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lishes and forecloses a mortgage on "all the record books, index books, and all the appurtenances pertaining to the business of said defendant, the Austin Real-Estate & Abstract Company." In our opinion, the testimony does not establish a mortgage, or justify foreclosure, except upon appellant's abstract books. In this respect, therefore, the judg ment will be reformed, so as to allow appellee a foreclosure upon, and limit such foreclosure to, all the abstract books belonging to appellant. We do not wish, however, to be understood as holding that the judgment thus reformed will not include the index books. Judgment reformed and affirmed.

WESTERN UNION TEL. CO. v. FERGUSON.

(Court of Civil Appeals of Texas. Oct. 31, 1894.)

TELEGRAPH COMPANIES-CLAIMS FOR DELAY.

1. A telegraph company may reasonably restrict the time within which claims for the delay of telegrams must be presented.

2. The filing of a suit to recover for delay in the delivery of telegrams and the service of citation within 90 days is not a presentation of the claim in accordance with a regulation that such claims must be presented in writing within 90 days.

Appeal from Bell county court; John M. Furman, Judge.

Action by T. J. Ferguson against the Western Union Telegraph Company for delay in the delivery of telegrams. Judgment for plaintiff, and defendant appeals. Reversed. Walton & Hill, for appellant. Saunders, for appellee.

Harris &

FISHER, C. J. This suit was brought in the county court of Bell county to recover damages for failure to promptly deliver three telegrams to T. J. Ferguson. Several questions are raised before this court, but we only notice one of them, as, in our opinion, it is decisive of the case. Each message stipulates that the company will not be liable in any case when the claim is not presented in writing within 90 days after the message is filed with the company for transmission. This stipulation was by appellant pleaded under oath, as required by the act of March 4, 1891. The suit on these telegrams was filed before the expiration of the 90 days, and it appears that citation was served before said time expired in which the claim should be presented. The undisputed eviuence in the record shows that no notice or claim other than the filing of suit and service of citation was given or presented; nor is there any question raised or contention made that the 90 days' time provided in which claim should be presented is not reasonable. The court below, on this branch of the case, instructed the jury that the filing of suit and service of citation within the 90 days was a compliance with this stipulation.

Thus presented, the question that calls for decision is, was the filing of suit and service of citation a compliance with the stipulation? Stipulations of this character, if the time stated in which the claim shall be presented is under the facts of the case reasonable, and not less than 90 days, as prescribed by act of March 4, 1891, will be enforced as a reasonable limitation upon the liability of the telegraph company. Telegraph Co. v. Rains, 63 Tex. 28. We do not think that the filing of suit and service of citation was such a presentation of the claim for damages as is contemplated by the stipulation in the contract. Several reasons may be advanced why stipulations of this character are inserted in such contracts. One reason why such notice should be given or claim presented is that the company may investigate the merits of the claim, and inquire into the facts relative to the transmission and delay of the message, while fresh within the recollection of those that have knowledge concerning such matters, in order that, if the claim is just and meritorious, it may be settled, and satisfaction made, without the expense and cost of a suit or litigation about the matter. It is probable that this is one of the reasons why such stipulations are inserted in these contracts, and, in our opinion, it is a reason why it was done. If the telegraph company, through its negligence, occasioned the injury that resulted in damages, and no valid or legal reason existed why it should not be held responsible, it is not reasonable to assume that it would refuse to pay what was justly due when presented with the claim; and it is reasonable to suppose that a regulation or agreement with reference to presenting the claim was made for the purpose of giving them an opportunity to pay, and thereby prevent useless and harassing litigation. It may be said that the company is in law charged with notice of the negligence of its servants in transmitting and delivering the message, and for this reason presentation of claim, which operates as notice, would be unnecessary, and therefore the reason we give for this provision of the contract is in part unsound. But although the company may know of the negligence, it does not know that damage has resulted, or its extent, unless notified of that fact. It is not assumed, because it has been negligent, some one has been injured, but the presumption is to the contrary, and it rests upon the one injured to show that fact. It may be as important for the company, in the protection of its rights, to be notified of the fact that damages have resulted, and the amount thereof, so that a proper investigation as to those matters may be made, as it is for it to be notified concerning any other matter relative to the message and its transmission. And it seems to us that one of the primary objects to be accomplished in presenting it with the claim was that it might be informed of the damages and the amount, so that it

could inquire into the matter, in order that it may avoid litigation if the claim was just. Other reasons are suggested by other cases, notably Wolf v. Telegraph Co., 62 Pa. St. 86; Young v. Telegraph Co., 65 N. Y. 163; Heimann v. Telegraph Co., 57 Wis. 562, 16 N. W. 32. In our opinion, the filing of the suit and service of the citation was not a presentation of the claim within the meaning of this stipulation. The question has been expressly decided in accord with our views in the case of Telegraph Co. v. McKinney, 2 Willson, Cas. Ct. App. § 647; 25 Am. & Eng. Enc. Law, 801, and cases there cited. As a prerequisite to the filing of suit the claim should have been presented within the time agreed, or a waiver should have been shown. As nothing of the kind is shown by the record, and as the time has expired in which the claim may be presented, the judgment of the court below is reversed, and here rendered in favor of the appellant, and also that it recover the costs of suit.

LEAGUE v. HENECKE. (Court of Civil Appeals of Texas. Oct. 31, 1894.)

TRESPASS TO TRY TITLE-STALE DEMAND.

Where a land certificate was issued to plaintiff in 1849, and a patent therefor was issued in 1860 to other persons, under whom defendant claimed an undivided interest, and plaintiff did not bring suit to try title till 1891, defendant's plea of stale demand as to such undivided interest was good.

Rehearing. Denied.

For former opinion, see 26 S. W. 729.

Sims & Snodgrass, for appellant. Walter Anderson, Sidon Harris, and R. H. Ward, for appellee.

COLLARD, J.

Appellee's counsel earnest

ly insist that we have fallen into error in holding that stale demand applies to his title. We have carefully examined the question and the authorities cited, and conclude that our former opinion is correct, and that we should adhere to it. The general rule is that the legal title is in the patentee. There is no legal title in any person until the patent or grant of the government issues. When the original grantee of a certificate, after location and before patent, sells the land appropriated by it, it has been held, and it is the settled law of this state, that, upon the issuance of the patent to the grantee, the legal title vests in the assignee by estoppel. The grantee is estopped by his deed from asserting the legal title. Johnson v. Newman, 43 Tex. 639; Hermann v. Reynolds, 52 Tex. 391; Adams v. House, 61 Tex. 641; Hill v. Moore, 62 Tex. 610; Satter white v. Rosser, 61 Tex. 173; Wilson v. Simpson, 68 Tex. 306, 4 S. W. 839; Daniel v. Bridges, 73 Tex. 149, 11 S. W. 121; Stevens v. Geiser, 71 Tex. 140, 8 S. W. 610; Todd v. Fisher, 26 Tex. 240; League v. Ro

gan, 59 Tex. 431; Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102. In the last case above cited, it is held that there is no estoppel merely by the conveyance of the certificate before its location, and that in such case the legal title remains in the patentee; but, when the deed is to the land after the certificate has by location merged in the land, then estoppel will place the legal title in the assignee, though the patent issue to the original grantee. Appellee relies upon the case of Adams v. House, supra, as showing that the appropriation of land by certificate issued for land in the colony of Fisher & Miller, as in the case before us, vests the legal title in the owner before patent, and, when the owner sells such 2 right, he conveys the legal title. De Cordova, the owner, sold by warranty deed three of these certificates to one Considerant, and the patent issued to De Cordova. The court say: "The patents which issued to De Cordova in February, 1857, had the effect, by reason of the fact of his previously conveying the land described in them to Considerant, to invest Considerant eo instanti, at the moment of their issuance, with the legal title to the land." When does the court say the legal title vested in Considerant? At the time the conveyance to him? Not at all; but when the patent issued, showing that there was no legal title in any individual until the patent issued. Then, how did the legal title vest in the vendee? Evidently by virtue of De Cordova's deed, by estoppel. The patent put the state's legal title in the patentee, but it was divested by estoppel. The appropriation of land by a certificate for land in the colony of Fisher & Miller is no more an appropriation and a severance of the land from the public domain than the valid location of any genuine certificate. The only difference is that the appropriation is effected in a different manner. In both cases no one has the legal title until the patent issues, and such title is where the state's grant places it, unless by estoppel it vests in some one else. There is no estoppel in this case, and no fact which, upon principle, would vest the legal title in Henecke. The patent issued to the heirs of Memican Hunt, in 1860. The land was sold by Hunt's administrator to T. J. League,-a sale duly authorized and confirmed by the probate court,-in the administration of the estate of Hunt. It was proved on the trial that defendant paid cash for the land ($1.25 per acre), with no notice or knowledge of any kind or character of plaintiff's claim to the land. We then find the legal title vested in defendant, a bona fide purchaser of the same from persons holding under the state's patent. We can see no reason why stale demand should not apply to the equitable title of Henecke in favor of defendant, who claims under a sale made by Hunt's administrator in August, 1867. His claim would not be affected by the fact that the deed to Hunt was a forgery. As in the case of League v. Rogan, supra, the vice in

the title of defendant is back of the patent. In that case the patent issued upon a forged transfer, and it was held that the threeyears statute of limitations would run in favor of a vendee of the patent, as would also stale demand. Pearson v. Burditt, 26 Tex. 172; De Cordova v. Smith, 9 Tex. 150; Glasscock v. Nelson, 26 Tex. 150; Carlisle v. Hart, 27 Tex. 351; Reed v. West, 47 Tex. 241; McKin v. Williams, 48 Tex. 89; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870; Montgomery v. Noyes, 73 Tex. 205, 11 S. W. 138. The motion for a rehearing is overruled.

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ACCIDENT AT RAILROAD CROSSING-CONTRIBUTORY NEGLIGENCE-RIGHTS OF TRAVELERS.

1. Where there is a conflict of testimony as to the circumstances of an accident causing plaintiff's injury, it is for the jury to determine whether or not the plaintiff was guilty of contributory negligence.

2. Persons lawfully in a public highway are not trespassers while crossing a railway track, but have equal rights with the railway company, and each must observe a proper degree of care to avoid accidents.

Appeal from district court, Rockwall county; Anson Rainey, Judge.

Action by W. M. Cox against the Missouri, Kansas & Texas Railway Company for personal injury. Judgment for plaintiff. Defendant appeals. Affirmed.

W. C. Jones, for appellant. Campbell, Word & Charlton, for appellee.

LIGHTFOOT, C. J. This suit was brought by appellee for damages for personal injuries received by him while attempting to cross the track of appellant at a public crossing in Rockwall county. The verdict and judgment justify the following conclusions: On April 27, 1892, appellee was traveling along a public road, in a two-horse wagon, between the towns of Fate and Rockwall. Before reaching the point where such public road crosses appellant's track, appellee used such precautions as a man of ordinary prudence would have used to guard against danger, but appellant's servants in charge of its train were guilty of negligence in approaching such crossing, in this: The train was a gravel or work train, with about 16 or 18 flat cars and a caboose. The engine was at the rear end of the train, and they were running this long train backward, at a high rate of speed, and failed to observe the signals required by law upon approaching such public crossing. That appellant's servants in charge of such train saw appellee in time to have prevented the injury, but neglected to do so after they saw his danger. They ran such train upon him while crossing the track at such public crossing, and he was

damaged by the full amount found in the verdict of the jury.

The only assignment of error presented in the brief of appellant is as follows: "The court erred in overruling defendant's motion for a new trial, and in not granting a new trial, for the following reasons, to wit: Plaintiff, W. M. Cox, testified that he lived near the line of defendant's railway, and knew and was well acquainted with the ground and lay of the land at and adjacent to the crossing, both north and south of the said crossing where he was injured; and that, on the day he was injured, he drove along beside defendant's railway the distance of three or four hundred yards, in plain view of defendant's track, and that he looked and listened for a train at the distance of 170 steps from said crossing, and did not look or listen any more after that before driving upon the track at said crossing; and his own testimony shows that his failure to look or listen for a train immediately before driving upon defendant's track was the ap proximate cause of his injury." The testimony of appellee shows that he was going south, in the direction of Rockwall, before reaching the crossing: The public road runs parallel with the railroad about 170 steps before reaching the crossing, and he could see behind him up the railroad for about a mile and a half, and stood up in his wagon, and looked carefully for trains, both behind and before him, and could see none. He knew the train schedules, and it was not the time of day for any regular train. He drove to the crossing in a fast walk. There was a stiff wind blowing from the south; and, while attempting to cross the track, he observed appellant's train of cars within a few feet of him, which had approached from the north (behind him), and was going south. When he saw the cars, it was too late for him to get out of the way, though he tried to do so. There was no brakeman or other person on the end of the caboose, which was being run in front of the long train, the engine being in the rear. There was a conflict in evidence upon the question as to whether the signals were given, and as to whether the agents of appellant saw the ap pellee in time to have stopped the train; but under the verdict and judgment, which were approved by the court below after hearing the testimony, and in deference thereto, we have found these issues in favor of appellee.

In the case of Railway Co. v. Anderson, 76 Tex. 251, 13 S. W. 196, our supreme court, in commenting upon this question, says: "In the case of Railway Co. v. Wilson, this court says: 'Our statute does not require persons approaching a public crossing on a railroad to stop and listen and look out for approaching trains. Therefore, it would be incorrect for the court to instruct the jury that a failure to do so would constitute negligence. Whether a failure to do so would or would

not constitute negligence is a question of fact, to be determined by the jury from the facts and circumstances of each particular case.' 60 Tex. 143, 144." Railway Co. v. Lee, 70 Tex. 496-501, 7 S. W. 857.

It is not necessary for us to enter upon a discussion of the question of contributory negligence, upon which the apparently conflicting decisions have caused much confusion. Where the verdict is not supported by the evidence, the court should promptly set it aside; but, where there is a conflict in the testimony, it is for the jury to determine its weight; and their verdict should not be disturbed, even though the court might, under the same facts have made a different finding. In this case the court below, under a verdict supported by the testimony, found that there was no contributory negligence on the part of appellee. We do not feel authorized to disturb the finding. Our own views upon the respective rights of parties at public crossings are briefly as follows: Persons lawfully in a public highway, while crossing a railway track, are in no sense trespassers upon such railway, but have equal rights with the railway company at such crossing; and it is the duty of each to observe the laws provided for their protection, and the obligation is upon each to observe a proper degree of care and caution to avoid accidents. When an injury occurs, it is for the jury to say, under the facts and circumstances, whether the law and the reciprocal obligations have been observed. In this case there is no complaint of the charge of the court. The questions were all fairly submitted to the jury. The verdict is supported by the evidence. We find no error in the judgment, and it is affirmed.

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JAMES, C. J.

Lillie Gormley, widow of D. J. Gormley, brought this suit for herself and on behalf of David Gormley, the only child of D. J. Gormley, and of Thomas and Ann Gormley, the parents of D. J. Gormley, against appellant, for injury resulting in the death of D. J. Gormley, who was a brakeman in appellant's employ when he met his death. The act alleged to have been the cause of Gormley's death was that while he was at his post of duty he was struck by a spout attached to a water tank at Eagle Lake, belonging to defendant company, which spout was by defendant negligently and carelessly allowed to overhang the railroad track, and to overhang the car upon which he was riding, and he was thereby knocked off the car and run over by the train, producing injuries which terminated in death. Besides a general denial, defendant denied that it ever permitted the spout to hang over the railway track in such manner as to strike a man on its cars, and charged that if Gormley was knocked off the cars and killed it was through no fault of defendant, but was due to his own carelessness; that the spout was in perfect condition, and was not swinging over the track, but was in proper position, and would not have struck any one unless he negligently leaned over, and thereby came in contact with it; that the spout was made after the latest pattern, and had the latest appliances necessary to make it safe and secure. Defendant also pleaded that if the spout was left hanging it was the act of a fellow servant of deceased, and that, if struck as alleged, he was at the time acting in violation of the rules of defendant regulating his duties, with which he was familiar. The verdict was in the sum of $12,500, apportioned $6,250 to Lillie Gormley and $6,250 to her son, upon which judgment was entered in their favor, and adjudging that plaintiffs recover nothing in behalf of Thomas and Ann Gormley, the parents of deceased.

The second assignment of error was to allowing a witness-Chiner Robinson-to testify that about March 1, 1892 (six months before the event in question), he saw this spout out of repair, and hanging down, and that he at that time notified defendant's agent of the fact. We consider the allegations in the petition as charging that the overhanging of the spout was due to defendant's negligence. It is true that the allegation might imply that the negligence consisted in merely allowing it to hang down, although perfect in construction; yet it would

fairly include a case also in which the overhanging of the spout was due to negligence in its construction or in keeping it in repair. Upon this view of it, the evidence objected to was proper as tending to show previous knowledge on the part of defendant of insufficiency in the appliance. Evidence of defective construction in the appliance was properly admitted, and therefore the sixth assignment of error is not well taken.

By the third and sixteenth assignments it is stated that the court erred in permitting witnesses to testify that Gormley was a healthy, vigorous man, and another witness as to his life expectancy, for the reason, as given, that the damages in such cases are "consequential and special, and must be specially pleaded." The petition alleged death from the negligent act of defendant, and damages therefrom to plaintiffs in the sum of $25,000. The damages contemplated by the act relating to this character of suit are pecuniary and compensatory, and there is no doubt in our minds that upon the petition as it stood any damages of that nature, and the extent thereof, could be proven without specially alleging same. The court charged the jury, in connection with its definition of negligence, that "negligence should be measured by the character, risk, and exposure of the business engaged in; and the degree of care of all parties is higher when the lives and limbs of themselves and others are endangered than in ordinary cases;" and appellant urged that this was contrary to the rule that ordinary care only is exacted of parties, placed an unnecessary burden on defendant, and furthermore assumed that "deceased was careful and prudent." The charge is not subject to the criticisms, particularly the one last stated. It was not on the weight of evidence, and stated a correct principle. Railway Co. v. Randall, 50 Tex. 257.

The seventh assignment complains of the following charge: "It is legal and lawful for a railroad company to formulate and adopt certain rules for the government and observance of its employés in the operating and conducting of its business, and where said rules are reasonable, and are being enforced by the corporation adopting them, then said corporation having such reasonable rules enforcing their observance by its employés would not be liable in damages for the death of one of its employés if the death of said employé was occasioned by the willful or negligent disobedience of such rules, which were at the time known to said employé, and when the act of disobedience is the proximate cause of the death of said employé, unless the act is done under the influence of fear produced by the appearance of sudden danger. But in order to find for defendant company on this issue you must find from a preponderance of evidence that said rule was a reasonable rule; that the defendant company was exacting the ob

servance of the same by its employé; and that said Gormley, deceased, knew of the existence of said rule, and of its enforced observance by the defendant, at the time he was injured; and that at the time of his injury he was violating said rule; and that the act by him in violation of said rule was the proximate, and not the mediate, cause of his death." The only ground of reasonable objection to this charge is in the clause, "unless the act is done under the influence of fear produced by the appearance of sudden danger." This seems to be a mere abstraction, not involved in the evidence, as we read it; and was calculated to lead the jury to consider there was warrant for it in the testimony.

The eighth assignment is not in conformity with the rules, and will not be considered. The ninth assignment complains of the court's not giving a charge asked, in effect, that if the jury found for plaintiffs, they would be confined, in estimating damages. to a consideration of the money value of the life of deceased to the plaintiffs, and that they could not consider the loss of society and advice of the deceased to the plaintiffs. The charge as given plainly limited the damnages to such as were pecuniary, the court adding: "And in this connection you are instructed that in estimating the actual damages (if you should find for plaintiffs) you are not to take into consideration any mortification to feelings or mental suffering on part of plaintiffs, and no allowance should be considered by you for the grief and bereavement of the plaintiffs by reason of being relatives." There was nothing in the evidence to direct the attention of the jury to the loss of society and advice. We think there was no necessity for giving the charge asked.

After considering the tenth, eleventh, and thirteenth assignments, we have concluded it would have been error to give charge No. 5 asked, because it would have instructed a verdict for defendant from decedent's mere failure to avoid danger. All that was in charge No. 3 that was correct had been substantially given. Charge No. 7 was plainly erroneous, and properly refused.

The twelfth assignment complains of a charge which, if given, would have been a comment on the evidence.

The suit was brought by the widow of the deceased, and the child and parents of deceased were joined, as authorized by the statute (Rev. St. art. 2904). The jury were correctly instructed to apportion the damages found by them among the plaintiffs as they found them entitled thereto from the evidence. All the parties interested in the recovery were before the court, and the ev idence did not show any pecuniary damage to the parents from the death (Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820), and nominal damages are not recoverable in this species of action.

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