Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-10-20

u.
John G. Brown, receiver, VS.. Owen Sui
ivan; sppeal from Harrison. Suit by
appellee to recover damages for personal
Injuries sustained by his wife. l. The
court instructed the jury that "slthougn
there may have been been negligence on
the part Of plaintiffs wife, unless 1t ap-
pesrs that under the circumstances she
could By The use Of ordinary care have
avoided the consequence Of defendants
negligence, plaintiff will be entitled to
recover" This charge is assigned as
error. Held: Correct and not subject
to the criticism that It throws the bur
den of proof on the wrong
party. .. 1t is well settled
that mental suffering is an element of act
usl damages in this class OF cases, where
serious bodily Injury is inflicted, lnVolv-
ing fractures, dlslocstions, etc., snd re.
suits in protracted disability and confne-
ment in bed, and q charge to this effect
WAS correct. 3. Appellant asked the court
to charge the jury that il Mrs. Sullivan
knew that the car WAS about to be moved
when she stood in the door of the csr AMI
II in conse quence of her standing up the
j TX Of the car threw her out, sne could
not recover. Held: The question OF
negligence was enc for the jury to deter
mine from the light of all surround
Ing circumstances, End 1t would
nave been improper for the court to
charge that 1t Was negligence hs nstter
u .aw. 4. The petition alleged the in
iu:y occurred St Ptovercs!, La the proof
showed tnst the accident happened At
Robeliae, La. Dtendant asked the court
to charge tha: il the irjlFy WAS indicted
81 R1neline. the .urY should find for de-
fsudsnt. HID: This Is transition
sc.ioD; the obligation OF peace is imms-
terisl and need not be proved ss alleged.
3. Appellee vas keeping boarding Car
a1d boarded the hands CT sppellsDt, mis-
vile who sustained the irjurles was COOK
Ing for him. The appellant asked the
court to charge the jury thai Mrs. Sulli-
ySn WAS fellow sefvant Of the engineer,
81 d tbs. she could not recover
FOL his negligence. Held: The refusal
of this charge WAS not error. 6. The
Judgment attempts to make recoVerY<A
lien upon the earnings, etc, OF the roat
In the hands CT the receiver. Held: Th!s
wac error. The Judgment In this partic-
ular is reformed. Reformed and affirmed,
Gamer, j.
F.A. Johnson vs.. Pitkin & Brooke, ct
al; writ OF Error, Bowie. On motion to
dismiss appeal. Defendants in error
move TO dismiss this writ because the CT
tetion in error commands the Sherif to
summon j. NJ. Talbot, attorney for plain
tiff, to defend the Wi. before
this court. Also because the re-
turn on the citation in error
shows that defendants in error were
not summoned, bu. that the citation was
served on j. n. Talbot, attorney for
plaintiff. Further, because it is not
shown that J. n. Talbo. is attorney Of
The motion to diamiss sustained ana the
cause Will be stricken from the docket.
Stayton, CD
Correspondence of the Gazette.
Tyler, TEX, oct. l7.-Henry Stout ct
al ys. B. e. Foil ct al. Appeal from Red
River. Action CT trespsss to try title.
Henry Stout WAS the patentee of the land
in controversy and some, If not al, the
appellants claim through him. The sp-
pellees show NO paper title dersigned
from the patentef, or the originsl grantee,
but in their pleadings and proof, rely for
title on limitation based On i've and ten
years adverse possession. l. Tle recorG
fsiIs to show that the appellees deraiA
title in any manner from j. W. TauI, or
in any way TO connect themselves with
the claim evidenced by the deed to him.
Held: This is fatal 20 their successful
assertion OF title under five years posses
sion, even II the proof of payment OF
teXes be sufficient, which we do not now
decide. The sppellees fsiling to show
their priority with J. W. Tsul, who held
q deed to the land in controversy from E.
West, trustee, csnnot avail themselves
OF Sny possession adverse to the appel
Isnts which may have been held by W. B.
Stout cnd wife. 2 The plea Cf ten yeass
limitation is defeated from the
fact that the statute Was interrupted
in 1884 by s suit against the tenant by
q. 3. Stout, which resulted in favor OF
Stout. s An action against . tenant
alone, the landlord not being joined, WIN
srrest the running OF the statute OF lin
i.stion, and settle all rights as between
the parties to the action. Reversed and
remsrded. S:aytop, CD.
Clay County Lind and Cattle Company
vs. W. J. Wood ct 81; appeal from Clay.
Trespass to try title. l. 1t WAS not error
to allow the defendants to sever, even
after they had answered not guilty oint-
IL. 2. That plaintiff may show in evil
dence less estate in the land than
allowed, is no OH ection to his proving to
the extent he has. 3. II is not error to
permit one who had purchased the inter
est Of one of the defendants in the land in
controversy to make himself psrty to
ths suit. 1. Where A. buys land from B.
at 8 stipulated price, their being no pa
pers drawn up or signed BY either party,
and A. afterwards sells to c IN an action
by c. to eject B., A. should be made q
party, sno B. would hsve the right t.
plead readiness to complete his con
tract. o. The right secured t
ectual settlers by the constitution
affected ell the school lands owned or te
be acquired by the counties under the
donation from the stste to the counties
for school purposes. Reversed and re
msnded. Walker, j.
Texas and Pacific Railway ct al. VI
Elizabeth Hill ct al; eppesl from Rel
RIVER. Elizabeth Hill and her minol
children bring this suit against appellants
for causing the death Of the husband o