Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-10-20
THE HIGHER OOURrs.
Continued from Third Page.

set aside his judgments and orders woh
reference TO the property in controversy
in the csse OF Armstrong Bros. vs.. Csrr
| & Co. and Cranberry, and per process for
Rsthbun, assignee of Carr & Co; to fore
close their attachment lien; for costs,
etc. Held: The clerk will issue citation
as prayed for, returnsble first Saturday
ia November, 1888, Wilson, j.
S. A. Powell! VS.. the Safe, sppesl from
Palo Pinto. o. n oti0n 70 Gigm SIS. Tne
record N this case fails to shoN that any
sentence vas ever passed upon appellant
| Held: Motion to DISMISS On this ground
is well taken. Dismissed. Wilson, j.
Bro Jacobs vs. The State appeal frl m
Ellis. TIE ASS s.snt Attorney General
moves TO dismiss on the ground thst the
has been complied with, defendant having
PAID his fine end costs OF suit Reld:
The appeal is dismissed. Wnlsop, j.
COMMISSION OF APPEALS.
j. D. Tudor VS. J. C. Hodges; sppeal
from LsmSr; Iespsss 10 try title. l l.
is we'll settled :hst gherif1's deed 20
land sold uader eX .cuti0n Is not sGmigs-
IDLE II evidence, unless the judgment
and execution upon which said deco
w3s bR9ed hss feen int :uced.
| ,. ground Of error not Distinctly
specified, IL reference to that which is
sho IN in the record shall De considered
az waived To be. < disIpcI specialization
CT error Ii must point out th2t psrt 4
the proceedings contained in the record
in aich the error Is cOmplsined Of, 10 s
particular manner, so as to identity il
whether it be the ruling OF me court
upon motor, or upon the admission OF
evidence, or REJECTION OF the ssme, or
upon say lpstter relating &c the Cause.
Affirmed. Acker, P. j.
jacob Jung ct al. vs.. J. G.. Nerfz; ap
peal from C)mal; suit by appellants TO
restrain appellee from establishing Gem
etecy upon tract Of lald sGj Dining the
Land CT appellants. Appellants aver il
tie petition that tie establishment Ct
cemetery in such close proximity 70
.aslr residences would render their prop
erty vslueless ard necessjtate their re
no7al from the same. The petition al
legged that appel!ee rs Bishop CT the
Catholic church owned the land and PFC
posed 20 locate tae cemetery thereon.
Appellee demurred. l. Because il did
not a,peI IT tins. defeGdxn. w.s cor2ors-
ton capable OF suiGg CT being sued. =
Uisi oinder CT paroles plaintiff 3 NJ
eqal:y in the bill. Demurrer sus.
tanned. Held: The cHurt erred in dis
missing the petition. n me Of the p lints
raised ere well taken. reversed and re-
msnded. Atksr, P j.
C. Behee vs.. Missouri Pacific R'ilwsV
CompsnY; appeal from Tarrsnt. SUIT by
appellant to recover from appellee dam
ages for publishing icei, consisting in
publishing nm il & circu!sr as inCompe-
cent for wo!k at rsi!roadlng, the petition
alleging that publishing same caused the
discharge Of appellant by seyeFEl railrosd
companies. Verdict for defendant Gem
psUy. I. Malice IS necessary In gredient
Of libel. When dGfamatoIy and false
publication Is made by one party OF
another malice W Il be imputed 10 the ac,
but wnere the publication is privileged,
and is believed to be true, the pfims
facie case Of libel 30 made Is deemed to
nave been fully met; ald then to sustain
the action mslice must be shown to exist
py other evidence, as BY the style Or man-
ner CT the writing, or oy extraneous f&c's.
2. The court Instructed the jury that
rualiCe must he proved like any other
fscs. Eeld: Error. Malice is rarely
shown by direct evidence They saoult
have been informed that they could Infer
malice from facts and circumstances.
l.
was admissible, appellant showing that
It vas in possession OF sppellees,
who were notified and failed
to produce same. Tne evidence WIS adj
missible to shoT the auinus of appellee
Reversed and remsDded. C0llsrG, j.
Missouri Pacific Z siiHay CJmDsQy vs..
JCseChiDe Lvsy ct al appeal from Bell.
Suit By sppellee, Josephine Ivey, ined
by her minor children, to recover dams.
ges Tor the desth Of ner husband, which
occurred on stock train, her husband
beng or said train FOR the purpose Ct
feeding csr load Of cattle. His death was
occasiJne6 by collision. The evidence
shows that deceased was employed. by
the owner of the stock to attend and Wa
ter and feed them. o. the back OF The
shipping contract deceased endorsed that
he wss en- employe Of appellant company.
l. Appellant insists that deceased vas an
employe Of the company, and thst as &C.
ceased came to his death at the hands CT
the engineer, be R6s q fellow servant,
and his heirs could not therefore recover.
Held; Deceased vas employed and psid
by the owner of the stock, and sny en-.
dorsement made on the shipping contract
10 the contrary wss Full and void. . A
railroad company cannot by con-
tract lay down its public character
IS common csrrier of passengers
which the law as well SO the nature OF the
employment fixes upon It, and oeoalse 8
private CARRIER without statute to that
eject common carrier can not limit ite
liability by contract, against the nogll-
gence Ct its eervsnis, or lis own negli-
gence. 8. After defendant had closed
his evidence, paltih recalled witness
end asked tie question: "What, II any
thing, did you near any Of the eupl 3yes
OF the company say Ct the time OF the
collision was the cause OF the train break
iDg into two p,rte?" OBJECTED to by de-
PENDANT, and over-ruieo. Witt esq an
swered thst some one ca the gTouad said
that IL was caused by the collision, that
there were several farmers present and
thst he did not know WAC said it. De-
iendant sgain OH acted snd moved TO tx
cluee witch was over ruled. Held: TIE
esfimony WIS inadmisible. Ill was not
part CT the res ges;se the statement be-
lag made come time after the collision
Reversed sDd remsnded. Ccllard, j.
Acker, ?. j., 6ii rot ST. in this case.