Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-03-28

From probate order carrying out the pro-
visions of the viii the guardian for minor
appealed 20 the district court, and motion
was made to dismiss said appeal for want OF
an appeal bond. Article POO, Revised Stat
uts. with regard to probate matters, gives
the right OF appeal TO any person who may
consider himself aggIeyed by any decision
etc, but it provides that he shall give bond
etc. The case here belongs to this class,
and in said article guardians and admins
traitors are not excepted Courts have no
power to add an exception to the general
rule prescribed, when the legislature in
making exceptions has not included it. APP
peal to district court dismissed, leaving de-
cree of county court in force. Stayton, c.
j., Justice Henry not sitting.
Gulf, Colorado and Santa Fe Railroad
Company VS.. Thomas DwFer. Appeal from
Washington county In civil suit for
penalty the plaintin must prove the facts
which justify a recovery beyond reason
able doubt. The penalty statute applies
only to carriers who are parties to the bill
of lading, either by original contract or by
ratification. Reversed and remanded.
Gaines, J.
The Gulf, Colorado and Santa Fe Railway
Company VS.. 2. j. Loonie; appeal from
Dallas county. Action TO recover the pen
atty prescribed by statute for an over
chaEsssen carload of wire shipped from
slstSOuis, and for delay and loss of wages
of plaintiffs employees ETC., while waiting
for wire. Tie charges were prepaid.
Freight vas delivered 10 Missouri Pacific
railway, and by it to appellant. which COM
pleted the transportation. The car was
made to weigh more by appellant company
than when consigned, and it charged for the
excess in weight according to rate men
toned in the bill of lading. Appellee de-
manded the goods, they were retained six
teen days, and delivered without excess
having been paid. The bill of lading stip-
ulated that the weight was subject TO cor
rection, which deprived il of its conclu-
siyeness. The burden was upon appellee
TO allege and prove that the charges prepaid
were based upon the actual weight Of the
goods. Reversed and remanded; Garrett,
P. j. Alexander & Clark and ]. w. Terry
for appellant; Leak, Shepard & Miller for
appellee.
Galveston, Harrisburg and San Antonio
Railway Company vs.. Wenzei Matula; APP
peal from Colorado county. Suit for dam
ages resulting from injury received while
driving across the railroad with wagon
and being struck by a locomotive. Appel
lees team had stalled on the track by rea-
son Of defective crossing. Evidence of bad
condition of other crossings in the town at
the time, was properly admitted to show
why the plaintiff, who knew the condition
of the crossing. did not go out of town by
some other route. Affirmed. Garrett, P.
J. Brown, Lane & Jackson, for appellant;
Adkins & Green, for appellee.
The Missouri Pacific Railway Company
vs.. the International Marine Insurance
Company; appeal from Dallas county
Suit by appellee on bill of lading for cotton
destroyed by FIRE IN compress at Greenville,
after having been received by appellant for
shipment Appellee claiming TO have in
sured the cotton and having paid the insur-
ance by the terms of the policy became
subrogated to the shippers right to recover,
The cotton was consigned TO New Orleans.
The bill Of lading stipulated that defendant
should not be liable for loss or damage by
fra while in transit not caused by Its own
negligence. This contract and stipulation
was not in violation of Article rs of Re
vised Statutes forbidding the limitation by
carriers of their liability at common law,
as this statute does not apply to an inter-
state shipment, which this was.
A carrier may stipulate in shipping con-
trsc for the benefit of any insurance that
may have been effected upon the goods to
be transported, as done in this instance.
The ef e It of such a stipulation, when pre-
viously thereto the shipper has obtained q
policy providing that the insurer shall be
subrogated to the claim of the insured
against the carrier is to invalidate the con-
tract of insurance and defeat recovery by
the inst r5d on the policy. An ac-
ton, by the insurer cannot be maintained
against the insurance company, because by
his inconsistent stipulation with the carrier
he had defeated the insurers right of
subrogation The subrogation clause in
the bill of lading was but one stipulation
in the entire contract of carriage ana was
supported by a sufficient consideration.
And it was not necessary that it should
rest upon a separate consideration. APP
pellee paid the insurance money to the
shipper with knowledge Of the stipulation
of SEGREGATION in the bill of lading, and it
was purely voluntary and was done in dis
charge of no obligation, moral or legal
Reversed and remanded. Carlton, j
Alexander d Clark for appellant, Leake
Shepard & Miller for appellee.
P. E. Sargent VS.. ]. NJ. Carnes; appeal
from Tarrant county. Appellee sued ap-
pellant for damages, actual and exemplary,
for an assault and battery. He recovered a
verdict for Sl25 actual and Sl25 exemplary
damages. Appellee, in his petition, prayed
for damages for the assault and battery
which he received in the general sitting
room of the hotel, and appellant contended
that he should not be allowed to recover
for that part which he received out on the
sidewalk Held: The occurrence on the
was part of the general engage
ment-a part of the res gest9e. Testimony
sufficient to sustain the verdict of exem-
plary damages. Affirmed. Tarlton, J.
Bow.in & Bowlin for appellant.