to quash the attachment.</p> <p>4. —Same—Reversal—Effect of.</p> <p>Where a case is reversed for error in refusing to sustain a plea of privilege, and the court below instructed to change the venue of the suit to the proper court of the county having jurisdiction of the cause and parties, the reversal does not affect the attachment sued out and levied and other process, and same will stand as though issued out of the proper court of the proper county.</p>

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

<p>1.—Bes Adjudicata.</p> <p>B. sued K. in the District Court for damages for breach of a contract to thresh a crop of rice; K. denied the breach and set up facts to show that B.’s damage, if any, was due to causes over which IC. had no control and to the fault of B.; on these pleadings, a verdict and judgment were rendered for B. for a part of the amount sued for. Held, that the judgment in said cause could not be res adjudicata of an account held and subsequently sued upon K, against B. for goods, wares and merchandise sold and for services rendered, because these matters were not put in issue by the pleadings in the former suit, and if the jury took said matters into account in rendering their verdict, they did so without warrant of law.</p> <p>2.—Same.</p> <p>A former judgment relied on as having adjudicated the matter involved in another suit and as a bar to further proceedings should have involved and determined the same vital issue, or such issue should have been fairly within the scope of the pleadings. The “matter in issue” is that upon which the plaintiff’s cause of action is based, and which the defendant denies by his pleadings.</p>

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

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

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

<p>1. —Appeal—Jurisdiction.</p> <p>A party seeking to appeal from a judgment to a higher court must do whatever necessary to make it affirmatively appear that the appellate court has jurisdiction; and the County Court can not exercise jurisdiction over an appeal from Justice Court unless informed as to the amount of the judgment below, which it can only learn from a transcript of the proceedings properly authenticated by the justice.</p> <p>2. —Same—Diligence.</p> <p>An appellant must exercise diligence to perfect a defective record within reasonable time; and where one appealing from a Justice Court judgment had neglected for six months, two terms of the court passing, to supply the defect of want of a properly certified transcript from the Justice Court, the appeal was properly dismissed.</p> <p>3. —Cases Discussed.</p> <p>The rulings in Patty v. Miller, 5 Texas Civ. App., 308 and Campbell v. Beclisensehutz, 25 S. W., 971, questioned.</p>

<p>1. —Estates of Minors—Claims—Appeal—Pleading.</p> <p>One who has filed against the estate of a minor a claim approved as required by art. 2704, Revised Statutes, and obtained the approval thereof by the guardian and filed same with the clerk of the County Court, is not required on the hearing for allowance of such claim by the County Judge nor upon appeal from his order to the District Court to file any written pleadings setting up his cause of action against the estate. The trial in the District Court is de novo, upon a claim presented as required by the probate laws, which prevail as a special statutory regulation over the general provisions in regard to pleading in the District Court.</p> <p>2. —Same—Evidence—Verified Account.</p> <p>On appeal to the Distinct Court from an order disallowing in part a claim against an estate, plaintiff may read in evidence his original claim verified in accordance with the statute and approved by the guardian.</p> <p>3. —Same—Pleading.</p> <p>Plaintiff, asserting a claim against the estate of a minor, having been required in the County Court to file a written statement in the nature of a pleading in explanation of his claim, no error appeared in permitting the same to be read to the court and jury in the trial in the District Court on appeal from the County Court judgment thereon.</p> <p>4. —Statement of Facts.</p> <p>In the absence of a statement of facts it is presumed, if evidence objected to was inadmissible, that the judgment was supported by other competent evidence on the subject.</p>

<p>1. —Continuance—Materiality of Testimony.</p> <p>An application for continuance to obtain testimony must show that it is material to the applicant. This does not appear from a statement that the testimony will bear upon a certain issue in the case without indicating that it would be favorable to the party.</p> <p>2. —Continuance—Diligence.</p> <p>A delay of two weeks before trial without effort to procure the talcing of depositions after the interrogatories were crossed, shows lack of diligence.</p> <p>3. —Shipment—Joint and Several Liability—Findings of Court.</p> <p>A finding by the Court holding two connecting carriers jointly and severally liable for damages in transportation of livestock was harmless, if erroneous, where the judgment was only against each severally for damages incurred on its line.</p> <p>4. —Connecting Carrier—Joint liability—Pleading—Evidence.</p> <p>In a domestic shipment over connecting lines of railway the carriers are jointly liable in an undertaking for through transportation; an answer setting up distinct contracts of shipment with each road and making them exhibits to the pleading does not disprove such joint liability where the contracts were not offered in evidence; they were not brought in evidence by being exhibited in pleading.</p> <p>5. —Shipment—Cross-Assignment of Error—Briefs.</p> <p>An appellee who was entitled to a joint judgment against the appellants but has not objected in the trial court nor by cross-assignment of error to separate judgments against each for the liability separately incurred by him, can not have such judgment corrected merely by suggestion made in his brief. ■</p>

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

<p>1.—Demurrer—Exceptions.</p> <p>Exceptions to the rulings of the court on demurrers are not properly preserved in hills of exception, and where so taken will not be considered, especially when such bills are filed more than 20 days after the adjournment of court.</p> <p>2. —Bills of Exceptions—Statement of Eacts.</p> <p>Bills of exception to the admission of testimony can be preserved in the statement of facts; but in such case it is necessary that the statement should be filed within the time provided by law for the filing of bills of exception.</p> <p>3. —Vendor and Purchaser—Contract for Good Title.</p> <p>A contract by the vendor of land to convey perfect title was complied with by tender of a deed from the vendor, where he had good title in fact, and nothing of record cast a cloud thereon.</p> <p>4. —Same—Case Stated.</p> <p>A vendor who had purchased land after the death of his wife and with funds received from his father’s estate was under no obligation, in order to comply with his contract to convey perfect title to a purchaser, to resort to the the probate or other court for a judgment determining that the heirs of the wife had no interest in such land.</p> <p>ON MOTION FOB BEHEABING.</p> <p>5. —Vendor and Purchaser—Damages.</p> <p>The proper measure of damages which the vendee may recover for breach of a contract to convey or make title to land is the amount he has paid as purchase money. It is only in eases where the vendor wilfully or fraudulently refuses to comply with his contract to convey that the vendee can recover for the loss of his bargain in addition to what he may have paid as purchase money; and where conveyance is tendered, the vendee can not, because of cloud or apparent imperfection of the title, refuse to accept it and sue for the loss of the bargain.</p> <p>6. —Agency—Stake Holder.</p> <p>A land agent who in negotiating a sale acted for the vendor only, but under the contract for sale received a deposit of earnest money from the vendee, which, upon the latter’s demand, on claim that the title was imperfect, he refunded, could not be held in so doing to have acted solely as the agent of the vendor.</p>

<p>1.—Telegraph—Damages—Presumption.</p> <p>By defendant’s negligent failure to deliver a telegram, plaintiff was prevented for fifteen hours from reaching the bedside of his sick wife, who was in articulo mortis and unconscious when he arrived. Held, that the issue of damages to him from being unable to see her while conscious was properly submitted, though there was no pleading or proof that she was conscious during the time he was delayed. Consciousness, being a normal condition, is to be presumed, and was not rebutted by its absence immediately before death.</p> <p>2.—Presumption.</p> <p>Presumptions as to the continuance of a condition shown, operate prospectively, but not retrospectively.</p>

<p>Appeal from the County Court of Midland Couty. Tried below before Hon. Chas. Gibbs.</p>

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

<p>1. —Sequestration—Exemplary Damages.</p> <p>To entitle one to recover exemplary damages for the wrongful suing out of a writ of sequestration both malice and the want of probable cause must exist.</p> <p>2. —Same—Charge.</p> <p>An instruction that in order to find that the writ of sequestration was sued out maliciously it is not required that the evidence should show that the plaintiff had actual enmity toward the defendant, and that if the plaintiff had rented the property to the defendant for a term and not by the month and, knowing that he had rented it for a term, sued out the writ of sequestration, the same would be malicious, was upon the weight of evidence in that it told the jury that certain facts would constitute malice, and was misleading in that the jury had the right to conclude that the existence of malice alone would be sufficient to warrant a recovery of exemplary damages.</p>

<p>1. —Dedication—Deed not Necessary—Estoppel.</p> <p>To constitute a dedication so as to estop the proprietor and his privies there need not be a formal grant by deed, nor is it necessary that use by public should be continued for so long a time as to raise the presumption of a grant. It is sufficient if there has been some act or declaration upon the part of the owner of the fee indicating unequivocally his purpose to dedicate and the public has used the property for the purpose to which the act or declaration of the proprietor indicates it was his intention to dedicate it.</p> <p>2. —Same—Statute of Frauds.</p> <p>The statute of frauds has no application to the doctrine of dedication.</p> <p>3. —Evidence—Streets and Alleys—Dedication—Farol Evidence,</p> <p>As tending to show a dedication of a strip of land for an alley, an instrument in writing executed and delivered by the owner of the fee acknowledging the receipt by him of a certain sum from the adjoining owner in part payment for five feet for an alley between certain streets and reciting a balance due, without describing the strip, was admissible; and parol testimony was also admissible to locate the strip and identify it.</p> <p>4. —Streets and Alleys—Dedication.</p> <p>Evidence held sufficient to show conclusively that a strip of land had been dedicated to the public for use as an alley.</p>

<p>1. —Personal Injuries—Charge—Double Recovery.</p> <p>In a suit for damages for personal injuries the court charged the jury that in estimating plaintiff’s damages they might take into consideration “any reduction of his power or capacity to earn money during the course of his life, if any, and also any reduction of his power or capacity to pursue the course of life he might pursue . . . but for such injuries.” Held, misleading and calculated to authorize a double recovery.</p> <p>2. —Same—Cases Followed—Case Distinguished.</p> <p>International & G. N. Ry. Co. v. Butcher, 98 Texas, 462, and Missouri, K, & T. R. Co. v. Nesbit, 40 Texas Civ. App., 209, followed. Texas Cen. Ry. Co. v. Johnson, 51 Texas Civ. App., 126, distinguished.</p> <p>3. —Personal Injuries—Measure of Damage—Charge.</p> <p>In a suit for damages for personal injuries, a charge which suggests to the jury the various subjects or elements of damage they might consider is not necessarily erroneous; but it is otherwise where the charge mentions the subjects in such a way and in such a connection as is calculated to mislead the jury to treat items that enter into the same subject as separate and distinct items of damage.</p> <p>4. —Same—Charge.</p> <p>When, in an action for damages for personal injuries received upon the premises of the defendant, the pleading and evidence raised the issues of defendant’s negligence and plaintiff’s contributory negligence, it was error for the court to charge the jury in substance, that even though they believed from the evidence that the defendant had signs of “No Admittance” posted about its premises at the time plaintiff was injured, still if they further believed that the signs did not apply to customers of the defendant and that plaintiff -was a customer at the time he was injured, they should not consider for any purpose the fact that the signs were so posted.</p>

<p>1. —Community Property—Sale by Survivor.</p> <p>In this State a surviving husband has the power, as such, to sell any of the community property of the marriage for the purpose of paying its community indebtedness. This right is not restricted by the failure of the survivor to qualify under the statute as community administrator, nor to personal property, rather than real estate, even though it be the homestead. All that is required is that there shall be- community debts, and that the survivor shall make the sale in good faith for the purpose of paying such debts.</p> <p>2. —Same—Consideration.—Promissory Notes.</p> <p>In a suit by heirs of the deceased wife against an innocent purchaser of community property from a surviving husband, the execution of negotiable promissory notes for the purchase money of such property is as effectual as the payment of cash, in the absence of evidence that the notes had not been negotiated before maturity.</p>

<p>Railroad—Damage by Eire—Negligence—Insufficient Evidence.</p> <p>In a suit against a railroad company for damages to plaintiff’s pasture and meadow land by fire, it was agreed on the trial that the fire was communicated to plaintiff’s land from a boarding car belonging to defendant which burned while standing on a side track, and that it was not known what caused the boarding ear to take fire and burn. Held, any presumption of negligence which might arise from the burning of the car, was destroyed by the agreement that it was not known how the fire originated.</p>

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

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

<p>1. —Harmless Error—Issue Excluded.</p> <p>On an appeal by defendant, errors in the admission and exclusion of evidence relating only to a ground of recovery which was expressly excluded from consideration by the charge are not ground for reversal.</p> <p>2. —Evidence—Relevancy.</p> <p>In an action by a passenger for injuries attributed to the filthy and unsanitary condition of the coach, it was not error to admit evidence that the child of another passenger became sick and vomited in an adjoining compartment of the coach.</p> <p>3. —Evidence—Privileged Communication.</p> <p>Testimony of an attorney that plaintiff had applied to employ him to bring the suit, submitting a statement variant from his testimony on the trial, upon which such attorney had declined to bring the suit, was properly excluded on objection by plaintiff. It is irrelevant, immaterial and a privileged communication.</p> <p>4. —Practice in Trial Court,</p> <p>Where a female passenger sought recovery by reason of having been made sick by passengers smoking in the coach in which she traveled, no error appeared in the admonition of the court in the presence of the jury that there should be no smoking in the court room. It was not a comment upon the weight of plaintiff’s evidence nor prejudicial to defendant’s rights.</p> <p>5. —Carriers—Passenger—Misconduct of Other Passengers.</p> <p>A carrier is not liable for injuries to a passenger by the profanity or disorderly conduct of other passengers unless its servants were present or could have anticipated or prevented such conduct. Charge considered, and held erroneous for failure to so qualify defendant’s liability; and requested charges on the subject held to have been improperly refused.</p> <p>6. —Carrier of Passengers—Termination of Transit.</p> <p>A passenger traveling over connecting lines of railway upon a coupon ticket, having arrived at the terminus of one of the connecting lines, was delayed there nine days by sickness; having then gone to the station of that company to procure a renewal or extension of time upon his ticket which had expired, he was permitted, with his family, to remain in the station building about two hours before taking the train of the next connecting carrier at another depot at a short distance away. Held, that the relation of passenger and carrier with the company in whose depot he so remained, had ended on his arrival at the terminus of that road, and that while so remaining in its depot awaiting the departure of a train upon another road he was entitled to only ordinary care. Charge on this subject considered, and held erroneous in requiring of defendant the high degree of care that a very prudent person would have used under similar circumstances with respect to the heating of its waiting room. Requested instruction on same subject held improperly refused.</p> <p>7. —Negligence—Proximate Cause—Charge.</p> <p>A defense to the recovery of damages for personal injuries is established where the evidence shows that the proximate and efficient cause of the injury was one not due to defendant’s negligence. . It is not necessary to the defense that such result should be due to contributory negligence by the plaintiff. Charges on this subject given and refused, considered and held to present error.</p> <p>8. —Conflicting Charges.</p> <p>An erroneous instruction to the jury is not cured by giving a charge in conflict with it.</p> <p>9. —Damages—Personal Injury—Subsequent Aggravation.</p> <p>A defendant is liable for the results of a personal injury though they are aggravated in their subsequent development by circumstances not under his control. His only relief from responsibility for such subsequent development is where the circumstances occasioning it are due to plaintiff’s own negligence. Requested instructions on this subject considered and held improper.</p> <p>10. —Requested Instruction.</p> <p>Refusal of a proper and necessary instruction is not error where the point is covered by another requested instruction which was given.</p> <p>ON MOTION TO REFORM JUDGMENT.</p> <p>11.—Practice on Appeal.</p> <p>Where the case against a defendant has been fully developed and verdict in his favor properly directed, the judgment as to him should be affirmed, though a reversal is ordered on appeal by his codefendant against whom recovery was had. •</p>

<p>1.—Railways—Penalty—Constitutional Law.</p> <p>The Act of April 17, 1905, is not unconstitutional, so far as is requires railway companies to keep existing water closets at stations where passengers were received and discharged at night, lighted as thereby directed, Houston & T, C. R. Co. v. State, 101 Texas, 333, followed.</p> <p>3.—Railways—Penalty—Station.</p> <p>The penalty imposed on a railway company for failure to light its water closets at stations, does not depend on the volume of its passenger traffic or the number of persons to be benefited at a particular station.</p> <p>3.—Same—Passengers at Night.</p> <p>A railway station is one where passengers are received and discharged at night, within the meaning of the Act of April IT, 1905, though none of its trains * stopped there at night except where they carried passengers for such station or were flagged to take on passengers there.</p>

Tried below before Hon. H. G. Hendricks. The record having been perfected in accordance with the above ruling, the case was reversed and remanded on October 27, 1909, it being held that the evidence of payment of the note sued on was sufficient to require a submission of that issue and did not justify a peremptory charge to find for plaintiff the amount of the note.

<p>1. —Appeal—Defective Brief,</p> <p>It is no part of the duty of a Court of Civil Appeals to study a bill of exception which covers five pages of the record to ascertain if there was any possible force or merit in an assignment of error based thereon. A “statement,” under an assignment of error, which consists of a mere reference to a bill of exception in the record, is insufficient.</p> <p>2. —Personal Injury—Examination of Plaintiff by Physician.</p> <p>A trial court would not be required to appoint a board of physicians to examine the person of a plaintiff in a suit for damages resulting from personal injuries, in the absence of an unconditional expression of willingness by the plaintiff to submit to such examination. An expression of willingness to be examined if his attorney so advises or is willing, is not sufficient in the absence of evidence that the attorney was willing.</p> <p>3. —Same—Derailment—Negligence—Evidence.</p> <p>In a suit for damages for personal injuries caused by the derailment of a railroad train, the main issue being as to whether defendant was negligent in allowing its track to get into such condition as to cause the derailment and consequent injuries to plaintiff, it was permissible to prove that the track was in bad condition along that section of the road, at and in the vicinity of the wreck.</p> <p>4. —Same—Charge—Future Earnings.</p> <p>On the measure of damages for personal injuries the court charged the jury ■as follows: “If you find for the plaintiff and believe from the evidence that lie was injured substantially as alleged in his petition, you will allow the plaintiff such damages as you believe from the evidence will fairly compensate him for the injuries sustained, if any; and in estimating the damages; if any, you may take_ into consideration the mental and physical pain, if any, suffered by reason of his injury, if any; and if you believe from the evidence that his injuries, if any, are permanent and will diminish his capacity to labor and earn money in the future, then you may take into consideration such diminished capacity, if any, to labor and earn money in the future.” Held, the charge was correct and it was not incumbent on the court to further charge the jury that the damage for diminished capacity to labor “is such a sum as if paid now will compensate him for the amount he will lose by reason of his diminished capacity to labor and earn money in the future.”</p> <p>5. —Damages—Excessive Verdict—Practice.</p> <p>Although a verdict may seem excessive, an appellate court has no authority to reduce the amount of the same in the absence of anything to show prejudice or passion on the part of the jury. Evidence considered and held sufficient to support a verdict for $20,000 for personal injuries.</p>

<p>1. —Evidence—Records of Land Office—Transfer of Lease.</p> <p>There is no statute requiring the transfer of a lease of public school land to be acknowledged in order to be filed and acted upon in the General Land Office, and being a record of that office, a certified copy of such transfer is competent evidence.</p> <p>2. —Same—Copies of Letters.</p> <p>Copies of letters of the Land Commissioner, preserved in the ordinary way, are copies of the records of that office and are admissible in evidence.</p> <p>3. —School Land—Purchase—Presumption of Title.</p> <p>In an action of trespass to try title the presumption is in favor of the validity of an award and sale of school land by the Commissioner of the General Land Office, and such presumption must prevail in favor of a defendant in such action holding under an award and sale, in the absence of evidence that the award and sale were invalid.</p> <p>4. —Trespass to Try Title—Plea of Rot Guilty—Judgment.</p> <p>Under a plea of not guilty in trespass to try title the court may adjudicate the title to the land in controversy to be in the defendant. Such an adjudication would comprehend no more than that the plaintiff take nothing by his suit. But it would be error under such plea alone to award the defendant a writ of possession,</p> <p>5.—Appeal—Costs—Practice.</p> <p>Where an error requiring a reversal of the judgment of the trial court was not in some manner called to the attention of said court, the cost of the appeal will be taxed against the appellant.</p>

<p>1. —Contract—Subscription to Corporation Stock.</p> <p>An agreement or contract to take shares of stock in a proposed corporation, considered, and held enforceable against the subscribers and not subject to the objections that it was too indefinite in its terms, and was not based upon a sufficient consideration.</p> <p>2. —Brief—Assignment of Error.</p> <p>An assignment of error which complains of the rulings of the trial court, each of which relate to separate and distinct questions, is not entitled to consideration on appeal although the assignment is followed by appropriate propositions and statements explaining each of the questions. And so, when each of the questions or points in the assignment is not stated in a separate proposition, or when the propositions are not followed by a proper statement.</p> <p>3. —Pleading—Incorporation—Denial.</p> <p>In a suit by acorporation against a subscriber to the stock for the amount of his subscription, the plaintiff having alleged that it was duly incorporated at a date prior to filing the suit, the allegation will be taken as true and, in the absence of a denial under oath by the defendant, no evidence would be required in support of the allegation.</p> <p>4. —Corporation—Subscription to Stock—Withdrawal of Subscription.</p> <p>In a suit against a subscriber to shares of stock in a proposed corporation for the amount subscribed, and wherein the defendant claimed that he had withdrawn his subscription, evidence considered, and held sufficient to support a judgment against the subscriber.</p>

<p>Error from the District Court of Bexar County. Tried below before Hon. A. W. Seeligson.</p>

<p>1.—Derailment of Train—Act of Trespasser—Evidence.</p> <p>Where, in an action against a railway company for damages for personal injuries caused by the derailment of defendant’s train, the defendant plead that the derailment was caused by the malicious act of third parties, evidence considered, and held insufficient to require the trial court to submit said issue to the jury.</p> <p>3.—Same—Evidence—Admission of Agent.</p> <p>The issue being whether or not a railroad track at a certain point was in a safe condition for the operation of passenger trains thereon, it was proper to permit a witness to testify that on the evening before the wreck occurred at said point on the following morning, a third party, not in the employ of the defendant, said to defendant’s section foreman then at work on the track, that he would have a serious wreck “if he didn’t spike up those ties;” and the answer of the foreman that “that was the way he had instructions to spike them;” the foreman having previously testified that the track was in a safe condition, and a proper predicate having been laid for said discrediting testimony.</p> <p>3.—Carrier of Passengers—Degree of Care—Charge.</p> <p>Charge upon the degree of care required of carriers of passengers, considered and approved.</p>

<p>1. —Trial by Jury—Action for Mandatory Injunction—Enforcement of Former Decree.</p> <p>In an action for a mandatory injunction to enforce an agreed decree which simply determined the obligation of defendant to open immediately a highway over its property, the facts upon which the right to the injunction depended, such as failure vel non to perform the terms of the decree, being disputed, it was the right of either party to have such issue or issues determined by a jury as in other cases of disputed facts.</p> <p>2. —Verdict—Construction.</p> <p>Where the obligation of the defendant under the original decree was to open a road through its property between certain points and of a certain width and kind, and in a suit to enforce performance by mandatory injunction it appeared that it had opened a road, which, there was evidence to show, was not in compliance with the terms of the decree, and the jury, under instructions to find for plaintiff if they found defendant had not complied and to find the particulars in which it had failed, found that it had failed to comply with such decree in the following particulars: It had failed to construct a road of the first class and as described in the decree, and therefore found for plaintiff, the verdict was in effect a finding that there had been a failure in all particulars in contention, and was sufficiently certain to support a judgment granting the relief prayed for.</p> <p>ON BEHEABINfi.</p> <p>3. —Judgment—Enforcement of Former Decree.</p> <p>Where the plaintiff sought simply to enforce the original decree imposing upon defendant the obligation to open a road between certain points “in a direct line as nearly as practicable without removing houses or encountering other immovable articles,” but sought no reformation, and it appeared that a road opened in a direct line would pass through premises on which were houses, the judgment for the plaintiff that the road be open in a straight line was held error, in that it should have followed the original decree; and the judgment below was reformed in this respect.</p>

<p>1. —Trespass—Knowledge and Intent.</p> <p>Evidence considered and held to support a finding that the trespass and cutting timber by defendant on plaintiff’s land was intentional and not through mistake as to boundary lines.</p> <p>2. —Same—Damages—Cutting and Manufacturing Timber.</p> <p>The liability of a trespasser who cuts and saws into lumber the growing timber on another’s land for the value of the manufactured article, attaches where the trespass is through culpable negligence to inform himself as to ascertainable boundary lines, as well as in cases of wilfully disregarding them.</p> <p>3. —Same—Conversion—Pleading—Burden of Proof.</p> <p>Where the owner of timber cut by a trespasser elects to proceed, not for recovery of the specific property, but for the value of the product manufactured therefrom by the trespasser, treating such manufacture and not the original taking, as a conversion, he assumes the burden of proving that the timber taken was so converted into lumber, and can not recover for its value as manufactured without such proof.</p>

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

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

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

<p>1. —Trial—Undisputed Evidence—Submission of Issue.</p> <p>When the evidence upon an issue is without conflict and undisputed, it may be reversible error for the trial court to submit such issue as a question for the jury to pass upon.</p> <p>2. —Same—Contract—Performance—Time as Essence of Contract.</p> <p>In a suit for the contract price of machinery manufactured and delivered by plaintiff to defendant, defendant plead in reconvention that plaintiff failed to deliver the machinery within the time stipulated in the contract, that the machinery was intended for use during a certain season, that time was of the essence of the contract, and that plaintiff knew that unless the machinery was delivered as stipulated in the contract defendant would suffer loss, evidence considered and held to sustain defendant’s contention without conflict, and it was therefore error for the trial court to submit said issues to the jury.</p> <p>3. —Contract—Breach—Waiver—Alternative Remedies.</p> <p>When a contract provided for the delivery of certain machinery before a certain date, upon failure of the contractor to deliver the machinery within the time specified, the other party to the contract might refuse to receive the machinery tendered after the date specified when time is of the essence of the contract; but a failure to exercise this right would not defeat his right to recover damages for delay in the delivery.</p> <p>4. —Special Charge—Omitting Issues—Refusal.</p> <p>It is proper to refuse a special charge which makes the case hinge upon a single issue when other material issues are raised by the evidence.</p> <p>5. —Same—Same—loss of Profits as Damages.</p> <p>When the probable amount of profits which a party expects to realize from the performance of a contract can be shown with reasonable certainty, and their loss in case of breach was in contemplation of parties at the time the contract was made, the loss of such profits may be recovered as damages in case of breach of the contract.</p> <p>6. —Contract—Warranty—Breach or Performance—Irrelevant Evidence.</p> <p>An original contract provided that certain machines should be made in a certain way and of certain materials; upon delivery of the first machine the contract was changed by agreement of the parties so as to stipulate that the remaining machines should be made in exact accordance with the first or sample machine. Held, the only proper test of the performance or breach of the contract as to the machines thereafter made was whether or not they were in accordance with the sample machine, and the testimony of an expert mechanic, who had not seen the sample machine, to the effect that said machines were not skilfully made, was properly excluded as irrelevant and immaterial.</p> <p>7. —Same—Construction—Interdependent Provisions.</p> <p>When a contract provided that certain articles were to be manufactured and delivered in installments and payment was to be made as the installments were delivered, and that the last delivery and payment were to be made by a certain date, the agreement to make payment must be held to have been made with reference to the agreement to deliver, and in case of a failure to deliver or of a readiness to deliver on the date named, the payment would not bear interest from said date but only from the date when the delivery or tender of delivery was in fact made.</p> <p>8.—Same—Breach—Uncertain Profits—Evidence.</p> <p>Upon the issue of damages for failure to deliver a cotton press by a certain time, the testimony of a witness that but for the delay he would “possibly” have ginned “a thousand or two” more bales was properly excluded because too indefinite and uncertain to form any basis for a reasonable estimate of the number of bales that were lost by the delay. The statement, however, of the witness that the loss in bales was not less than one thousand was not subject to such objection.</p>

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

<p>1.—Appeal from Justice Court—Jurisdiction—Evidence.</p> <p>In an appeal from a Justice to a County Court the transcript showed that the suit was “upon debt for $198,” and the citation issued out of the Justice Court commanded the defendant to answer the suit of plaintiff “for the sum of $198 due upon account.” Held, it thus affirmatively appearing that the County Court had jurisdiction, such jurisdiction could not be defeated or affected by an agreement found in the record and signed by both parties that the suit was upon a certain account, the aggregate of the items of which exceeded $200, there being nothing in the transcript to show that such account was ever filed in the Justice or County Court.</p> <p>2.—Appeal—Fundamental Error.</p> <p>Where a trial court erroneously dismisses a cause for the want of jurisdic-’ tion, it is such fundamental error as will require a Court of Civil Appeals to take cognizance thereof and reverse the judgment although appellant filed no brief.</p>

<p>Appeal from the County Court of Haskell County. Tried below before Hon. Joe Irby.</p>

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

<p>1. —Bealty—Contract of Sale—Bescission.</p> <p>Contract for sale of land considered, and held, when read as a whole, to evidence the intention of both parties that the superior title to the land should remain in the vendor until full performance by the vendee, and therefore the vendor had the right to rescind the contract and repossess himself of the land upon failure by the vendee to comply with the terms of the contract.</p> <p>2. —Same.</p> <p>The express reservation of a vendor’s lien is not the only way by which the vendor may evidence his intention to retain the superior title. It is sufficient if such intention can be gathered from all the parts of the contract.</p>

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

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

<p>Error from the County Court of Hill county. Tried below before Hon. H. J. Smith.</p>

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

<p>1. —Charge—Assumption of Fact—Error.</p> <p>In an action against a railroad company for damages for personal injuries alleged to have been caused by the existence of an open ditch or trench in defendant’s yards where plaintiff was required to work, the evidence being sharply conflicting as to whether or not there was in fact an open ditch or trench at the place alleged, it was reversible error for the trial court to assume in its charge the existence of the ditch or trench.</p> <p>2. —Negligence—Pleading and Proof.</p> <p>Where plaintiff’s cause of action was predicated upon the negligence of the defendant in permitting an open ditch in its yards where plaintiff was required to work, the admission of testimony to the effect that defendant’s premises could have been drained without leaving open ditches or trenches by putting in drains of a permanent character, was error.</p>

<p>1.—Carriers—Damage to Shipment—Connecting Carriers—Negligence—Presumption—Burden of Proof.</p> <p>When goods are received in good condition by the initial carrier and delivered by the terminal carrier in a damaged condition, a prima facie case is made against the latter. In such case, in the absence of proof to the contrary, it will be presumed that the loss or damage was caused by the negligence of the terminal carrier; and in order to meet the case so made it devolves upon the terminal carrier to show that the damage did not occur on its line,</p> <p>2. —Same—Contract of Carriage—Stipulation against Liability.</p> <p>The liability of a common carrier to make compensation for goods or property lost by it, extends at common law not only to the duty imposed upon it by law to safely transport the goods but also to its responsibility to make reparation by way of damages in favor of the owner of the property to the fullest extent fixed and allowed by law in such case; and any agreement that diminishes or destroys its liability in either of these respects is contrary to public policy and void, certainly when the loss is attributable, in the eyes of the law, to the negligence of the carrier. Galveston, H. & S. A. Ry. Co. v. Ball, 80 Texas, 606.</p> <p>3. —Same—Limiting Liability.</p> <p>When the injuries and damages result from a violation of the contract of shipment growing out of the negligence of the carrier, it can not by contract restrict and limit its liability to less than the damages actually caused by it.</p> <p>4. —Same—Foreign Law—Interstate Shipment.</p> <p>Where the shipment is interstate and the contract is to deliver the goods in another State, in the absence of proof of the law of such State the courts of this State will presume that it is the same as the law of this State, and will apply the latter in determining whether a stipulation in such contract limiting the liability of the earner is valid or otherwise.</p> <p>5. —Same—Interstate Commerce.</p> <p>In the absence of legislation by Congress on the subject, a State may require common carriers,, although in the execution of interstate business, to be liable for the whole loss resulting from their negligence, a contract to the contrary notwithstanding; and this is true whether the degree of care and responsibility required by such State is enacted into a statute or results from the rules of law enforced in its courts.</p> <p>6. —Contract—Limitation of Liability—Evidence—Effect of.</p> <p>Where the contract of carriage contained a void stipulation limiting the liability of the carrier, the plaintiff, by introducing the contract in evidence, did not become bound by the limited liability clause. The contract of carriage being proved by the instrument, the rights, duties and liability of the parties were fixed by law.</p> <p>7. —Measure of Damages—Household Goods.</p> <p>Where household goods are injured while being transported by the carrier, the measure of damages is the difference in their actual value just prior to and just subsequent to the injury, and not the difference in the market value.</p> <p>8. —Damages—Interest—Pleading.</p> <p>Where the plaintiff recovers damages for injuries to the goods shipped, legal interest is allowed on the amount as a matter of law, even though it was not asked for in the pleadings.</p> <p>9. —Evidence—Foreign Laws—Decisions.</p> <p>The decisions of the courts of another State are not admissible in evidence to prove the statutes of such State.</p>

<p>1.—Hew Trial—Service by Publication.</p> <p>A proceeding under article 1375, Revised Statutes, seeking to have a former judgment on service by publication set aside, is not an original suit, but is in fact and substance a motion for a new trial and a continuation of the former suit, and appeal will not lie from an order in such proceeding vacating the former judgment but making no final disposition of a cause of action.</p> <p>2. —Same—Final Judgment.</p> <p>Though a proceeding to set aside a judgment be in its nature an original suit, and not a mere continuance of the former action, a judgment which merely sets aside the former judgment without otherwise disposing of the rights of the contesting parties was not, in the opinion of Mr. Justice Key, such final judgment as would support an appeal.</p> <p>3. —Change of Venue—Judgment—Appeal.</p> <p>The appeal allowed from a judgment sustaining a defendant’s plea of privilege and transferring the case to another county, is limited to that specific matter, and does not confer power upon the appellate court to revise any other ruling in the case.</p> <p>4. —Jurisdiction—Venue—Waiver.</p> <p>District Courts have the power to try suits involving the title to land regardless of the county in which the land is located, and article 1194, Revised Statutes, prescribing that such suits shall be brought in the county where the lands are situated, secures to the defendant merely a personal privilege to be sued in a particular county which will be waived by his filing a plea to the merits before asserting his privilege.</p> <p>5. —Same.</p> <p>A motion under article 1375, Revised Statutes, to set aside the former judgment obtained upon service by publication, though it may involve defensive matters relating to the merits of the suit, will not be held a waiver of defendant’s right to plead his privilege to be sued in the proper county, since it was necessary for him to get the former judgment set aside before he could assert that right, and his allegations for accomplishing that result are not to be taken as pleadings upon which to try the case.</p> <p>6. —V enue—Privilege—W aiver—Pleading.</p> <p>Allegations in motions to set aside a judgment recovered on service by publication can not be taken as a waiver of the right of the party to object to the venue, where they clearly indicate that he did not intend to waive his rights in that regard. Wolf v. Willingham, 43 Texas Civ. App., 167, and Hall v. Howell, 56 S. W., 561, distinguished.</p> <p>7. —Plea of Privilege—Change of Venue.</p> <p>It is questioned whether the general rule as to waiver of pleas of privilege is applicable since the amendment of the statute requiring the court merely to change the venue where plea of privilege to be sued in another county is sustained. See proceedings in such case held to be substantially a mere change of venue, in which the action of the trial court will not be revised unless abuse of its discretion appears. c</p> <p>8. —Hew Trial—Appeal.</p> <p>The appellate court, having no jurisdiction to revise the action of the trial court in granting a new trial, can not determine on an assignment of error in making such order, the correctness of the ruling of the court as to the sufficiency of the service upon which the judgment is rendered.</p> <p>ON MOTION FOB REHEARING.</p> <p>9.—Hew Trial—Motion—Original Proceeding.</p> <p>The proceeding under article 1375, Revised Statutes, setting aside a judgment obtained on service by publication, can not be held a new and separate suit upon equitable grounds for new trial; such action was permitted by law to all persons and is not barred until the expiration of four years. The right granted by the statute was to a limited class and to be exercised within two years, and was intended to enlarge and not to limit their rights. Brown v. Dutton, 38 Texas Civ. App., 294, overruled.</p>

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

<p>Street Railway—Passenger—Contributory Negligence.</p> <p>Evidence considered and held to establish contributory negligence on the part of plaintiff, injured by being struck by a street car. There were two tracks in the street, cars running east on the south one and west on the north. Plaintiff, a passenger, wishing to get off a car going west, rang for it to stop at G Street. In accordance with a rule with which he was familiar, it would stop on this signal at the further or west side of the crossing of G Street. He stepped from the car on the north side of the north track, while it was in motion, and just before it reached the east edge of G Street, and walked at once, across the track, in the rear of the car from which he had alighted, to the parallel track on the south of it, where he was struck by a car going east and hidden from his view by the car from which he had just got off. A peremptory instruction to find for the defendant should have been given, and a judgment in plaintiff’s favor is reversed and rendered for the defendant,</p>

<p>Error from the County Court of Tom Green County. Tried below before Hon. Milton Mays.</p>

<p>Taxation of Costs—Stenographer’s Tee.</p> <p>The taxation as costs against an unsuccessful plaintiff of a stenographer’s fee for taking the testimony in a former trial, in which judgment recovered by him was reversed on defendant’s appeal, though no allowance of same had been made by the court until, on a motion to retax costs, it was allowed to stand, is sustained. Though originally entered by the clerk without being allowed as required (Rev, Stats, Art, 1296) the action on the motion to retax was a sufficient allowance of the sum by the court, and this could be done at a term subsequent to that at which the case was disposed of.</p>

<p>Statement of Facts.</p> <p>A statement of facts, chiefly in narrative form as required, but of which some thirty pages consist of questions and answers of witnesses on material matters, will be struck out on motion, and assignments of error for the determination of which a statement of facts is necessary will not then be considered.</p>

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

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

<p>Appeal from the District Court of Bowie 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>Judgment of Justice Court—Appeal—Effect.</p> <p>On appeal to a County Court from a Justice Court the trial is de novo, and the effect of such appeal is to annul the judgment of the Justice Court in its entirety. When, therefore, a judgment is rendered against two defendants in a Justice Court and only one appeals, and in the County Court a trial is had between the plaintiff and said appealing defendant alone, and the judgment makes no disposition of the other defendant, the judgment is not a final judgment and will not support an appeal.</p>

<p>1. —Practice—Demurrers.</p> <p>By the term “appellee” as used in art. 1670, Rev. Stats, concerning appeals from a Justice Court, is meant the party against whom the appeal is taken, the party who has an interest adverse to setting aside the judgment appealed from; and all such parties should be made obligees in an appeal bond from a Justice to a County Court.</p> <p>2. —Same—Case Stated.</p> <p>_ B. held a claim against a partnership for breach of contract; this claim B. assigned to H. and guaranteed its payment; H. sued the partnership in a Justice .Court and made R. a party defendant; R. admitted H.’s claim, and plead over against the partnership; a trial in the Justice Court resulted in a judgment in favor of H. against R. on his guaranty alone, and that the partnership go hence on its plea of privilege; B. appealed to the County Court and made his appeal bond payable to H. alone. Held, the bond should have been made payable to the partnership as well as to H. and the County Court erred in overruling a motion in the County Court to dismiss the appeal.</p>

<p>1. —Practice—Demurrers.</p> <p>In ruling on demurrers the court can look alone to the allegations of the pleadings to which the demurrers are addressed. Evidence should not be introduced to aid the court in its rulings.</p> <p>2. —Same—Partnership—Gambling Contract—Jurisdiction.</p> <p>That a partnership contract contemplated the disposition of town lots by lottery was a defense that could not be interposed by demurrer when the vice was not disclosed by the petition in a suit by one partner against another for an accounting and share of the profits. The alleged defense did not raise a .question of jurisdiction to hear and determine the suit.</p>

<p>1. —School Trustees—Power—Building Committee.</p> <p>Under the provisions of the Act of 1905, providing for the formation of independent school districts, the trustees of such a school district has the power to appoint and delegate to a building committee the authority to let a contract previously authorized for the erection of a school building, and to take a bond for the faithful performance of the duties of the contractor, and to perform other duties incidental to the completion of the building.</p> <p>2. —Same—Parties—Chose in Action—Legal Title.</p> <p>The holder of the legal title to a chose in action may bring suit upon it in his own. name although the equitable title may be in another. T-his rule applied in a suit by a building committee for breach of a contract to erect a public school building.</p> <p>3. —Bond—Building Contract—Obligors.</p> <p>The fact that the contractors themselves did not sign a bond for the faithful completion of a contract to erect a school building, would not relieve the sureties who had signed and delivered the bond with the intention to be bound by it.'</p> <p>4. —Parties—Suit for Benefit of Others.</p> <p>A building committee authorized to contract for the erection of a public school building, can not maintain a suit against the contractor for the use and benefit of third parties who had furnished labor or material for the erection of the building.</p>

<p>Negligence—Railway—Injury to Person on Track—Contributory Negligence.</p> <p>Where a circus train was standing on a side track of the defendant railway company, and an employe of the circus, after the performance at night and after he had performed some duty at the circus train, took his seat on a cross-tie of the main track with his back thereto and placed his hand on the rail, when an engine of the railway company ran over and injured it, and the evidence ghowed that those operating the engine did not see him, the doctrine of discovered peril did not apply; and there being nothing in the evidence to relieve him from the consequences of his own negligence the company was not liable, though its servants were negligent in operating the engine without light or signal.</p>

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

<p>1.—Damages—Insulting Language—Construction of Language.</p> <p>In an action against a railroad company for damages for mental anguish suffered by plaintiff’s wife by reason of alleged insulting language used by defendant’s conductor to the wife, held, ,that the testimony of the wife that the conductor said to her “If I was in your place and conductors smuggled my children over the road and not have me pay for them, I would not give them away; I Avould not tell it on them,” ivas properly excluded because said language was not fairly susceptible of the construction that the conductor intended to charge the wife with undue intimacy with the conductors referred to.</p> <p>2. —Same—Offensive Language—Intent—Charge—Harmless Error.</p> <p>To warrant a recovery against a railroad company for harsh or insulting language used by its conductor to a female passenger, it is not essential that the conductor used the language with evil intent or bad purpose; it is sufficient if the language was in fact used. Hence, a charge in such case which required the jury to believe that the language alleged was “wilfully” used, was improper. But, because the petition alleged that the language complained of was “wilfully and maliciously” used, the use of similar language in the charge was not reversible error.</p> <p>3. —Carriers—Free Transportation—Act Construed—Charge.</p> <p>The Act of the Thirtieth Legislature (Qen. Laws, 1907, p. 95) prohibiting common carriers in this State from carrying passengers free of charge, provides that a passenger who accepts free transportation at the hands of a conductor shall be guilty only of a misdemeanor; hence a charge in an action against a railroad company for damages for humiliating language used by its conductor to a female passenger, which instructs the jury that the conductor had the right to explain to the passenger in a courteous manner that she would be guilty of a penitentiary offense in attempting to have her child carried without paying its fare, was calculated to injuriously affect plaintiff’s rights and was, therefore, reversible error.</p> <p>4. —Charge—Omission of Material Issue.</p> <p>When, in an action for damages, plaintiff’s cause of action is based upon two counts both of which are supported by evidence, it is reversible error for the trial court to instruct a verdict for the defendant in the event the jury should find against the plaintiff on one count and thus ignore the other ground of recovery.</p>

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

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

<p>1. —Evidence—Power of Attorney.</p> <p>Where a devisee of land, who was also sole independent executrix under the will, executed a power of attorney to sell the land for herself and as such executrix, under which the land was sold for her in her own right, the power was admissible in evidence over objection that she as executrix could not delegate her power.</p> <p>2. —Same—Objection to Evidence—Practice.</p> <p>An objection to evidence not made in the court below can not be considered on appeal, for the obvious reason that it might have been met and overcome on the trial if made there.</p> <p>3. —Same—Attorney in Fact—Identify—Deed.</p> <p>Where the power to sell land was to “Aldaee W. Caswell,” and a deed was executed in the name of the donor by “A, W. Caswell, attorney in fact,” in the absence of evidence to the contrary it was sufficiently apparent that the deed was made by the donee of the power to admit said deed in evidence.</p> <p>4. —Evidence—Public Records—Agreement—Statement of Contests.</p> <p>Where it was agreed on a trial that the deposition of the Commissioner of the General Land Office might be taken in lieu of record evidence whereby it might be shown that the sale from the State to B. H. Hopper was in good standing in the Land Office Department of Texas in J. B. Puryear, the testimony of the Commissioner of the Land Office as to the contents of a paper, document or record in the General Land Office furnished by the Comptroller relating to such sale and transfers, was admissible over objection that it was not the best evidence.</p> <p>5. —Sale of Land for Taxes—Validity—Burden of Proof.</p> <p>As a general rule the party claiming lands under a sale for taxes must show affirmatively that the law under which the sale was made had been substantially complied with, not only in the sale itself, but in all the anterior proceedings.</p> <p>6. —Same.'</p> <p>To the validity of any sale of land for taxes, it is imperatively necessary that the land shall have been subject to taxation; that it shall have been actually assessed for taxation and a tax levied, and that, as to the official proceedings leading up to a sale, there should be at least prima facie evidence of substantial compliance with the provisions of the law on the subject.</p> <p>7. —Same—Sale to State.</p> <p>One claiming under a tax sale made to the State must show that the law was substantially complied with just as one claiming under such a sale to an individual would have to do.</p> <p>8. —Trespass to Try Title—Tax Title—Outstanding Title,</p> <p>Where, in trespass to try title, the plaintiff showed a complete chain of title from the sovereignty beginning with patent issued in 1879, evidence that the Comptroller sold the land for taxes for the year 1892 and bid it in for the State; that in accordance with law, thereafter the land was classified, appraised and placed on the market for sale as school land; that it was purchased as such, and that under transfers from the purchaser and others the defendant had acquired the right under such purchase which was in good standing, neither showed superior title in defendant nor an outstanding title.</p>

<p>1. —Land—Parol Gift—Improvements.</p> <p>The payment of a small sum for fruit trees, and a few days’ labor, was too trivial in the way of improvements upon a tract of land claimed to be transferred by parol gift to save such transfer from the operation of the Statute of Frauds.</p> <p>2. —Sequestration—Damages—Right of Possession.</p> <p>Plaintiff who acquired title to land by conveyance from the owner became, liable in damages to a tenant of his grantor whom he wrongfully dispossessed by sequestration before the expiration of the year-for which it was leased.</p>