Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-03-28

valid claim against the estate, the laws of limi-
tation could no longer apply while the estate
was being administered under the probate. The
judgment needed 10 revival as against the estate.
The next friend having been regarded through
ont the proceedings as the proper representative
OF the minor without objection by the adverse
party, the failure to appoint special guardian
will be regarde as an irregularity only, and not
such as to require reversal OF the judgment
when urged for the first time after appeal.
j. K Elweli and H. s. Van Hist vs. the Uni
versalist General Convention; Galveston unity.
Reversed and remanded. Collard, A. j. The
case having b. en- properly appealed from he
county court to the district court, where the
law required it to be tried de noyo, the district
court had power to dismiss Mason and enter ain
the proceedings at the instance of the legatee,
appellee, just could have been done in the
county court. 1t was improper to resort to sec
ondary evidence to establish the fact of the due
execution of the will. SO long as there was pri-
mary evidence of the fact accessible to the
court, there being no cause shown for Its nom
The Howard Oil Company vs. B. F. Daers;
Harris county. Affirmed. Collard, A. j. There
is conflict in articles 1858 and 20j5, r. S.,
In reference to the organization of uries for the
week. All parts of statute should be looked
at together Where the words expressive of
general intention and those of q particular in
tention are incompatible, the particular must
be taken as exception to the general. II
was the intention OF the lawmakers to confer
upon the court the right and power to adjourn
jurors for one week, or any of them, to another
week or day of the term for service Impaired
ton is proper element.of damages. R. r. vs..
Lyde, 81 Tex, 505. The verdict Is not so clear
~ excessive as to warrant an appellate court in
Settingin aside.
Gulf. Colorado and Santa Fe Railway Com
pany VS.. Michael Smith; Colorado county. Re-
7ersed and remanded. Collard, A. j. The
question presented by the assignment is
whether the Toadmaster is a fellow servant of
plaintiff. There is a contraiety OF opinion on
the subject. 1.-THE common object OF railway
service being that of fitting the line for traffic
and of carrying on the traffic. all servants
working for he acc Omplishment of that common
Patterson on Railway Accident Law. page S23.
Our supreme court has adopted the Following
rule: The master is liable for negligence in the
performance OF CutleS he has implicitly con-
trRCted to perform toward his servant, whether
in Terson or by another. The true test is to be
found in the character of the act performed
which causes the injury. and lot in the rank,
grade or department of service of the person
p TfOrming 1t. The failure of CamTany to warn
Its ervants of what is necessary to avoid col
lson exposes them TO risks not en-
braced in their implied contracts. Where
the proper servant has en- so informed and or
dered, and he then neglects his duty or violates
his orders, causing injury to another servant,
the doctrine of fellow servant would apply. The
the error IN the courts charge holding the COM
pany liable for the supposed negligence of the
roadma ter. In the case of Railway Company
VS.. Williams, decided at last Tyler term 10 S.
W. Rep. S35l il was held that the servant OF
ra lwav company, while working under the i'm
mediate supervision and control of another en-
ploye OF the CONF any, was not the fellow-ser-
want of such employe, provided the latter had
power to employ and discharge those su bect to
his orders. That case is disting Iishable from
this. While we do not approve any exp -ession
In the opinion of the commission which NAV
seemingly conflict with any opinion in Railway
Company vs.. Williams, supra, adopt their
opinion, and reverse and remand the case.
Gaines, a. j,