ticular case, and it may be applicable generally under the statute of Pennsylvania. It does not apply, under the statute of this state, to a case like the present, in which the prospective aid was mainly, if not wholly, from the income of property, and in which, upon the death, some of the beneficiaries take by bequest all the estate, and others get none.

In conclusion, we will say that while the damages in actions of this nature are necessarily indeterminate, and while much must be left, in almost every case of the kind, to the sound sense of the jury, it does not follow that the plaintiffs need not prove with a reasonable degree of certainty the date from which their compensation is to be assessed, when it is practicable to do So. Where the beneficiaries are adults, and the loss of prospective benefits is based upon assistance in the way of money, or other things of value, received in the lifetime of the deceased, it is certainly within the power of each beneficiary to show by his own testimony, with some degree of accuracy, the amount of the benefits so received; and it would seem that his failure to testify specifically to the facts ought to be deemed a circumstance against him, sufficient to justify the trial court in setting aside the verdict, provided it be apparently excessive. The judgment of the court of civil appeals and of the district court is reversed, and the cause remanded.

TEXAS & P. RY. CO. v. BLACK. (Supreme Court of Texas. June 18, 1894.) CARRIERS-WHO ARE PASSENGERS-LIABILITY TO TRESPASSERS-ASSAULT BY EMPLOYE.

1. One claiming that he was injured while riding on a freight train as a passenger must show that the railway company allowed such trains to carry passengers.

2. A brakeman on a freight train has no implied authority to receive passengers thereon.

3. One must take notice of the fact that a train made up exclusively of freight cars is not for passengers.

4. The fact that several railroads run into Texarkana is a matter of judicial knowledge.

5. A railway company is not liable for an injury resulting to a trespasser from an assault by its brakeman, in the absence of evidence that the brakeman was discharging a duty incident to his employment.

6. A boy 12 years of age boarded a freight train by permission of a brakeman, to whom he paid 15 cents for a five-mile ride. The train was composed of an engine, flat car, and caboose, and the boy rode upon a flat car. It was not shown that the company allowed that train to carry passengers. Held, that the boy was not a passenger.

Error from court of civil appeals of fifth supreme judicial district.

Action by James Black against the Texas & Pacific Railway Company. To a judgment of the court of civil appeals affirming a district court judgment for plaintiff, defendant brings error. Reversed.

The following are the conclusions of law of the court of civil appeals (Rainey, J.):

"1. James Black having received Frank Black into his family upon his marriage with Frank's mother, and having assumed the burden of his support, he 'stands in loco parentis, with the rights and obligations of a parent;' and, as such, he is entitled to the services of Frank, and has the right to sue and recover for the loss thereof. Gorman v. State, 42 Tex. 221; Mulhern v. McDavitt, 16 Gray, 406; Gerdes v. Weiser, 54 Iowa, 593, 7 N. W. 42.

"2. In the light of the evidence in this case, Frank Black must be considered a passenger, and, being such, appellant is liable for the injury sustained, although the brakeman, at the time he caused the injury, may have been acting beyond the scope of his actual or implied authority.

"3. There being no error in the judgment, the same is affirmed."

F. H. Prendergast, for plaintiff in error. P. A. Turner and J. M. Talbot, for defendant in error.

BROWN, J. The court of civil appeals filed the following conclusions of fact in the above cause, in which judgment had been rendered by the district court against the plaintiff in error: "In 1887, Frank Black, a boy about 12 years of age, and stepson of appellee, James Black, boarded a freight train of appellant, at the T. C. Junction, five miles west of Texarkana, after obtaining permission from a brakeman, to whom he paid fifteeen cents for the privilege. The train was composed of an engine, flat cars. and a caboose. When the train was nearing Texarkana and while running, the brakeman came out of the caboose, and told Frank to get off, which Frank refused to do. The brakeman then picked up a lump of coal. threw it at Frank, struck him above the eye, and knocked him off. The car ran over his feet, crushing them so they had to be amputated. There was no testimony as to whether or not passengers were allowed to ride on freight trains, further than the testimony of Frank Black, who testified as follows: 'I had no ticket. Knew I did not need one, and had no reason to get one. I get ticket to ride on a freight train when I am going any distance. Some people buy tickets to ride on freight trains, and some do not. I have seen lots of them do it.' In the absence of other testimony, we conclude that he was a passenger, and was rightfully on the train. The appellee James Black, when he married Frank's mother, received Frank as one of his family, and provided for him as one of his own children. The service of Frank is worth the sum of $800." If the railroad company had a regulation prohibiting passengers riding on freight trains, and Frank Black knew of the regulation, he would not be entitled to the protection of a passenger. It would in such case rest upon the plaintiff to prove such facts as would show that the railroad company

had permitted the use of its freight trains by passengers to such extent as would authorize one entering such train to believe that the rule had been abrogated by the company. Railway Co. v. Moore, 49 Tex. 47; Railway Co. v. Cock, 68 Tex. 717, 5 S. W. 635; Railway Co. v. Campbell, 76 Tex. 174, 13 S. W. 19. A railroad company has the right to carry passengers and freight by different trains, and, when such provision is made, the conductor and brakemen have no implied authority to receive passengers upon freight trains. It is not within the scope of their authority. When one gets on a train made up exclusively of cars appropriate alone to the carrying of freight and the the employes on such train, he must take notice of the fact that the train is not provided for passengers. Hutch. Carr. § 554; Patt. Ry. Acc. Law, § 215, 379; Waterbury v. Railway Co., 17 Fed. 671; Eaton v. Railway Co., 57 N. Y. 382; Robertson v. Railroad Co., 22 Barb. 91; Railway Co. v. Moore, 49 Tex. 47; Railway Co. v. Cock, 68 Tex. 717, 5 S. W. 635. In Eaton v. Railway Co., supra, the court said: "The presumption is that a person riding on a freight train is not legally a passenger; and it lies with him who claims to be one to take the burden of proof to show that, under the special circumstances of the case, the presumption has been rebutted. So if a stagecoach proprietor should regularly carry his passengers in a stage, and their baggage in a wagon, there would be a fair presumption that the wagon was not intended for passengers, though, under special circumstances, it might be used in that manner. A person asserting that he was a passenger, though riding in the baggage wagon, would be bound to prove it. In both these cases the distinction between the passenger and freight business would be so marked by external signs of classification that any person of ordinary prudence would take notice of it. This would be equivalent to actual notice, and the burden of proof would devolve upon him to show that the carrier had relaxed his rule." This case was referred to by Judge Moore in Railway Co. v. Moore, with seeming approval. Substantially the same doctrine is asserted by Judge Maltbie in Railway Co. v. Cock, supra. He said: "The servants of appellant, who gave appellee permission to ride on the car, are not shown to have had the power to abrogate or suspend rules promulgated by the proper authority for the operation of the road; and the court below could not assume that said servants, in so doing, were acting within the apparent scope of their authority."

There is a line of authority holding that where a person enters the caboose of a freight train, and is permitted by the conductor to remain, and fare is paid, he is to be considered as a passenger. The leading case seems to be Dunn v. Railway Co., 58 Me. 187. This case was referred to by Judge

Moore in Railway Co. v. Moore, noting the criticism of Mr. Redfield, and in the same connection he referred to the case of Eaton v. Railway Co., cited above. Much is said in Dunn v. Railway Co. which is in conflict with well-settled principles of law, but it is to be observed that in that case the decision is consistent with the doctrine of Eaton v. Railway Co. That railroad company had before that time carried passengers on its freight trains, and had but a short time before changed that rule, of which change the injured party had no notice. The case of Dunn v. Railway Co. announces broadly the proposition that "every one riding in a railroad car is prima facie presumed to be there lawfully as a passenger, having paid, or being liable, when called on, to pay, his fare, and the onus is upon the carrier to prove affirmatively that he is a trespasser." In support of this proposition the court refers to Railway Co. v. Books, 57 Pa. St. 346; but that case was one in which a person riding on a passenger train was injured, and does not in any way sustain the rule as applied in Dunn v. Railway Co., cited above. It is in direct conflict with the general and fundamental principle of agency that an agent can only bind the principal by doing the thing authorized, or which is within the general scope of the agency; that is, such things as are usually done in and necessary to the accomplishment of the objects of the agency. Story, Ag. § 85. The doctrine announced in that case involves the following propositions: (1) By disobeying orders and doing that which is not within the scope of his authority, an agent can bind his principal; (2) that one taking passage on a freight train does not, in law, know that which must be seen by any one who is not blind, and which must be understood by any one who has ordinary intelligence. It deprives the railroad company of all power to protect itself against the risks of such means of transportation, and relieves the individual of all obligation to take care of his own safety. If this is a correct rule to apply to railroads, it is equally applicable to other kinds of business. Take the illustration given in Eaton v. Railway Co. of a carrier of passengers and freight by means of stages and wagons, or, to make it more applicable to the present conditions, a transfer line in a city which carries passengers from railroad depots to hotels in busses and carriages, and their baggage in a baggage wagon. If a passenger seeking such transportation for himself were, with the consent of the driver on the baggage wagon, paying to him the usual fare to get upon the wagon instead of a carriage or bus, and the driver should, before reaching the des tination, knock him off the wagon, would any court hold that he was to be considered lawfully upon the wagon as a passenger? Certainly, it would not be so held; and there is no difference in the rules of law to govern these cases, nor in the reason which should

control in the application of those rules. If the conductor of a freight train, made up of cars suitable alone to carrying freight, can, without authority of the railroad company, expressly or tacitly given, receive passengers upon such train, and bind the railroad for the risks of transportation, a conductor of a passenger train may with equal propriety load the coaches of his train with cotton or grain, and make the company liable as a common carrier of freight. It is said that a railroad company may carry passengers on freight trains. This is correct, and it is equally true that it may carry freight in its passenger coaches, if it choose to do so. But this no more proves that a conductor of a freight train may carry passengers without authority to do so than that a conductor of a passenger train may in like manner carry freight in the coaches of his train. It is argued that the conductor of the freight train should inform the passenger that he is forbidden to carry passengers, and, if he does not do so, the passenger may presume that it is lawful to ride there.

This simply makes the carrier liable, in every instance, for a violation by a conductor of the duties imposed upon him. It means that the fact of disobedience is equivalent to authority, so far as the liability of the railroad is concerned; for, when the injury has occurred, it is too late to tell the injured party that the conductor had no right to carry him. If the doctrine of Dunn v. Railway Co. were applied to mercantile or other business, and it were held that every act of an agent, whether within the scope of his agency or not, should be presumed to be binding upon the principal, the employment of agents would be extremely hazardous, and all power of control over agents would be taken away. If, however, a railroad company permits its freight trains to carry passengers, then they are bound to such passengers to the same extent as if carried by their regular passenger trains, excepting such inconveniences and risks as are peculiarly incident to the means of transportation. Although a railroad company may not authorize the carriage of persons on its freight trains, or may prohibit it, yet, if the servants carry passengers on such trains to the knowledge of the company's officers authorized to make and enforce rules, or if it is carried to that extent that such officers, in a proper discharge of duty, should know of the facts, and no effort is made to stop it, then a passenger is authorized to presume that it is permitted by the company, and will be protected as a passenger on such trains. But it cannot be said that a disobedience of orders can annul the order, except upon the principle that the officers, knowing of the violation, ratify it, and waive the rule forbidding it. Whatever falls short of this will not serve to confer authority upon or enlarge the powers of an agent.

The opinion of the court of civil appeals in this case does not disclose the ground upon which it held that Black was a passenger on the defendant's train. The findings of fact are very meager, and we are justified in looking to the undisputed evidence for light upon the points involved. The boy that was injured testified: "I had no ticket. Knew that I did not need one, and had no reason to get one. I get a ticket to ride on a freight train when I am going any distance. Some people buy tickets to ride on freight trains. and some do not. I have seen lots of them do it." He testified that he had never seen any one buy tickets for freight trains at the T. C. Junction, the place where he got on. Frank Black lived at Texarkana. He had come out on the rear of a sleeping car that morning, behind a passenger train, and he inquired of the ticket agent when the passenger train going to Texarkana would arrive, and was told that it was late. He went on the opposite side of the track to get permission of the brakeman to ride on the freight train, but did not do so to avoid being seen by the agent. He did not go into the caboose, but upon a flat car. This court knows judicially that there are a number of railroads besides that of defendant running into Texarkana. Gulf, C. & S. F. R. Co. v. State, 72 Tex. 404, 10 S. W. 81. This evidence of the boy does not tend to prove that he had seen persons ride on freight trains on defendant's railroad, and, if it did, it does not go to the extent of showing that it was with the permission of the officers authorized to give that permission, or that it had continued so long and was of such frequency that a jury could say that such officers, if they did their duty, must have known of it. In Railway Co. v. Cock it was proved that the person riding on the hand car had the permission of an officer in charge of it, but the court said that was not sufficient, because it did not prove that the person who gave the permission had authority to allow it to be done.

In no aspect of this case can the boy be regarded as a passenger, under the facts found by the court. It is clear from his evidence that, although but 12 years old, he was well versed in the difference in trains, and he took his choice between waiting for a delayed passenger train and riding on the freight train, by permission of the brakeman. Frank Black not being a passenger, the company was not liable for the assault made upon him by the brakeman, there being no evidence that in doing so the brakeman was in the discharge of a duty incident to his employment. Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039. The district court and court of civil appeals erred in holding that Frank Black was a passenger on the train, for which error the judgments of both courts are reversed, and the cause is remanded to the district court for further trial in accordance with this opinion.

COMPTON et al. v. MARSHALL. (Supreme Court of Texas. June 21, 1894.) FRAUDULENT CONVEYANCES-PREFERENTIAL MORT

GAGE.

1. Unsecured creditors, attacking their debtor's deed of trust (which is not void on its face), have the burden of proving, as against the debtor's admissions in the deed, that the debts secured thereby are fictitious. 25 S. W. 441, afirmed.

2. The fact that a creditor, when secured by the deed of trust, gave up to the debtor the collateral he had been holding, does not invalidate the deed, as against unsecured creditors, in the absence of proof that such surrender was in fraud of them, or that the collateral was negotiable, and so not to be reached by garnishment. 25 S. W. 441, affirmed.

Error from court of civil appeals of third supreme judicial district.

Action, aided by attachment, by Compton, Ault & Co. against Eaton, Guinan & Co. On claim of John F. Marshall to the property attached. Judgment for claimant affirmed in the court of civil appeals. Plaintiffs bring error. Affirmed.

H. C. Lindsey, for plaintiffs in error. Clark, Dyer & Bolinger, for defendant in error.

GAINES, J. This was a proceeding for the trial of the right of property in certain goods which were levied upon by virtue of a writ of attachment in favor of plaintiffs in error against Eaton, Guinan & Co., as the property of the latter, and which were claimed by the defendant in error. The goods, at the time of the seizure, were in the possession of the claimant. He asserted title to the property under a deed in trust executed by Eaton, Guinan & Co.-the defendants in the attachment-to him, as trustee, for the purpose of securing certain creditors therein named. In the case of Bank v. Marshall, 1 Tex. Civ. App. 704, 23 S. W. 246, the validity of this identical instrument was called in question, and it was held not void upon its face, and the judgment in favor of the trustee was affirmed. From that judgment of affirmance the appellant made an application to this court for a writ of error, which was refused. A motion for a rehearing of the application was filed, which was also overruled. It thus appears that the ruling that the deed of trust in question was not void upon its face was affirmed by this court (22 S. W. 6), and we now adhere to that ruling. The court of civil appeals having rested their opinion upon the ground that the unsecured creditors were not delayed, because the goods were clearly insufficient to pay those who were preferred. it was insisted in the motion for a rehearing that the facts, as agreed upon, did not justify the court's conclusion as to the relative value of the goods, and the amount of the secured debts. In disposing of that motion, this court, in a written opinion by the chief justice, say: "The trust deed was not void upon its face, and if it does not appear from the agreed case that the property conveyed

was worth much less than the debts intended to be secured by it, the burden of proof was on the plaintiff, who is now the applicant; and the same result, in the absence of proof, would follow, as though the fact assumed by the court of civil appeals was shown to have existed." This opinion was filed April 17, 1893, and seems not to have been officially published.

The plaintiffs in error, in their tender of issues in the trial court, averred, among other things, that the deed of trust was fraudulent, and that the trustee had notice of the fact, and that the debts secured by it were fictitious. As one of the grounds of the application for the writ of error, it is insisted that there being, with the exception of one claim, no evidence as to the existence of the debts secured by the trust deed, save the recitals in the instrument itself, as found by the court of civil appeals, that court erred in finding that the debts existed. It is also insisted that the court of civil appeals erred in holding that the burden was upon the plaintiffs to show the nonexistence of the debts. The court was clearly correct in the latter ruling. The deed of trust not being void upon its face, it was incumbent upon the parties who alleged that it was fraudulent to prove the fraud. If the debts intended to be secured by it were fictitious, the burden was upon the plaintiffs in error to show the fact. If the goods were worth more than the preferred debts, and, by the terms of the deed, other creditors were delayed in subjecting the surplus to the payment of their demands, the plaintiffs in error should have alleged and proved these facts. In the absence of extrinsic testimony sufficient to show the trust deed fraudulent in fact, the trustee had the right to hold possession of the property, and was therefore entitled to a judgment in his favor in this proceeding.

It appears that at the time the deed of trust was executed the Waco State Bank, one of the preferred creditors, held notes, accounts, and acceptances belonging to Eaton, Guinan & Co. as collaterals to secure the debt due them by that firm, and that, as a part of the agreement between the bank and the mortgagors, these collaterals were to be returned to the latter, and that this was accordingly done. It was not shown that any of the collaterals were unmatured negotiable paper. The Waco State Bank had the right, with the assent of the mortgagors, to hold the collaterals, and to accept a mortgage as additional security. They had the right to accept one security in consideration of the release of another, provided other creditors were not delayed by the transaction. The attaching creditors not having shown in this case that any of the collaterals were negotiable, and therefore not subject to garnishment, they cannot justly complain of their surrender. The collaterals not appearing to have been such as were beyond the reach of the creditors of Eaton, Guinan & Co. while

in the hands of the latter, we cannot see that their restoration to the pledgors upon the execution of the deed of trust rendered that instrument fraudulent in law. The judgment of the court of civil appeals and that of the district court are affirmed.

EAST TEXAS FIRE INS. CO. v. KEMPNER.

(Supreme Court of Texas. June 21, 1894.) FIRE INSURANCE-CONSTRUCTION OF POLICY-CONDITION AGAINST VACANCY.

A fire insurance policy providing that it shall "at once become null and void," and the unearned premiums be returned, if the premises become vacant without consent of the company, is avoided by a vacancy of three days, incident to a change of tenants.

Error from court of civil appeals of third supreme judicial district.

Action by H. Kempner against the East Texas Fire Insurance Company. The court of civil appeals affirmed a judgment for plaintiff (25 S. W. 999), and defendant brings error. Reversed.

Whitaker & Bonner, for plaintiff in error. Rector & Harris, for defendant in error.

BROWN, J. The East Texas Fire Insurance Company issued to H. Kempner, upon a brick storehouse, a policy of insurance which contained the following clauses: "Article 2. This policy shall become void unless consent in writing is indorsed by the company hereon in each of the following cases: Sec. 3. If the risk be increased by any change in the occupation of the building or premises herein described, or by the erection or occupation of adjoining buildings, or by any means whatever within the knowledge of the insured. Sec. 4. It is a rule of this company not to insure any vacant or unoccupied building, and, if any building herein described be or become vacant or unoccupied for the purposes indicated in this contract, without the consent of the company indorsed thereon, this policy shall at once become null and void, and any unearned premium on the same will be refunded to the assured on the surrender of this policy." The house was leased by Kempner to one Northrup for two years, who, without Kempner's consent, sublet it to another for a part of the term. This subtenant moved out the the building on Saturday, and on the succceding Wednesday another tenant moved into it, it being again sublet by Northrup without the consent or knowledge of Kempner, who lived at Galveston. Some time afterwards, and during this last occupancy, the house was destroyed by fire. Kempner did not know that the house was vacant. Kempner sued upon the policy, and the insurance company pleaded, among other things, not necessary to notice, that the policy was rendered void by the house becoming

vacant, and without having the consent of the company.

Judgment was given for plaintiff below for the amount of the policy, which was affirmed by the court of civil appeals. 25 S. W. 999. The plaintiff in error presents the case to this court upon a number of objections to the judgment of the court of civil appeals, all of which have been disposed of satisfactorily by that court except the third, which is as follows: "The court erred in holding that the policy was not vitiated by the insured premises becoming vacant, the terms of the policy being that, if the property insured be or become vacant, the policy should at once become null and void." The court of civil appeals held that a temporary vacancy would not render the policy void, and that the vacancy in this instance was of that character. The rule for construing a policy of insurance is that the language used in it "must be liberally construed in favor of the assured so as not to defeat, without a plain necessity, his claim or indemnity, which, in making the insurance, it was his object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted." 1 May, Ins. § 176. It is equally well settled that, where the language is plain and unambiguous, courts must enforce the contract as made by the parties, and cannot make a new contract for them. nor change that which they have made under the guise of construction. As parties bind themselves, so they must be held to be bound. Insurance Co. v. Long, 51 Tex. 92; Morrison v. Insurance Co., 69 Tex. 359, 6 S. W. 605. In numerous cases it has been held that temporary absence from a dwelling house, while the household goods remain, does not render the house vacant within the meaning of such clauses in policies of insurance. This line of authority is fairly represented by Insurance Co. v. Kepler, 95 Pa. St. 492. It has also been held in many cases that where the tenant has moved out, and the owner or another tenant has moved into the house a part of the household goods, and is preparing to take possession. a vacancy does not occur. Eddy v. Insurance Co., 70 Iowa, 472, 30 N. W. SOS. A policy of insurance was issued upon a manufacturing establishment, containing a condition that, in case the property became vacant or ceased to be operated, the policy should become void. On account of an epidemic of yellow fever, the owners ceased for a time to operate the mill, and it was held that the condition of the policy was not broken. Poss v. Assurance Co., 7 Lea, 704; Whitney v. Insurance Co., 72 N. Y. 118. In Ridge v. Insurance Co., 9 Lea, 507, the policy provided that, in case the house should become vacant, the policy would be void. The tenant moved out, and in a few