Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-12
THE HIGHER COURTS.
synOpses of Decisions Rendered at the Present
Austin Sitting.

Correspondence OF the Gazette.
AUSTIN, Tex, May e.-Gulf, Colorado and
Santa Fe Railway Company vs. Dallas Dawkins'
from Brown county; opinion by Henry, j. APP
pellee. years Of age, was taken up the road on
. hsnd-car by one Hennessy, section hand OF
] the road, who took the child BY permission OF
his mother, for whom said Hennessy was to get
some property, which the child was 20 point out.
| From some unexplained cause the child was
| thrown from the car and injured. The evidence
| showed that the rules of the company only al
| lowed the use of hand-cars for the purpose OF
| carrying the tools to and from the work OF the
4 men on the road. But the men in charge OF the
| hand-cars had frequently used same as convey
| ances for themselves, and had allowed other
| persons to ride on them without pay, however,
! and against the rules. Verdict and Judgment
| for 5000. Held: 1t was error for the court 10
| charge the jury in effect that eppellee's igno-
rance OF defendants rules on the subject consti'
tuted him passenger. 1t was also error 70
| charge that defendant would be bound by the
acts Of its servants within the scope OF their au-
| thority, as the evidence showed such servants
were guilty of violation of the rules them
| selves. And as no agent officer allowed the
use for the above purpose, the rules of the COM
| pany could not have been considered as relaxed,
and the charge on this was erroneous Inc
| court should, however, have charged that the
| plaintiff had to establish that the section fore
man acted within the scope of his authority
when taking the child on the hand-car. The
tender years of plaintiff did not create the rela-
ton of passenger to the road, if it did not exist
i IN an ADULT Judgment reversed anu renamed.
Mary E. Dawkins VS.. Gulf, Colorado and
Santa Fe Railway Company, from Brown:
| opinion by Henry. In this case the mother of
| Dallas pawkins sued for damages for medical
| attention and loss of service during minority.
Held no negligence was shown except on part
| of the mother in allowing child OF seven years
| to ride on hand car. Judgment affirmed.
George shorwick ct al. VS.. Susan P. Bennett,
| from Jones county; opinion by Henry, ].
Judgment was rendered in trespass to try title
| against appellants by default and made hnal on
| trial before the court. The evidence there al
mitted without being objected to cannot now be
attacked. Judgment affirmed.
W. II. Nanny ct al. VS.. E. B. Allen ct al, from
Hill county; opinion by Stayton, CD. Plaintiffs,
the heirs of II. H. Allen, claim the land in con-
H. Allen and his wife, now Mrs. Hancock. De-
PENDANTS claim through the present Mrs. Han
cock and her husband. The court excluded an
order OF the probate court setting apart to the
widow and children some land embracing that
here in controversy. which order was offered by
defendent. This order did not show whether
the land was set apart in lieu of the years
allowance or in lieu of exempt property not ex-
listing in kind, II in lieu of the former the court
had power to set apart real estate D., 1904.
If in lieu of the latter allowance, the order as
evidence would have been immaterial, for the
respective interests OF the widow and children
would not have been affected thereby The
effect would have been to withdraw the land
from administration and the claims of creditors;
and one-haf would belong to the widow-the
other half to the children. The order would not
have conferred the power on the mother to sell
her children's interest. The land in contro-
cock and he present husband to defendants
granters for some land in Galveston; and upon
reaching majority, E. B. Allen was given deed
to part of said Galveston lands by his mother,
in consideration of his REIMBURSEMENT of
further claim to the Galveston property. II
Allen received said deed with a knowledge of his
rights, knowing that said property was paid for
with lands in which he had an interest, then he
ought to be denied a recovery. He could not
hold the pEice ana 1ne thlng ior %nlGh ~ was
been submitted to the jury. Judgment reversed
and case remanded.
Western Union Telegraph Company VS., A.
Young, from Grayson county; opinion by
Gaines, j. action by defendant in error against
plaintiff in error for damages for failure to de-
death of the formers wife's mother to Mrs.
Young in time to permit her to attend her moth
N. Young, care of W. R. Henry & Co., Fort
Scott, Kan. The evidence tended to show that
Mrs. Young did not receive the telegram until
too late to reach the place of her mothers death
before the funeral. but also showed the same
was in due time delivered to W. r. Henry, OF
Henry & Co.. who declined to receive it. Held:
1t was to instruct the jury, upon this state
of facts, that it became incumbent on the com
pany to use due diligence to find Mrs. Young, at
the hour OF the lnstTpcnons received py the
messenger from Mr.. Henry. who refused TO &C
cept the dispatch, The company contracted, in
effect, to deliver the dispatch to W. R. Henry &
Co., for the benefit of Mrs. Young. This duty
performed, the company was no longer liable.
Reversed and remanded.
( Western Union Telegraph Company vs.. Joseph
Gaines, j. Suit by appellee against appellant
for failure to deliver a certain message sent by
appellee summoning a physician to the beside
Of his wife. In consequence of attendance
of physician, caused by failure to deliver mes
sage, appellee's wife died, and this suit is for
the recovery of damages for loss of services and
mental suffering. Held: Upon the evidence in
the case there was nothing upon which to predi
cate the charge given by the court upon the issue
Of loss of services. On the contrary, the charge
asked by defendant and refused, "That the jury
should not allow such damages should have
been given. Reversed and remanded.
j. NJ. Brownson ct al. VS.. j. W. Reynolds, |
from Atascosa county; opinion by Gaines, J.
This was an original action brought to set aside
a Judgment of the district court rendered at q |
former term. The demurrer to the petition in
the present suit was sustained and this is as
signed error. Plaintiff at the first trial in |
ut proposed to prove up one link of it by certi-
fed copy. This certified copy was excluded, |
and plaintiffs counsel thereuppn permitted .
Judgment to be entered up against his client |
without offering the examining deeds. The |
remedies at hand, viz, tbs claim of surprise, |
non-suit, motion 1rfor reinstatement, appeal
etc were not ayailed. Of Nv aDpellant Hold. |
1t is rigid rule that M the absence of fraud on
the part of counsel a party should be as fully /
were acting for himself am. court of equity |
will not interfere to set asidea Judgment exceats4
if upon showing of strict diligence anda
doing all that diligence required to be done ne
party had been deprived by fraud, accident or
mistake OF properly presenting the case. Equity |
will not interfere where there was a legal |
remedy. Appellant did not make such show
ing in his petition as should have been made to
get the equitable relief sought, and it was not |
error to sustain the demurrer. Affirmed. Il
j. W. Perry ct al, VS. J. ]. Stephens. from Il
Wilbarger county; opinion by Gaines, ]. Suit
for wrongfully levying en- attachment on a stock |
of goods, which several hours before the levy
had passed into the hands of an assignee for the
benefit of creditors. The first assignee was re-
moved by the district judge and the second as
signee, appellee here, brought the suit and re-
covered judgment. Tho action was one for tres
pass, and under Rev. Stat, Art. I19S, Sec. s,
the court where the trespass was committed !
had jurisdiction, albeit; all the defendants re-
sided elsewhere. and the second assignee had
the right to sue and not the first one as all the
rights of property and Of action were transferred
to him upon qualification. Appellee's bond
was properly approved by the Judge, who re-
moved his predecessor and appointed him.
Perry properly testified as to seizure, notwith-
standing, his official return on the writ, the |
plaintiff in this suit not having been party to
the original suit, and therefore, not affected by |
the return. The attaching parties claimed to
have acquired title to the goods by an arrange |
ment whereby they were to buy up the other
debts against the estate at forty cents, and were
to give and did give q bond of indemnity
to the assignee. This transaction passed no
title. The answer of defendants that they had
become owners of nearly all the claims against
the estate with q prayer to have the yet out
standing claims fixed so that defendants could
pay them of and thereby defeat recovery iii the
damage suit was properly disregarded. The de-
nordN aq he /