Volume 95 — Texas Reports

The city obtained writ of error on the affirmance, on its appeal, of a judgment obtained against it by Pizzini, with judgment over against it by its codefendants Hildebrand & Hamilton.

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from Bexar County.</p> <p>Mary Brown and others sued the railway company and had judgment, which was affirmed on appeal by defendant, who thereupon obtained writ of error.</p>

Bettie Lipscomb and others sued the railway company and the express, company, and recovered judgment which was reversed on defendant’s appeal. Plaintiffs then obtained writ of error on the ground that the: opinion settled the case.

Ellis County sued Thompson and appealed from a judgment for defendant, on affirmance of which the county obtained writ of error.

Eastman sued the insurance company and recovered judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>1. —Public Street—Dedication.</p> <p>The owner of land traversed obliquely by a public street, who, agreeing to donate the land necessary therefor, procured a city ordinance changing its location so as to run along his boundary line, with the provision that “the same shall not be loss than forty feet wide,” thereby dedicated to the public the entire width of forty feet along such boundary for the highway, rendering any condemnation or further proceedings to establish it unnecessary. (Pp. 41, 42.)</p> <p>2. —Change of Street—Ordinance.</p> <p>See city ordinance relative to change of public street, held to take effect at once as an establishment of the new street, and to require no further action to give effect to the change. (P. 42.)</p> <p>3. —Same—Description.</p> <p>A call for a northern course in laying out a street is controlled by calls for a line and corner which may be followed while maintaining the northern course substantially though not strictly. (P. 42.)</p> <p>4.—Same.</p> <p>A call in the description of a street to run north along a proprietor’s west line and with a width of forty feet, established the street with its entire width west of that line and on land of another proprietor, where the latter only had petitioned for the road and offered to give the land. (P. 42.)</p> <p>OU BEHEAEING.</p> <p>5.—Practice on Reversal.</p> <p>The Supreme Court on reversing and remanding a cause as to certain defendants in error, may, in its discretion, reverse and remand as to others against whom the record does not show error and strict right to a reversal, where justice seems to require this. (P. 43.)</p>

Kruegel sued the city to recover debt and forclose vendor’s lien, and obtained a judgment, which was affirmed on appeal. The appellant, the city, then obtained writ of error.

Ghent sued Boyd and wife in trespass to try title, and had judgment establishing a lien against the property. Boyd and wife appealed, and on affirmance applied for a writ of error.

<p>1. —Judgment Lien—Unrecorded Deed.</p> <p>The lien of a judgment on due record of abstract and the title of a purchaser at sale thereunder are superior to the rights of a purchaser under an unrecorded deed. (P. 51.)</p> <p>2. —Trespass to Try Title—Pleading—Foreclosure.</p> <p>Defendant under the plea of not guilty in trespass to try title can not avail himself of a vendor’s lien held by him against the property. (P. 51.)</p>

<p>Question certified from the Court of Civil Appeals for the Second District, in an appeal from Montague County.</p>

<p>1. —Pleading—Admission—Demurrer.</p> <p>See pleadings under which a demurrer to a cross-bill filed by defendants against codefendants and their sureties was improperly sustained, the facts alleged in avoidance of such bill not being considered on the demurrer except so far as they were expressly admitted. (Pp. 68-70.)</p> <p>2. —Mechanic’s Lien—Itemized Account.</p> <p>The account filed under article 3296, Bevised Statutes, for fixing a lien for material furnished for a building, should bear some date to which the transaction can be referred, though the exact date of the delivery of each particular item need not be expressed. (Pp. 70, 71.)</p> <p>3. —Same—Insufficient Itemizing.</p> <p>Such claims as “bill of sash and doors, per contract, $640,” and “bill of mill work (contract), $175,” are insufficient, as an itemized account of material furnished, to fix a lien against the owner of property. (P. 71.)</p>

<p>1. —Appeal—Cost Bond—Affidavit in Lieu of.</p> <p>One who, on contest of his affidavit of inability to pay or secure costs, has been found able to pay a part but not all of them, is not entitled to appeal without bond or payment to the extent found to be within his ability. Stewart v. Heidenheimer, 55 Texas, 644, distinguished. (Pp. 72-74.)</p> <p>2. —Same—Findings Not Conclusive.</p> <p>The decision of the trial judge that appellant, though able to pay or secure a part of the costs, was entitled to prosecute his appeal without giving bond, was not conclusive on the appellate court; the latter had the final determination of the questions of law arising on the facts found. (Pp. 74, 75.)</p> <p>3. —Same—Practice on Appeal. ■</p> <p>Where an appellant, on contest of his affidavit, has been found able to pay a part of the costs, he may be required, by those interested, to deposit such amount as a condition of sending up the appeal; but where this is not done the appellate court may require such deposit on alternative of dismissal, or give the matter such direction, on motion to dismiss, as justice requires. (P. 75.)</p>

<p>Question certified from the Court of Civil Appeals, First District, in an appeal from Harris County.</p>

<p>1. —Homestead—Improvements—Lien—Attorney's Fees.</p> <p>Attorney’s fees upon a note given for improvements upon the homestead -are not such claims as the Constitution permits the husband and wife to secure by contract making them a lien on the homestead. Walters v. Texas Building and Loan Association, 8 Texas Civil Appeals, 500, approved, and American, etc., Association v. Harn, 62 Southwestern Reporter, 74, overruled. (Pp. 80, -81.)</p> <p>2. —Usury—Novation—Recovery on Original Contract.</p> <p>The assignee of a contract not usurious, making an usurious contract in aid and extension thereof, is not precluded from recovering on the first contract with lawful interest, where the transactions are distinct. (P. 81.)</p> <p>•3.—Same—Pleading.</p> <p>Where the defense asserts usury only in the giving of a second contract in aid and extension of one not usurious, the plea does not present the issue of invalidity of the first as connected with the usurious contract in one continuous series of transactions. (P. 81.)</p> <p>■4.—Practice in Supreme Court.</p> <p>Long v. Railway, 94 Texas, 53, followed as to practice in cases reversed and remanded by Courts of Civil Appeals. (P. 81.)</p>

' Parker and others sued Campbell and others in trespass to try title. Defendants had judgment. Plaintiffs appealed, and on affirmance obtained writ of error.

Baldwin and others, as commissioners to wind up a dissolved Louisiana corporation, sued Johnson and others to recover land belonging to the company. Intervention was filed in the name of the corporation, and the commissioners also asserted rights as stockholders. Judgment was-for defendants, and was affirmed on plaintiff’s appeal, whereupon they obtained writ of error.

<p>1. —Reconvention—Removal of Cloud—Citation of Plaintiffs.</p> <p>On a cross-bill filed by defendant in a suit of trespass to try title, seeking to remove the cloud of plaintiff’s claim, it was error to proceed to trial and give defendant the judgment so sought, against plaintiffs who had not been cited to answer the cross-bill nor appeared in court after it was filed. (Pp. 90-92.)</p> <p>2. —Same.</p> <p>The proper practice in such case was to dismiss plaintiff’s suit, when called for trial,- for want of prosecution, and decline to proceed on the cross-action till service on or appearance by plaintiffs. (P. 90.)</p> <p>3. —Same—Pleading—Notice.</p> <p>Plaintiffs are bound to take notice of all pleadings of defendant in answer to the claim made in their petition, but not of an independent claim asserted by defendant in the suit as matter of convenience. (P. 91.)</p> <p>■4.—Cases Distinguished.</p> <p>Browning v. Pumphrey, 81 Texas, 166, and various eases resting upon •statutes, distinguished from the present one. (Pp. 90, 91.)</p>

an appeal from Brazoria County. The International & Great Northern Railroad Company, intervener in the trial court, appealed from the judgment there recovered, and upon a judgment reversing and remanding the case obtained writ of error from the Supreme Court by alleging that such judgment practically settled the case.

Ta.ffindp.Ts sued Merrell and James, and there were various interveners. A judgment for defendants was reversed on appeal. On the second trial defendants again had judgment which was affirmed on appeal, and plaintiffs and interveners obtained writ of error.

<p>Í.—Attachment—Abatement—Waiver.</p> <p>Where three years elapsed between the appearance of defendant in a- case' and the filing of a plea in abatement of the attachment for insufficiency of the bond, the delay was properly held a waiver of the defect. (P. 106.)</p> <p>2. —Same—Order of Pleading.</p> <p>In refusing a writ of error in this case, the ruling of the Court of Civil Appeals that the right to plead in abatement of a writ of attachment is lost by first answering to the merits is disapproved. (P. 104, 105.)</p> <p>3. —Same.</p> <p>The rule as to order of pleading prescribed by article 1262, Revised Statutes, refers only to pleadings interposed to defeat plaintiff’s recovery; the statute does not embrace motions to quash and pleas to abate the writ of attachment. Drake v. Brander, 8 Texas, 353, followed, and Hart v. Kanady, 33 Texas, 720, overruled. (P. 105.)</p>

<p>1. —Trust—Recitals in Deed—Contractual Relation.</p> <p>Recitals in a deed to the effect that the purchase was with trust funds of third parties and the conveyance in trust for them, are not contractual and binding upon the grantee as against the recited beneficiaries, who were not. parties nor in privity or contract relation with him. (P. 111.)</p> <p>2. —Same.</p> <p>Deed to land recited that a cash payment was made with funds of third parties and the land conveyed to the grantee in trust for them. In a suit, between such third parties and one claiming by conveyance from such grantee, it could be shown that the land was wholly paid for with funds of the trustee, and not from those of the supposed beneficiaries. (Pp. 109-111.)</p> <p>3. —Same—Case Distinguished.</p> <p>Kahn v. Kahn, 94 Texas, 114, distinguished as being a controversy between the parties to the deed. (P. 111.)</p> <p>4. —Trust—Power of Trustees to Convey.</p> <p>Parties who claimed as beneficiaries under a deed, on the ground that its-recitals of a purchase with their trust funds were contractual and not to be disputed, would be bound by the terms of the deed and the power of sale it, ..conferred on the grantee. (Pp. Ill, 112.)</p>

Haltom and wife sued the railway company on account of the death of their son, killed by its cars. They had judgment, which was-affirmed on appeal by defendant, who then obtained writ of error.

<p>Questions certified from the Court of Civil Appeals, First District, in an appeal from Harris County.</p> <p>The opinion of the Court of Civil Appeals, in this case, was as follows :</p> <p>“Garrett, Chief Justice.—(After stating the facts).—We are of opinion that the execution sale of the land was good against collateral attack, and since it appears that the land was the community property of FT. W. Travis and his wife, an outstanding title in John Doran was shown; hence the plaintiff was not entitled to recover as the heir of Sarah- Travis and her husband. But it was shown that the plaintiff took possession of the land about the year 1876, claiming it as her own, and held continuous adverse possession thereof by a tenant for more than ten years in such manner as to confer title on her by limitation. It was not necessary for the plaintiff to anticipate and prove affirmatively in support of her title by limitation that there was no coverture or other disability on the part of John Doran or any of his heirs or assigns to prevent the running of limitation. In City of Austin v. Hall, 92 Texas, 591, in which the prescriptive right to a public road was claimed, the court held that where the right was claimed against one other than the defendant in a suit or some person under whom he claims, the plaintiff must prove his right and that no disability existed with the person from whom he claims to have derived the right. But in the case referred to an easement in the land was claimed by the acquiescence of the owner in possession for the longest period of limitation. In such case the plaintiff claiming the easement in order to show acquiescence of the owner who is not a party to the suit is required to show want of disability to sue on the part of the owner. The statute confers full title upon the person holding adverse possession for the prescribed period. Eev. Stats., art. 3347. Disability as an answer must be pleaded whenever it is relied upon by a party to the suit. So must limitation when relied on be pleaded. Plaintiff pleaded title by limitation as required •by statute. The defendants under their plea of not guilty upon the general issue put in proof an outstanding title, which in this case is more than fifty years old. Plaintiff was in possession of the land and ought not to be required to have a knowledge of the status of the holders of the outstanding title. There would be some reason in requiring her to show the status of owners in possession of land against whom she was claiming an easement by prescriptive right. Limitation and disability are both defensive in their nature, are prescribed and defined by statute, and are required to be pleaded when relied on. To establish an easement by prescription the party asserting it must affirmatively show acquiescence on the part of the owner of the fee who is in possession and in order to show acquiescence must show that the owner was sui juris and not resting under any disability to sue. On the other hand, a person asserting a title by limitation perfects it by possession of the land to the entire exclusion of the owner and all others for the prescribed statutory period, and from the nature of the case it would be unreasonable, in making affirmative proof of his title by limitation, to require him to take cognizance of the status of every person who might be shown under a plea of not guilty to -have an adverse title. So far as we have been able to discover the precise question has not been decided, and we do not believe that the rule applied to easements in the fee to land acquired by prescription should be extended to the absolute title that may be acquired by limitation. We are therefore of the opinion that the court erred in so holding.</p> <p>“In her petition the plaintiff, setting out her title by limitation, averred that she had been in possession ‘more than ten years next before the filing of this suit/ The evidence showed that she had been out of possession for several years next preceding the filing of the suit, but that ten years limitation had been completed before she lost possession. Defendants urge as a reason for affirmance that the plaintiff’s evidence did not correspond with the pleading and that judgment was properly rendered for them. We think the allegation was sufficient to admit the evidence. It is also urged by the defendants as a reason why the judgment in their favor should be affirmed that it was shown by the undisputed evidence that the defendant had acquired title by limitation of ten years after the possession of the plaintiff had ceased. To this we do not agree. We deem it unnecessary to set out the evidence; and as the court declined to find upon this issue, and the judgment must be reversed for the reason given, the cause will be remanded for another trial.”</p>

Underwood and others sued Jones and others for the recovery of a half interest in land, and obtained judgment which was reversed and rendered for defendants on their appeal. Appellees, plaintiffs below, then obtained writ of error.

<p>1. —Lien—Payment—Subrogation.</p> <p>See this ease as to right of a vendee to be subrogated to the claim of his. vendor for having discharged a vendor’s lien given by a previous owner who, after having conveyed the land, recovered it back as homestead. (P. 130.)</p> <p>2. —Same—Limitation.</p> <p>One holding land under a conveyance void as against homestead rights of his grantor, can not retain possession by right of having discharged a vendor’s, lien given by the latter; nor can he or his vendee be protected as lienholders in possession after recovery on the vendor’s lien note is barred by limitation. . (P. 130.)</p> <p>3. —Limitation—Three Years Statute—Color of Title.</p> <p>A deed to the homestead which lacks the proper separate acknowledgment by the wife can not constitute title or color of title to support limitation by possession for three years. (Pp. 130, 131.)</p> <p>4. —Same—Query—Deed Intended as a Mortgage. ' '</p> <p>See case as to effect of a deed, in form, to the homestead, but which was-intended to be merely a mortgage, as constituting color of title. (P. 131.)</p> <p>5. —Homestead—Abandonment—Findings.</p> <p>See findings of fact held to show not an abandonment of the homestead in. fact, but an erroneous conclusion from the facts found, of estoppel of claimants, or abandonment as matter of law. (Pp. 129, 131.)</p>

The action was by the independent school district of Laredo and its trustees, against Webb County, and judgment was rendered for defendant on demurrer. On appeal by plaintiffs the judgment was reversed and the cause remanded; and thereupon the county obtained writ of error on the ground that the case involved the construction and application of the-Constitution of the State.

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>Thompson sued Cobb and others in trespass to try title. Defendants had judgment, which was affirmed on appeal by plaintiff, who then obtained writ of error.</p>

<p>1. —Railroad Commission Law—Prosecution for Violation—Attorney-General— District Attorney.</p> <p>The institution, prosecution, and management of all suits for penalties, against railroads for the violation of provisions of the Railroad Commission Law are committed exclusively to the commission and to the Attorney-General; and a district or county attorney has no authority to institute a suit of this, class, nor to appear in or prosecute it except by request of the Railroad Commission. Sec. 2, art. 10, Const., Amendment of 1890; Rev. Stats., arts. 4568,. 4577, 4579. (Pp. 153-155.)</p> <p>2. —Same—Constitution.</p> <p>Section 21, article 5, of the Constitution does not confer on district or county attorneys the right to represent the State in all suits in the district court; and the amendment to section 2, article 10, empowers the Legislature to confer upon the agencies created by it powers which were, before the adoption, of the amendment, vested in other officers by the Constitution. (Pp. 156, 157.)</p> <p>3.—Same—Fees.</p> <p>The district attorney of Travis County was not entitled to commissions on penalties recovered in suits by the State, prosecuted by the Attorney-General -under direction of the Railroad Commission, for violation of its regulations by railroad companies. (Pp. 152-157.)</p>

<p>Motion for leave to file a petition for writ of mandamus requiring the Comptroller to institute suit for taxes alleged to be due the State from the International & Great Northern Railroad Company.</p>

<p>1. —Community Property—Wife’s Separate Property—Conveyance.</p> <p>A wife joined by her husband conveyed her separate property to a trustee for the purpose, apparent on the face of the instrument, of converting it into community property of the husband and wife by a deed which the.trustee thereupon made to the husband. Held, that the conveyances were of no validity and the property remained her separate estate. (Pp. 165-171.)</p> <p>2. —Same.</p> <p>Property becomes community estate of the husband and wife by virtue of the existence of the facts prescribed by the statute as making it such, and not by their agreement or contracts in the absence of such facts. (P. 169.)</p> <p>.3.—Deed—Recitals—Consideration.</p> <p>See conveyances in which the recitals of consideration were held merely formal, in view of the apparent intention, on the, face of the instrument, to simply convert separate into community property by the transaction. (Pp. 166, 167, 171.)</p>

<p>Sequestration—Replevin—Judgment—Valué.</p> <p>In a sequestration suit wherein defendant has retained possession of the property by giving a replevy bond, the value of the property for which the successful plaintiff is to have judgment, as provided in article 4876, Revised Statutes, is to be determined by its market value at the time of the trial. (Pp. 172-174.)</p>

Harding sued to enjoin the Commissioners Court of McLennan County from declaring the result of an election under the local option law in a part of the county to have been in favor of prohibition. ‘Judgment went for defendants, from which plaintiff appealed, and on its ■affirmance he applied for a writ of error.

<p>1. —Laborer’s Lien—Railways.</p> <p>Article 3312, Revised Statutes, does not give a lien to mechanics or laborers employed in the construction of machine shops, roundhouses, etc., situated upon the land of a railway company but not on its right of way. (Pp. 182-184.)</p> <p>2. —Same—Statute Construed—Equipments.</p> <p>The word “equipments,” being used in connection with the words “locomotive, car,” etc., includes only things used in like manner in connection with the operation of the road, and is not broad enough to include structures like machine shops, roundhouses, and the like, though necessary to the operation of the road. (P. 182.)</p> <p>3. —Same—Railroad—What It Includes.</p> <p>The word “railroad” in article 3312, Revised Statutes, does not embrace machine shops, etc., not on the right of way, the term as used in the statutes (articles 4422, 4425, 4483) appearing to designate the right of way and structures upon it. (Pp. 183, 184.)</p> <p>4. —Mechanic’s Lien—Railroad Buildings.</p> <p>The rights of mechanics, laborers, and materialmen constructing buildings, such as machine shops, of a railway upon grounds not embraced in its right of way, are protected by the general law for mechanic’s liens, Revised Statutes, article 3294, and must be secured by compliance with that,. and not with article 3312. (P. 184.)</p> <p>5. —Indemnity Bond—Who May Sue.</p> <p>A mere bond of indemnity given by contractors and sureties to protect the owner of property against liens of workmen constructing buildings thereon, does not give a right of action by such laborers, for their claims, against the sureties. (Pp. 184, 185.)</p>

<p>1. —Homestead—Designation—Estoppel—Mortgage—Charge.</p> <p>Though representations of a mortgagor that the property was not his homestead, and his designation of other property as such, can not estop him from asserting his rights in the place solely occupied as his home; yet where there is such use and occupancy of two residences as to fix a homestead character upon either one he should select, he may be estopped by such declaration or selection, relied on by the mortgagee, though the latter did not know nor inquire into the facts as to the use of either property. (P. 190.)</p> <p>2. —Same.</p> <p>See facts certified, held to present such issue as to use of two residences as homestead as to require the submission of the issue of estoppel of the owner, in favor of a mortgagee loaning money upon one on the representation that it was not the homestead. (Pp. 187-190.)</p> <p>3. —Case Distinguished.</p> <p>Texas Land and Loan Company v. Blalock, 76 Texas, 85, distinguished. (Pp. 191, 192.)</p> <p>4. —Estoppel—Homestead—Representations.</p> <p>Where the circumstances are such as to present the question of estoppel by representations as against a homestead claim, the rule applies that the party making representations intending that they should be acted on will not "ordinarily be heard to say that the other should not have believed them. (Pp. 191, 192.)</p> <p>5.—Charge.</p> <p>See facts under which a charge as to mere incidental use of property as a home was not warranted. (Pp. 187, 190, 191.)</p>

<p>1. —Practice on Appeal—Agreed Case.</p> <p>Upon an agreed case embodying the evidence necessary to present the issue of law agreed on, it must be presumed that every other fact necessary to sustain the judgment was proved, and was omitted because not deemed necessary to a revision of the particular question. (P. 197.)</p> <p>2. —School Land—Sale—Actual Settler.</p> <p>The sale to another, by a purchaser of school land as an actual settler, who has not perfected his claim by residence thereon for three years, gives to, the vendee no rights against the State except to be substituted as an actual settler by complying with article 4218k, Revised Statutes; and an abandonment of settlement by the original purchaser, without such substitution, is cause for forfeiture and opening the land to settlement. (Pp. 198, 199.)</p>

The county sued the cattle company and obtained judgment which, on the latter’s appeal, was in part reversed and rendered, and the county obtained writ of error.

<p>Homestead—Pretended Sale—Lien—Innocent Purchaser.</p> <p>A husband joined by his wife made a deed to their homestead reciting a consideration, part • cash (which was not pail) and part a note, which was executed by the grantee and negotiated by the husband to an innocent purchaser; the whole was a scheme between the husband and the grantee to raise money on the homestead, but was believed by the wife to be an actual sale. Held:</p> <p>(1) The. transaction was a pretended sale of the homestead involving a condition of defeasance, pronounced void by the Constitution, and neither title to or lien on the property was created as between the parties. (P. 214.)</p> <p>(2) But as to the innocent purchaser of the note the parties are held to the transaction as they have'made it appear, and the lien so apparently created could be enforced. (Pp. 214, 215.)</p> <p>(3) This rule rests on the rights of bona fide purchasers, not on estoppel by fraudulent conduct, and applies to cases where the wife had no knowledge that the instrument was other than an absolute deed. (P. 215.)</p>

<p>1. —Gift—Delivery—Evidence—Declarations.</p> <p>Declarations by a decedent are competent evidence to prove the delivery, as well as the gift, to a relative, of a policy of insurance payable to personal representatives. (Pp. 219-221.)</p> <p>2. —Same.</p> <p>Since a gift was not complete without delivery, declarations of decedent that he had given a certain insurance policy to his sister could be considered by the jury as evidence of delivery, and support a finding thereof. Chevallier v. Wilson, 1 Texas, 160, distinguished. (Pp. 221, 222.)</p>

<p>1. —Infectious Disease—Negligence—Remote Result.</p> <p>Negligence in permitting one of its employes sent to the company hospital for treatment to be there infected with smallpox, was not a ground for holding the company liable to a third party thereafter infected from such employe. (P. 232.)</p> <p>2. —Quarantine—Immunity from Liability.</p> <p>An individual or private corporation voluntarily undertaking the medical treatment and quarantining of a smallpox patient can not claim the exemption from liability for acts of its officers or agents enjoyed by a city while discharging such duty. (P. 232.)</p> <p>3.—Railway—Hospital—Quarantine—Infectious Disease—Negligence.</p> <p>A railway company undertaking to maintain quarantine over and furnish medical attention to one of its employes infected with smallpox, becomes liable to third parties for negligence in maintaining such quarantine, whereby the patient wandered away while delirious and infected with the disease. (Pp. 229-234.)</p>

Questions certified by the Court of Civil Appeals for the First District, in an appeal from Washington County. The respective opinions of the Court of Civil Appeals for the Fourth District, in Swain v. Mitchell, and of the First District in this case, as; originally delivered, were as follows: Fly, Associate Justice (From opinions delivered in Swain v..

<p>Estates—Appeal to District Court—Time for Filing Bond.</p> <p>Appeal bond from county to district court in probate proceedings must be filed within fifteen days from the rendition of the order complained of; if not, it is too late, though filed within that time from the overruling a motion for new trial. (Pp. 243-246.)</p>

<p>Original application for writ of mandamus.</p> <p>McCurdy and Daniels sued for mandamus to compel the Court of Civil Appeals for the Second District to certify a question to the Supreme Court.</p> <p>The substance of the answer of respondents to the petition for mandamus was as follows:</p> <p>Now come the respondents and demur to the petition for mandamus, upon the ground that there is no conflict between the decision of the Court of Civil Appeals for the First District in the case referred to. of Branch v. Simons, 48 Southwestern Reporter, 40, and the decision rendered by the Court of Civil Appeals for the Second District in the caso of Yoacham v. McCurdy & Daniels, for that it was held in Branch v.. Simons that in no view of that case admissible under the evidence could the instruction there complained of operate harmfully.</p> <p>But if mistaken in this, and there be conflict between the two decisions, then they demur to the petition upon the ground that the very question involved in this conflict has already been decided by the Supreme Court in the case of Scott v. Pettigrew, 72 Texas, 321, and Ayres v. Harris, 77 Texas, 108, as will be seen from an examination of the opinions in these cases, in the first of which a charge substantially identical with that passed upon in Yoacham v. McCurdy & Daniels was held to be erroneous and to require a reversal of the judgment; and, to the extent that such charge was held to be erroneous in the opinion in Scott v. Pettigrew, it was impliedly, if not expressly, approved in Ayres v. Harris; but in the latter case the charge was held, under the peculiar circumstances of that case and attitude of the party complaining, not to require a reversal of the judgment.</p> <p>They further demur to that part of the petition which sets up a conflict between the decision of the Court of Civil Appeals of the Second District and of the Supreme Court, because that is not made a ground by the Act of May 9, 1899, for certifying any question to the Supreme Court.</p> <p>But if these demurrers should be overruled, then they answer further and say, denying the alleged conflict or conflicts of decisions, that if there be conflict between the decisions of the courts of civil appeals as alleged, that that conflict has already been settled by the decisions of the Supreme Court in Scott v. Pettigrew, 72 Texas, 321, and Ayres v. Harris, 77 Texas, 108, and that it was upon this ground that the motion to certify was refused, as will be seen from the opinion of this court, a certified copy of which is hereto attached and marked exhibit “A.” .See also copy of original opinion, exhibit “B.”</p> <p>The view was then entertained and expressed, and is here reiterated, that it could not have been the purpose of the Legislature in passing the law of 1899 to require the courts of civil appeals to certify to the Supreme Court of Texas for decision a question which had already been, expressly decided by the court of final jurisdiction. This view is strengthened when the statutes' affecting the jurisdiction of the Supreme and appellate courts are examined, for we find in article 941 of the Revised Statutes, that provision is made for a writ of error in cases in which the decision of the courts of civil appeals may be in conflict,, and also where the decision of the Court of Civil Appeals complained of is. in conflict with a decision of the Supreme Court, the purpose of which, evidently was to correct errors of the courts of civil appeals in the class; or classes of cases of which it was intended that the Supreme Court should have jurisdiction by writ of error, while the Act of 1899, without intending to change the general rule on the subject of the jurisdiction. of the Supreme Court in such Cases, in order to prevent the confusion arising from conflicts among the decisions of the courts of civil appeals, went a step further and provided a method of settling such conflicts; but evidently, if a decision of the Supreme Court could be found covering the question of conflict, we respectfully submit that we can see no good reason for requiring that court to repeat its decision. We consequently concluded, in disposing of the motion to certify, that it was not only our duty to refuse to grant the motion, but that we would-subject ourselves to the just criticism of the Supreme Court by doing so, for thus holding that it required two or more decisions of the Supreme Court to settle one conflict between the courts of civil appeals.</p> <p>But if these views should be overruled, and your honors should hold that we should certify the question involved, we are both ready and willing to do so.</p>

<p>1.—Corporation—Contract—Permit to Do Business.</p> <p>Corporations created in other States may purchase land or personal property in Texas, if authorized by their charters; such purchase, if made outside -the State, did not constitute the “transaction of business within the State” prohibited, save after obtaining permit, by articles' 745, 746, Revised Statutes, nor violate any law of Texas. (P. 257.)</p> <p>-2.—Contract—Assignment.</p> <p>A contract by a street railway company with a land company, to operate a line of street railway was assignable (Revised Statutes, article 308); and a purchaser from the land company, of its property and rights under such contract, could maintain an action for failure to so operate it. (Pp. 257, 258.)</p> <p>3.—Case Stated.</p> <p>A land company created by the State of Maine," having obtained permit to ■do business in Texas and owning and developing a suburban addition, contracted ■•■with another company to build and operate a street railway line thereto; its property and contract rights were acquired, through conveyances made in the .State of New York, by another Maine corporation, which did not then have, but afterwards obtained, a permit to do business in Texas. Held, that such assignee could maintain suit against the street railway company for its failure to operate .the street car line as it had agreed. (Pp. 253-258.)</p>

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p>

<p>Questions certified from the Court of Civil Appeals foi the Second District, in an appeal from Tarrant County.</p>

<p>1.—Taxation—Franchise—Case Limited.</p> <p>Decision in State v. Austin & Northwestern Railway Co., 94 Texas, 530, limited and distinguished. (P. 274.)</p> <p>Ü.—City Charter—Franchise Tax.</p> <p>Under section 118 of its special charter, the city of Dallas has power to tax -the franchises of a street railway company, whether as part of its tangible property, or separately, and section 134 of the charter does not require such assessment to conform to the law for assessing State taxes. (Pp. 275.)</p> <p>3. —Same—Statutory Construction—Permission or Command.</p> <p>Though words of permission, and not of command, may, when used with reference to the duties of a public officer, imply a duty and make the law mandatory, such construction will be governed by the intent of the Legislature as deducible from the nature and subject matter of the statute, its context, and other laws referred to therein. (Pp. 275, 276.)</p> <p>4. —Same.</p> <p>An authority conferred on a city council to assess corporate property and .shares as same are or may be assessed by State law, will not restrict their power to the manner prescribed for the State, where a subsequent section of the charter gives the council control over the manner of assessment. (Pp. 276, 277.)</p> <p>•5.—Same.</p> <p>The authority given by section 134 of the charter of the city of Dallas to assess corporate property and shares as same are or may be assessed by State law, applies only to corporations subject to special requirements by the State as to the mode of assessing their assets. (Pp. 276, 277.)</p> <p>6—Corporation—Ordinance—Annual Payment—Franchise Tax.</p> <p>■ The requirement of the payment of a fixed annual charge or bonus to the city, by ordinance granting to a street railway company the right to use public streets, will not preclude the city from imposing an ad valorem tax on such franchise as property of the corporation; but the condition is to be considered in determining the value of the franchise. (Pp. 277, 278.)</p> <p>7.—Same.</p> <p>Where the right to use 'streets was granted a corporation on condition of payment of an annual sum described in the ordinance as a franchise tax, this will not prevent the imposition of an ad velorem tax on the value (burdened by such condition) of the franchise; it was beyond the power of the city to contract for commutation of taxes legally assessable. (P. 278.)</p> <p>8.—Practice in Supreme Court.</p> <p>Errors not assigned in the Court of Civil Appeals will not be considered by the Supreme Court. (P. 278.)</p>

Weld & Seville and others sued the Bailroad Commission of Texas,, and obtained judgment, from which defendant appealed. The appeal, having been dismissed because the judgment appealed from was held not, final, the Bailroad Commission obtained writ of error.

■ Error to the Court of Civil Appeals for the Fourth District, in an appeal from Dallas County. Suit was brought by Patton and others against Tenison, with judgment for plaintiff, affirmed on appeal by defendant, who then obtained writ of error.

<p>1. —Land Office—Purchaser—Reinstatement—Mandamus—Legal Remedy.</p> <p>An applicant who, by compliance with the law for purchase of school land, has been awarded the right to buy certain lands by the Land Commissioner, when the latter has wrongfully canceled such award, is entitled to mandamus to compel his reinstatement as such purchaser, the remedy being necessary in order to enable him to complete his payments and receive patents, though as-against adverse claimants he has a legal remedy by suit in trespass to try title. (Pp. 303, 304.)</p> <p>2. —School Land—Lessee—Prior Right to Purchase—Assignee.</p> <p>The prior right to purchase school lands as an actual settler, secured to a. lessee thereof for sixty days after expiration of his lease by section 6 of the' Act of April 19, 1901 (Laws, 1901, page, 296), is given to the lessee only, and. not to his assignee. (Pp. 304, 305.)</p> <p>3. —Absolute Lease Line—Improvements—Renewal—Sale.</p> <p>The lessee of a section of land in the absolute lease district who has placed' thereon improvements of the value of $200, is given, by the exception contained, in section 5 of the Act of April 19, 1901, a right to renew his lease upon its expiration, without having the land first exposed to sale for sixty days, but unless; he does so the land remains, during the sixty days, open to purchase or lease; by another applicant. (Pp. 305, 306.)</p> <p>-4.—School Land—Lease—Expiration of Term.</p> <p>See opinion as to whether a lease of school land for two years, made on ¿August 26, 1899, had expired on the morning of August 26, 1901. (P. 306.)</p> <p>¡5.—School Land—Expiration of Lease—Premature Application to Purchase.</p> <p>It seems that an application to purchase leased school land within the absolute lease district, made before the expiration of the lease, ought not to prevail over an application made after its expiration; since every qualified person should have an equal chance in the race of diligence after the expiration of the term placed the lands again on the market. (P. 306.)</p> <p>6. —Same.</p> <p>Where application to purchase leased school land was filed with the county clerk on the last day of the term of the lease, and was received and acted on by the Commissioner of the General Land Office after the expiration of the term, it would be but an empty form to require a renewal of the application, where no superior intervening rights had attached and an award made to the applicant by the Commissioner gave him a right to the land. (Pp. 306, .307.)</p> <p>7. —Purchase of School Land—Settler—Additional Sections—Aggregate Amount.</p> <p>Under article 4218f, Revised Statutes, as amended (Laws of 1897, page 184; Laws of 1901, page 294) the limitation of the right of a settler to purchase school lands to four sections means four original surveys, though they do not embrace an aggregate of 2560 acres. A settler whose “home” was a quarter section of 160 acres, and who had purchased in addition two sections of 640 acres each and another survey known in the Land Office and described in his application as “section 65,” but containing only 457 acres, could not purchase a fourth “additional section,” making five surveys, though aggregating only 2537 acres. (Pp. 307-309.)</p>

The defendant railway companies appealed from a judgment rendered in plaintiff Cushney’s favor, and on affirmance obtained writ of error.

<p>Questions certified from the Court of Civil Appeals, First District, on writ of error from Harris County.</p>

Hettich sued the Hilljes to recover damages for personal injuries received while working in their employ, and recovered a judgment which was affirmed on their appeal, whereupon they obtained writ of error.

<p>1. —Secondary Evidence—Writings Beyond Jurisdiction.</p> <p>Secondary evidence may be received of the contents of an instrument which is beyond the jurisdiction of the court and will not be produced voluntarily by the holder. Sayles v. Bradley, 92 Texas, 406, followed. (P. 331.)</p> <p>2. —Same—Efforts to Produce the Original.</p> <p>Showing of effort to produce the original of an instrument in possession of a third party beyond the jurisdiction, as a basis for secondary evidence, if necessary at all, need not be made where circumstances indicate that the effort would be unavailing, as where the writing was a voucher useful to the possessor in keeping his accounts. (P,p. 331, 332.)</p> <p>3. —Opinion—Market Value.</p> <p>Opinion as to market value of cattle is not admissible where the witness, shows no knowledge except from an inquiry and offer from one person. (P. 332.).</p> <p>4. —Same—Harmless Error.</p> <p>See opinion for facts under which improper admission of opinion evidence ■as to market value was held not to be such error as required reversal. (P. 332.)</p> <p>5. —Damages—Price Paid by Plaintiff.</p> <p>Evidence of the price plaintiff paid for the property on which damages were claimed was not admissible. (Pp. 332, 333.)</p>

<p>Question certified from the Court of Civil Appeals, Second District, in an appeal from Montague County.</p>

<p>Pleading—Cancellation—Married Woman’s Deed.</p> <p>The presence of the grantee at the time the privy acknowledgment, by a married woman, of a conveyance of her land is taken, can not be considered as •a ground of canceling same when not alleged in the pleading. (P. 336.)</p>

<p>Questions certified from the Court of Civil Appeals for the Second District, in an appeal from Bosque County. ■</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an. appeal from Bexar County.</p> <p>Harris sued and had recovery against the railway company, which appealed, and on affirmance obtained writ of error.</p>

<p>1.—Writ of Error—Overruling Decision—Jurisdiction.</p> <p>Refusing a writ of error, sought on the ground that the ruling of the appellate court herein holding that a petition abandoned by amendment could be introduced in evidence as an admission by plaintiff overrules the case of Coats v. Elliott, 23 Texas, 612, so as to give the Supreme Court jurisdiction over a case reversed and remanded, it is held that there was no overruling or well defined conflict, the expression of a contrary view in Coats v. Elliott being mere dictum. (Pp. 351, 352.)</p>

Caroline Sehultze sued Billing and others, and appealed from the judgment, Billing assigning cross errors. On its affirmance both parties obtained writs of error.

Boss and wife sued Mrs. McGuire upon a note and for foreclosure, joining as defendant Casbeer, who claimed the land and vouched in Lewis as his warrantor. Plaintiffs had judgment for .debt and foreclosure, and Casbeer judgment on the warranty. Lewis and Casbeer appealed and on affirmance of the judgment they obtained writ of error.

<p>Discovered Peril—Degree of Care—“All Reasonable Efforts.”</p> <p>A charge on the issue of negligence after discovery of peril incurred by a plaintiff through contributory negligence, which required defendant “to use all reasonable efforts at his command to avert the accident,” does not exact from defendant the use of more than ordinary care. (Pp. 365, 366.)</p>

<p>Trespass to Try Title—Plaintiffs Claiming in Common—Recovery by One.</p> <p>Though several plaintiffs join in trespass to try title, claiming interests in common, there may be proof of title in and recovery by one only, in his separate right. Pasch. Dig., art. 1476; Rev. Stats., 1879, arts. 1335, 1336, 4807; Rev. Stats., 1895, arts. 5271, 5260. (Pp. 367, 369.)</p>

Blount sued Douglass and others, and had judgment from which Douglass appealed and on its affirmance obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Dimmitt County.</p>

Original application for writ of mandamus to the Secretary of State' to compel him to file the charter of a proposed corporation.

Johnson sued 'the railway company for personal injuries from defendant’s negligence. He had judgment and defendant appealed. Judgment was affirmed, and appellant thereupon obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the Fifth District, in ar appeai from Johnson County.</p>

The telegraph company appealed from a judgment recovered against it by Swearingen, and on its affirmance obtained writ of error.

<p>1.—Railway—Trespasser—Rescuing Child.</p> <p>One does not become a trespasser nor chargeable with contributory negligence by going upon a railway track to rescue a child from danger; nor is he a trespasser if injured while running along the track for such purpose, though he was wrongfully upon it when he discovered the child’s peril and attempted its rescue. (Pp. 427, 428.)</p> <p>:2.—Declarations—Res Gestae.</p> <p>The statement of a locomotive engineer, six minutes after the transaction, that they “came near running over a man down there,” is admissible as part of the res gestae. (P. 428.)</p> <p>3.—Crossing—Statutory Signals—Causal Connection.</p> <p>When plaintiff was injured on the railway, not at a crossing, by falling into :a trestle while running along the track to rescue his child, which was following ¡him, from a train of the approach of which he was made aware before the peril arose, a failure to whistle and to ring and continue to ring the bell while approaching a crossing, as required by the statute, had no such causal connection with the injury as to justify its submission to the jury as negligence creating liability if it caused the accident. (Pp. 428, 429.)</p>

Writ of error to the Court of Civil Appeals for the Fifth District, in an appeal from Hunt County. The bank sued Ablowich to recover on a note and foreclose a lien, and recovered a judgment for the debt and foreclosure, from which the defendant appealed, and upon its affirmance he obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from De Witt County.</p>

<p>Writ of Error—Remanded Case—Overruling Decision.</p> <p>Where the jurisdiction of the Supreme Court over a reversed and remanded case depends on the overruling of its own decision by a court of civil appeals (Revised Statutes, articles 941, 942, 943), the writ is granted only when error is found in the judgment. (Pp. 437, 438.)</p>

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from the County Court of Harris County.</p>

<p>Question certified from thé Court of Civil Appeals for the First District, in an appeal from Austin County.</p>

Coleman County sued Steward and Hubert, with others, and appealed from a judgment in Steward’s favor. The judgment being reversed and rendered for appellant, Steward obtained writ of error.

<p>Question certified from the Court oí" Civil Appeals for the Fourth District, in an appeal from Menard County.</p>

<p>1. —Suit Against Land Commissioner—Intervention—Adverse Claimant.</p> <p>In a suit against the Commissioner of the General Land Office to enforce rights claimed by plaintiff to acquire public land, one claiming the land by location subsequent to plaintiff’s is not' entitled to intervene. Commissioner v. Smith, 5 Texas, 471, and Chappell v. Rogan, 94 Texas, 492, distinguished, as being cases where the Commissioner denied plaintiff’s claim because of the superior rights of a prior locator. (Pp. 453, 454.)</p> <p>2. —Mining Law—Purchase of School Land—Geological Survey.</p> <p>Land made known to Commissioner of the General Land Office as mineral bearing, by the filing of a mining claim in compliance with sections 4-7 of the Act of 1895 (Laws, 1895, page 197; Batts’ Revised Statutes, articles 3498d, e, f, and g), may be purchased from the State.under such act and by compliance with its terms, by such locator or his assignee, though never classified as mineral lands by the geological and mineralogical survey. (Pp. 454-461.)</p> <p>3. —Same—Power of Land Commissioner to Classify.</p> <p>See opinion as to the power of the Commissioner of the General Land Office to determine whether lands were mineral bearing, and if found to be so, to sell as such under the mining law of 1895, independently of their classification as such by geological and mineralogical survey or of information as to their character derived from the filing of a mining claim. (Pp. 455-461.)</p> <p>4. —Mineral Land—Classification—Statutes Construed.</p> <p>The reservation from sale under the general law of lands “specially included under the operation of the act,” contained in section 1 of the mining law of 1895 (Batts’ Revised Statutes, article 3498a), is not limited to lands designated as mineral bearing by the geological and mineralogical survey under section 2 of such act; the language of the law being uncertain in meaning, the injurious effect of a contrary construction upon the interests of the State as well as of owners of mining claims located under the previous law, the time required for such survey, the failure of the same Legislature to make appropriation for its continuance, the fact that other methods provided by the law would give the information, and the absolute right given to actual settlers to purchase lands not so reserved, with their minerals, as agricultural, grazing, or pasture lands, could all be considered in reaching the construction permitting the Land Commissioner other methods of ascertaining the lands reserved. (Pp. 455-461.)</p>

<p>Questions certified from the Court of Civil Appeals for the First District, in an appeal from Polk County.</p>

<p>1. —Garnishment—Unliquidated Damages.</p> <p>A claim arising upon contract, but for damages unliquidated and in their nature uncertain (as for injury to cattle in shipment through negligence of the carrier), is not subject to garnishment. (Pp. 488, 489.)</p> <p>2. —Same—Judgment—Supersedeas.</p> <p>A claim for unliquidated damages is not rendered a liquidated one, so as to be subject to garnishment by a judgment determining the amount, until it has reached that stage where it can not be set aside or reversed on appeal. P. 489.)</p> <p>3. —Same—Case Stated.</p> <p>A railway company, defendant in a suit for negligently injuring cattle transported by it, was garnished in a suit against the plaintiff by a third party, first before plaintiff recovered judgment against it; again, after the recovery of judgment, but pending its appeal with supersedeas, and again, after the judgment was affirmed but had been transferred to another by the plaintiff. Held,, that it was not liable as garnishee. (Pp. 487-489.)</p>

<p>Questions certified from the Court of Civil Appeals for the Fifth District, in an appeal from Freestone County.</p>

<p>1. —Railway—Carriage of Explosives—Nuisance.</p> <p>Though the mere fact that a railway has in its cars, for transportation, high explosives, threatening danger to persons or property along its line, does not render it guilty of a nuisance, as is the case with owners of magazines or places for storing such explosives creating unreasonable danger, a nuisance may result from its negligent exercise of the duty to carry such explosives, as in subjecting persons and. property along its line to danger for a longer time, or to a greater degree than necessary. (Pp. 499¿ 500.)</p> <p>2. —Same—Negligence.</p> <p>See circumstances attending the keeping of a car of high explosives standing on the track of a railway, in a town, unnecessarily long, and in a needlessly exposed situation, held to furnish evidence of negligence on the part of such carrier. (Pp. 497-501.)</p> <p>3. —Same—Proximate Cause.</p> <p>Injury to plaintiff’s residence by the explosion of a car of giant powder standing 800 yards away, upon the track of a railway, was not too remote to prevent recovery for negligence causing it, consisting in unnecessarily delaying the removal of the car. (P. 501.)</p>

<p>Question certified, on dissent, from the Court of Civil Appeals for the 'Third District, on error from Williamson County.</p>

The State, sued-the Houston & Texas Central Railway Company and ■Oleott for the recovery of land. Plaintiff had judgment and defendants appealed. The case was reversed and remanded; and both appellants and appellee, complaining of various rulings therein, obtained writ of ■error on the ground that the State was a party.

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from Galveston County.</p>

The State sued to recover from Greer County and the executor, etc., of Cameron, lands granted to that county in aid of public schools. Plaintiff had judgment against the executor, etc., of Cameron, who had survived; and this being affirmed on appeal, the executor, heirs, and devisees of Cameron obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Comanche County.</p> <p>Waits sued Lasater and others and recovered judgment, from which •defendants appealed, and on its affirmance they obtained writ of error.</p>

<p>Motion for leave to file petition for mandamus requiring a court of civil appeals to certify a question to the Supreme Court.</p>

<p>Original application by Ketner for writ of mandamus to Rogan, as. Commissioner of the General Land Office, Slaughter being joined as respondent.</p>

McCall sued the city of Austin and its mayor and city council to enjoin them from entering into a contemplated contract. The injunction was granted, was made perpetual on final hearing, and on appeal by defendants the judgment was affirmed, whereupon appellants' obtained writ of error.

<p>1. —Telegram—Care of Another—Delivery.</p> <p>The duty of a telegraph company transmitting a message addressed to the one for whom it was intended, but in care of another, was to deliver to the latter for the benefit of the former, and it is not relieved from this duty by having and complying with an agreement with the one to whose care it was addressed, and who lived beyond free delivery limits, that it need not send out messages to him, but could notify him by telephone. (Pp. 581, 582.)</p> <p>2. —Same—Conflicting Decisions.</p> <p>The conflict between the ruling of the Court of Civil Appeals in this ease and that of the court of the Second District in Thompson v. Telegraph Company is resolved, on certificate of the conflict, in favor of the latter decision. (Pp. 581, 582.)</p>

<p>Question certified from the Court of Civil Appeals for the Third District, in an appeal from Red River County.</p>

Teel and others sued the National Oil and Pipe Line Company,, together with Nicholson and Mundy, and recovered judgment, which was, affirmed on appeal by defendants, who thereupon obtained writ of error-

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Grayson County.</p> <p>Proffitt obtained writ of error upon the affirmance, on his appeal, of a judgment for defendant in a suit* brought by him against the railway company.</p>

Fourth District, in an appeal from Menard County. Walker sued Anderson in trespass to try title, and recovered judgment, from which Anderson appealed and on affirmance obtained writ of error.

<p>1. —Fire Insurance—Gasoline—“Kept, Used, or Allowed.”</p> <p>A policy of fire insurance conditioned to be void if gasoline was “kept, used, or allowed” on the insured premises, was not avoided by bringing gasoline into the house, on a single occasion and for temporary use, though the loss was occasioned thereby. (Pp. 599-603.)</p> <p>2. —Same—Words Construed.</p> <p>The word “kept,” in the clause of avoidance, implies storage, with some degree of permanency in its continuance; “used,” in connection with kept, a like permanent or habitual use of it; and “allowed,” not mere introduction upon the premises, but such keeping or using by others than insured. (Pp. 600-602.)</p> <p>3. —Same—Case Stated.</p> <p>Upon premises insured with a clause of avoidance if gasoline was kept, used or allowed on the premises, the wife of insured brought and partly used a gallon of gasoline in the afternoon; the unused portion, left standing in an open vessel, was that night accidentally ignited by a lighted* match being dropped into it. Held, that this was not such keeping, using, or allowing of gasoline on the premises as avoided the policy. (Pp. 599-603.)</p>

The State procured writ of error from a judgment of the Court of Civil Appeals affirming that of the trial court, which had denied it recovery and from which it had appealed.

<p>■ Original application for writ of mandamus to compel the Secretary of "State to file the charter for a private corporation.</p>

T. C. Black and others sued L. B. Black and others and recovered a judgment from which defendant Black appealed. On its affirmance he obtained writ of error.

<p>1. —Charge—Separate Defenses Submitted Conjunctively.</p> <p>A charge requiring a verdict for defendant if the evidence establishes certain facts, is not affirmative error as to him though it groups conjunctively facts establishing distinct defenses and requires a finding in his favor only on the •establishment of all such facts; the defect is one of omission, which should be corrected by a request for instructions submitting the defenses disjunctively, where nothing appears to indicate that the jury were misled by it. (Pp. 636, '638.)</p> <p>2. —Same—Cases Discussed.</p> <p>Railway v. Wood, 69 Texas, 679, and Railway v. Brown, 78 Texas, 402, approved and followed; Railway v. Conroy, 83 Texas, 216, questioned. (P. 638.)</p> <p>3. —Master and Servant—Assumed Risk—Custom of Doing Work—Reasonableness—Notice to Servant.</p> <p>The servant does not assume risks arising from the customary method of the master in doing the work unless the custom is a reasonable one and the servant .had or was chargeable with notice of it. (Pp. 637, 638.)</p> <p>4. —Same—Charge—Burden of Proof.</p> <p>See charge on assumption, by servant of the risks arising from the master’s customary maimer of working, held erroneous because ignoring the questions of reasonableness of the custom, and of the servant’s knowledge of its existence, and placing the burden on plaintiff to show that the injury was not from a risk so assumed. (Pp. 637, 638.)</p> <p>5. —Contributory Negligence—Burden of Proof—Charge.</p> <p>Where plaintiffs’ evidence made it necessary that they should explain the conduct of the servant, to exculpate him from the charge of contributory negligence, it was error to charge' that the burden of proof was upon the master to establish that defense, such charge being calculated to lead the jury to believe that they should consider, alone, the evidence offered by the defendant upon that issue. (Pp. 637, 638.)</p>

<p>Questions certified from the Court of Civil Appeals for the Fifth District, in an appeal from Collin County.</p>

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p>

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Walker County.</p> <p>Hunter and others sued Eastham and others in trespass to try title, appealed from a judgment for defendants, and on its affirmance obtained writ of error.</p>

<p>1.—Trial by Court—Appeal—Motion for New Trial.</p> <p>On trial before the court without a jury, no motion for new trial is necessary to authorize the making up of a statement of facts and the determination -of the appellate court thereon whether, on the most favorable view of the facts, the successful party was entitled to the judgment entered. (Pp. 660, 661.)</p> <p>3.—Same—Question of Law.</p> <p>The question whether the facts demand an instruction to the jury to find a certain verdict, is one of law, and, in a case tried by the court without a jury, there is no reason for a motion for new trial thereon, since the court must have passed upon it. (P. 661.)</p> <p>3.—Contract—Termination.</p> <p>, See correspondence between employer and employe, held to have terminated such relations between them and to justify the appellate court in so finding, reversing contrary decision of the trial court, and rendering judgment. (Pp. -658, 661.)</p>

<p>Error to the Court of Civil Appeals for the Third District, upon writ of error from Bell County.</p> <p>Alexander obtained writ of error upon the affirmance of a judgment, for defendants in his suit against Lovitt and others.</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Molan County.</p> <p>Curry and Arnold sued and obtained judgment against Logan, who •appealed, and on its affirmance obtained writ of error.</p>

<p>" Railroad Commission—Jurisdiction—Mandamus.</p> <p>The decision of the Railroad Commission that it had no jurisdiction over the issuing of bonds, by a suburban passenger road, was final; the Supreme • 'Court could not issue mandamus to compel them to exercise the jurisdiction. Rev. Stats., arts. 4580, 4584f, 642 subd. 21. (Pp. 671, 672.)</p>