Volume 58 — Texas Civil Appeals Reports

<p>Appeal from the Eleventh Judicial District, Harris County. Tried below before Hon. Chas. E. Ashe.</p>

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

<p>1. —Limitation—Actual Possession — Different Tracts.</p> <p>The actual possession of a defendant in trespass to try title of one tract of land will not be extended by construction to another tract, although adjacent, subsequently acquired by different deed.</p> <p>2. —Suit Against Unknown Heirs — Parties.</p> <p>In a suit of trespass to try title against unknown heirs under article 1236 Rev. Stats, one not in actual possession of the land described in the petition is not a necessary party when the record shows the title to be in another, but he is bound by the judgment in so far as it affects land not in his possession and to which he shows no title.</p> <p>3. — Same—Statute Construed.</p> <p>A judgment of a District Court in a suit against unknown heirs to quiet title under article 1236, Rev. Stats, is conclusive as against a collateral attack. Such a suit falls within the general jurisdiction of the District Court and is not a special proceeding.</p>

<p>Receivership — Appeal—Jurisdiction.</p> <p>The statute does not authorize an appeal from an interlocutory order of a District Court denying a motion to vacate a receivership, and the Courts of Civil Appeals are therefore without jurisdiction to entertain an appeal from such order.</p>

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

<p>1. —Private Corporation — Authority to Sue — Pleading.</p> <p>In suits by private corporations it is not necessary to allege in the petition that the suit is authorized by the board of directors or other governing body of the corporation.</p> <p>2. —Same—Unauthorized Corporate Act — Ratification.</p> <p>The individuals composing the executive committee of a private corporation by letter severally authorized the chairman of the committee to file a suit in the name of the corporation for the preservation of its rights; subsequently and after the suit was filed the committee met in regular session and ratified the institution of the suit and the form and manner in which it was brought. Held, the subsequent ratification of the institution of the suit by the committee at a regular meeting in proper form, operated to legalize such action from the beginning, and the fact of ratification might be proved without pleading the same..</p> <p>3. —Same—Legality of Directors — Equity—Jurisdicion.</p> <p>A court of equity will not primarily take jurisdiction to determine the legality of directors of a corporation, or to remove a director who is in possession of the oiiice. This jurisdiction will he exercised only when the question arises incidentally and collaterally in a suit of which the court has rightful jurisdiction on other grounds. This rule applied in a suit between parties wherein each claimed to be the legal officers of a private corporation, but in which the property rights of the corporation were primarily involved.</p> <p>4. —Parliamentary Law — Presiding Officer.</p> <p>By calling another to preside over a meeting of the members of a corporation tiie legal presiding officer does not forfeit or lose his right to return to the chair and resume his authority.</p> <p>5. —Same—Public Meeting — Legal Adjournment.</p> <p>When a motion to adjourn an assembly or meeting sine die is regularly made, and put by the presiding officer, and carried by a majority vote, and the result declared by the presiding officer, and there is no call for a division or appeal from the ruling of the chair, the meeting is legally terminated.</p> <p>6. —Private Corporation — Constitution—Presiding Officer.</p> <p>When the constitution of a private corporation provided that in the absence of the president one of the vice-presidents in the order of their number should preside over the meetings of the members, the president upon vacating the chair because of illness had no authority to call a member of the corporation not a vice-president to preside over the meeting, there being several vice-presidents present.</p>

<p>1._Retail Liquor Dealer — Application for License — Amendment.</p> <p>A license issued to a retail liquor dealer will not be held void because the county judge issuing the same permitted the applicant to amend his application on the day the license was issued-by inserting a necessary statutory averment in the application, nor by the failure of the county judge to give ten days time after the filing of the amendment to parties desiring to contest the application.</p> <p>2. —Same.</p> <p>An application for license as a retail liquor dealer should be heard and acted upon by the county judge in vacation, and not by the judge when sitting as a court.</p> <p>3. —Same—Number of Permits — Statute Construed.</p> <p>Section 9j of the Act' of' April 17, 1909, (Gen. Laws, 1909, page 301) only restricts the number of permits to liquor dealers to one for every 500 inhabitants when not more than that number of persons were engaged in such business in a given city, town or justice precinct on February 20, 1909; and there is nothing in the law which requires that the issuance o.f permits, up to .the number of persons engaged in such business on February 20, 1909, can only be made to the persons who were engaged in such business on said date; but it is provided that if the number of applications exceed the number of persons engaged in such business on February 20, 1909, preference should be given to those who apply for license to do business at the places and locations where such business had been previously conducted.</p>

<p>Appeal from the County Court of Deaf Smith County. Tried below before Hon. "W. H. Russell.</p>

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

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

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

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

<p>1. —Telegraph—Negligence—Contract—Unrepeated Message.</p> <p>A telegraph company can not protect itself against liability for negligence by an agreement that for an unrepeated message it should not be liable for delay in transmission, though the delay was. due to an error in transmitting the address given.</p> <p>2. —Special Demurrer — Harmless Error.</p> <p>Error in sustaining plaintiff’s special exception to defendant’s plea was not ground for reversal where the benefit of the 'defense therein presented, so far as same was good in law, was allowed defendant by the instructions under which the case was submitted to the jury.</p> <p>3. —Requested Charge — Damages.</p> <p>A requested charge denying plaintiff a recovery if the evidence failed to show certain special damages alleged, was properly refused, where plaintiff’s claim was not limited to such special damages.</p> <p>4. —Same.</p> <p>Requested charge on the subject of damages criticised as inaccurate and confusing.</p> <p>5. —Telegraph—Mistakes in Transmission — Pleading.</p> <p>A plea seeking to excuse delay in delivering an unrepeated telegram by attributing it to a change of the address in transmission due to specified liabilities to error in sending and receiving communications by electricity, is held not to present the issue as to an excusable mistake in writing down the message on a typewriter.</p> <p>6. —Charge—Assuming Fact.</p> <p>Evidence held to present a question of fact as to whether delay in delivering a message was due to a mistake in transmitting the address, and to render improper a requested charge relieving defendant from liability in certain events, assuming that to be the fact.</p> <p>7. —Damages.</p> <p>A recovery of $1,150 as damages for distress of mind caused by plaintiff’s failure, through delay in delivering a telegram by defendant, to reach a dying mother before she became unconscious, sustained as not excessive.</p>

<p>1. — Married Woman — Contract—Sale oí Separate Property.</p> <p>A married woman can not bind herself by contract except for necessaries or for expenses incurred for the benefit of her separate property. A contract to pay a commission for negotiating a sale of her separate property is not,. in itself, one for expense for the benefit of same and does not bind her.</p> <p>2. — Same.</p> <p>A married woman contracted with a land agent for sale of her separate real property by him on commission of all above $15.50 per acre realized. He negotiated a sale at $19.00 per acre, but she and her husband refused to convey and the agent sued them for his commissions. There was no proof beyond the contract itself that it was for the benefit of her separate estate. Held, that plaintiff was not entitled to recover.</p>

<p>1. — Contract—Fraud—Written Instrument — Parol Evidence.</p> <p>In defense of an action to recover on a contract to pay 50 cents for each acre in a tract of land belonging to plaintiff if defendant .did not sell same for plaintiff within a time and for a price named, defendant could plead and prove that the same was procured by fraud in that he was induced to make the contract by a promise of plaintiff to extend the time of payment on a note.secured by mortgage, which defendant owed him, which promise formed a part of the consideration of the contract sued on, was made without intention of keeping it, and was violated to the damage of defendant in the amount of the attorney’s fees provided for by the note, which he was thereby compelled to pay in a suit on the note and foreclosure. Parol proof of such additional consideration could be received though the contract sued on was in writing.</p> <p>5$. — Duress—Evidence.</p> <p>On the issue presented by a plea that the contract sued on was obtained by duress — the threat of a criminal prosecution for swindling — defendant should have been pezvmitted to testify that he would not have signed the contract but for such threat. Whether he was so induced to sign, was the issue, and his testimony as to what indizced him was admissible.</p>

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

<p>1. —Insurance—¡forfeiture—W aiver.</p> <p>Waiver of a forfeiture clause in a contract of insurance may be shown by parol evidence, and is established by conduct of the insurer, before the forfeiture occurs, such as fairly to induce the assured to believe that the condition of the policy will not be insisted on. Authorities on waiver reviewed.</p> <p>2. —Same—Case Stated.</p> <p>Property was insured under a policy conditioned to be void in case of any-change in the interest, title or possession of the property. Insured sold the property and the policy, for which he was paid by the purchaser, to another. While the deed was held subject to delivery on payment by the purchaser of the cash consideration therefor, his agent notified the agent of the insurer of the facts relating to the sale asking him to protect the insurance, who made a memorandum thereof, made no objection and said: “When you finish that matter up, notify me again.” The money was afterwards paid and the deed delivered. Held, that the question of waiver of the forfeiture by insurer was properly left to the jury; and sea charge held a correct submission of that issue.</p> <p>3. — Insurance—Forfeiture—Waiver—Settlement with Mortgagee.</p> <p>An insurance policy was payable to a mortgagee of the property “as her interest might appear.” It contained “the New York Standard Mortgage Clause” providing that the interest of the mortgagee should not be invalidated by act of the mortgagor,' but that when the insurer should pay the mortgagee for a loss while claiming that no liability existed to the insured owner, it should be subrogated to the rights of the mortgagee. A loss having occurred, the insurer paid the amount of the incumbrance to the holder, received a transfer of the mortgage, and, claiming that the policy was forfeited, as to the owner of the property, by his transfer of it to another, proceeded to foreclose the mortgage by sale under power. It being found that the insurer had waived the forfeiture by transfer of the property, held that he took no rights against the owner by payment and assignment of the mortgage.</p>

<p>1. — Evidence—Relevancy—Practice.</p> <p>During the progress of a trial the pleadings alone can be looked to to determine the relevancy of evidence offered by either party. After the introduction of evidence is closed and the issues made by the evidence determined, if any evidence has been admitted which either party deems irrelevant to the issues submitted by the charge or prejudicial to him on the issues, such party should move the court to instruct the jury to disregard such evidence in arriving at their verdict.</p> <p>2. —Same—Traction Company — Negligence.</p> <p>In a suit against a street ear company for damages for personal injuries received by a female passenger when alighting from one of defendant’s cars, plaintiff alleged that it was the duty of the defendant’s conductor to assist female passengers in alighting from the car, that the conductor failed to do so in the present instance, and that such failure was negligence which proximately caused the injuries. Held, that said pleading warranted the admission of testimony as to the duty of the conductor, over objection that it was irrelevant, immaterial and incompetent.</p> <p>3. —Same—Rule of Defendant — Testimony.</p> <p>Testimony that a rule of a street car company made it the duty of its conductors to assist lady passengers in alighting from the cars and that such ' rule was recognized and enforced by the company, was not subject to an objection that it was an opinion of the witness, the witness having knowledge of the fact from his relation to the company.</p> <p>4. —Charge—Personal Injuries.</p> <p>It is a cardinal rule that in construing a charge it must be taken and considered as an entirety, and the whole may be looked to in determining the meaning of any of its parts. In a suit for damages for personal injuries received while alighting from a street car, charge considered and held, when taken as an entirety, not subject to "the objection that it did not limit the jury to the consideration of only such injuries alleged as were shown by the evidence.</p> <p>5. —Preponderance of Evidence.</p> <p>A preponderance of evidence relates to a state of mind in the jury trying a case; it must be the resultant of the consideration and weight given by the jury to the testimony; such a state of mind may be engendered by the testimony of a single witness as against many others.</p> <p>6. —Personal Injuries — Verdict not Excessive.</p> <p>A verdict for $7,500 damages for personal injuries received while alighting from a street car, held not excessive under the evidence.</p>

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

<p>1. —City—Water Works — Obligation to Furnish Water.</p> <p>A city owning public water works, but forbidden by its charter to furnish water to any but its inhabitants, is without either duty or power to furnish water to one residing outside its corporate limits for use on his premises beyond same, though a portion of his land extends within the city boundary and the connection with the city mains sought to be enforced by him lies within such limits. City of Paris v. Sturgeon, 50 Texas Civ. App., 519, reaffirmed.</p> <p>2. —Same—Charter—Discrimination—Constitutional Law.</p> <p>A provision of a city charter which, while forbidding the city as proprietor of its water works from furnishing water to others than residents of the city, excepted manufacturing plants from this restriction, was not violative of art. 3, sec. 52, of the Constitution forbidding cities to grant anything of value to a corporation. Furnishing water for compensation was not such a grant as was there forbidden. And if it were held to be so, the exception only, and not the restriction on the general powers of the city, would be made void.</p> <p>3. —Contract Terminable at Will.</p> <p>The act of a city in connecting its water mains with the premises of a user of city water on his written application by which he agreed only to be bound by existing and future regulations for the management of the service, there being no promise either to furnish or to take and pay for the water for any definite period, was terminable at the will of either party. No action lay to compel the city to restore the connection which it had discontinued, where the consumer was one to whom, under the then existing charter, the city was neither bound nor permitted to furnish water.</p> <p>ON REHEARING.</p> <p>4. —City—Water Works — Mandatory Injunction.</p> <p>Plaintiff residing outside the city but having a small portion of his land within the city limits, the city being authorized to furnish water only to its inhabitants, could not maintain his action for" a mandatory injunction requiring the city to connect its water mains with his pipes, for the purpose of furnishing water for use on his premises generally, by reason of the fact that the small strip within the limits contained plants and shrubbery needing water. To obtain such remedy as to the part within the city he must allege and prove that such use for watering flowers, shrubs, and trees was proper under the city regulations. The court could not assume that it was in the absence of such showing.</p>

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

<p>Appeal from the County Court of Titus County. Tried below before Hon. W. E. Riddle.</p>

<p>Suit against County — Presentation of Claim.</p> <p>Article 790, Devised Statutes, while requiring a claim against a county to be presented to the Commissioners’ Court for allowance before bringing suit, does not require that it be rejected. It is sufficient if the claim has been presented and reasonable time for action thereon allowed, though no action has been taken.</p>

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

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

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

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

<p>1. — Carrier—Shipment of Live Stock — Negligence—Charge.</p> <p>In a suit against a railroad company for injuries to a shipment of live stock, the court charged the jury as follows: “If you believe from the evidence that plaintiff delivered said stock to defendant company as alleged in plaintiff’s petition, and that said stock were damaged by defendant company as alleged in plaintiff’s petition, then you will find for plaintiff.” Held, error, in that it authorized a recovery by plaintiff irrespective of any question whether or not defendant was guilty of negligence causing the damage.</p> <p>3. — Same—Measure of Damage.</p> <p>A charge upon the measure of damage to a shipment of live stock considered, and held error in that it authorized a recovery against the defendant carrier for all damage to the stock irrespective of whether the damage was caused by the negligence of the defendant or that of another carrier over whose road the stock was also transported.</p> <p>3. — Same—Negligence—Cuestión for Jury.</p> <p>Whether or not the transportation of cattle over the road of a certain carrier was made in a reasonable time, was an issue to be determined by the jury, and it was improper to permit a witness to express his opinion thereon.</p>

<p>1. —Evidence—Objection—Practice.</p> <p>In a suit for damages to a shipment of cattle plaintiff was allowed to testify that he received a certain amount net for his cattle when they were sold on the market; defendant objected to the testimony upon the ground that it was hearsay, plaintiff having already testified that he did not accompany his cattle to market, did not sell them himself, was not present when they were sold, and Ms only information as to the price for which the cattle sold was derived from the account sales. Held, the testimony was not subject to the particular objection made, and the Appellate Court will not consider any other.</p> <p>2. —Bill of Exception — Recital of Facts.</p> <p>Recitation or assertion by counsel of facts in bills of exception to the admission of testimony, must be verified by other parts of the bill in order to require consideration on appeal.</p> <p>3. — Brief—Statement of Evidence.</p> <p>When an assignment of error is, based upon a supposed assumption of fact by the court in its charge, it should be made to appear by the statement under the assignment that such assumption was not warranted by the state of the evidence and was therefore prejudicial to the appellant.</p>

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

<p>Appeal from the District Court of Hunt County. Tried below before Hon. L. A. Clark, Special Judge.</p>

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

<p>1. — Venue—Trespass to Try Title.</p> <p>An action to recover land situated wholly in the county of defendant’s residence should be brought in that county, though claimed by plaintiff as part of a larger survey situated partly in another county, in which suit was brought.</p> <p>5$. — Same—Plea of Privilege.</p> <p>Defendant in trespass to try title, in claiming the right to be sued in the county where the land is situated, is not required to negative exceptions to article 1194, Revised Statutes, which are not applicable to that form of action, but only to the case of a defendant claiming the right to be sued in the county of his residence; and this, the rule previously existing, was not changed by the Act of April 18, 1907. Laws 30th Deg., p. 248, permitting such exceptions to be negatived by a general statement.</p> <p>3. — Same—Amendatory Act — Abatement—Change of Venue.</p> <p>The Act of April IS, 1907, Laws 30th Leg., p. 248, adding articles 1194a, 1194b, 1194c to the Revised Statutes, was intended to simplify the plea of privilege by permitting defendant, where it was necessary to negative the existence of exceptions to the right to be sued in his own county, to do so in general terms. It did not require him to negative such exceptions where it was not necessary to do so under the previous law. Under this Act the plea of privilege is no longer one in abatement of the suit, subject to the rules governing pleas in abatement, but a proceeding to change the venue to the proper county.</p> <p>4. — Same—General Demurrer.</p> <p>A plea of privilege by defendant in an action of trespass to try title, asserting his right to be sued in the county where he resided and the land was situated, which denied that any fact existed which would preclude him from the assertion of such right, was, as against a general demurrer, a sufficient compliance with the requirement of article 1194a, Rev. Stats. (Act of April 18, 1907) that such plea should state that “none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1194 or article 1585 of the Revised Statutes exist in said cause.”</p>

<p>1. —Pleading—Negligence—Selection of Physician.</p> <p>A charge permitting plaintiff to recover for negligent treatment of his injuries by the physician employed by defendant railway company in its hospital on proof of its negligence in selecting a physician, was unauthorized in the absence of allegations of such negligence by defendant in his selection.</p> <p>2. —Injuries to Person — Pleading.</p> <p>An allegation that plaintiff had received serious internal injuries, in the absence of special exception, was sufficient to admit proof of injury to any internal organ.</p> <p>3. —Charge—Negligence.</p> <p>An instruction that plaintiff could recover on proof of defendant’s negligence in either of two respects and that either caused the derailment of the train by which plaintiff was injured, criticised as permitting recovery without proof that the particular default causing the accident was due to negligence.</p>

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

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

<p>1. —Evidence—Conclusion of Witness.</p> <p>Testimony of a witness who, being asked whether a fire originated on the right of way of the railway and how she knew, answered that it did; that she did not see it start, but saw it burn from the railway onto the adjoining land, was an answer to the question asked, and was not objectionable as giving only the conclusion of the witness as to where the fire started.</p> <p>2. —Value—Opinion.</p> <p>A witness who testified that he knew what the barn destroyed by fire was worth may testify as to its value, this opinion not being mere hearsay, though he also testified that he had made inquiries about its value.</p> <p>3. —Same.</p> <p>A witness who, having built a shed, the value of which was in question, testified to the time required, the dimensions and the material, could give his opinion based thereon as to the value.</p> <p>4. —Same.</p> <p>One qualified as an expert to give an opinion as to the value of lumber and building material may, where the amount and character of same has been proven by another witness, give his opinion as to its value on that basis.</p> <p>5. —Same.</p> <p>An expert on farm implements could testify as to the effect of heat in making worthless a disc plow which had gone through a fire.</p> <p>6. —Eire—Negligence—Proximate Cause.</p> <p>Fire communicated from a railway locomotive was extinguished by the section hands, who however did not entirely put out a pile of ties which had • caught fire. Some hours later a whirlwind, common at that season, carried sparks from the burning ties into the hay loft of a barn which was consumed. Held, that the act of leaving the ties still burning sustained a finding of negligence proximately causing the destruction of the barn, that result being one which might have been anticipated.</p>

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

<p>1. — Bill of Exceptions — Objectionable Juror.</p> <p>An assignment of error based upon the refusal of the trial court to sustain a challenge for cause to a juror, can not be sustained when the bill of exception fails to show that by reason of the action of the court any juror objectionable to the appellant, sat on the jury.</p> <p>2. — Evidence—Negligence—Proximate Cause.</p> <p>In an action by a brakeman against a railroad company for damages for personal injuries caused by a collision of loose cars, evidence considered and held sufficient to support a finding that the negligence of the defendant was the proximate cause of the injuries, and that the plaintiff did not assume the risk of injury.</p> <p>3. — Motion for New Trial — Assignment of Error.</p> <p>When a motion for new trial did not state as a ground therefor that the verdict should be set aside because the evidence showed that the plaintiff assumed the risk of .injury or was guilty of contributory negligence, it is doubtful whether appellant would have the right to assign such matter either directly or indirectly on appeal.</p>

<p>1. —Pleading and Proof — Variance—Practice.</p> <p>When evidence has been admitted without objection the question of variance can not be raised by an instruction to the jury. The objection of variance should be made when the evidence is offered.</p> <p>2. —Charge—Construction.</p> <p>A paragraph of a charge which, when taken alone, might be subject to the objection that it assumed as an established fact that plaintiff was injured as he alleged, would not be cause for reversal when other portions of the charge clearly submit the issue to the jury, and instructed them that they could not find for him unless he was so injured.</p> <p>3. —Pleading—Proof—Substance of Issue.</p> <p>Plaintiff alleged that his head was “not more than an inch from the whistle” of an engine, when it was sounded and he was thereby injured. Held, it was not error for the court to instruct a verdict for plaintiff if the jury believed that his head was, not exactly an inch but, near enough to the whistle to make it negligence for defendant to sound it, and by so doing injure the plaintiff. The substance only of the issue need be proved.</p> <p>4. —Charge—Error of Omission.</p> <p>A charge which is correct as far as it goes, and is defective only in point of omission, is not cause for reversal in the absence of a refusal by the court to give a requested charge supplying the omission. This rule applied to an issue of contributory negligence.</p>

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

<p>6. —Same—Findings of Fact.</p> <p>Appeal from the District Court of Smith County. Tried below before Hon. E. W. Simpson.</p>

Tried below before Hon. W. C. Buford. Plaintiff, who had received a personal injury in defendant’s service, executed a release of damages therefrom, in consideration of re-employment by defendant for no definite time. Having continued in plaintiff’s service some ten months and received in wages over $600, he was discharged, and afterwards brought suit.

<p>1. — Vendor’s Lien — Foreclosure—Innocent Purchaser.</p> <p>A judgment foreclosing a vendor’s lien at the suit of an innocent purchaser of the notes, would be conclusive upon the rights of a municipal corporation, although not a party to such suit, claiming part of the land under a verbal dedication by the original vendor and vendee, of which dedication the plaintiff in the foreclosure suit had no notice either actual or constructive although he had used all proper diligence to discover persons asserting rights in the property and to make such parties defendants to the foreclosure suit.</p> <p>Í2. — Dedication—Record of Map — Insufficient Evidence.</p> <p>The record of a map of an annex to a town, when the map fails to show for what purpose a certain vacant plot of ground appearing on the map was intended, would not in and of itself amount to a dedication of such lot to public use as a park; and hence a mere reference to such map in deeds and releases by the owners of the annex would not amount to a dedication of said plot or space as a public park.</p> <p>3. —Same—Ratification.</p> <p>One can not be held to have ratified a dedication of ground to public use when he had no notice actual or constructive of such dedication.</p> <p>4. —Same—Evidence—Estoppel.</p> <p>Before the property of a citizen can be taken for public use without compensation upon a claim of gift or dedication, the facts relied upon to prove such dedication must be at least of such prima facie character as would reasonably induce the public or some member thereof to believe that such dedication had been made; and before any estoppel could arise by reason of such prima facie dedication, it must be shown that the public or some member thereof acted upon such prima facie dedication in such a way as to render it inequitable and unjust for the owner to deny the dedication.</p>

<p>Appeal from the County Court of Burleson County. Tried below before Hon. R. J. Alexander.</p>

<p>1. —Parent and Child — Tort by Child — liability of Parent.</p> <p>At common law the father was not liable for the torts of his child committed without his knowledge, consent, participation or sanction, and not in the course of his employment of the child.</p> <p>2. —Master and Servant — Injury by Servant — liability of Master.</p> <p>It is the universal rule that whether the act of the servant be of omission or commission, whether his negligence or even wrongful misconduct occasion the injury, so long as it be done in the scope of his employment, his master is responsible in damages to third persons; and this, even though the master disapproved of or forbade the act. But the master is not liable for the acts of his servant when said acts are not only unauthorized but are not connected with, incident to or within the real or apparent scope of the employment.</p> <p>3. — Domestic Animal — Injury by — Liability of Owner.</p> <p>In a suit against the owner of a cow for damages for personal injuries inflicted by the cow while being driven on the streets of a city by the owner’s son, evidence considered and held insufficient to show liability of the owner.</p>

<p>1. — Final Judgment — Appeal.</p> <p>Whether a judgment disposing of the matter in controversy is final or only interlocutory is not to be determined by the' question whether or not appeal will lie from the ruling.</p> <p>ÍZ. — Same—Habeas Corpus — Custody of Child.</p> <p>A judgment rendered by the district judge in chambers on habeas corpus denying to relator the right to the custody of a minor was res adjudicata as to the rights of the parties upon the facts as they then existed.</p> <p>3. —Same—Case Stated.</p> <p>Relators obtained writ of habeas corpus from the district judge to obtain the custody of their minor child from the hands of respondent. The writ was filed in the District Court of H. County, where all the parties resided, the proceedings entered on the docket as a cause in that court, and respondents filed answer therein. On hearing by the judge in chambers, in another county of the district, the facts were found against relators and the minor remanded to the charge of respondents. About one year later relators filed an amended application for the writ, setting up facts as entitling them to the custody of the minor not arising since the former hearing. Respondents pleaded the judgment therein as an adjudication of the matters so presented. Held, that the plea was properly sustained.</p> <p>055T BEHEABING.</p> <p>4. —Habeas Corpus — Action—Court or Judge.</p> <p>Relators who began proceedings to determine their right to the custody of a' minor child by application to the district judge for habeas corpus, could not, by filing the writ with the clerk of the court and having the cause docketed as a suit therein, convert the proceeding into a civil action, to be tried in that • court and at a regular term. They had chosen to proceed before the judge, not the court, and by a form of action determinable in chambers.</p> <p>5. —Same—Trial by Jury.</p> <p>Relators in habeas corpus proceedings could not complain of a denial of right to a trial by jury where they made no demand for one. And it seems that, choosing such form of proceeding, they had no right to demand a jury trial therein. Pittman v. Byars, 51 Texas Civ. App., 83, followed.</p>

<p>1. — Personal Injuries — Negligence—Insufficient Evidence.</p> <p>In a suit by a brakeman against a railroad company for damages for personal injuries received while uncoupling cars, evidence as to the movement of the cars and the manner in which the accident occurred considered, and held insufficient to warrant a conclusion that the defendant’s employees were negligent in operating said train of cars and therefore insufficient to support a verdict and judgment against the defendant.</p> <p>2. — Same—Contributory Negligence.</p> <p>Where a brakeman while uncoupling a train of moving cars, without the knowledge of the engineer operating the train, unnecessarily, “inadvertently and unthoughtedly” places his foot in the coupler of the car he was on, and was injured by the coming together of the cars, evidence considered, and held insufficient to show that the result or any like result could have reasonably been foreseen by the defendant’s employees.</p>

<p>1. — Judgment—Satisfaction—Appeal—Reversal.</p> <p>A creditor in an attachment suit recovered judgment against his debtor and an assignee for the benefit of creditors, for the goods in controversy; pending the suit the goods were sold as perishable and the proceeds deposited with the clerk of the court; the assignee appealed from the judgment against Mm, but gave no supersedeas bond; the judgment of the lower court was reversed and an order entered by the Appellate Court requiring the clerk to pay to the appellant assignee the proceeds of the sale of the goods, but this the clerk did not do because the money had in the meantime been paid to the plaintiff below. Held, the judgment rendered by the Appellate Court in favor of the assignee for the proceeds of the sale and the order to the clerk to pay Mm the money, would not bar a suit by the assignee against the sheriff for the trespass and conversion, nor a recovery for the full value of the goods.</p> <p>2. — Judgment—Agreement—W aiver.</p> <p>When the defendants in a suit against the sheriff and his indemnitors for the conversion of goods, agree that in the event judgment is rendered against the sheriff similar judgment should be rendered over against the indemnitors, and waived any recovery against the plaintiff in attachment, the defendants can not afterwards complain that judgment was entered in accordance with their request, and that the court failed to submit to the jury the issue of the liability of the plaintiff in attachment.</p> <p>ON MOTION POE REHEARING.</p> <p>3. — Judgment—Finality—Defunct Corporation.</p> <p>Where in a suit against a corporation it is alleged that the corporation has become insolvent and defunct, and that the other defendants, naming them, are the sole and only stockholders of said corporation, a judgment which disposes of the defendant stockholders in effect disposes of the defendant corporation and is not subject to the objection that it does not dispose of all the defendants.</p>

<p>1. — Personal Injuries — Expenses—Proof.</p> <p>In a suit for damages for personal injuries, in proof of the allegation that plaintiff had incurred expenses for medicine and medical attention, the extent of the evidence was that plaintiff was treated by physicians who prescribed medicines, and that for medicines he was charged the sum of $40, and for doctor’s bills, about $90. Held, not sufficient to prove that said expenses were reasonable and therefore not sufficient to support a judgment for said expenses.</p> <p>í¡. — Same—Railroad Crossing — Proximate Cause — Charge.</p> <p>A railroad company is not liable for injuries resulting from horses becoming frightened upon a highway at the mere sight of its trains, or the noises necessarily incident to the running of trains and the operation of the same. Evidence considered, and held not sufficient to show that the negligence alleged by plaintiff was the proximate cause of the injuries received by him when his team became frightened by a passing train at a railroad crossing, and the refusal of the court to give a requested charge authorizing a verdict for the defendant railroad company for this reason was reversible error.</p> <p>3. —Same—Negligence—Proximate Cause.</p> <p>While it is negligence as matter of law for a railroad company to fail to blow the whistle or sound the bell of the engine when approaching a public crossing, such negligence is not actionable unless it is the proximate cause of an injury.</p> <p>4. —Charge—Affirmative Submission of Issue.</p> <p>A defendant has the right to have the jury affirmatively instructed upon any group of facts shown by the evidence which would constitute a defense to the action, and the refusal of the court so to do would be reversible error.</p>

<p>Appeal from the County Court of Palo Pinto County. Tried below before Hon. E. B. Ritchie.</p>

<p>1. —Appeal for Delay — Advancement of Cause — Rules 42 and 43.</p> <p>Where an appellant fails to file a brief in the Court of Civil Appeals, and the appellee suggests that the appeal was for delay only, the Appellate Court will advance the ease and consider the record upon the brief of appellee alone, as provided and required by rules 42 and 43 for the Courts of Civil Appeals.</p> <p>2. —Same—Affirmance with Damages.</p> <p>Record upon appeal considered, and held to show a “plain case of delay” and to require an affirmance of the judgment with damages.</p>

<p>1. —Appeal—Brief—Suggestion of Error.</p> <p>The Appellate Courts will not consider a suggestion in appellant’s brief of error in computing the amount of the verdict, when the matter was not • brought to the attention of the trial court by a special charge nor in the motion for new trial, nor presented by an assignment of error.</p> <p>2. —Accounts—Debits and Credits — Interest—Pleading.</p> <p>Under a prayer for general relief interest may be allowed by way of indemnification as' part of the damages claimed, provided the damages be laid at an amount sufficient to include the interest in addition to the specific items of damage claimed; but in the absence of a specific prayer for interest or an allegation of damages in excess of the sum of the items of damage alleged, interest upon said items can not be allowed and the recovery will be limited to the specific damages sued for.</p> <p>3. — Damages—Loss of Crop — Evidence—Comparative Yields.</p> <p>The issue being the amount of loss suffered by defendant by reason of the failure of plaintiff to irrigate his land, it was permissible to prove the amount and value of crops of the same kind raised during the same year on land thirty miles distant, it being shown that the lands were practically the same as to character and fertility.</p>

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

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

<p>1. —Contract—Pleading—Quantum Meruit.</p> <p>Where plaintiff declares on an agreed contract for compensation — picking cotton at a specified price per cwt. — he can not prove or recover for the reasonable and customary price of his services. ,</p> <p>2. —Evidence—Reputation,</p> <p>Where plaintiff’s reputation for honesty was put in issue by a plea seeking to charge him for émbezzlement of money of defendant, he could prove his good reputation in rebuttal, but testimony of one for whom he had worked that he made a good hand and they had no trouble in settlement was not admissible.</p> <p>3. — Same.</p> <p>The fact that plaintiff’s reputation for honesty was put in issue and evidence in its support was admissible, did not put in issue the honesty of defendant nor warrant the introduction of evidence attacking his reputation by plaintiff.</p>

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

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

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

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

<p>1. — Vendor and Vendee — Rescission.</p> <p>A purchaser of a number of town lots would not be entitled to a_ rescission of the entire purchase because of the failure of title to several of said lots, in the absence of averment and proof that the lots, the title to which had failed, were necessary to the enjoyment of the rest of the purchase or formed a material inducement to the purchase of the whole. His remedy would be for an abatement in the purchase price.</p> <p>2. — Same—Abatement in Price — Pleading.</p> <p>To entitle a purchaser of real estate to an abatement of the purchase price because of the failure of title to a part of the property, he must furnish by his pleading a sufficient basis for ascertaining the amount of the abatement to which he is entitled by alleging the value either relative or otherwise of the part the title to which has failed. Pleading in such case considered and held insufficient.</p>

<p>1. —Public Road — Condemnation—Deposit of Damages — Statute Construed.</p> <p>Where a county Commissioners’ Court ordered the county clerk to issue a warrant on the road and bridge fund of the county for the amount awarded a land owner for a public road across his land, and the warrant was in fact issued and the land owner notified by the county treasurer that the money was held subject to his order, it was a sufficient “deposit” of the damages under the requirements of article 4693, Rev. Stats, and section 17, of the Bill of Rights.</p> <p>2. —Same—Description.</p> <p>Mere deficiency or inaccuracy of description that is not substantial is insufficient to render void the proceedings of a Commissioners’ Court establishing a public road. A description, aided by extrinsic evidence, considered and held sufficient.</p>

<p>1. —Limitation—Ten Years — Statement by Occupant.</p> <p>After title to land has been acquired and is complete under the ten years statute of limitation, any statement by the claimant and occupant to the effect that he was not claiming the land, or was wanting to buy it from the owner would not have the effect of divesting him of the title.</p> <p>2. —Same—“Claim of Right” — Definition—Charge.</p> <p>In a suit of trespass to try title defendants claiming the land in controversy under the ten years statute of limitation, after the court had charged the jury in the language of the statute, requested the following charge: “If you believe from the evidence that defendants entered on the land sued for intending to claim 160 acres, and if you further believe that they remained in possession for ten years consecutively, claiming the same peaceably and adversely, as in the court’s charge defined, then you are charged that such entry and possession, if any, would be ‘under a claim of right’ as this term is used in the court’s charge.” This charge the court refused. Held, error, in view of the evidence before the jury.</p>

<p>1. —Heirship in 1835.</p> <p>Under the law in force in Texas in 1835 the interest inherited by an infant from its deceased mother in the community estate of the father and mother, passed wholly to the surviving father, and not one-half to him and one-half to the surviving brothers and sisters.</p> <p>2. —Evidence—Pedigree—Comparative Weight.</p> <p>The issue being whether three or four children survived their mother who died in 1835, held that the testimony of one of the children, who was six or seven years old at the time an infant sister was alleged to have been born and died, affirming the fact of the existence of such infant, was more trustworthy than the testimony of a grandson who was not born until ten years after the alleged date of the death of said infant, and whose knowledge of the family history was acquired from others many years after the occurrence, denying the existence of such infant.</p> <p>3. —Community Property — Existence of Heirs — Notice.</p> <p>Under the doctrine laid down in Hill v. Moore, 85 Texas, 339, the recitation in an application for a grant of a league of land in 1833, to the effect that the applicant and grantee was a married man, was notice to all purchasers from or under him however great the lapse of time that the land was community property of the grantee and a then living wife, and was sufficient to put such purchasers upon inquiry as to the death of the wife and the existence and rights of her heirs; and in such case a subsequent purchaser could not rely on the presumption that his predecessors in the title had made such inquiry as was required to rebut the presumption of notice. Each intending purchaser should make enquiry for himself.</p> <p>4. —Limitation—Three Years Statute.</p> <p>A conveyance of community property by a surviving husband is not sufficient to support a claim of title or color of title under the three years statute of limitation as against the heirs of the deceased wife.</p> <p>5. —Receiver—Appointment in Real Actions.</p> <p>It is essential to the proper exercise of the power to appoint a receiver in actions for the recovery of real estate or an interest therein, before final hearing, that the person seeking such relief must show that he will probably succeed in establishing his right upon a final hearing. Pleading and affidavit considered, in an application for the apnointment of a receiver for oil producing land, and held insufficient to show that plaintiff’s title was not lost by reason of the five years statute of limitation plead by defendant.</p> <p>6. —Limitation—Five Years — Possession under Larger Enclosure.</p> <p>So far as title under the statute of limitation of five years is concerned, it is not affected by the fact that the defendant’s possession is held by enclosure of the land in controversy along with other land in a larger inclosure, whatever the size of the enclosure might be.</p> <p>7. —Same—Adverse Possession — Notice.</p> <p>Parties claiming an interest in a tract of land will be charged with notice of the fact that their land is included within a larger enclosure and is in the actual and exclusive possession of the owners of the larger enclosure; and when an inquiry would necessarily lead to a knowledge that such owners had deeds thereto duly recorded and were paying taxes thereon, the claimants will not be heard to plead ignorance of the facts, notwithstanding their nonresidence and actual ignorance, and in due time they will be barred by the five years statute of limitation.</p> <p>8. — Receivership—Many Defendants and Various Interests.</p> <p>Even though it is not made to appear that any of the defendants are insolvent, still, when it does appear that there are a great many of them, corporations and others, many nonresidents of the State, holding and claiming various interests in the land in controversy, the appointment of a receiver might be a proper proceeding for the protection of an adverse claimant, but the claimant might also be sufficiently protected and the appointment of a receiver prevented by the execution of a bond by the defendants conditioned to account to the claimant for his interest in the revenues from the land as his interest might appear on final hearing.</p>

<p>Appeal from the District Court of Harris County, Sixty-first Judicial District. Tried below before Hon. Herman G. Kittrell.</p>

Tried below before Hon. Marshall Surratt. Mr. Justice Rice being disqualified, George E. Shelley, Esq., ivas appointed Special Associate Justice to sit in the hearing and disposition of this case.

<p>1. —Venue—Collusive Assignment — Plea of Privilege.</p> <p>Defendants sued, not in tbe county of their residence, but in that of their creditor who had assigned his claim to plaintiffs with guaranty and was joined as defendant, could not prove that the assignment was fictitious and fraudently made for the purpose of conferring jurisdiction upon that court without alleging such facts in their plea of privilege to be sued in their own county.</p> <p>2. —Same—Charge,</p> <p>On the issue, of collusive assignment of a claim in fraud of the debtor’s right to be sued in his own county, it was error for the charge to treat the absence of consideration for the transfer as conclusive that same was in fraud of defendants’ rights.</p>

<p>Appeal from the County Court of Lampasas County. Tried below before Hon. M. M. White.</p>

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

<p>1. —Appellate Courts — Amount of Verdict — Revision.</p> <p>Passion, prejudice or misconduct must appear to have influenced the amount of a verdict before a Court of Civil Appeals will exercise its power of reversing a judgment upon the ground that the amount of the verdict is either too small or too large. The same rule applies in both cases.</p> <p>2. —Negligence—Aggravating an Ailment — Measure of Damage.</p> <p>When a plaintiff was already sick or nervous or feeble when injured by the negligent act of another, the party causing the injury would be liable only for the increased sickness or nervousness or feebleness.</p>

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

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

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

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

<p>1. — Practice—Exclusion of Testimony — Harmless Error.</p> <p>Any error in excluding evidence is rendered harmless when the ruling is afterwards changed and permission given to introduce the same.</p> <p>2. —Same—Admission of Testimony.</p> <p>An appellant cannot complain of the admission of testimony when he introduced testimony to the same effect himself.</p> <p>3. —Charge—Undue Emphasis — Error.</p> <p>In a suit for the purchase price of an engine, wherein the defendant plead failure of consideration and in reconvention, charges considered and held reversible error in that they gave undue emphasis to plaintiff’s contentions.</p> <p>4. —Practice—Refusal of Charges.</p> <p>Where an appellant requested a number of charges on the same issue, and some are given and others refused, the fact that those refused were more favorable to him than those given would not be good ground of complaint.</p>

<p>1. —Appeal—Jurisdiction.</p> <p>Where it appeared from the transcript in an appeal from a County Court to a Court of Civil Appeals that the amount in controversy was less than $200, and there was nothing in the transcript to show that the case was an appealed case from a Justice Court, the Court of Civil Appeals will not consider the appeal. Such matter is jurisdictional and will be noticed without assignment of error. The jurisdiction of the court a quo must affirmatively appear from the transcript.</p> <p>2. —Practice—Stare Decisis.</p> <p>In the matter of following decisions the appellate courts are not bound by rules of practice as they are by rules of property.</p> <p>3. —Same—Appeal—Apparent Want of Jurisdiction.</p> <p>Where it seems from the transcript on appeal to a Court of Civil Appeals that the trial court did not have jurisdiction of the case, but the jurisdictional defect is one that might be explained or remedied, the proper practice is, not to dismiss the appeal, but to reverse the judgment of the lower court and remand the cause with instructions to dismiss the case unless the jurisdictional facts are made to appear.</p>

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

<p>1. —Venue—Fraud—Pleading.</p> <p>Mei'e reiterations of fraud cannot alter the real nature of the suit as shown by the facts alleged, nor defeat a plea of privilege, otherwise well taken, to be sued in the county of defendant’s residence.</p> <p>2. —Plea of Privilege — Appeal.</p> <p>The fact that a judgment sustaining a plea of privilege is not a final judgment is not ground for dismissing an appeal therefrom since the Act of 1907 (Gen. Laws, 1907, p. 248) expressly provides that an appeal may be taken in such cases.</p>

<p>1. —Notary Public — Jurat—Omission of County.</p> <p>When the impress of the seal attached by a notary public to his certificate or jurat discloses the county for which he was appointed, the omission to state in the jurat or certificate the name of such county will not affect the validity of the certificate or jurat.</p> <p>2. —Same—Official Act on Sunday.</p> <p>An affidavit before a notary public on Sunday is valid.</p> <p>3. —Petition—Verification.</p> <p>The verification of a petition for the removal of a cause from a State to a Federal court was as follows: Affiant "makes oath and says that he is the petitioner above named, and that the foregoing petition is true to his own knowledge.” Held, sufficient,</p> <p>4. —Removal of Cause — Petition.</p> <p>It is not necessary that a petition by a defendant for the removal of a cause from a State to a Federal court be sworn to when the facts authorizing the removal are disclosed by the pleading of the plaintiff.</p> <p>5. —Same—Piling Answer.</p> <p>The filing of an answer to the merits does not waive the right to have the cause removed to a Federal court if the applicant is otherwise entitled to the removal.</p> <p>6. —Same—Piling of Petition — Presumption.</p> <p>When a petition and bond, in all respects sufficient under the law for the removal of a cause from a State to a Federal court, were filed in the State court on appearance day but the record did not show whether they were filed before or after the call of the appearance docket, it will be presumed that they were filed before said docket was called, as the law required, when, among numerous grounds assigned for the dismissal of said petition, it was not alleged that the same was not filed in due time, and the court specified other grounds for sustaining the motion to dismiss.</p> <p>7. —Same—Removal—Matter of Right.</p> <p>When a sufficient petition and bond for the removal of a cause from a State to a Federal court is duly filed, it thereupon becomes the duty of the State court to accept the petition and bond and proceed no further in the case.</p>

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

<p>1. —Injunction—Motion to Dissolve — Venue.</p> <p>A district judge has jurisdiction to act upon and grant in any county of liis district a motion to dissolve a temporary injunction theretofore granted by him although the injunction suit is pending in some other county oí his district. It is not essential that the motion to dissolve be heard in the same county in which the suit is pending.</p> <p>2, —School Districts — Commissioners’ Courts — Exclusive Jurisdiction.</p> <p>Under our statutes the Commissioners’ Courts have exclusive jurisdiction in their respective counties to divide the counties into school districts and to fix the boundaries of the same, and the District Courts have no power to revise or control such action.</p>

Tried below before Hon. George Calhoun. This case was brought before the Supreme Court on certificate of dissent. The opinion there delivered, January 25, 1911, will be found in 104 Texas, and sets forth the charge of the trial court in full. The court concur with the dissenting opinion of Mr. Justice ICev, in holding that the 10th paragraph of the charge contains no affirmative error and presents no ground for reversal.

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

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

<p>Accounting — Judgment—Conclusive Evidence.</p> <p>Where a suit involved the question whether or not the defendants held the title to a certain tract of land in fee simple or in trust for the plaintiffs, and also many items of account between the plaintiffs and defendants, and the judgment was in favor of the plaintiff as to the title to the land and for a sum of money found to be due by defendants to plaintiffs upon a statement of accounts, such judgment must be accepted as evidence of the strongest character of a full and complete settlement of all matters of indebtedness between the parties anterior thereto and of the title to the land, and this, though the interest of other parties are involved in a subsequent suit.</p>

<p>1. — Railroads—System of Roads — Joint Liability.</p> <p>Where several railroads designate themselves and operate their lines as a system of roads, and by a duly authorized agent for such system sell a through ticket over their lines to a point beyond, each of such roads is liable in damages for injury occurring to a passenger on any one of said lines.</p> <p>Í?. — Personal Injury — Statute of New Mexico.</p> <p>The statute of the Territory of New Mexico requiring that notice should be given within ninety days of a claim for personal injuries t>r death, does not affect the right of a person to recover in Texas for injuries received in said territory where such right is asserted through a contract to safely carry a passenger, the person being a non-resident of the territory and the contract having been made and partly performed in Texas. Such construction is not a denial of the constitutional guaranty of full faith and credit to the statutes of New Mexico.</p> <p>3. —Carrier of Passengers — Derailment—Breach of Contract — Tort.</p> <p>Damages recoverable for the breach of a contract of carriage resulting from a derailment of a passenger train are the same as are recoverable in an action of tort on the same facts, and defendant’s liability is subject to the same rules and may be established by like testimony and presumptions as in cases of tort; therefore damages for mental and physical suffering may be recovered in such action.</p> <p>4. —Same—Liability Implied.</p> <p>By the sale of a ticket to a passenger a railroad company assumes the relation of a common carrier toward the passenger and thereby becomes bound to exercise the degree of care required of such carriers. It is immaterial that there is no express stipulation to that effect in the ticket.</p> <p>5. —Trial—Discrediting Witness — Practice.</p> <p>Where a witness leads counsel to believe that she will testify to a certain fact, but when put upon the stand by him denies having made such' statement, it is not permissible for counsel to ask her if she has not made such statement to him. The remedy of the party introducing the witness would be to apply for a continuance or postponement if the denial of the witness was a surprise and the testimony material.</p> <p>6. —New Trial — Newly Discovered Testimony.</p> <p>When material but inaccessible testimony is discovered during the progress of a trial the party desiring to obtain and use said testimony should at once make some effort to secure a postponement, and a failure to do so will render unavailing a motion for new trial on the ground of newly discovered testimony.</p>

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

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

<p>1. —Telegraph Operators — Regulation of Hours — Act Unconstitutional.</p> <p>The Act of the Thirtieth Legislature (Gen. Laws, 1907, p. 222), providing an eight hour day for railroad, telegraph or telephone operators, is unconstitutional and void in that it is in conflict with an Act of Congress upon the same subject, passed on March 4, 1907, and this, although the Act of Congress did not take effect until some months after the State law would have taken effect.</p> <p>2. —Same—Interstate Commerce — Exclusive Jurisdiction, of Congress.</p> <p>It is well settled that the power of Congress to regulate interstate commerce under the provisions of the Constitution, is plenary and includes the power to prescribe the qualifications, duties and .liabilities of employees of railway companies engaged in interstate commerce, and any legislation by Congress on such subject supersedes any State law upon the same subject.</p>

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

<p>1. —Covenant of Warranty — Breach—Limitation.</p> <p>Pending a suit of trespass to try title, one of the defendants who was in possession of a small part of the tract involved, entered into a valid contract with the attorneys for the plaintiff in said suit that, out of the contingent interest Which said attorneys would acquire in the event they were successful, they .would protect said defendant by having adjudged to’ him the number of acres he occupied and claimed; the attorneys were successful; more than four years thereafter the said defendant filed suit against his original vendor for breach of his covenant of warranty, and in said suit the warrantor plead the statute of limitation of four years. Held, that the statute began to run from the date of the final judgment in the suit of trespass to try title and not from the date of the contract with the attorneys.</p> <p>2. —Limitation—Pleading.</p> <p>A defendant setting up the statute of limitation by way of demurrer must show that on the face of his adversary’s pleading the action is barred.</p> <p>3. —Breach of Warranty — Measure of Damages.</p> <p>In the absence of evidence that the part of the land the title to which has failed, is not of equal value with the rest of the land, the court will presume that it is all of uniform value, and use the purchase price per acre as the measure of damage for breach of a covenant of warranty.</p>

<p>1. — Title—Parol Sale — Stale Demand.</p> <p>A parol sale of land followed by payment of the purchase money and actual possession taken and valuable improvements made with the knowledge and consent of the vendor constitutes such title as will support an action of trespass to try title; against such title the defense of stale demand is not available,</p> <p>2. —Limitation—Junior Title — Possession.</p> <p>As against a prior conveyance the statutes of limitation will not run in favor of a subsequent purchaser when such subsequent purchaser has no actual possession of any part of the land embraced within the boundaries of the prior conveyance.</p> <p>3. —Subsequent Purchaser — Notice by Record.</p> <p>When a purchaser from an heir has notice through the recitals in a deed by the ancestor to a third party for a different tract of land, that the land he is about to buy from the heir had also been previously sold by the ancestor, such purchaser cannot claim to be an innocent purchaser although the latter sale by the ancestor was a verbal one and there was no deed on record.</p>

<p>1. —Railroad Commission — Street Railways — Jurisdiction—Acts Construed.</p> <p>The Railroad Commission of the State has no. power or jurisdiction under existing laws to prescribe, order and enforce the particular character of crossing or appliances which must be used at the intersection .of steam and electric railways within cities and towns. Chapter 13, title 94, article 4580, Rev. Stats., and chapter 89, Gen. Laws 1901, p. 244, construed.</p> <p>2. —Pleading—Judgment not Responsive.</p> <p>In an action by an electric street railway to enjoin a commercial or steam railway from installing a particular kind of crossing at the intersection of the tracks, on the ground that it was unfit and unsafe, and wherein the defendant by its answer denied the allegations of the plaintiff and contended that the crossing appliance was suitable and safe, it was error for the court to render judgment requiring the defendant to install a certain kind of crossing different from that which it proposed to use. Under the pleading the judgment should either have approved or condemned the particular appliance in question.</p> <p>3. —Appeal by Appellee — Practice—Costs.</p> <p>When an appellee might present by cross assignments all the questions which are presented by a separate appeal, he will be charged with the costs of a separate appeal.</p> <p>4. —Injunction—Appeal—Dissolution.</p> <p>Upon the petition of a street car company a steam railway company was temporarily enjoined or restrained from installing a certain crossing appliance at the intersection of the tracks of the two roads; upon hearing in chambers a temporary injunction was ordered to be issued enjoining the defendant from installing any other than a certain specified appliance, and the plaintiff was temporarily enjoined from interfering with the defendant in the installation of said appliance. Upon appeal by both parties and a reversal of the judgment and remanding of the cause, held, that the case then stood as it did before the restraining order was issued by the district judge, and that said judge might in his discretion grant such temporary relief pending final trial as the pleading and facts might warrant.</p>

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

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

<p>1 .- — Contract—W ages — Charge.</p> <p>The issue being whether or not plaintiff, who was a mechanical engineer, was entitled to his wages whether the mill about which he was employed was operated or not, charges' of the court considered and held, when viewed as a whole and construed together, not subject to the objection that they did not fairly submit the issues and were calculated to mislead the jury to plaintiff’s prejudice.</p> <p>2. — Open Account — Limitation—Charge.</p> <p>The plaintiff filed suit on October 3, 1907, upon an open account for wages, some items of which antedated October 3, 1905; in said account certain payments were admitted; the defendant plead the statute of limitation of two years; the court charged the jury in effect that “they should credit the payments made to plaintiff on the oldest items of the account against the defendant.” Held, the charge was not subject to the criticism that it “left it for the jury to infer that the payments could be applied to the oldest wages earned after the 3rd day of October, 1905.”</p>

<p>Appeal from the District Court of Childress County. Tried below before Hon. S. P. Huff.</p>

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

<p>Appeal from the District Court of Dallas County. Tried below before Hon. J. 0. Roberts.</p>

<p>Master and Servant — Contagious Disease — Ordinary Care.</p> <p>In a suit against a railroad company for damages for allowing its section house to become infected with smallpox whereby plaintiff contracted the disease and lost his eyesight, evidence reviewed and held so insufficient to show negligence on the part of the defendant as to justify the trial court in instructing a verdict against the plaintiff.</p>

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

Tried below before Hon. Ed. B. Kone. The trial court charged that measure of damages: “Will be the difference, if any, between the fair and reasonable market value of his said cattle at their destination in the condition in which they would have been, if transported and delivered at their destination with reasonable care and dispatch, and their market value in the condition in which they were at the time they did reach their destination.

<p>Appeal from the Thirty-Seventh Judicial District, Bexar County. Tried below before Hon. Edward Dwyer.</p>

<p>1. —Carrier of Passenger — Negligence—Evidence—Prima Facie Case.</p> <p>When it appeared from the uncontroverted testimony that plaintiff was a passenger in a railway coach; that the coach was moved with sufficient violence to throw her against the arm of the seat she was occupying; that other passengers were thrown to the floor and some had their glasses knocked off; that the coach or car was the property of the defendant company which knew it was occupied by passengers, and no explanation of the sudden shock of the car was offered by the defendant, a prima facie case of negligence on the part of the defendant was established, and the burden of proof rested upon the defendant to exonerate itself from blame.</p> <p>2. —Same.</p> <p>When a passenger coach is suddenly jerked or moved so that a passenger therein is violently thrown against the arm of a seat and injured, no burden rests upon the passenger, in a suit for damages resulting therefrom, to show how the car was struck or violently moved, and this, though the plaintiff had alleged a cause; such allegation was unnecessary and therefore its proof was unnecessary.</p> <p>3. —Same.</p> <p>When a passenger is injured by an accident, such as the derailment of a train, where the track and train are entirely under the control of the defendant and they are not interfered with by any extraneous force, a presumption of negligence arises, and the burden is on the defendant to exonerate itself.</p> <p>4. —Charge—Assumption of Fact — Harmless, When.</p> <p>That a charge assumes the existence of a fact, and to that extent is erroneous, is not cause for reversal when no other just conclusion could have been arrived at by the jury.</p> <p>5. —Damages—Verdict not Excessive.</p> <p>Evidence of personal injuries considered, and held sufficient to support a verdict for $7,500 damages.</p>

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

<p>1. — Deed—Condition Subsequent — Impossibility of Performance.</p> <p>A condition subsequent (that a railroad should be built and operated on the right of way granted by the deed to a lumber company) was not rendered ineffective to avoid the conveyance by the fact that the grantee had no power to build or operate anything but a lumber tramway. Such condition was not rendered unreasonable or impossible of performance because the grantee itself could not perform it. Its contract' bound it to secure performance, 'though that could only be done by another corporation organized with adequate powers.</p> <p>3. — Deed—Condition—Avoidance—Return of Consideration.</p> <p>One seeking to recover land conveyed by him upon condition subsequent avoiding the deed on failure to comply, was under no obligation to return the cash consideration received. Neither was it necessary to cancel the deed. His right to recover back the land on noncompliance was given by and in accordance with the terms of the deed itself.</p> <p>ON MOTION EOK KEHEABING.</p> <p>3. — Deed—Condition—Difficulty of Performance.</p> <p>The fact that a condition to be performed by the grantee under penalty of making void the conveyance to him is difficult or expensive, or can only be performed by another, will not excuse him. To have this effect the act must be impossible or unlawful for any one to perform.</p> <p>4. —Deed—Condition—Executory Contract.</p> <p>A deed_ conveying land for and so long as used as the right of way of a railroad, with a condition avoiding it if the road was not constructed and operated thereon within two years, was an executory contract, and did not vest title in the grantee till the condition was performed. This not being done in the stipulated term, the grantor could recover back the land, though the condition were one impossible of performance.</p> <p>5. —Error—Assignment.</p> <p>That the judgment did not allow defendant sufficient time to remove its improvements (a tramway) from the land recovered by plaintiff, if error, was not reversible on appeal unless assigned as such.</p> <p>6. —Certifying Question.</p> <p>The appellate court will decline to certify a question to the Supreme Court, on affirmance of the judgment below, appellant having adequate remedy by application for writ of error.</p>

<p>1. —Trespass to Try Title — Boundary—Pleading.</p> <p>The plea of not guilty in an action of trespass to try title puts plaintiff on proof of Ms title, though the cause arises from dispute as to the boundaries between surveys claimed by the parties respectively.</p> <p>2. —Evidence—Will—Title.</p> <p>A will is not receivable in proof of title claimed under it without proof that it has been admitted to probate.</p> <p>3. —Same—Recorded Instrument.</p> <p>The Act of April 23, 1907, Laws 30th Leg., p. 308, admitting in evidence recorded instruments defectively acknowledged, has no application to wills and does not render them admissible, as links in the chain of title, where not admitted to probate, though recorded for ten years.</p> <p>4. —Will—Independent Executors.</p> <p>A will providing that the County Court assume no control over the estate save to admit the instrument to probate and record inventory, the executors being relieved from giving bond and authorized to convey land, constituted them independent executors, authorized to sell without bond or order of the probate court.</p> <p>5. —Executors—Conveyance.</p> <p>Where three executors, appointed by the will and qualifying, were authorized to convey land of the testator, all must join in such conveyance, and a deed by two of them was ineffective.</p> <p>6. —Limitation—Payment of Taxes.</p> <p>Limitation cannot be shown by possession for five years under a recorded deed, without proof of payment of taxes.</p> <p>7. —Same—Charge.</p> <p>A charge requiring proof, in support of the five years statute of limitation, that all taxes had been paid by the party claiming under the plea, was inaccurate, it being sufficient if they were paid by those whose estate he had acquired.</p> <p>8. —Limitation—Constructive Possession. ■</p> <p>A charge on title by limitation, by actual possession to" the boundaries shown by claimant’s deed, was not applicable to the case of a deed made but two months before suit was brought.</p>

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

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

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

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

<p>Error from the District Court of Wilbarger County. Tried below before Hon. S. P. Huff.</p>

<p>limitation — Three Years — State School land.</p> <p>An award by the Commissioner of the General Land Office of land as State school land, -when the said land has been previously patented, is not title or color of title as defined in the three years statute of limitation, and the awardee cannot prescribe thereunder.</p>

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

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

<p>Jurisdiction — Amount in Controversy — Interest.</p> <p>In a suit in a County Court against a railroad company for damages to a shipment of pianos, plaintiff alleged that the pianos were damaged to the extent of $850, and that he had expended $125 in repairing and handling them, making a total of $975; the prayer of the petition was that “he have judgment for his said damages in the sum of $975 with legal interest thereon, for costs of suit, and for general relief.” Held, the amount sued for was in excess of $1,000 and therefore the County Court had no jurisdiction.</p>

<p>1. —Parent and Child — Custody—Material Issue.</p> <p>In -a suit by a mother for the custody of her minor child, the plaintiff requested the following instruction: “Although the evidence may disclose the fact that plaintiff did at one time lead an improper life, yet if the proof shows that she has reformed and is now living a correct life in a reputable portion of the city and is otherwise prepared to care for and educate her minor child, she would be entitled to its custody.” Held, properly refused because it ignored a material issue, namely, the best interest of the child under all the facts and circumstances.</p> <p>2. —Verdict—Judgment not Warranted by — Effect.</p> <p>In a suit for the custody of a child the jury returned a verdict for the defendant absolutely and without restriction; the court, on motion for new trial, decreed that the plaintiff might have custody of the child for one month each year. Held, the action of the court was in effect a setting aside of the verdict of the jury, and, the case being a jury case, the court had no authority to enter any judgment at all, but the .case shbuld have stood for a new trial.</p> <p>3. —Same—Modification of Verdict.</p> <p>When a case is tried by a jury their verdict must be accepted in its entirety or set aside in its entirety. The court cannot adopt the verdict upon some of the issues of fact, and determine other issues itself.</p>

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

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

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

<p>1. — Collateral Security — Expense of Collection — Charge.</p> <p>The assignee of a note and mortgage holding it as collateral security for a debt of the assignor was entitled, without further authority from the latter, to take necessary and proper steps to collect same, and an agreement that such security should be attached to and kept with the note it was assigned to secure would not deprive the assignee of the right to take proper steps, consistent with such agreement, to protect his security, such as employing lawyers to look after it where circumstances rendered that course advisable; for the expenses so incurred he was entitled to credit in accounting to the assignor for the amount realized on the collateral. See charge on this subject held erroneous and not cured by charge conflicting with it.</p> <p>2. —Same.</p> <p>Where the intention and effect of a parol agreement as to the custody of a note was a question of fact for the jury, instructions giving it a certain effect as matter of law were properly refused.</p> <p>3. —Same—Attorney and Client.</p> <p>The holder of collateral security is entitled to credit, in accounting to the assignor for the proceeds realized, only for such charges by liis attorneys collecting same as were legal and proper.</p> <p>4. - — Collateral Security — Charge.</p> <p>The holder of collateral security was not entitled to deduct the expenses of collecting same in accounting to his debtor for the amount realized on the collateral, where it was held under an agreement precluding him from taking any steps for its collection.</p>

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

<p>1. —Judgment—Service by Publication — New Trial — Limitation.</p> <p>A proceeding to set aside a. judgment obtained on service by publication, instituted by defendant under article 1375, Rev. Stats., at a subsequent term but within two years from its rendition, is but a continuation of the original suit, as by a motion for new trial in ordinary cases, and the defendant so proceeding may, upon such new trial, defeat plaintiff’s right to recover by showing a mere legal defense, as that plaintiff’s action was barred by limitation. Wolf v. Sahm, 55 Texas Civ. App., 564, followed, and Polk v. Herndon, 44 Texas Civ. App., 441, 93 S. W., 531, overruled.</p> <p>2. —Same—Case Stated — Divorce.</p> <p>A husband sued his wife to have the marriage annulled because entered into under duress, it having been contracted in Russia, fourteen years before. He obtained a decree on service by publication, and the wife brought proceedings within a year to set aside this judgment and obtain a new trial, alleging- fraud in obtaining the decree, and adjudication of the validity of the marriage in previous actions for divorce brought by the husband in other States. Held, that she could avail herself also of the defense of limitation upon the new trial, and the facts showing the husband’s right of action to be barred, being undisputed, it was immaterial on his appeal from a judgment in her favor, whether errors to his prejudice were committed in the rulings on other issues.</p>

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

<p>1. —Overruling Exceptions — Harmless Error, When.</p> <p>When the court in its charge assumed the validity of the iron safe clause in a policy of fire insurance and did not submit to the jury the issue of a waiver of the same, alleged by plaintiff, the defendant cannot complain of the action of the court in overruling its exceptions to the pleading of plaintiff setting up said waiver.</p> <p>2. —Deposition—Motion to Suppress — Practice.</p> <p>Where depositions have been filed during a term of court a motion to suppress them need not necessarily be made and determined at the same term; such motion may be passed on at the next succeeding term.</p> <p>3. —Same—Refusal to Suppress — Harmless Error.</p> <p>Where there was no conflict on the testimony in fixing the value of goods destroyed by fire at such an amount as justified the verdict rendered, any error of the court in refusing to suppress the depositions of witnesses whose estimate of the value was the same as the other witnesses, was harmless error, if error at all.</p> <p>4. —Action Against Insurance Company — Improper but Harmless Argument.</p> <p>In an action against an insurance company counsel for plaintiff in his opening argument used the following language: “If Jesus Christ, the Son of God, should come to the earth and take out an insurance policy, and his property was destroyed by fire, these insurance companies would charge him with burning up his property.” Held, not commendable, but harmless in view of the evidence and issues.</p> <p>5. —Same—Value of Property — Evidence.</p> <p>Testimony as to an estimated value two weeks before a stock of merchandise was destroyed by fire, held harmless error where there was no conflict in the testimony tnát the goods were of such value when destroyed as would warrant the verdict rendered.</p> <p>6. —Verdict—Sufficiency.</p> <p>Where the insured in a policy of fire insurance began a suit against the insurance company, and afterwards the insured’s trustee in bankruptcy intervened and joined in the prosecution of the suit, the following verdict, — “We the jury find for the plaintiff and assess his damages at $1,600,” was sufficient to support a judgment to the effect that both the insured and the trustee recover of the defendant the sum named in the verdict.</p>

<p>1. —Question of Law or Fact — Test.</p> <p>The test of whether the evidence raises an issue of fact is whether reasonable minds may reach different conclusions from the testimony. If there can be no such difference of conclusion, the question is one of law for the court to decide; but if there may be such difference, there is an issue of fact for the jury to determine. Where the jury determines an issue of fact under appropriate instructions the appellate court will not revise their finding unless it be manifest that the verdict is clearly against the preponderance of the testimony.</p> <p>2. —Practice—Insufficient Evidence — Peremptory Instruction.</p> <p>A party is not estopped from basing a motion for new trial upon the insufficiency of the evidence to support the verdict, by the fact that he neglected to ask a peremptory charge in his favor on that ground, nor by the fact that he asks special charges embodying his view of the law on issues which the court submits in its main charge.</p> <p>3. —Master and Servant — Assumed Bisk — Burden of Proof.</p> <p>The doctrine of assumed risk is wholly dependent upon the servant’s knowledge actual or constructive of the dangers incident to his employment.</p> <p>When he knows or in the exercise of ordinary care should know the risks to which he is exposed he will as a rule be held to have assumed them; but where he does not know, or knowing does not appreciate, such risks, and his ignorance or nonappreciation is not due to negligence or want of due care on Ms part, there is no assumption of risk on the part of the servant preventing a recovery for his injuries. The burden of proof on the issue of assumed risk is' on the defendant.</p> <p>4. —Same.</p> <p>In order to charge a servant with assumption of risk, he must not only know but he must appreciate the danger to which he is exposed, and one does not voluntarily assume a risk who merely knows there is some danger without appreciating it. A danger may, however, be so obvious that a servant can not help understanding it fully.</p> <p>5. —Same.</p> <p>If a servant has a general knowledge of defects in the appliances with which he is working, sufficient to charge him with knowledge of danger, he assumes the risk, although he may not know of the particular defects which caused the injury; and when he is injured by a known risk of the employment assumed by him, it is immaterial that he did not know the precise extent or character of the injury liable to be sustained.</p> <p>6. —Same.</p> <p>To warrant a finding that a servant assumed the risk of his employment, he need not have absolute knowledge of the risks if they be such that an ordinarily prudent man under the circumstances could by reasonable diligence have discovered them.</p> <p>7. —Same—Disabled Cars.</p> <p>Where the very work which a servant is employed to do is of such a nature that its progress is constantly changing its conditions as regards an increase or diminution of safety, the hazards arising as the work proceeds are regarded as being the ordinary dangers of the employment, and by his acceptance of the employment the servant necessarily assumes them. This principle applies to the handling of defective cars or rolling stock set apart for repairs.</p> <p>8. —Same—Case Stated.</p> <p>In a suit by a switchman against a railroad company for damages for personal injuries caused by stepping into a hole in the floor of a disabled car which the crew of which plaintiff was a member was engaged in switching from a side track to the repair shop, evidence upon the issues of assumed risk and contributory negligence reviewed, and held (1) to raise issues of fact and not of law, and said issues were therefore properly submitted to the jury; and (2) said evidence was sufficient to support a finding of the jury to the effect that the plaintiff did not assume the risk which caused his injury, and that he was not guilty of contributory negligence; and (3) that defendant was guilty of negligence which proximately caused plaintiff’s injury.</p> <p>9. —Assumed Risk — Contributory Negligence — Distinction.</p> <p>If assumption of risk is the issue, knowledge of defective conditions and acquiescence therein are fatal to plaintiff’s case. If contributory negligence is the issue, knowledge of defective conditions and acquiescence therein may be fatal or may be not, dependent upon whether a person of ordinary prudence, under all the circumstances, would have done what .the injured person did. If the risk is not so great and immediately threatening but that a person of ordinary prudence, under all the circumstances, would take it, contributory negligence is not established.</p> <p>10. —Personal Injuries — Quantum of Damages.</p> <p>In suits for damages for personal injuries, the quantum of damages is primarily for the jury to determine, and an appellate court is without authority to disturb their finding unless the amount found, in view of the evidence, is so great as to shock the conscience by rendering it morally certain that the jury was actuated by some improper motive.</p>

<p>1. — Reformation of Judgment — Practice.</p> <p>A trial court has the power during the term to reform or amend its judgment so as to make it speak its will; and a failure to make a formal motion to do so or to give formal notice of the motion to parties adversely interested is not reversible error in the absence of a showing that the party complaining was in some way prejudiced thereby.</p> <p>Í2. — Appeal—Proposition not Germane to Assignment.</p> <p>The appellate courts will not consider a proposition which is not germane to the assignment of error upon which it purports to be based.</p> <p>3. —Same—Grouping Assignments.</p> <p>The grouping of and presenting together a number of assignments of error presenting different propositions of law in no wise dependent upon or connected with each other, is in violation of the rules, and the assignments should not be considered. The assignments in such ease should be followed by propositions clearly indicating the matters of which appellant complains.</p> <p>4. —Divorce—Fee of Attorney for Wife — liability of Husband.</p> <p>The husband is liable for attorney’s fees incurred by the wife in prosecuting or defending a suit for divorce.</p>

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

<p>Appeal from the County Court of Smith County. Tried below before Hon. ¿T. A. Bullock.</p>

<p>Appeal from the County Court of Hopkins County. Tried below before Hon. F. W. Patterson.</p>

<p>1. —Railway—Stock Unlawfully at Large — Negligence.</p> <p>The fact that stock discovered on a railway track was unlawfully at large does not excuse its negligent killing. Those operating the train were not required to keep a lookout for stock at points where they could not lawfully be; but, discovering them there, if they injured them by negligence, the company was liable.</p> <p>2. —Same—Unlawful Speed — Causal Connection.</p> <p>Evidence considered and held to support a finding that negligence in running a train in town at unlawful speed was a cause of the injury to a horse struck by reason of inability to stop the train in time after discovering the animal on the track.</p>

<p>1. —Master and Servant — Railroad Company — Negligence—Moving Train without Warning.</p> <p>Where a switchman was killed by the moving without warning of a train of “bad order” cars which he was coupling to an engine, evidence reviewed, and held sufficient to support a finding that the foreman of the deceased was negligent in not preventing the moving of the train by another and different switch crew and in failing to apprise the deceased of the danger from the approaching switch engine; that the crew of the switch engine was negligent in moving the train of cars on which deceased was engaged without first ascertaining whether the deceased or some other switchman was working on the same and in such situation as would render the moving of the train dangerous to him; and that the railroad company itself was negligent in not promulgating reasonable rules governing the switching of cars by different crews in its yards, and that the deceased was not guilty of contributory negligence and did not assume the risk which resulted in his death.</p> <p>2. —Trial—Evidence—Harmless Error.</p> <p>The admission of improper testimony is harmless error when other testimony to the same effect is already before the jury without objection. Rule illustrated.</p> <p>3. —Same—Practice.</p> <p>An appellant can not complain of the admission of improper testimony when no objection was made until after the same was in, and no motion was made to exclude it.</p> <p>4. —Same.</p> <p>An objection to testimony can not be urged for the first time in the appellate court.</p> <p>5. —Master and Servant — Expert—Hypothetical Question.</p> <p>Under the circumstances shown by the evidence in this case a hypothetical question to an expert witftess as to what a switchman, while working between cars, had the right to expect from his foreman in the way of protection, was proper and warranted by the evidence.</p> <p>6. —Same—Charge—“Reasonable Care.”</p> <p>The use of the phrase “reasonable care” instead of “ordinary care” in a charge upon the issue of negligence was not subject to the objection that it was calculated to confuse and mislead the jury. The phrases are convertible terms.</p> <p>7. —Same—Negligence—Custom and Usage.</p> <p>Custom and usage can ’ not be made the standard of care in an issue of negligence on the part of the master in the conduct of his business.</p> <p>8. —Death—Measure of Damages — Charge—Assumption of Pecuniary Loss.</p> <p>Where the evidence was undisputed that the deceased was industrious and economical and applied his earnings to the support of his wife and children, the court had the right to assume that the wife and children had suffered loss and to charge the jury. that they were entitled to compensation for his death.</p> <p>9. —Same—Charge—Reference to Grief and Sorrow.</p> <p>It can not be assumed that a correct charge upon the elements of damage to be considered by a jury in a suit for the death of a husband and father, was prejudicial to the defendant because it referred to the grief and sorrow of the living, the loss of the society and companionship of the dead, and the mental and physical pain suffered by the deceased, and told the jury that such elements of damage should be eliminated in estimating the loss of the plaintiffs.</p> <p>10. — Death of Switchman — Verdict not Excessive.</p> <p>A_ verdict for $20,000 in favor of a wife and two children for the death of their husband and father, held, not excessive under the facts of this case.</p>

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

<p>Carriers — Delay in Transportation — Damages—Proximate Cause.</p> <p>Although a railroad company was negligent in failing to transport and deliver in due time a machine operated by the owner for profit and would therefore be liable for the damages caused by its' own negligence, it would not be liable for the damages resulting to the owner from such further delay as was caused by the breach of his contract by a third party who failed and refused after the machine was delivered to the owner by the railroad company to haul the same to the grounds where it was to be set up and operated; and* this, though the third party would not have breached his_ contract if the railroad company had delivered the machine in a reasonable time.</p>

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

<p>Contract — Mutual Mistake of Fact.</p> <p>When a contract is based upon the belief by both parties that a certain fact exists, equity will cancel the contract and relieve the parties from liability for failure to perform when it is shown that the fact does not exist and the contract is therefore practically impossible of performance, and this though a certain amount is named in the contract as liquidated damages in case of breach.</p>

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