Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-27
THE HIGHER COURTS.
DECISIONS RENDERED AT THE
AUSTIN SITTING. c
Findings of the Commlssion of Appeals.
A Number OF Important North
Texas Cases Passed On.
Commission of Appeals.

Oo"MlnSlou Oh ApPcSADs
SECTION A.
Hon. Edwin Hobby, p. j. w. E CollarC
and D. P. Mari, associate judges. c. S
Morse, clerk.
1Etna Life Insurance company VS.. j. K.
p Hanna ct al. from Robertson. Suit by
appellees to recover on life insurance
policy. l. The motion of appellant TO quasi
the citation having been made and over
ruled in June, 1887, and the record showing
no further action in the case until June
1888, when appellant filed its answer, We
think under the authority of York vs., the
State, IS Tex, 655, tho appellant by its an
swer submitted itself to the jurisdiction OF
the court. 2. The question as to whether
Davis was the agent of appellant, tried as q
question Of fact before the court and there
being evidence to sustain his finding, same
will not be disturbed. 8. As to whether de-
ceased was so Incorporate as to forfeit the
policy, was question upon which there
was much conflict of testimony but the Jury
settled the issue in favor of appellees and
there being sufficient evidence to sustain
their finding, we will not disturb it: 4
The receipt of premiums on policy by a
life insurance company is well calculated to
induce the insured in his life to
believe that any prior breach of the condi-
lions by the assured had been waived. If
the company knew the policy was forfeited:
IL Ldu uO TlkuU W tuC IL ~ uiSA
not know it, then the premiums should
have been returned when the fact was as
certained. Affirmed. Hobby, p. j. (COl-
lard, j., does not sit in this case
c. Caldwell 4 Bro. VS.. Eugene Porcher
and wife; from Clay. Suit by appellees to
recover for the illegal issuance and levy OF
writ of attachment, same being levied on
their property by appellants. l. Appellants
themselves testify that the only ground for
attachment was because an execution for
$50 against appellees had been sent from
Galveston, and that their attorneys told
them to attach and save themselves. 1t was
shown that appellants had mortgage on a
part of the property, and that appellee's
turned over to them every night the pro.
ceeds of the days sale. Appellees offered
to give appellants bill of sale to the prop
erty to secure the debt. Appellees made no
attempt to dispose of the property save by
daily sales, which were turned over to ap-
pellants. Appellants levied on and sold
everything in the house, including beds.
provisions for the family and household
furniture, etc. Held: The attachment was
wrongfully and illegally sued out. The
verdict for actual and exemplary damages
is sustained by the evidence. The verdict
for $500 exemplary damages is not exces-
sive. The amount of exempt property
taken was more than that. There is no
error. Affirmed. Hobby, P. ].
Galveston, Harrisburg and San Antonio
railroad VS.. Nettie Smith from Guadalupe.
Suit by appellee to recover the value of
trunk and its contents burned in the depot
of appellant at Seguin. 1t is not here de-
cided whether the failure of appellee to al
lege in her petition that appellant, an incor-
porated railway, duly Incorporated, ETC., is
reversible error, but there are authorities
to the effect that it is an indispensable allie
CATION. Isl Tex, 24; 2 W. civ. cas-, ss:]
g The evidence showed that appellee left
her trunk at the depot during the night as
a matter of economy. She intending to
embark again next morning would not have
to pay for conveying to hotel and return to
depot. This being true the court erred in
refusing by the general charge, and the
special charges asked by the defendant, to
charge upon any statement Of the case that
would change the liability of defendant
from that of a common carrier to that Of a
warehouseman. w. 2, App. civ cas-, IS;
IS YER 6Os.l 8. The question asked APP
pellee by counsel for appellant was not
ibelous, and if it were it was the act of the
attorneys, for which appellant was not re-
sponsible. Reversed and remanded.
Mari, j.
Galveston, Harrisburg and San Antonio
Railway VS.. Jose Arispe ct al. : from Val
Verde. Suit by appellees to recover dam
ages for the loss Of their son. l. In the alb
sence of requested charge it was not re-
versible error for the court to fail to define
to the jury the meaning Of gross negligence.
[65 Tex, lis, 675; 40 Tex, 434. 2. The
court erred in charging the jury that they
should find for appellees if the accident
which caused the death Of the son of appel
lees was caused by the ''unftness, gross
negligence or carelessness'' of the manager
or superintendent of appellant company,
there being no proof of the ''unftness'' of
any of appellants employees. Reversed and
remanded. Mari, ].
H. G. Bohny VS.. w. P. Petty; from
Cooke. Trespass to try title 1. The court inz
this case could not have correctly instructed
the jury that the recognition of the line in
question in this case by the parties, as
their boundary for seven or eight years, as
shown by the testimony, was conclusive.
What lapse Of time would be sufficient we
need not here say, but it is enough to say
that the facts of this case would not have
justified such a charge. RS Tex, 344; 60
Tex, 400; 81 Tex, $50. There is no re-
versible error. Affirmed. Collard, ].
Commission of Appeals.
SECTION B.
Hon c. c. Garrett, p j.: B. D. TarltOn