Volume 261 — South Western Reporter

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Action by Minnie D. Carter. and others against the Chicago, Rock Island & Gulf Railway Company and others. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (250 S. W. 192), and defendants bring error.</p>

<p>1. Admiralty <&wkey;20 — Provisions of Workmen’s Compensation Act cannot be made applicable to maritime services.</p> <p>Congress cannot, under the federal Constitution, make applicable to persons engaged in maritime service provisions of state Workmen’s Compensation Acts.</p> <p>2. Admiralty <&wkey;>20 — In suit for death of diver, jurisdiction determined by nature of work being done when accident occurred.</p> <p>In a suit to set aside an award of the Industrial Accident Board and to recover compensation for death of a diver, the cause of action for death grows out of the contract of employment -between parties on theory that Compensation Law of state was read into and became a substantial part thereof and the question of admiralty jurisdiction is determinable by the nature and character of work being done.</p> <p>3. Admiralty &wkey;»IO — What constitutes a “maritime contract” stated.</p> <p>A “maritime contract” must concern transportation by sea and relate to navigation and maritime employment, and be one of navigation and commerce on navigable waters.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.]</p> <p>4. Admiralty <&wkey;20 — Contract of employment between diver and shipbuilding company held not maritime in nature so as to confer admiralty jurisdiction of an action for his death.</p> <p>A contract of employment, under which a diver was working off a floating barge in a navigable stream on ways which were constructed for launching ships and which were a necessary part of the wharf, was not purely maritime in nature, so as to confer exclusive admiralty jurisdiction on a cause of action for his death; and the contract not given an exclusive maritime character because the ways incidentally obstructed navigation.</p> <p>5.Admiralty <@=320 — Compensation Law applicable to maritime work where no direct relation to navigation or maritime commerce.</p> <p>Where a diver’s employment contract was made subject to the Workmen’s Compensation Law ("Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 1 et seq.), and the work being done does not have a direct relation to navigation or maritime commerce, though the employment partakes somewhat of a maritime nature, the state court has jurisdiction, and Compensation Law furnishes the exclusive method of procedure for his death.</p> <p><&wkey;For otner eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

D. Guinn, Judge. Action by A. Huston against the American Central Insurance Company, Judgment for plaintiff, and defendant appeals. By its policy issued April 20, 1920, appellant insured appellee in the sum of $1,600 against loss by fire of a stock of merchandise, and in the sum of $400 against loss by fire of certain store furniture and fixtures, during a period beginning on said April 20, 1920, and ending April 20, 1921.

<p>Appeal from District Court, Travis County ; Geo. Calhoun, Judge.</p> <p>Suit by W. D. C. Burney, on whose death Martha Burney, as executrix, was substituted, against J. G. Burney. Judgment for plaintiff, and defendant appeals.</p>

<p>1.'Appeal and error <&wkey;448 — Trial court had authority to appoint receiver during pendeh-cy of appeal.</p> <p>In action to quiet title to gin and grist mill plant, wherein judgment declared a partnership between plaintiff and defendant, and plaintiff appealed without filing a supersedeas bond, trial court thereafter could appoint a receiver to hold and operate the plant, under Vernon’s Sayles’ Ann. Civ.- St. 1914, art. 2128, in view of article 1706, and independent of such statutes it could appoint a receiver where the joint owners could not agree as to its operation.</p> <p>2. Partnership &wkey;>H9 — No error in appointing receiver without notice to other party.</p> <p>In an' action to quiet title to gin and grist mill plant, wherein court adjudged the parties to be partners and plaintiff appealed, the court could without notice to him appoint a receiver on application of defendant to take charge and operate the plant because the parties could not agree on the operation of the property</p> <p><®=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. hjusband and wife <&wkey;>272(3) — Statute providing that community property passes to survivor when spouse becomes “insane” limited to cases of judicially declared insanity.</p> <p>In view of Rev. St.- 1879, arts. 2165-2167, as amended by Acts 23d Leg. (1893) c. 68, Rev. St. 1911, art. 3593, providing that, where husband or wife becomes “insane,” common property passes to survivor, and no administration of estate is'required, is limited to cases where insanity has fyeen judicially declared.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insane —Insanity.]</p> <p>2. Insane persons <&wkey;66 — Land of insane person held subject to sale for amount of loan expended for necessaries.</p> <p>In action to rescind sale of land by insane person, where note received in part payment by vendor was in same transaction pledged by him as collateral to third person furnishing part of purchase money upon which furnishing deal depended, held, that land, though homestead, and under Const, art. 16, § 50, exempt from forced sale, in view of equitable nature of action, was subject to sale to secure pledgee for moneys found to have been expended by vendor and wife for necessaries and money in their possession at time of trial.</p> <p>3. Interest @=>36(1) — Right of one loaning money to insane person as to interest on part applied to necessaries stated.</p> <p>Where right to recover sum used for necessaries from money loaned was not based on contract for loan, hut on equitable ground of recovery for money used by insane person for necessaries, interest was not recoverable at 8 per cent, rate, as provided by contract, but at legal rate of 6 per cent.</p> <p>4. Insane persons <&wkey;>98 — Burden on lender to show money loaned to insane person used for necessaries.</p> <p>Burden of proof is on lender to show money loaned to insane person was used for necessaries.</p> <p>5. Insane persons <§=>99 — Lender of money to insane person held not injured by definition of “necessaries.”</p> <p>Where issue was as to whether appellant was entitled to recover back money loaned to insane person on ground that it had been used for necessaries, held that, if definition by court of “necessaries” was too restrictive, appellant was not injured in view of failure of evidence to show that money was used for “necessaries,” giving that word its broadest scope.</p> <p>6. Appeal and error <§=>1052 (6) — Refusal to exclude testimony held without harm where it could only affect issue found in favor of appellant.</p> <p>Where question was as to right of appellant to recover back money loaned to insane person on ground that it was applied to necessaries, admission of evidence as to means of support, if erroneous, held not harmful where only issue it could have affected was found in favor of appellant.</p> <p>7. Appeal and error <&wkey;l052(6) — Refusal to exclude testimony that wife did not understand transaction sought to be rescinded held without harm.</p> <p>In suit by insane person to rescind land sale, where testimony of wife that she did not understand transaction could not affect jury’s finding on special issues except one v'hieh was found for defendant, refusal to exclude was without harm.</p> <p><§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Tarrant County Court; H. O. Gossett, Judge.</p> <p>Action by the L-itwood Oil & Supply Company against W. S. Phillips and the Sterling Eire Insurance Company, garnishee, and others, wherein Sol Gordon intervened. Prom judgment rendered, Sol Gordon and others appeal.</p>

<p>1. Evidence <&wkey;8 — Common knowledge that dams, especially earthen dams, frequently give way.</p> <p>It is common knowledge that dams, especially earthen dams, frequently give way.</p> <p>2. Nuisance &wkey;>50(4) — Measure of damages for permanent nuisance.</p> <p>When a nuisance is permanent, the measure of damages is the resulting depreciation in the value of property.</p> <p>On Motion for Rehearing and to Certify.</p> <p>8. Nuisance <5&wkey;4 — Earthen dam held a nuisance.</p> <p>Petition averring construction of earthen dam was annoyance and detriment to plaintiff and his family, that they lived in continual fear of their lives and property, that leakage existed which might cause dam to break, and that these facts depreciated value of plaintiff’s land in designated sum, held to state cause of action in damages for erection of nuisance.</p> <p>4. Courts <&wkey;247(7) — Decision of Court of Civil Appeals on appeal from county court not certified because of conflict of decision.</p> <p>In, case of conflict of decision on appeal from county court, judgment of Court of Civil Appeals is not final in view of Acts 38th Leg. (1923) c. 56, and in such case the Supreme Court having jurisdiction upon application for writ of error under Vernon’s Ann. Civ. St. Supp. 1918, art. 1521, the case will not be certified because of alleged conflict.</p> <p><©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from District Court, Shackelford County; W. R. Ely, Judge.</p> <p>Suit by Robert Mashburn against the Tex-Ken Oil Corporation and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Telegraphs and telephones <&wkey;65(6) — Allega-' tion of contract to deliver in term held not to permit recovery for delay in delivery in country.</p> <p>One .basing his right to damages for delay in delivery of telegram upon contract to deliver at a certain town cannot recover on theory that there was any obligation to make delivery 3%. miles from town, though message was not written on blank incorporating agreement as to free delivery limit.</p> <p><@=^For other cases see same topic and KEY-NUMBER in all Key-lNumbered Digests and Indexes</p>

<p>1. Partnership <&wkey;204 — Delivery of citation to secretary of several companies constituting partnership held sufficient to support default judgment.</p> <p>A delivery of a citation to the secretary, trustee, and partner of several joint-stock companies or common-law associations, constituting a partnership and doipg business as such, was sufficient to support a default judgment against such companies, under Rev. St. art. 1906, subd. 6, articles 6149, 6152, and article 1863.</p> <p>2. Partnership &wkey;2l3(2) — Allegations of partnership are confessed where not denied under oath. »</p> <p>Allegations of partnership are confessed where not denied under oath.</p> <p>3. Judgment <&wkey;720 — Conclusive upon every question of fact and issue raised thereon.</p> <p>A judgment over the subject-matters and parties, as to the merits of controversy, is conclusive upon every question of fact and issue raised thereupon.</p> <p>4. Judgment <&wkey;342(2) — Cannot be set aside without cause at subsequent term.</p> <p>A judgment cannot, without cause, be set aside at a subsequent term, when it recites service on the parties.</p> <p>5. Judgment &wkey;s343 — Fraud, accident, or mistake must be shown to attack judgment on purely equitable grounds.</p> <p>To attack a judgment purely upon equitable ground, and not on ground that judgment was void, fraud, accident, or mistake must be alleged and proven.</p> <p>6. Judgment <&wkey;384 — Burden on one attacking judgment to show wherein it is unjust.</p> <p>The burden is on one attacking a judgment on purely equitable grounds to allege fully a meritorious cause of defense, under oath, and specially set out legal and equitable defenses, claimed to have been prevented from making,, and to show wherein judgment is unjust, and to set out facts constituting supposed fraud, accident, or mistake.</p> <p>7. Appeal and error <&wkey;!73(2)— Legal capacity to enter partnership cannot be raised first, time on appeal, where partnership allegations not denied under oath.</p> <p>Contention that unincorporated companies and common-law trust companies could not be legally engaged in partnership with each other could not be raised first time on appeal, where allegations of partnership were not denied under oath.</p> <p>igzssB’or otiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Carriers &wkey;>l 03 — Petition for delay held insufficient as to damages.</p> <p>Petition, in shipper’s action, for delay, not alleging market values at destination when delivery should have been made, and, when it was made, by some measure, as by the pound, but merely alleging that the market value of the shipment was less by a certain sum, when sold, than it would have been but for delay, was insufficient against special exception.</p> <p>2. Carriers i&wkey;>II6 — Evidence of damages for deiay held insufficient.</p> <p>Carrier is liable for delay of perishable produce, only for deterioration at time of delivery, and it was insufficient to show deterioration when produce was sold several days later.</p> <p>3. Carriers <&wkey;>96 — Delivery after business hours Saturday in effect on Monday.</p> <p>As respects liability for delay delivery of car of produce at consignee’s warehouse after business hours on Saturday held in legal effect on the following Monday morning.</p> <p>4. Evidence <&wkey;3l4(2), 471 (19) — Testimony, on information from others, hearsay and conclusion.</p> <p>Testimony, on information from others, that shipped produce when reaching .destination was rotten and worthless was hearsay and conclusion.</p> <p>4&wkey;lTor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Sales <§=^161 — Buyer’s liability for price of goods lost in transit because of misdirection depends on facts in each ease.</p> <p>Whether buyer of goods lost in transit is liable because of error in name and address .placed thereon when delivered to carrier depends largely on facts in each case; it being unreasonable to hold buyer liable if misdirection was due to seller’s fault, unless error did not cause or contribute to loss.</p> <p>2. Sales <&wkey;>l6l— Buyer held liable to seller for price of goods lost in transit.</p> <p>Buyers of goods shipped in package addressed to wrong name, but plainly directed to small town, wherein they had been in business for long time, and there was no other firm of name similar to that on package, helcb liable for price of goods, which were lost in transit.</p> <p>3. Names <&wkey;!6(3) — -“Hawk & Riland” and “Hauk & Eiiand” held not idem sonans.</p> <p>“Hawk & Riland” and “Hauk .& Eiiand” held, not idem sonans.</p> <p>4. Evidence c&wkey;20(2)— Common knowledge that carrier could easily deliver package to only firm of name similar to that given thereon in small town. '</p> <p>• It is matter of common knowledge that carrier would experience no difficulty in delivering package addressed to small town wherein there is only one firm of name similar to that on package if latter reached such town.</p> <p>5. Sales &wkey;>20l(4) — Remedy of buyer for loss of misdirected goods in transit held against carrier, not seller.</p> <p>Remedy of buyer for loss in transit of goods -plainly addressed to small town, in which there is no other firm of name similar to incorrect name on package, is against carrier, not seller.</p> <p>-6. Appeal and error <&wkey;>l 177(7) — Cause remanded on reversal of judgment for further development of certain question.</p> <p>Where case may not have been fully developed on question whether loss of goods in transit was attributable to seller’s error in buyer’s name on package, judgment for seller will not be rendered on reversal of judgment for buyer, but cause will be remanded for retrial.</p> <p><gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from District Court, Wichita County ; P. A. Martin, Judge.</p> <p>Lon Griffin was convicted of manslaughter, and' he appeals.</p>

<p>Appeal from District Court, Taylor County ; W. R. Ely, Judge.</p> <p>Trespass to try title by C. B. Brown against J. B. Knox. Prom the judgment rendered, plaintiff appeals.</p>

<p>Appeal from Wichita County Court; Guy Rogers, Judge.</p> <p>Scire facias by Charles Carson to revive a judgment against C. M. Taylor. Prom an order setting original judgment aside, plaintiff appeals.</p>

<p>Error from District Court, Howard County ; W. P. Leslie, Judge.</p> <p>Suit by Lucy Currie against D. M. Tram-mell, and cross-action against Wm. B. Cur-rie and others. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Taylor County ; W. R. Ely, Judge.</p> <p>Noble Tiller was convicted of aggravated assault, and he appeals.</p>

R. Bishop, Judge. Suit by W. H. Collins against J. L. Tryon- and S. F. Carter, Jr., composing the firm of Tryon & Carter and others. From the judgment, defendants Tryon & Carter and another appeal, and plaintiff assigns cross-error.-

<p>Appeal from District Court, Wichita County; II. R. Wilson, Judge.</p> <p>Action by J. D. Wheeler against Jerome 5. Stonfe. Judgment for ■ defendant, and plaintiff appeals.</p>

<p>Appeal from Tarrant County Court for Civil Cases; H. O. Gossett, Judge.</p>