The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-03-28
HIGHEST STATE TRIBUNAL,
SUPREME COURT DECISIONS
HANDED DOWN BY THE
CHIEF JUSTICES.
AN IMPORTANT OPINION IN A
RAILROAD CASE.
Associate Justice Brown Gives an Opinion
in All Interesting Insurance Case.
Other Opinions That Lawyers
and Others Will Find
Interesting.

The supreme court delivered the following
opinions Monday:
Texas and Pacific Railway company vs.
Nancy j. Gay ct al, from Tarrant county
Second district. Suit by Mrs Gay and
her children to recover damages alleged
to have resulted from the death of J. NJ.
Gay, the husband of Mrs. Gay and the
father of the other plaintiffs.
This suit was originally instituted on
February 6, 1888, against Brown as the
receiver of the Texas and Pacific Rail-
road company. Gay was an employe of
the railroad company and was killed
while acting as one of its fremen. The
original petition stated no cause of ac-
ton because the statute at that time did
not authorize such suits against receiv-
ers. (S3 Tex, 21S) On May II, 1890,
plaintiffs filed a supplemental petition,
making the railroad company a party de-
PENDANT, and alleging in substance, that
the Texas and Pacific Railroad company
on the 18th day of December, 1885,
through fraud and collision, procured the
appointment of said Brown as receiver
Nof the Texas and Pacific Railroad COM
pany on the ground that it was largely in
debted to the Missouri Pacific Railroad
company and on other grounds, which
were all false in fact and TRUTH
that the untruth of these facts was not
known to the judge who appointed the
receiver, nor to plaintiffs until few days
before the filing of their supplemental pc
tition, and that said Brown was really and
in fact during the whole period of his re-
Ownership but the agent for the Texas
and Pacific and the Missouri Pacific Rail
road companies.
First-We are of the opinion that the
facts alleged are, if true, sufficient to
have authorized the jury to find that the
appointment of the receiver was obtained
through collision of the parties to the suit
in which the appointment was made" and
that sin which case the company would
be as fully responsible for negligence in
the operation of its road through which
injury resulted to a third person, as it
would be if it's road had been operated
under the management of suuperlntend-
ant appointed by its directory" and that
''the facts which show such liability may
be found in this case" or, in other words,
while the collision might be binding on
the parties thereto, who participated in
imposing upon the court, it would not be
binding upon third person, even an EN-
ploye who could show the collision and
thereby have the receiver treated as the
agent of the railroad. (86 Tex, 601)
Second-Brown, the receiver, having
died before the trial below, the cause
was discontinued as to him. The re-
naming defendant, the Texas and Pacific
Railroad company, in the trial court, eX-
cepted to the petition on. the ground that
it appeared therefrom that the cause OF
action accused more that one and more
than two years before said company was
made a party defendant. This eXcep--
-'ftion was overruled in the courts below, and
these rulings were assigned as error.
Plaintiffs cause of action depended upon
the fraud and collision alleged to have
existed in the appointment of the receiver.
If the facts alleged be true, the appoint
ment was q fraudulent imposition upon
the court, and the subsequent holding out
of Brown as a receiver was n fraudulent
concealment of the true facts. rms
fraudulent concealment constitutes PLAIN
tiffs' real course of action against the
claim from the operation of the statute,
there being nothing in the ease charging
pIaintiffs with negligence in failing to dis
cover the fraud. Therefore the exception
was properly overruled. (S6 Tex, 6OS)
Third-There is nothing IN tne record
70 show that the plea of the statute of liml-
tations was called to the attention OF the
trial court, or to the jury. No charge was
given or asked on this issue. therefore
fhe question will not be considered.
Fourth-We are of the opinion that no
injury could have resulted to the detehu-
ant from the admission of the testimony
of the witness Dehn as to the klnd Oh
counting pin used. Defendant had al
roodv shown the same fact by its own
witness. Singleton, and there was no
attemnt made to withdraw or dispute
Sinpleton's statement We do not Wish
10 he understood as holding that the evl-
dance was admissible, as each memDeI
of this court is strongly of the OPINION tnal
the cases excluding such testimony M are
not founded upon sound reasoning. ne
Judgment is affirmed opinion ny nen'
man, ......
phopnlE Amurance Cos vs. Allison
.pni,ay. < ca. from Williamson county,
: S;5t nv Dl8ntiffs below, Allison, Bailey
q, Ia :rgainsl the Phoenix Assurance
c,,nnar,. ia. a. over the amount or a POI
Nv If IRE Insurance issued by defen'
cants 10 plaintiffs. &c ~ .u;
EIiison. Bailey & Co. and s.. N. All All
son constitui ID copartnership. Inc
fjrm bought nachinery to the amount VI
5000 and executed their notes IN pay
y
eiyen Allison prchased the machinery
5roal the othcr members of the firm ane
agresd to pay the debts of the firm, IN
rinding that due upon the machinery
The plaintiffs were to have lien upol
the Inachinerv to secure their liablllt!
therefor eud it was agreed that tn
1rSrertg sho1d be insured for the pur
nass Of SECURING that debt, s. N. ALI
.SS nrac3yni the defendant in error t
;sspe a aaiirv on the machinery an,
aaii,i,..s pa! able to Allison, Bailey 4
"a &. N. Allison paid the premium
Theiinsured property was destroyed D
efe3and this suit was instituted on tn
poiicy by Allison, Bailey & 60. Ate Ate
the fire, Allison paid the debt due for tn
machinery, to secure which the polio
was procured. Plaintiffs recovered !udg
ment in the district court rms 1ude
ment was reversed and rendered 1y Tn
court of civil appeals on the ground Una
Allison, Bailey & Co. were not the prope
parties plaintiff. or
IN All of the errors assigned excep
one involve questions of fact, upo
which the evidence was conflicting, an
we therefore cannot examine them.
(2) The first error assigned in the coul
onpaa1c r1rocontc tho nrOD0SltlO