Volume 98 — Texas Reports

<p>1. —Garnishment—Benefit Society.</p> <p>The sum .due from a fraternal beneficiary association, to the beneficiary named in its certificate, the wife of a deceased member to whom it was issued, was exempt from garnishment for the debt of such beneficiary by section 11 of the Act of May 12, 1899 (Laws, p. 199), regulating such associations. (Pp. 4-6.)</p> <p>2. —Constitutional Law—Equal Protection.</p> <p>The law regulating fraternal beneficiary associations (Act of May 12, 1899, p. 199) was not unconstitutional as denying the equal protection of the law (Const. IT. S., 14th Amendment; Const. Texas, art. 1, sec. 3) by reason of the exemption, in section 16 of said act, of the Order of Railway Conductors and other named organizations of railway employes from its operation. (Pp. 4-6.)</p> <p>3. —Same—Classification of Subjects.</p> <p>It does not appear on the face of the law (Act of May 12, 1899) that the organizations exempted from its operation fall within the definition of fraternal benevolent organizations by such act, and the contrary presumption would be indulged in support of the constitutionality of the law; on its face they are distinct classes; and, as a matter of common knowledge, they are labor organizations and not proper subjects for regulation by the Insurance Department. (Pp. 5, 6.)</p>

Quebe sued the railway company and appealed from a judgment for the defendant. On affirmance he obtained writ- of error.

<p>Supreme Court—Mandamus—Question of Fact.</p> <p>The Supreme Court will not entertain an original proceeding for writ of mandamus against the Commissioner of the General Land Office where the answer discloses an issue between the parties as to the facts. (P. 15.)</p>

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

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Childress County.</p> <p>Roberts sued the railway company and recovered judgment. On defendant’s appeal the judgment was affirmed in part and in part reversed and rendered. Appellant thereupon procured writ of error.</p>

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

<p>1. —Guardian—Compromise of Debt.</p> <p>The power of a guardian as at common law (Rev. Stats., arts. 1867, 2558) to compromise or compound and release debts is restricted by Revised Statutes, article 1987, and can only be exercised by authority of an order of the county court entered upon its minutes. (Pp. 60, 61.)</p> <p>2. —Same—Payment Before Maturity.</p> <p>The guardian has authority to collect debts without order of the court, and his receipt of a part of a debt not yet due bound the ward as to the part so paid, though his release of the remainder of the indebtedness, by eompromise in consideration of such payment, did not. (P. 61.)</p> <p>3. —Guardian—Assignment of Note.</p> <p>The authority of a guardian as at common law to sell and assign a promissory note belonging to the ward’s estate (Gayle v. Ennis, 1 Texas, 184; De Cordova v. Atchison, 13 Texas, 372) was taken away by Revised Statutes, 1879, article 2113, which prohibited the sale of personal property without order of the court, and the guardian’s successor could recover the amount of the note from the assignee who had converted it. (Pp. 61, 62.)</p> <p>4. —Guardian—Surety—Subrogation.</p> <p>The surety on a guardian’s bond who had settled with his successor for his default, was entitled to be subrogated to the rights of such successor against those who had converted the property. (P. 62.)</p> <p>5. —Case Stated.</p> <p>A guardian, by order of court, sold two tracts of land, half her own property and half that of the ward’s, partly for cash and partly for notes; she then collected the amount of the notes for deferred payments on one tract, in advance of maturity, discounting them 10 per cent, and sold and assigned the notes for the deferred payments on. the other tract; she converted all these proceeds to her own use, was removed, and her surety settled with her successor for her defaults. Held, that the surety was entitled to subrogation to the rights of the guardian, which were to recover against the maker of the notes who had discounted them by advance payment one-half of the difference between what he paid and the principal of his notes with interest to the date of the judgment, and against the assignee of the sotes one-half their amount with interest. (Pp. 59-62.)</p>

Original application to the Supreme Court for leave to file petition for mandamus to require the Court of Civil Appeals to certify a question.

The railway company sued for and had judgment enjoining the Eailroad Commission from requiring it to construct a spur track to the premises of the lumber company, for the accommodation of its business. Defendants appealed and applied for writ of error on the affirmance of the judgment.

<p>1. —City—Taxation—Inhabitants.</p> <p>The law conferring upon a city of more than ten thousand inhabitants the right' to levy taxes exceeding the rate permitted in cities having less than that number, implied a- grant of authority to the city to ascertain, by any reasonable and suitable method, the facts upon which the right to levy such tax depends, no method for their determination being prescribed by the statute. (P. 75.)</p> <p>2. —Same—Resisting Collection.</p> <p>Where a city incorporated under the general law having taken a census and declared the result to show more than ten thousand inhabitants, assumed the powers .of a city of such population, its right to levy the taxes permitted to such a city could not be questioned by a private taxpayer, in a suit for recovery of his taxes by the city, on the ground that it had not, in fact, the population entitling it to levy such rate; the question of its authority could only be determined by a quo warranto proceeding. (P. 75.)</p> <p>3. —City Bonds—Suit for Taxes.</p> <p>Suit for the collection of taxes to meet interest and sinking fund on refunding bonds for an indebtedness for waterworks, issued by a city acting as one having more than ten thousand inhabitants, can not be defeated by a taxpayer on the ground that the bonds were invalid for want of the requisite population to authorize their issuance. (Pp. 75, 76.)</p>

<p>1. —Witness—Conviction of Crime—Record Evidence.</p> <p>The record, which it is necessary to produce in order to show a witness disqualified by conviction for crime, is that of the sentence; the judgment following verdict, under the criminal procedure of Texas, will not suffice. (P. 78.)</p> <p>2. —Charge.</p> <p>Plaintiff claiming to recover on the ground that he was struck by a car while crossing the track, a requested charge requiring verdict for defendant if he was injured while crawling under a car should, upon the evidence in this case, have been given. (P. 79.)</p>

The Vaughan Lumber Co. and others prosecute error from a judgment of the Court of Civil Appeals reversing and rendering against them a judgment of the trial court awarding their claims priority in thy settlement of a receivership. The case was before the court under a different style and from a former appeal in Sullivan & Co. v. Texas B. & C. Co., 94 Texas, 541.

<p>Jurisdiction of Supreme Court.</p> <p>Conflicting claims of plaintiff and defendant to the land in controversy as embraced within the limits of different surveys to which they respectively claim title present a question of boundary, in which the Supreme Court has no jurisdiction to grant writ of error. (Pp. 84, 85.)</p>

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

<p>Railway—Nuisance—Stock Pens.</p> <p>The conveyance to a railway company of depot grounds in a town, with right to the transaction thereon of all business connected with or incident to said railway, did not relieve the company from liability for depreciation of the value of residence property in the vicinity by a nuisance incident to the proper construction and operation subsequently of stock pens for loading-cattle on its cars upon the premises so granted, though the owner held by purchase .from the same grantor subsequent to the conveyance to the railway. (Pp. 98, 99.)</p>

<p>Application for writ of error to the Court of Civil Appeals for the Third District, in an appeal from Falls County.</p> <p>On appeal by the defendant railway company from a judgment recovered by Hall and others in the District Court, the judgment was reversed and the cause remanded; whereupon appellees, the plaintiffs below, applied for a writ of error on the ground that the decision overruled a previous decision by the court of the First District.</p>

<p>1. —Certified Question—Charge.</p> <p>The court decline to pass upon a certified question as to whether it was error to give a certain charge, where the instruction in question is not shown by the certificate, the briefs, or the opinion of the Court of Civil Appeals, though its general nature is shown by the certificate. (P. 104.)</p> <p>2. —Death—Minor Son—Measure of Damages.</p> <p>An instruction giving, as the measure of plaintiff’s damages for the death of his minor son, the value, as a present payment, of the aid reasonably to be expected of him after majority and the value of his services during minority, was not prejudicial to defendant as giving a mathematical rule for their estimation. (P. 104.)</p>

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

an appeal from Hunt County. Huff sued and recovered judgment against the railway company which was affirmed on appeal by the defendant, who thereupon sued out writ of error.

Cummings sued the insurance company upon a fire insurance policy, and the Alvin Exchange Bank intervened as the real plaintiff in interest, and had judgment. The insurance company appealed, and, on affirmance, obtained writ of error.

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

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

<p>Community Property—Nonresident.</p> <p>Without deciding whether the presumption that property acquired during marriage was community applied in case of its acquisition by residents of another State, the ruling of the Court of Civil Appeals that if such presumption existed it was here overthrown by the evidence is approved. (P. 145.)</p>

Bast sued the railway company and judgment went for defendant. Bast appealed and the judgment was reversed and rendered in his favor on the findings of fact made by the trial court. The defendant company 'then obtained writ of error from the Supreme Court.

<p>Error to the Court of Civil Appeals for the Fourth District, in an-appeal from Bexar County.</p> <p>Talerico sued the city for damages and the latter made the orphan asylum a party to its plea to be indemnified by the latter against plaintiff’s recovery. Demurrers on behalf of the orphan asylum were sustained to defendant’s plea against it, and plaintiff recovered against the city. The judgment being affirmed on appeal, the city obtained writ of error.</p>

Anderson sued the elevator company and recovered a judgment from which the defendant appealed and, on its affirmance, obtained writ of error.

<p>1. —Unrecorded Deed—Notice—Possession.-</p> <p>Possession is notice of the title acquired by one tenant in common from a cotenant, by unrecorded deed, though such possession is consistent with the recorded title- (Pp. 164, 165.)</p> <p>2. —Same.</p> <p>One of five heirs of a tract of land, having purchased the interest of two cotenants, held possession by tenants of the land so claimed; such possession was notice of the rights of such grantee to one claiming under execution sale the title of the grantor in the unrecorded deed. Wimberly v. Bailey, 58 Texas, 222, followed. (Pp. 164, 165.)</p> <p>ON MOTION FOR REHEARING.</p> <p>Findings by trial court, in absence of a statement of facts, that a deed by heirs of a parent who died in 1903 was made in 1885, two years after the parent’s death, seem to indicate that the date 1885 was a clerical mistake for 1895. (Pp. 165, 166.)</p> <p>4. —Same—Practice in Supreme Court.</p> <p>A plaintiff in error is confined, in the Supreme Court, to the points made in the Court of Civil Apeáis, and can not maintain a proposition based on the assertion that the facts were otherwise ■ than he conceded them to be in the appellate court. (Pp. 166, 167.)</p> <p>5. —Findings—Deed—Interest of Grantors.</p> <p>It is not inconsistent with a finding, in general terms, that grantors in a deed, made before they acquired by inheritance an interest in the land in question, conveyed thereby their interest in the land, that the deed may have described such interest conveyed, or have conveyed their expectancy as heirs so as to operate as a conveyance of their title subsequently inherited. (P. 167.)</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Tarrant County.</p> <p>Charbonneau appealed from a judgment of the District Court, on appeal from the County Court rejecting his claim against the estate of Bouvet on a note, and on affirmance obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Third District, in an. appeal from Tom Green County.</p> <p>Weisman and others sued Thomson for the recovery of land. Judgment was rendered for defendant and plaintiffs appealed. The judgment being reversed and rendered for appellants, Thomson obtained writ of error.</p>

The mortgage company sued Norris for foreclosure and appealed from a judgment allowing it only a partial recovery. The judgment was reversed and rendered, whereupon Norris obtained a writ of error and the company’s application for writ of error was also granted.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Cooke County.</p> <p>The Bank sued Robinson and Hoskins with others, and had judgment against them, which was affirmed on their appeal, whereupon appellants obtained writ of error.</p>

The insurance company, having prosecuted error from a judgment recovered against it by Nunn on a policy of insurance, on affirmance obtained writ of error from the Supreme Court.

Carter sued the railway company and recovered a judgment for damages for personal injury, which was affirmed on appeal by defendant, who thereupon obtained writ of error from the Supreme Court.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Haskell County.</p> <p>Jamison and others sued Dooley a-nd others for the recovery of land, defendants had judgment and plaintiffs appealed and on affirmance obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>Payne sued the Dallas Rapid Transit Railway Company for personal injuries received as a passenger while alighting from a car in motion, and recovered judgment. On defendant’s appeal it was affirmed and appellant thereupon procured writ of error.</p>

<p>1. —Condemnation—Public Land—Damages—Notice.</p> <p>The county may lay out a public road across inclosed lands without notice to the owner, but can not assess the damages without giving him notice and opportunity to be heard. (Pp. 223-225.)</p> <p>2. —Same—Statutes Construed.</p> <p>Construing Revised Statutes, articles 4674-4681, it is held that the reference to article 4371, Revised Statutes of 1879, contained in section 3 of the Act of February 7, 1885 (which act is incorporated in said articles), is to be construed in connection with the preceding article (4370, Rev. Stats., 1879) and permits the opening of the road only upon written consent of the owner or assessment of damages made after refusal of such consent. (Pp. 224, 225.)</p> <p>3. —Same.</p> <p>An order of the commissioners court laying out and declaring open a public road in 1891, without any notice to the owner or appointment of a jury to assess damages, though made upon a report of the jury of view laying out the road that' no damages were incurred, did not authorize the opening of the road as against an owner not consenting, nor constitute a defense to his action against the sheriff for taking down his gates as an obstruction of the highway, or against the commissioners for ordering such proceeding; notice of assessment to the owner was necessary, and the jury of view were not authorized to assess damages. (Pp. 222-225.)</p> <p>4. —Same—Revised Statutes, 1895.</p> <p>It seems that the reference in article 4676, Revised Statutes, 1895, to article 4690, for the provisions governing the appointment of a jury to assess damages, is a mistake, article 4690 containing no such provisions. (P. 225.)</p>

Larkin sued the railway company for damages for a personal injury and recovered judgment, which was affirmed on defendant’s appeal. Appellant thereupon obtained writ of error.

<p>1.—Life Insurance—Forfeiture for Nonpayment—New York Statute.</p> <p>The New York statute requiring notice before forfeiture of a life insurance policy for nonpayment of the premium has no bearing on the question-of forfeiture of an insurance contract made in Texas by a New York company, in the absence of stipulations in the contract sufficient to import the provisions of such statute into it. (Pp. 232-236.)</p> <p>2.—Same—Cases Distinguished.</p> <p>Washington Life Ins. Co. v. Berwald, 6 Texas Ct. Rep., 919, 8 Texas Ct. Rep., 352; New York Life Ins. Co. v. English, 95 Texas, 391; New York Life Ins. Co. v. Orlopp, 61 S. W. Rep., 336; Germania Life Ins. Co. v. Peetz, 47 S. W. Rep., 687; Mullen v. Mutual Life Ins. Co., 89 Texas, 259, distinguished-from present case. (P. 233.)</p> <p>3.—Contract—Lex Loci.</p> <p>The rule that a contract of insurance should be regarded as made in-the State where the policy was executed and mailed for delivery to insured in another State and should be governed by the law of the State of its execution, does not import, into- the contract laws of such State which by their-terms apply only to contracts to be performed in that State. (P. 234.)</p> <p>4. —Same.</p> <p>The presumption that a provision in the laws of a State where a contract is made was intended by the parties to constitute a part of the contract, does not apply where the contract itself expressly provides a different rule upon the subject from that laid dowh in the statute. (Pp. 234-236.)</p> <p>5. —Case Stated.</p> <p>A policy of life insurance executed by a New York company in that State and forwarded by mail for delivery to insured, who resided in Texas, and which provided for forfeiture on default in payment of subsequent premiums, notice of which to the insured was expressly waived by the terms of the policy, was forfeited by the failure of insured to pay such subsequent premiums, though the statute of New York provided that such forfeiture-should not take place on policies issued by insurance companies doing business in that State, except upon notice mailed to the postoffice address of insured in that State. (Pp. 232-236.)</p>

Applications for writs of error to the Court of Civil Appeals for the Fifth District. Action against the Texas Portland Cement and Lime Company for negligence, causing the death of A. G. Lee, brought by his widow, Pearl Lee, joined by the parents of deceased. All the plaintiffs were awarded damages. On defendants’ appeal the recovery by the widow was allowed to stand and that by the parents reversed.

<p>1. —School Land—Contested Title.</p> <p>A Commissioner of the General Land Office can not be compelled to sell as school land, to an applicant, lands as to which there is a dispute as to the title between the State and parties claiming under a prior though incomplete grant of the same by the States of Coahuila and Texas. (Pp. 238, 239.)</p> <p>2. —Same—Settling Title.</p> <p>The policy evidenced by the eighth section of the Act of February 23, 1900, appropriating the public domain to the school fund, was to first establish its title to lands claimed by third parties, through suit brought by the Attorney-General, before putting such lands upon the market for sale. (P. 239.)</p>

Bostick sued and had judgment against the construction company. The latter appealed and on affirmance obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Wise County.</p> <p>Halsell sued the railway company and recovered judgment. Defendant appealed, and on affirmance obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Fannin County.</p> <p>Barry sued the railway company and recovered judgment. Defendant appealed, and on affirmance obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>The Alamo Rational Bank sued Altgelt, as administrator, on notes given by an independent executor previously administering the estate, in the name of Blmendorf & Co. and had recovery in accordance with peremptory instructions by the trial court. Defendant appealed, and on affirmance obtained writ of error.</p>

<p>Election—Injunction Against Canvassing Returns.</p> <p>Injunction will not lie to restrain the Commissioners Court from canvassing the returns and publishing the result of a local option election as-required by the statute, at suit of a licensed liquor dealer whose business would be prohibited by adoption of the law. (P. 268.)</p>

<p>Judgment—Description of Lands—Error.</p> <p>The failure of a judgment in á partition suit to describe lands which certain cotenants had appropriated, and for which they were to be charged in the partition, did not require the granting of writ of error by the Supreme Court where the commissioners could ascertain such description from the pleadings and findings of fact by the trial court, or, if necessary, the judgment could be corrected in such court by inserting it. (Pp. 269, 270.)</p>

Miller sued the railway company and had j'udgment, which was affirmed on defendant’s appeal. Appellant then obtained writ of error.

Wiess and others sued Goodhue and others for the recovery of land. Defendants had. judgment which was affirmed on appeal by plaintiffs,, who thereupon obtained writ of error.

Stephens County sued Logan and others for the recovery of land, and recovered. Defendants appealed and on affirmance obtained writ of error.

<p>1.—Foreign Law—Evidence—Statement of Facts—Decisions.</p> <p>It seems that the appellate courts, in determining the facts as to a foreign law which it was attempted to prove, are governed by the evidence shown by the statement of facts and can not go outside it to consult statutes or decisions though referred to in such statements as showing the law. (P. 298.)</p> <p>2. —Foreign Law—Statement of Facts—Presumption.</p> <p>When the parties to an appeal in agreeing to the statement of facts have omitted the statutes or decisions of another State of which proof was made to show the law of the place of contract, the presumption would be indulged that the law shown was such as would support the judgment. (Pp. 288, 289.)</p> <p>3. —Foreign Law—Pleading.</p> <p>Under the rule that allegations are taken most strongly against the pleader, a plea that by the law of a foreign State a note transferred as collateral to secure pre-existing indebtedness was subject to all defenses existing between the parties, will be taken to mean only defenses existing at the time of the transfer. (P. 289.)</p> <p>4. —Note—Transfer by Delivery—Pleading.</p> <p>The allegations as to the law of Missouri governing the transfer of a promissory note there relating only to an indorsement as collateral security for pre-existing debts, and not to the effect of a transfer Without indorsement, a charge that in the latter case it was subject to such defenses as the maker had against the holder was erroneous, under such pleading, unless such was the rule by the law of Texas; and the law here is otherwise, protecting the assignee as an innocent holder though the transfer was not in writing. Rev. Stats., 'arts. 304, 307, 308. (Pp. 299, 300.)</p> <p>5. —Negotiable Instrument—Time of Payment.</p> <p>Where the makers and indorsers of a note, by its terms, waived protest,, etc., and agreed “to all extensions and partial payments before or after maturity,” such provision was not to be construed as giving the right to-extend time of payment to - either the maker or the holder alone, and therefore rendering the time uncertain and the note nonnegotiable; the extension meant was one by agreement between debtor and creditor on a good consideration, and the provision was to prevent release of indorsers by such extension; it was a negotiable instrument. (P. 300.)</p> <p>6. —Note—Renewal—Payment.</p> <p>A note having been transferred by the payees to a bank as collateral-security for their indebtedness to it, the makers, on its maturity, executed a renewal note to the original payees, who sold it to another bank. Held: (1) The bank holding the first note was not deprived of its right to recover thereon by the fact that the payees of the second note deposited its proceeds with such bank holding the original, without informing them whence the money came. (2) The makers should be permitted to testify to the circumstances under which the renewal note was executed; but the holders suing on' the original note were entitled to an instruction limiting the effect of such evidence to showing that the holders of the renewal note and mortgage-obtained it without notice of the outstanding original one. (P. 301.)</p>

<p>1-—Carriers of Passengers—Way Station—Through Train,</p> <p>Railways making other and sufficient provisions for local travel may run trains for through passengers not stopping at way stations, or stopping there only to receive and discharge passengers on coupon tickets for passage over their own and other lines. (Pp. 304, 305.)</p> <p>2.—Same—Interstate Commerce Regulation—Action in State Court.</p> <p>The right of action given by section 3 of the interstate commerce law prohibiting undue preferences by railways can be enforced only in the tribunals on which jurisdiction is conferred by that act—in the United States courts or before the Interstate Commerce Commission—and does not sustain an action —The in the State court for failing to stop at a way station to discharge a passenger by rendering the discrimination made by the carrier in that regard between passengers holding tickets of different character an unlawful one. Whether the statute, if applicable, had that effect, is questioned but not decided. (Pp. 305-307.)</p>

<p>Telegraph Company—Error in Transmission—Contract—Measure of Damages.</p> <p>Through an error in transmission of a telegram an agent of the sender purchased a stock of goods, at 5 per cent more on invoice price than he was authorized to give by the message as written. The measure of damages was the difference between the price authorized and the value of the goods, not to exceed, however, the difference between the price authorized and that paid in consequence of the mistake. (Pp. 308-310.)</p>

<p>Certified questions from the Court of Civil Appeals for the Fifth District.</p>

<p>1. —Note—Payment—Agency.</p> <p>The payee transferred a note and interest coupons, with a limitation Of liability, by writing in which it undertook to pay the assignee interest thereon as it fell due, to pay the principal within two years from maturity, and reserved the right to reclaim the note on payment of principal and accrued interest. Held, (1) that there was no evidence that the assignor had authority from the assignee to collect the note as its agent from the fact that, having paid the latter several installments of interest as they fell due and received the coupons therefor, it afterwards collected such interest from the maker and delivered the coupons to him; (2) and if such dealing showed authority to collect interest as agent of the assignee no authority to collect the principal was to be implied therefrom; (3) that the contract transferring the note with guaranty and right to reclaim it gave the assignor no right to collect it while it remained in the hands of the assignee; (4) that if authorized to collect the note for the assignee the assignor was not thereby authorized to collect it before maturity; (5) that there was no evidence from the above transactions, in suit on the note by the assignee against the maker, that the payment by the latter of principal and accrued interest to the payee, before the maturity of the note, was made to one authorized by the holder to receive it. (Pp. 318, 321.)</p> <p>2. —Negotiable Instrument—Certain Day of Payment.</p> <p>A promissory note is not rendered nonnegotiabie by the fact that the maker, promising to pay by a day certain, reserves to himself by its terms the right to pay sooner. (P. 321.)</p>

<p>Pleading—Injury to Person.</p> <p>A petition giving detailed particulars of the injuries to plaintiff’s person, alleging various bones to have been broken and that he was “bruised and lacerated from head to foot” and “his hip, knee and ankle joints whenever he arises from his bed in the morning are swollen and greatly stiffened,” was insufficient to admit evidence of a fracture of or injury to the head of the femur and consequent shortening of the leg, not specifically alleged. (Pp. 323-326.)</p>

<p>Questions certified from the Court of Civil Appeals for the Fifth District, in an appeal from Henderson County. The ruling of the Supreme Court on questions previously certified on this appeal is reported ante, page 102.</p>

Summerville and others sued King and others and obtained judgment which was reversed on writ of error in the Court of Civil Appeals. Defendants in error, plaintiffs below, then obtained writ of error from the Supreme Court.

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

Action by the State against Douthit and the sureties on his bond as a liquor dealer, for breach thereof in permitting a minor in his saloon. ' The State recovered judgment for the penalty and it was affirmed on appeal by defendants, who thereupon obtained writ of error.

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

<p>1. —Surface Water.</p> <p>The owner of land has no right to have the surface water flowing over his property pass off in accordance with its natural flow over that of an adjoining proprietor; and the latter may repel it from his premises by any due exercise of dominion over his own soil. (Pp. 358, 359.)</p> <p>2. —Same—Embankment of Irrigation Ditch.</p> <p>The owners of land adjoining that of plaintiff erected on their premises, along his south and east lines, an irrigation ditch with an embankment which prevented the escape of surface water from plaintiff’s land. Held that neither such adjoining proprietors nor the irrigation company constructing the ditch for them and furnishing water for it were liable to plaintiff for the damage caused by their embankment holding the water on his land. (Pp. 357-360.)</p> <p>3. —Same—Cases Distinguished.</p> <p>The decision in Gembler v. Echterhoff, 57 S. W. Rep., 313, distinguished from Gross v. City of Lampasas, 74, Texas, 197, as presenting a case of collection and storage of water in a permanent pond, by one proprietor and for his own use, upon the premises of another, and not a due exercise of dominion over his own soil. (P. 360.)</p>

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

Trammell sued Robertson, the Houston & Texas Central and St. Louis Southwestern Railway companies. He dismissed his suit against the Houston & Texas Central. Judgment went in favor of the St. Louis Southwestern. Plaintiff recovered judgment against Robertson, who had pleaded release from liability by a settlement between plaintiff and the Houston & Texas Central. . Robertson appealed, and, the case being affirmed (5 Texas Law Journal, 960, 11 Texas Ct.

Peden sued Crenshaw and others and judgment went for defendant. It was affirmed on appeal by plaintiff, who thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>Campbell and wife sued the mortgage company and recovered judgment. Defendant appealed, and on affirmance obtained writ of error.</p>

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

Sellers and others sued Schneider and others and recovered judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

Mahaffey sued the railway company for penalty for failing to redeem the unused portion of a railway ticket. Plaintiff recovered judgment, which was. affirmed upon appeal; thereupon the railway company procured writ of error.

<p>1. —City Charter—Control of Railway Crossing Grades.</p> <p>Section 113 of the charter of the city of Dallas, giving its city council authority to require railways to construct such crossings, etc., as the city council might deem necessary, committed to that body authority t.o determine the character of such crossings and to require, in a proper exercise of the police power, their conformity to the grade of the streets crossed;, and such authority extended over railroads previously constructed as well as those which should afterwards be built. (Pp. 411, 412.)</p> <p>2. —Same—Police Power—Mandamus—Constitutional Law.</p> <p>A proceeding by mandamus to compel a railway to conform the grade of its crossing to those of the streets crossed as required by an ordinance of the city was an exercise of the police power, reserved by the State and delegated by it to the city, and not unconstitutional as involving a taking or damaging of property without compensation, nor as a local assessment for improving the streets, though the company was required to bear the entire expense. (P. 412.)</p> <p>3. —Same—Effect of Crossing Grades on Grades Elsewhere.</p> <p>The fact that the required lowering of the railway grade at crossings would necessitate its lowering between crossings also was no bar to the right of the city council to regulate the grades at crossings, but should be considered, in connection with all other pertinent facts, in determining .the reasonableness of such exercise of power. (Pp. 412, 413.)</p> <p>4. —Crossing Grade—Mandamus—Pleading.</p> <p>A petition for mandamus to require a railway to conform its grade' at crossings to that of the streets crossed as required by a city ordinance, which gave the height .of the railway grade above the street at each of the crossings sought to be affected, sufficiently informed the defendant of the action sought to be required of it. (P. 413.)</p> <p>5. —Police Power—Distinguished from Taking—Compensation,</p> <p>The exercise of such police power over the use of property as may be required by the public safety is distinguishable from the taking or damaging property for public use, and its legitimate exercise does not require compensation, though it may impose expense on the property holder. (Pp. 413-415.)</p> <p>6. —Same—Limits of Police Power—Reasonable Regulation,</p> <p>The police power, though its limits are not capable of precise definition, is not arbitrary or unrestrained; the courts may inquire into the reasonableness of a proposed exercise of it, and may deny the right where the public protection to be accomplished by a city ordinance involves an oppressive loss to the property owner affected, in proportion to the good accomplished, the question of reasonableness being one of law, but de-, pendent upon the facts to be established. (Pp. 415-418.)</p> <p>7. —Same—Pleading.</p> <p>Though presumption will be indulged in favor of the reasonableness of the police power sought to be exercised by a city ordinance, the allegations of an answer to a petition seeking to enforce compliance with such ordinance by mandamus, showing the loss infl'cted on defendant to be very great, the benefit sought to the public doubtful, or even +o their disadvantage, and compliance with the regulation practically impossible, presented issues of fact constituting a good defense to -the action and were not subject to demurrer. (Pp. 418, 419.)</p> <p>8. —Railway as Abutting Owner.</p> <p>A railway owns its right of way through a city subject to the proper exercise of the police power over the grade of its street crossings, and can not claim compensation for being compelled to lower such crossing grade on the ground that it injures its property (right of way) abutting on such street. P. 420.)</p> <p>9. —Ordinance—General Application.</p> <p>A railway is not discriminated against by a city ordinance regulating street crossings on all railways within the city alike, nor by being selected as the first against which the city attempts to enforce such ordinance by an action for mandamus to compel compliance with it. (F. 420.)</p> <p>10.—Mandamus—Other Adequate Remedy.</p> <p>The existence of an ordinance under which city authorities are authorized to proceed to do the work of reducing the grade of railways at street crossings does not prevent an action for mandamus to require the railway to to such work in compliance with the ordinance of the c'.ty. (F. 420.)</p>

Parsons sued Hunt for injunction and judgment was rendered for defendant. Plaintiff appealed, and on affirmance obtained writ of error from the Supreme Court.

Original application by McGrady for writ of mandamus to the' Commissioner of the General Land Office, requiring -acceptance of plaintiff’s application for purchase of a detached tract of school land not applied for as an actual settler.

Original application to the Supreme Court for writ of mandamus to require the Court of Civil Appeals for the Second District to certify questions on the ground of conflict in rulings.

<p>1. —Charge—Negligence—Conflict.</p> <p>An instruction erroneous because authorizing verdict against defendant on the ground of negligence by its servant, of which negligence there was no evidence, held not cured by other portions of the charge in conflict therewith. (Pp. 440, 441.)</p> <p>2. —Negligence—Inspection of Railway Track—Competency of Servant.</p> <p>The duty of a railway company to make due inspection of its tracks, is not met by inspection with ordinary care by a section foreman, without regard to his competency for the purpose. Requested- charge held erroneous for ignoring this principle, and also as not justified in view of the character-of inspection shown by the evidence. (Pp. 441, 442.)</p>

Campbell and others sued Upson and others for the recovery of land and appealed from a judgment for defendants. The judgment being-affirmed, appellants obtained writ of error.

<p>Railway—Negligence—Sufficiency of Evidence.</p> <p>Evidence attending the death of two boys run over by a railway train considered and' held insufficient to support an inference that it was caused by negligence of defendant, the proof failing to disclose the situation of the parties at the time or to show that their death was due to an omission of duty by those operating the train. (Pp. 452-457.)</p>

<p>School Land—Accepted Application to Purchase—Burden of Proof.</p> <p>In an action of trespass to try title by an applicant to purchase school land against a prior purchaser whose application had been accepted and recognized by the Land Office, plaintiff had the burden of proving defendant’s title to be invalid, and evidence that there was an existing lease of the land at the time defendant applied to purchase was not sufficient for this purpose, though defendant failed to prove the execution of transfers to him from the lessor, on file in the Land Office, and which he relied on to show his right to purchase in spite of the lease. (Pp. 457-459.)</p>

<p>1. —Appeal—Amount^ in Controversy.</p> <p>Where damages for injury to cattle in shipment are laid at $95 and interest from accural of the cause of action, the amount in controversy affecting the jurisdiction of the Court of Civil Appeals is determined by the sum stated with interest added to the time of trial. (P. 461.)</p> <p>2. —Constitutional Law—Caption of Act.</p> <p>The Legislature being required, in increasing, etc., the jurisdiction of a court,' to conform that of other courts to the change (Const, art 5, sec. 22), entitling an act as one “to increase the civil jurisdiction” of a named county court was sufficient caption to justify, as complying with the Constitution, a provision limiting the rights of appeal therefrom in cases previously within the jurisdiction of justice courts only, to those where the judgment or amount in controversy exceeds $100 exclusive of interest and costs. (Pp. 461, 462.)</p>

<p>Charge—Double Damages.</p> <p>An instruction directing the jury, in estimating damages for personal injury to a minor, to allow him, first, for physical and mental suffering; second, for future effect on health; third, impairment of ability to pursue, after he arrived at majority, the course of life he might otherwise have followed; fourth, decreased ability to labor and earn money, was erroneous as directing double damages for physical disability. (Pp. 463, 464.)</p>

Jennings sued the telegraph company and recovered judgment, which was affirmed on appeal by defendant, who then obtained writ of error.

The appeal of the Wilson Hardware Company from the judgment in the consolidated proceedings b} them as assignees of the fund in the-hands of F. J. & B. C. Duff and by garnishment against Duffs, was dismissed for want of a final judgment. Appellants then applied to the Supreme Court for writ of error.

Broom and others sued Pearson for the recovery of land. Defendants had judgment which .was affirmed on appeal by plaintiffs, who thereupon procured writ of error from the Supreme Court.

<p>1. —Cross- Examination.</p> <p>It was not error to refuse to permit a cross-examination testing the correctness of the answer given by the witness to a previous question, also on cross-examination and upon irrelevant matters, as where plantiff in an action for injuries to the person, having been questioned as to the value of his property, was further asked at what amount he had rendered it for taxation. (P. 479.)</p> <p>2. —Evidence—Opinion of Expert.</p> <p>The opinion of an expert on facts stated to him can be invoked only on the hypothesis that the facts were correctly stated. He can not be asked for his opinion as to the. permanency of injuries based in part on the statements by the injured party and upon a consideration of the fact that such party had a suit pending for the recovery of damages, since his opinion as to the effect of such interest on credibility was inadmissible. (Pp. 479, 480.)</p> <p>3. —Supreme Court—Excessive Verdict.</p> <p>The question whether the amount of a verdict is excessive is one of fact which can not be reviewed by the Supreme Court. (P. 480.1</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Hunt County.</p> <p>Hall sued the. railway company and had judgment, from which defendant appealed and on affirmance obtained writ of error.</p>

Harbison sued the railway company for personal injuries alleged to be caused by its negligence, and recovered judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

Suit was brought by the West End Town Company against Dowdell and wife to recover on three promissory notes and foreclose a builder’s and mechanic’s lien for their security. There were five notes given by Dowdells for the indebtedness, all secured by the same lien and maturing on the first of November, 1894, 1895, 1896, 1897 and 1898 respectively.

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Matagorda County.</p> <p>Borden and others sued the Trespalacios Bice and Irrigation Company in trespass to try title. Plaintiffs showed title to the land except so far as affected by condemnation proceedings under which defendant had taken possession of a part of .same for the construction of its irrigation ditch. Judgment was given for defendants, sustaining their claim to the rights so acquired. Plaintiffs appealed, and on affirmance of the judgment obtained writ of error from the Supreme Court.</p>

<p>1. —Declarations of Agent.</p> <p>To he admissible against his principal, the declarations of an agent must be made concerning an act within the scope of his authority and at the time that the act was being performed by him. (P. 515.)</p> <p>2. —Same—Future Acts—Threat.</p> <p>In an action for damages, actual and exemplary, for wrongfully turning plaintiff’s horses out of an inclosure, whereby some were lost and others, injured, the declaration of defendant’s ranch foreman, while engaged in putting them out, that if again found in the pasture they would be scattered so they would never be found, was inadmissible, since it related, not to the, transaction in which he was engaged, but to something to be done in the future. (Pp. 515, 516.)</p> <p>3. —Personal Property—Damages—Bailee—Joint Owners.</p> <p>One of the joint owners of personal property may recover the entire damages for injury to it, if entitled to the exclusive possession as bailee, without joining the other owners; but, as joint owner merely, he can recover only such part of the damages as is proportionate to his interest, and has the-burden of showing with reasonable certainty the extent of such interest,, though defendant has not pleaded the nonjoinder in abatement. (P. 516.)</p>

Ella Dean sued the railway company for unlawful arrest, and had judgment for damages which was affirmed on appeal. The company then obtained writ of error.

<p>1. —Administration—Grant After Four Years.</p> <p>Articles 1880 and 1881, Revised Statutes, prohibiting the appointment of executors or administrators after the lapse of four years from the death, apply to an application for letters in Texas upon the estate of a nonresident, though merely ancillarjr to probate proceedings commenced before that time in the State of his residence. (Pp. 530, 531.)</p> <p>2. —Same—Jurisdiction—Administration Void or Voidable.</p> <p>The provision that administration shall not be granted after four years from the death, though mandatory upon the courts, is not jurisdictional, and does not render void an administration granted on application filed after such time. (Pp. 531-533.)</p>

<p>1. —Negligence—Duty to Party Injured.</p> <p>Actionable negligence must consist in the omission of a duty owing to the party seeking recovery, and is not established by showing that the default causing his injury threatened harm to others differently situated, which, for their protection, should have been anticipated and guarded against. (P. 541.)</p> <p>2. —Same—Cars Left Uncoupled.</p> <p>Freight cars were left in contact and uncoupled upon a siding, in disregard of a rule of the railway, which, to prevent accidents to trains by their getting out upon the main track required that they be coupled and brakes set, etc., when so left. A brakeman, on top of them while pushed by the engine of his train in switching, was injured by the uncoupled cars separating, on the engine being checked, while he was stepping from one to the other, causing him to fall to the ground. Held, that, to constitute negligence entitling him to recover, leaving the cars uncoupled must be found to be an omission threatening danger to him while doing the work and under the circumstances in which" he was injured, which ordinary care should have anticipated and guarded against. (Pp. 538-541.)</p> <p>3. —Same—Charge.</p> <p>A charge holding defendant liable if cars so left uncoupled were not reasonably safe and defendant wanting in ordinary care in so leaving them, was erroneous in failing to limit the jury to a consideration of the care required to anticipate and guard against injury to plaintiff or others in the manner in question'and while doing the work in which he was then engaged. (Pp. 540, 541.)</p> <p>4. —Negligence—Knowledge of Danger.</p> <p>Where a brakeman, stepping from one car to another while pushed by an engine, was thrown to the ground by their separation, on the engine being checked, the cars not being' coupled, the act of the engineer in' checking up might be negligence if improperly done, irrespective of the cars being uncoupled, but if otherwise properly done, could not be held negligent by reason of the fact that they were uncoupled, if that condition was not known to the engineer. (Pp. 541, 542.)</p>

Mrs. Starke, as guardian, sued the J. M. Guffey Petroleum Company and others. Judgment was rendered for defendants on demurrer and was affirmed on appeal by plaintiff, who then obtained writ of error.

Smith sued the Rapid Transit Railway Company and recovered judgment which was affirmed on appeal. Appellant then obtained writ of error.

Purdy sued the railway company and recovered a judgment for damages. It was affirmed on appeal by defendant, who thereupon procured writ of error.

<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 for the recovery of land. Defendants had judgment and plaintiffs appealed. The judgment was reversed and rendered in favor of appellants, and appellees, defendants below, obtained writ of error. A previous recovery by defendants was reversed by the Supreme Court. Hunter v. Eastham, 95 Texas, 648.</p>

<p>1. —Partnership—Transaction With Decedent—Evidence of Codefendant.</p> <p>A defendant who has an interest in the suit adverse to his co-defendant, an executrix, will not be permitted to testify to transactions with the decedent affecting such interest, though called as a witness thereto by the plaintiff. Rev. Stats, art. 2302. (P. 569.)</p> <p>2. —Same—Calling by Opposite Party.</p> <p>In a suit against W. and the executrix of R, on a debt of W. & Co, in which firm it was claimed that R. had been a partner, - it was error to permit W„ who had not answered nor denied the partnership, to 'testify, at the instance of plaintiff and over the objection of the executrix, to transactions with R. showing that he was a partner. The interest of W. was adverse to the executrix, and was not, as to the issue thus presented, adverse to plaintiff, nor entitling the latter to call on him to so testify as an “opposite party” within the meaning of the statute. (Pp. 567-570.)</p>

W. H. and E. B. Coleman sued Anderson and others for recovery of a certificate of benefit insurance and had judgment. On defendants’ appeal the judgment was reversed and rendered in their favor. Appellees, plaintiffs below, then obtained writ of error from the Supreme Court.

Clements sued the Watkins Land Company and others to restrain them from diverting the waters of Toyah Creek for purposes of irrigation, to the prejudice of the irrigation rights of plaintiff. Upon findings of fact and law, without a jury, the trial court .rendered a judgment for defendants, from which plaintiff appealed. The Court of Civil Appeals reversed and rendered judgment in his favor, and the appellees obtained writ of error.

L. D. and B. F. Kiersey sued the railway company for damages to lands owned by them respectively, and each had judgment. Defendant appealed and on affirmance obtained writ of error.

Swayne and others sued the Lone Acre Oil Company and recovered a judgment which was modified on appeal by defendant. Appellees then obtained writ of error.