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lishes and forecloses a mortgage on "all the Thus presented, the question that calls for record books, index books, and all the ap- decision is, was the filing of suit and service purtenances pertaining to the business of said of citation a compliance with the stipulation ? defendant, the Austin Real Estate & Abstract | Stipulations of this character, if the time Company.” In our opinion, the testimony stated in which the claim shall be presented does not establish a mortgage, or justify fore- is under the facts of the case reasonable, closure, except upon appellant's abstract and not less than 90 days, as prescribed by books. In this respect, therefore, the judg act of March 4, 1891, will be enforced as a ment will be reformed, so as to allow ap- reasonable limitation upon the liability of pellee a foreclosure upon, and limit such fore the telegraph company. Telegraph Co. v. closure to, all the abstract books belonging to Rains, 63 Tex. 28. We do not think that the appellant. We do not wish, however, to be filing of suit and service of citation was such understood as holding that the judgment thus a presentation of the claim for damages as reformed will not include the index books. is contemplated by the stipulation in the Judgment reformed and affirmed.

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 preWESTERN UNION TEL. CO. v. FERGU sented is that the company may investigate SON.

the merits of the claim, and inquire into the (Court of Civil Appeals of Texas. Oct. 31,

facts relative to the transmission and delay 1894.)

of the message, while fresh within the recolTELEGRAPH COMPANIES-CLAIMS POR DELAY.

lection of those that have knowledge concern1. A telegraph company may reasonably re

ing such matters, in order that, if the claim is strict the time within which claims for the de just and meritorious, it may be settled, and lay of telegrams must be presented.

satisfaction made, without the expense and 2. The filing of a suit to recover for delay in the delivery of telegrams and the service of

cost of a suit or litigation about the matter. citation within 90 days is not a presentation of It is probable that this is one of the reasons the claim in accordance with a regulation that why such stipulations are inserted in these such claims must be presented in writing with

contracts, and, in our opinion, it is a reain 90 days.

son why it was done. If the telegraph comAppeal from Bell county court; John M.

pany, through its negligence, occasioned the Furman, Judge.

injury that resulted in damages, and no valAction by T. J. Ferguson against the West

id or legal reason existed why it should not ern Union Telegraph Company for delay in

in be held responsible, it is not reasonable to the delivery of telegrams. Judgment for

assume that it would refuse to pay what was plaintiff, and defendant appeals. Reversed.

justly due when presented with the claim; Walton & Hill, for appellant. Harris & and it is reasonable to suppose that a reguSaunders, for appellee.

lation or agreement with reference to pre

senting the claim was made for the purpose FISHER, C. J. This suit was brought in of giving them an opportunity to pay, and the county court of Bell county to recover thereby prevent useless and harassing litigadamages for failure to promptly deliver three tion. It may be said that the company is telegrams to T. J. Ferguson. Several ques- | in law charged with notice of the negligence tions are raised before this court, but we of its servants in transmitting and delivering only notice one of them, as, in our opinion, the message, and for this reason presentation it is decisive of the case. Each message of claim, which operates as notice, would be stipulates that the company will not be lia unnecessary, and therefore the reason we ble in any case when the claim is not pre- give for this provision of the contract is in sented in writing within 90 days after the part unsound. But although the company message is filed with the company for trans- | may know of the negligence, it does not mission. This stipulation was by appellant know that damage has resulted, or its extent, pleaded under oath, as required by the act unless notified of that fact. It is not asof March 4, 1891. The suit on these tele- | sumed, because it has been negligent, some grams was filed before the expiration of the one has been injured, but the presumption 90 days, and it appears that citation was is to the contrary, and it rests upon the one served before said time expired in which the injured to show that fact. It may be as claim should be presented. The undisputed | important for the company, in the proteceviuence in the record shows that no notice tion of its rights, to be notified of the fact or claim other than the filing of suit and that damages have resulted, and the amount service of citation was given or presented; thereof, so that a proper investigation as to nor is there any question raised or contention those matters may be made, as it is for it to made that the 90 days' time provided in be notified concerning any other matter relawhich claim should be presented is not rea tive to the message and its transmission. sonable. The court below, on this branch And it seems to us that one of the primary of the case, instructed the jury that the filing | objects to be accomplished in presenting it of suit and service of citation within the 90 with the claim was that it might be informed days was a compliance with this stipulation. I of the damages and the amount, so that it could inquire into the matter, in order that gan, 59 Tex. 431; Abernathy V. Stone, 81 it may avoid litigation if the claim was just. Tex. 430, 16 S. W. 1102. In the last case Other reasons are suggested by other cases, above cited, it is held that there is no estopnotably Wolf v. Telegraph Co., 62 Pa. St. pel merely by the conveyance of the certifi86; Young v. Telegraph Co., 65 N. Y. 163; cate before its location, and that in such case Heimann v. Telegraph Co., 57 Wis. 562, 16 the legal title remains in the patentee; but, N. W. 32. In our opinion, the filing of the when the deed is to the land after the certifisuit and service of the citation was not a cate has by location merged in the land, then presentation of the claim within the mean estoppel will place the legal title in the asing of this stipulation. The question has signee, though the patent issue to the original been expressly decided in accord with our grantee. Appellee relies upon the case of views in the case of Telegraph Co. v. Mc Adams v. House, supra, as showing that the Kinney, 2 Willson, Cas. Ct. App. 8 647; 25 | appropriation of land by certificate issued for Am. & Eng. Enc. Law, 801, and cases there land in the colony of Fisher & Miller, as in cited. As a prerequisite to the filing of suit the case before us, vests the legal title in the the claim should have been presented within owner before patent, and, when the owner the time agreed, or a waiver should have sells such 2 right, he conveys the legal title. been shown. As nothing of the kind is De Cordova, the owner, sold by warranty shown by the record, and as the time has ex deed three of these certificates to one Considpired in which the claim may be presented, erant, and the patent issued to De Cordova. the judgment of the court below is reversed, The court say: "The patents which issued to and here rendered in favor of the appellant, De Cordova in February, 1857, had the efand also that it recover the costs of suit. fect, 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 LEAGUE V. HENECKE.

title to the land.” When does the court say

the legal title vested in Considerant? At the (Court of Civil Appeals of Texas. Oct. 31,

time of the conveyance to him? Not at all; 1894.)

but when the patent issued, showing that TRESPASS TO TRY TITLE--STALE DEMAND.

there was no legal title in any individual unWhere a land certificate was issued to plaintiff in 1849, and a patent therefor was is.

til the patent issued. Then, how did the sued in 1860 to other persons, under whom de legal title vest in the vendee? Evidently by fendant claimed an undivided interest, and virtue of De Cordova's deed, by estoppel. plaintiff did not bring suit to try title till 1891, defendant's plea of stale demand as to such un

The patent put the state's legal title in the divided interest was good.

patentee, but it was divested by estoppel.

The appropriation of land by a certificate for Rehearing. Denied.

land in the colony of Fisher & Miller is no For former opinion, see 26 S. W. 729.

more an appropriation and a severance of the Sims & Snodgrass, for appellant. Walter land from the public domain than the valid Anderson, Sidon Harris, and R. H. Ward, for location of any genuine certificate. The only appellee.

difference is that the appropriation is effect

ed in a different manner. In both cases no COLLARD, J. Appellee's counsel earnest one has the legal title until the patent issues, ly insist that we have fallen into error in and such title is where the state's grant holding that stale demand applies to his title. places it, unless by estoppel it vests in some We have carefully examined the question one else. There is no estoppel in this case, and the authorities cited, and conclude that and no fact which, upon principle, would our former opinion is correct, and that we vest the legal title in Henecke. The patent should adhere to it. The general rule is that issued to the heirs of Memican Hunt, in 1860. the legal title is in the patentee. There is no The land was sold by Hunt's administrator legal title in any person until the patent or to T. J. League,--a sale duly authorized and grant of the government issues. When the confirmed by the probate court,-in the adoriginal grantee of a certificate, after location | ministration of the estate of Hunt. It was and before patent, sells the land appropriated proved on the trial that defendant paid casb by it, it has been held, and it is the settled for the land ($1.25 per acre), with no notice law of this state, that, upon the issuance of or knowledge of any kind or character of the patent to the grantee, the legal title vests | plaintiff's claim to the land. We then find in the assignee by estoppel. The grantee is the legal title vested in defendant, à bona estopped by his deed from asserting the legal fide purchaser of the same from persons hold. title. Johnson v. Newman, 43 Tex. 639; | ing under the state's patent. We can see no Hermann V. Reynolds, 52 Tex. 391; Adams reason why stale demand should not apply v. House, 61 Tex. 641; Hill v. Moore, 62 Tex. to the equitable title of Henecke in favor of 610; Satter wbite v. Rosser, 61 Tex. 173; Wil defendant, who claims under a sale made by son v. Simpson, 68 Tex. 306, 4 S. W. 839; Hunt's administrator in August, 1867. His Daniel v. Bridges, 73 Tex. 149, 11 S. W. 121; claim would not be affected by the fact that Stevens v. Geiser, 71 Tex. 140, 8 S. W. 610; the deed to Hunt was a forgery. As in the Todd y. Fisher, 26 Tex. 240; League v. Ro- | case of League v. Rogan, supra, the vice in

the title of defendant is back of the patent. | damaged by the full amount found in the In that case the patent issued upon a forged | verdict of the jury. transfer, and it was held that the three The only assignment of error presented in years statute of limitations would run in fa the brief of appellant is as follows: "The vor of a vendee of the patent, as would also court erred in overruling defendant's motion stale demand. Pearson y. Burditt, 26 Tex. for a new trial, and in not granting a new 172; De Cordova v. Smith, 9 Tex. 150; Glass trial, for the followiug reasons, to wit: Plaincock v. Nelson, 26 Tex. 150; Carlisle v. Hart, tiff, W. M. Cox, testified that he lived near 27 Tex, 351; Reed v. West, 47 Tex. 241; MC the line of defendant's railway, and knew Kin v. Williams, 48 Tex. 89; Browning v. and ras well acquainted with the ground Pumphrey, 81 Tex. 163, 16 S. W. 870; Mont and lay of the land at and adjacent to the gomery v. Noyes, 73 Tex, 205, 11 S. W. 138. crossing, both north and south of the said The motion for a rehearing is overruled. 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 MISSOURI, K. & T. RY. CO. v. COX.

listened for a train at the distance of 170 (Court of Civil Appeals of Texas. June 20,

steps from said crossing, and did not look 1894.)

or listen any more after that before driving ACCIDENT AT RAILROAD CROSSING-CONTRIBUTORY upon the track at said crossing; and his NEGLIGENCE-RIGATS OF TRAVELERS.

own testimony shows that his failure to 1. Where there is a conflict of testimony

look or listen for a train immediately before as to the circumstances of an accident causing plaintiff's injury, it is for the jury to determine

driving upon defendant's track was the apwhether or not the plaintiff was guilty of con

proximate cause of his injury." The testitributory negligence.

mony of appellee shows that he was going 2. Persons lawfully in a public highway are

south, in the direction of Rockwall, before not trespassers while crossing a railway track, but have equal rights with the railway com

reaching the crossing: The public road runs pany, and each must observe a proper degree parallel with the railroad about 170 steps of care to avoid accidents.

before reaching the crossing, and he could Appeal from district court, Rockwall coun

see behind him up the railroad for about a ty; Anson Rainey, Judge.

mile and a half, and stood up in his wagon, Action by W. M. Cox against the Missouri,

and looked carefully for trains, both behind Kansas & Texas Railway Company for per

and before him, and could see none. He sonal injury. Judgment for plaintiff. De

knew the train schedules, and it was not fendant appeals. Affirmed.

the time of day for any regular train. He

drove to the crossing in a fast walk. There W. C. Jones, for appellant. Campbell,

was a stiff wind blowing from the south; Word & Charlton, for appellee.

and, while attempting to cross the track, he

observed appellant's train of cars within a few LIGHTFOOT, C. J. This suit was brought feet of him, which had approached from the by appellee for damages for personal injuries north (behind him), and was going south. received by him while attempting to cross When he saw the cars, it was too late for the track of appellant at a public crossing in him to get out of the way, though he tried Rockwall county. The verdict and judgment to do so. There was no brakeman or other justify the following conclusions: On April person on the end of the caboose, which was 27, 1892, appellee was traveling along a being run in front of the long train, the enpublic road, in a two-horse wagon, between gine being in the rear. There was a conthe towns of Fate and Rockwall. Before flict in evidence upon the question as to reaching the point where such public road whether the signals were given, and as to crosses appellant's track, appellee used such whether the agents of appellant saw the apprecautions as a man of ordinary prudence pellee in time to have stopped the train; would have used to guard against danger, but under the verdict and judgment, which but appellant's servants in charge of its were approved by the court below after train were guilty of negligence in approach hearing the testimony, and in deference ing such crossing, in this: The train was a thereto, we have found these issues in favor gravel or work train, with about 16 or 18 of appellee. flat cars and a caboose. The engine was at In the case of Railway Co. v. Anderson, the rear end of the train, and they were 76 Tex. 251, 13 S. W. 196, our supreme court, running this long train backward, at a high in commenting upon this question, says: "In rate of speed, and failed to observe the sig. | the case of Railway Co. v. Wilson, this court nals required by law upon approaching such says: 'Our statute does not require persons public crossing. That appellant's servants approaching a public crossing on a railroad in charge of such train saw appellee in time to stop and listen and look out for approach. to have prevented the injury, but neglected ing trains. Therefore, it would be incorrect to do so after they saw his danger. They for the court to instruct the jury that a failran such train upon him while crossing the ure to do so would constitute negligence. track at such public crossing, and he was | Whether a failure to do so would or would

not constitute negligence is a question of Action by Lillie Gormley and others against fact, to be determined by the jury from the the Galveston, Harrisburg & San Antonio facts and circumstances of each particular Railway Company for injuries causing the case.' 60 Tex. 143, 144.” Railway Co. v. Lee, death of D. J. Gormley. Judgment for plain70 Tex. 496-501, 7 S. W. 857.

tiffs, and defendant appeals. Reversed. It is not necessary for us to enter upon a

Thos. McNeal and Dwyer & Bates, for ap. discussion of the question of contributory pellant. Atkinson & Abernethy, for appelnegligence, upon which the apparently con

lees. flicting decisions have caused much confusion. Where the verdict is not supported JAMES, C. J. Lillie Gormley, widow of by the evidence, the court should promptly D. J. Gormley, brought this suit for herself set it aside; but, where there is a conflict and on behalf of David Gormley, the only in the testimony, it is for the jury to de- child of D. J. Gormley, and of Thomas and termine its weight; and their verdict should Ann Gormley, the parents of D. J. Gormley, not be disturbed, even though the court

against appellant, for injury resulting in the might, under the same facts have made a

death of D. J. Gormley, who was a brakedifferent finding. In this case the court be man in appellant's employ when he met bis low, under a verdict supported by the testi- death. The act alleged to have been the mony, found that there was no contributory cause of Gormley's death was that while he negligence on the part of appellee. We do was at his post of duty he was struck by a not feel authorized to disturb the finding. spout attached to a water tank at Eagle Our own views upon the respective rights | Lake, belonging to defendant company, of parties at public crossings are briefly as which spout was by defendant negligently follows: Persons lawfully in a public high- and carelessly allowed to overhang the railway, while crossing a railway track, are in road track, and to overhang the car upon no sense trespassers upon such railway, but which he was riding, and he was thereby have equal rights with the railway company knocked off the car and run over by the at such crossing; and it is the duty of each train, producing injuries which terminated to observe the laws provided for their pro- in death. Besides a general denial, defendtection, and the obligation is upon each to ant denied that it ever permitted the spout observe a proper degree of care and caution

to hang over the railway track in such inanto avoid accidents. When an injury occurs, ner as to strike a man on its cars, and charit is for the jury to say, under the facts and

ged that if Gormley was kuocked off the cars circumstances, whether the law and the

and killed it was through no fault of defendreciprocal obligations have been observed. ant, but was due to his own carelessness; In this case there is no complaint of the

that the spout was in perfect condition, and charge of the court. The questions were all was not swinging over the track, but was fairly submitted to the jury. The verdict

in proper position, and would not have struck is supported by the evidence. We find no

any one unless he negligently leaned over, error in the judgment, and it is affirmed.

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 JALVESTON, H. & S. A. RY. CO. v. GORM- pleaded that if the spout was left hanging it LEY et al.

was the act of a fellow servant of deceased, (Court of Civil Appeals of Texas. Oct. 17, and that, if struck as alleged, he was at the 1891.)

time acting in violation of the rules of deINJURY TO EMPLOYE-EVIDENCE - DAMAGES-NA- fendant regulating his duties, with which he TURE OF APPLIANCES.

was familiar. The verdict was in the sum 1. In an action for injuries causing death, where it appeared that deceased, a brakeman,

of $12,500, apportioned $6,250 to Lillie Gormwas struck by a water spout extending over

ley and $6,250 to her son, upon which judgthe cars from a tank, evidence that about six ment was entered in their favor, and adjudgmonths before the accident defendant was noti

ing that plaintiffs recover nothing in behalf fied that the spout was out of repair was admissible.

of Thomas and Ann Gormley, the parents of 2. Evidence showing the general health of deceased. deceased, and the probable duration of his life The second assignment of error was to alat the time of the injury, was admissible in estimating damages, although not specially plead

lowing a witness-Chiner Robinson-to testied.

fy that about March 1, 1892 (six months be3. Negligence should be measured by the fore the event in question), he saw this character and risk of the business engaged in,

spout out of repair, and hanging down, and and the degree of care of all parties is higher when the lives and limbs of themselves and that he at that time notified defendant's others are endangered than in ordinary cases. agent oi the fact. We consider the allega4. A corporation must use ordinary care

tions in the petition as charging that the in favor of employés in reference to its appliauces, and it was error to charge that the ap

overhanging of the spout was due to defendpliances should be “of modern improvements ant's noligence. It is true that the allegaand safe."

tion inight imply that the negligence conAppeal from district court, Gonzales coun- sisted in merely allowing it to hang down, ty; T. H. Spooner, Judge.

although perfect in construction; yet it would fairly include a case also in which the over- servance of the same by its employé; and hanging of the spout was due to negligence that said Gormley, deceased, knew of the in its construction or in keeping it in re- existence of said rule, and of its enforced pair. Upon this view of it, the evidence observance by the defendant, at the time objected to was proper as tending to show he was injured; and that at the time of his previous knowledge on the part of defendant injury he was violating saud rule; and that of insufficiency in the appliance. Evidence the act by him in violation of said rule was of defective construction in the appliance the proximate, and not the mediate, cause was properly admitted, and therefore the of his death." The only ground of reasonsixth assignment of error is not well taken. able objection to this charge is in the clause,

By the third and sixteenth assignments it “unless the act is done under the influence is stated that the court erred in permitting of fear produced by the appearance of sudded witnesses to testify that Gormley was danger.” This seems to be a mere abstrachealthy, vigorous man, and another witness tion, not involved in the evidence, as we as to his life expectancy, for the reason, as read it; and was calculated to lead the jury given, that the damages in such cases are to consider there was warrant for it in the “consequential and special, and must be spe- testimony. cially pleaded.” The petition alleged death The eighth assignment is not in conformfrom the negligent act of defendant, and ity with the rules, and will not be considered. damages therefrom to plaintiffs in the sum The ninth assignment complains of the of $25,000. The damages contemplated by court's not giving a charge asked, in effect, the act relating to this character of suit are that if the jury found for plaintiffs, they pecuniary and compensatory, and there is no would be contined, in estimating damages. doubt in our minds that upon the petition as to a consideration of the money value of the it stood any damages of that nature, and life of deceased to the plaintiffs, and that the extent thereof, could be proven without they could not consider the loss of society specially alleging same. The court charged and advice of the deceased to the plaintiffs. the jury, in connection with its definition of The charge as given plainly limited the dain

gligence, that “negligence should be meas- ages to such as were pecuniary, the court ured by the character, risk, and exposure of adding: “And in this connection you are inthe business engaged in, and the degree of structed that in estimating the actual damcare of all parties is higher when the lives ages (if you should find for plaintiffs) you and limbs of themselves and others are en- are not to take into consideration any inor. dangered than in ordinary cases;" and appel- tification to feelings or mental suffering on lant urged that this was contrary to the rule part of plaintiffs, and no allowance should be that ordinary care only is exacted of par- considered by you for the grief and bereave ties, placed an unnecessary burden on de- ment of the plaintiffs by reason of being fendant, and furthermore assumed that “de- relatives.” There was nothing in the eyi. ceased

careful and prudent." The dence to direct the attention of the jury to charge is not subject to the criticisms, par- the loss of society and advice. We think ticularly the one last stated. It was not on the there was no necessity for giving the charge weight of evidence, and stated a correct asked. principle. Railway Co. v. Randall, 50 Tex. After considering the tenth, eleventh, and 257.

thirteenth assignments, we have concluded The seventh assignment complains of the it would have been error to give charge No. following charge: “It is legal and lawful for 5 asked, because it would have instructed a railroad company to formulate and adopt a verdict for defendant from decedent's certain rules for the government and ob- mere failure to avoid danger. All that was servance of its employés in the operating in charge No. 3 that was correct had been and conducting of its business, and where substantially given. Charge No. 7 was plainsaid rules are reasonable, and are being en- ly erroneous, and properly refused. forced by the corporation adopting them, The twelfth assignment complains of a then said corporation having such reason- charge which, if given, would have been able rules enforcing their observance by its a comment on the evidence. employés would not be liable in damages The suit was brought by the widow of the for the death of one of its employés if the deceased, and the child and parents of de death of said employé was occasioned by the ceased were joined, as authorized by the statwillful or negligent disobedience of such ute (Rev. St. art. 2904). The jury were corrules, which were at the time known to said rectly instructed to apportion the damages employé, and when the act of disobedience found by them among the plaintiffs as they is the proximate cause of the death of said found them entitled thereto from the er. employé, unless the act is done under the in- idence. All the parties interested in the refluence of fear produced by the appearance covery were before the court, and the ev. of sudden danger. But in order to find for idence did not show any pecuniary damage defendant company on this issue you must to the parents from the death (Railway Co. find from a preponderance of evidence that v. Culberson, 68 Tex. 664, 5 S. W. 820), and said rule was a reasonable rule; that the nominal damages are not recoverable in this defendant company was exacting the ob- species of action.


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