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by his own hand. It is a stubborn fact, which must be considered in the determination of the issue. As before stated, there can be no question as to its existence and authenticity. It was addressed to John Stuart, the secretary for the company for which Hayward worked, and the friend who had given him employment. It requested Stuart to telegraph Sam Allen, of Houston, Tex., a man who was also his friend, something which, under the circumstances, must necessarily be of his death. We need not inquire why he had ceased to be a man, or what sworn vow he had broken, except to say that this language is not consistent with the theory that the morphine was taken accidentally. The verdict was contrary to the evidence, and against the manifest weight of the evidence.

With a view to another trial, we have examined the remaining assignments of error, and are of the opinion that the court erred in admitting the testimony of Stedman that there was nothing to indicate that Hayward had the least intention of taking his own life, as shown by defendant's bill of exception. Such statement was a conclusion of the witness, based on the assumption that he knew what actions would have indicated such an intent. It cannot be said to be a shorthand statement of a fact. Also the second paragraph of the charge was erroneous, because there was no evidence to authorize the submission to the jury, as an issue, the state of mind in which the deceased took the morphine, if he took it. In other respects the charge was correct. The defendant not only assumed the burden of proof to show that the assured died by his own hand from morphine administered with suicidal intent, but the burden of proof was properly upon it to sustain this defense. It was not shifted by the introduction of the verdict at the coroner's inquest, although, in the absence of any other testimony on that issue, the verdict at the inquest would be sufficient prima facie to show death by suicide. The judgment of the court below will be reversed, and the cause remanded.

telephone wire was located and used before the railroad was constructed under it, and that no notice was given the telephone company by the receiver of such railroad company to remove the wire, the receiver cannot recover the full amount of damages over against the telephone company, since it was the duty of the receiver to keep such railroad tracks in a reasonably safe condition for his employes.

3. Where an employe of the receiver of a railroad company goes, by the latter's direction, to work on the line of another railroad company, which is under the control of the receiver as lessee, the fact that such employe was paid by another company under some arrangement between it and the receiver does not relieve the receiver from liability to such employe for injuries received by reason of the receiver's negligence.

Appeal from district court, Grayson county.

Action by John T. Crank against the Southwestern Telegraph & Telephone Company, Charles Dillingham, receiver of the Houston & Texas Central Railway Company, the Ft. Worth & New Orleans Railway Company, and the Texas Central & Northwestern Railway Company, to recover damages for personal injuries caused by the negligence of defendants. From a judgment for plaintiff against defendants Dillingham, receiver, and the Southwestern Telegraph & Telephone Company, such defendants appeal. Affirmed.

Head & Dillard, for appellant Dillingham. John W. Wray, for appellant Southwestern Telegraph & Telephone Company. Randell & Wolfe, for appellee.

LIGHTFOOT, C. J. The following statement is substantially correct: Appellee was in the employ of certain railway companies hereinafter named. In his amended pleading, filed July 15, 1891, in said cause, he made Charles Dillingham, receiver of the Houston & Texas Central Railway Company, the Ft. Worth & New Orleans Railway Company, the Texas Central & Northwestern Railway Company, and the telephone company joint defendants. He alleged his employment as brakeman on a construction train, and further alleged that he was in their general employment and service, and also of defendant Central Texas & Northwestern Railway, and while so engaged in the scope of his duties, and while standing on the top of a moving box car on or about July 16, 1890, in the city of Waxahachie, Ellis county, Tex., he collided with a telephone wire where the same crossed said Ft. Worth & New Orleans Railway, and was thrown to the ground, and permanently and painfully injured, etc. Appellee charged that the consequences were produced (1) by the gross negligence of defendants' railways and said receiver "in running and causing to be run, and permitting, said train of cars on said railway track under said wires, which were too low for a train to pass with safety to those upon it, and constructing, operating, and maintaining said railway under said wire, and permitting Raid wire to be too low; (2) by the gross negligence and want of ordinary care on the part

SOUTHWESTERN TELEGRAPH & TELE

PHONE CO. et al v. CRANK. (Court of Civil Appeals of Texas. Jan. 17,

1894.) NEGLIGENCE TELEPHONE WIRE OVER RAILROAD

TRACK LIABILITIES OF RAILROAD AND TELEPHONE COMPANIES.

1. Where a brakeman in the employ of a receiver of a railroad company is injured, without fault on his part, by being thrown from a freight car by a telephone wire which the telephone company negligently allows to hang too low over the railway track, and the receiver and telephone company know, or by ordinary care and diligence might know, the condition of such wire, both the receiver and telephone company are liable to such brakeman for the damages sustained.

2. Where, in such case, it appears that the

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of the telephone company in placing, keeping, of its answer to said receiver's plea, and, in using, and maintaining said wire over and addition thereto, said further that said railtoo near said railway track, regardless of way was constructed long subsequent to dethe safety," etc., "and in the improper con- fendant's line of wire and plant in said city; struction and want of repair of said wires;” that it was constructed and erected with due (3) The joint wrong consisted in such want care, and so as not to incommode the public of proper construction and want of repair of in the use of the streets, and that it had no the telephone wires, and the operation of the knowledge that the wire was too low, if such train on the railway track, and the condition was the fact; that its codefendants had used of the track, etc., “that the condition of the and operated the line of railway underneath line of wire and railway was known to the said wire for about five years without murdefendants, or could have been known," etc., mur or objection; that the managers of said but was unknown to appellee. Defendant railway and employes had peculiar means of Dillingham's amended answer consisted of- knowledge by reason of the fact that they First, general demurrer; second, general de- continually operated their train underneath nial; third, that appellee had notice of the the wire, and knew of its condition, and that condition of the wire, and assumed all risks defendant telephone company was without therefrom, and was guilty of contributory knowledge of any character that said wire negligence in not avoiding injury; fourth, was too low, if it was, and, if too low, dethat, if the appellee sustained injury through fendant railways ought to have notified apthe negligence of either of the defendants, it pellant telephone company. Defendants Cenwas through the negligence of the telephone tral Texas & Northwestern and Ft. Worth & company in constructing and maintaining its New Orleans Railways filed pleas in abate wire too low, and permitting one of its wires ment, special demurrers reaching the question to become loose and hang down, as alleged in of jurisdiction of the district court of Grayplaintiff's petition. He prayed, in case judg- son county, also touching the question of a ment was rendered against him, that he have joint wrong, insisting there was not such as judgment over against defendant telephone would authorize a joint cause against all the company. Defendant telephone company's defendants' general denial and special plea in amended answer consisted–First, of general bar, in substance such as their codefendant demurrer; second, special exception, contend- Dillingham had filed September 30, 1891. A ing there was no joint injury shown, no co- trial before a jury resulted in a verdict and operation, etc., as to the injury and supposed judgment in favor of the last two named deacts of negligence, to make defendants joint- fendants on their plea in abatement, and in ly liable, etc.; third, a general denial; favor of appellee against defendants Charles fourth, notice of the condition of the wire, Dillingham, receiver, and the Southwestern and the assumption by appellee of the risks Telegraph & Telephone Company, for the and hazards incident to his employment; sum of $6,500, denying judgment over against fifth, contributory negligence on the part of the telephone company in favor of defendant appellee, on account of his knowledge of the Dillingham. From this judgment both the condition of the wire, and means of knowl- defendant Dillingham, receiver, and the teleedge at hand, and his failure to exercise that phone company have appealed. degree of care that an ordinarily prudent The facts, as found by us under the eviman would exercise under like circumstances, dence, are substantially as follows: At the wbereby he proximately contributed to his time of the injury, July 16, 1890, appellee, supposed injuries; sixth, defendant's plant | John T. Crank, was a brakeman on a conin said Waxahachie was erected and con- struction train which was hauling iron and structed as long experience had demonstrated cross-ties, and unloading them on the Ft. was fit and proper, and as similar systems Worth & New Orleans Railway, which was are and have been erected; that the plant being repaired, controlled, and operated by was in the lawful use of the street upon Charles Dillingbam, receiver of the Houston which it was erected, and was so built and & Texas Central Railway Company, under constructed as not to incommode the trav- and by virtue of a lease to him as such reting public in the legitimate and lawful use ceiver from the Ft. Worth & New Orleans of said street; that the wire had been erect- Railway Company. Appellee had been emed in 1883, and defendant since that time ployed by the receiver for some time, and used all reasonable effort, and such as is or- was sent under the directions of his agents, dinarily used, to keep said wire in condition, to work on the Ft. Worth & New Orleans as was incumbent upon defendant. It fur- Railway line. Appellee had never been on ther answered, if the wire was too low to per- that line before the day of the injury. As mit a person standing upon the top of a box the train was crossing one of the streets in car to pass safely underneath, it had no Waxahachie, appellee was standing on a box knowledge thereof; and, answering pleading car, which was his place of duty as a brakeof its codefendant Dillingham for judgment man, and it ran under a telephone wire beover and against it, it demurred generally to longing to appellant Southwestern Telegraph suid receivers' pleadings, and, for plea in & Telephone Company, and which was hang. bar, said it made all of the allegations em- ing too low across said track, and thereby apbraced in the proceeding plea in bar a part | pellee, without any fault or contributory neg.

TION.

ligence on his part, was dragged from the car, negligence, and the court did not err in its and permanently and seriously injured. He charge upon this subject. Kailway v. Dorhad no knowledge or notice of the condition sey, 66 Tex. 148, 18 S. W. 444; and authoriof the wire. One of the poles op which the ties there cited; Railway Co. v. Jones, 75 wire was suspended had been broken down Tex. 151, 12 S. W. 972. about a year before the accident, and, when 4. The verdict and judgment are amply susput back by the telephone company, was too tained by the facts proved, and we think the low to allow trains to pass under the wire justice of the case was reached, and the judg. with safety. The agents for both the tele- ment is affirmed. graph and telephone company and the receiver had ample opportunity to know of the dangerous condition of the wire, and failed to have it repaired or removed, and were guilty TARVER v. LAND MORTGAGE BANK OF of negligence. The agents of the receiver in

TEXAS." charge of the Ft. Worth & New Orleans Rail- (Court of Civil Appeals of Texas. May 16, way knew the condition of the wire, and nev

1894.) er called attention to it, or sought to have it RECEIVER's CERTIFICATES-MORTGAGES-SUBROGArepaired or removed. The telephone wire was there when the railway was constructed. The

The receiver of a corporation applied for

an order to sell the corporate property to pay appellee was injured and damaged to the full

receiver's certificates, among other debts, and amount found by the verdict of the jury. a bank holding a mortgage on the land filed

a cross bill to foreclose. The certificates were Conclusions of Law.

adjudged a first lien, and the mortgage was

foreclosed, and, at the sale, the mortgagee bid 1. Appellee, John T. Crank, an employe of

in the property for less than the amount of the receiver, having been injured, without the mortgage. Its bid was credited on its any contributory negligence on his part, by a judgment in foreclosure, and it paid its pro telephone wire which the telephone company

rata share of the first liens. Held, that the

mortgagee became subrogated to the rights of negligently allowed to hang too low over the the holders of the certificates, and was entitled track of the railway, and which the receiver to have the amount thereof paid out of funds and telephone company knew, or might have

subsequently coming from other sources into

the receiver's hands. known by ordinary care and diligence, they are both responsible to him in damages, and a

Appeal from district court, Webb county; recovery against them jointly should not be A. L. McLane, Judge. set aside. Markham v. Navigation Co., 73

Motion by the Land Mortgage Bank of Tex. 247, 11 S. W. 131; Gulf, C. & S. F. Ry.

Texas against E. R. Tarver, receiver. From Co. v. Galveston, H. & S. A. Ry. Co., 83 Tex.

the judgment, both parties appeal. Af509, 18 S. W. 956.

firmed. 2. It was the duty of the receiver to keep in W. Showalter and G. E. Mann, for appela reasonably safe condition its railway tracks lant. C. von Carlowitz, for appellee. for the protection of its employes, and having negligently allowed a telephone wire to hang NEILL, J. The appellee, having paid $4,for a long time in a dangerous condition over 525.84 in discharge of a lien which was adthe track, whereby appellee, while in the per- judged superior to one it held on certain formance of his duty as brakeman, without real property, filed a motion against appelany knowledge of its location or fault on his

lant, and asked that the receiver be required part, was dragged from the cars and injured, to reimburse it in said amount out of a fund the receiver thereby became responsible for of $20,000 which had been collected by him his own negligence, and, not being free from after appellee made such payment. The wrong, he cannot recover the full amount of court tried the case without a jury, and endamage over against the telephone company, tered judgment for appellee for $3,000, from whose wire had been located and used before

which judgment the receiver has appealed the railroad was built under it, no notice hav- to this court. The appellee also filed a cross ing been given it by the receiver or railway assignment of errors to the action of the company to remove the wire. Gulf, C. & S.

court in not awarding it the full amount F. Ry. Co. v. Galveston, H. & S. A. Ry. Co., asked for. The nature of the case will more 83 Tex. 518, 18 S. W. 956, citing Bailey v. fully appear from our conclusions of facts, Bussing, 28 Conn. 457.

which are: (1) On the petition of unsecured 3. The appellee being in the employ of the creditors, a receiver was appointed by the receiver by express contract, and having gone district court of Webb county on the 6th upon the line of the Ft. Worth & New Or

day of June, 1891, in case No. 793, styled leans Railway by his directions to work upon W. Showalter V. The Laredo Improvement that line, which was under his control as such

Company, of the property of the Laredo Imreceiver, the fact that he was paid that provement Company as an insolvent corporamonth by another company, under some ar

tion. The receiver qualified under his aprangement between the employer and such

pointment, and took charge of all the assets company, would not in any way relieve such

of said corporation. (2) That, before the employer from liability to such employe for injuries sustained by reason of the employer's * Rehearing denied,

suit was instituted in which the receivership paid stock subscriptions. But it was not was granted, the improvement company was then known by the Land Mortgage Bank indebted to the Land Mortgage Bank of Tex- what amount, if any, could be collected by as, and executed two deeds of trust, with the receiver on such subscriptions, though he power of sale, on certain of its real property, expected to collect a large amount, and up to secure such indebtedness. (3) An appli. to May 1, 1893, he bad collected thereon cation was made to the court by the receiver about $20,000. The amount of unsecured for an order to sell all the tangible property indebtedness of the Laredo Improvement of the Laredo Improvement Company free Company amounts to about $600,000. All from liens, and the Land Mortgage Bank, as expenses of collecting by suit or otherwise one of the lien holders, was made a party to have, since the sale of its property, been the proceeding, and citation was issued to it paid out of collections from stockholders, but on the 25th day of November, 1891, to show the amount of such expenses does not appear cause why such sale should not be made. from the record. The assessment ordering The application for such sale showed that the receiver to collect the amount due on there were various liens on divers pieces of stock was made May 10, 1892, and the first property, and receiver's certificates which collections were made in October, 1892. (8) were liens on specific property in such certifi. The unsecured creditors had no interest in cates mentioned. (4) The Land Mortgage the lien property except the equity of reBank appeared in obedience to the order of demption, and, up to date of the sale, all court, and set up the debts and liens men- expenses incurred at their instance in the tioned, and by cross bill prayed judgment receivership were incidental to the lien propfor its debt and foreclosure of its liens. In erty, and incurred in its preservation and its cross bill it recognized the power of the management. The receiver had charge of court to issue receiver's certificates and make the property covered by the Land Mortgage them liens, but denied its right to make such Bank's lien from the 6th of January, 1891. liens and the costs of the receivership prior to the 1st day of April, 1892, and collected to its liens. (5) On the 6th day of Februa- the rents, which were more than sufficient ry, 1892, the court granted the order of sale to pay the taxes and insurance on that parprayed for by the receiver, and entered judg- ticular property. The receivership is still ment for the lien creditors, with a foreclo- pending. sure of their respective liens, the judgment

Conclusions of Law. for the Land Mortgage Bank being for $31,000, with a foreclosure of its lien. The re- The doctrine of subrogation rests on the ceiver's certificates and expenses of the re- principle of equity, and privity of contract ceivership were declared to be a lien supe- is not necessary to its support. Gans V. rior to those of the lien creditors, and the Thieme, 93 N. Y. 232; Cottrell's Appeal, 23 amount due on the certificates and the ex- Pa. St. 294. It requires (1) that the person penses of the receivership were charged pro seeking its benefit must have paid a debt rata (the amount against each parcel of prop- due to a third party before he can be suberty to be determined by the price it sold for) stituted to that party's rights; and (2) in against the property ordered sold. This or- doing this he must not act as a mere volunder was not excepted to by the Land Mort- teer, but on compulsion, to save himself from gage Bank. (6) In March, 1892, all the prop- loss by reason of a superior lien or claim erty of the improvement company was sold on the part of the person to whom he pays in pursuance to the order of the court, and the debt, as in cases of sureties, prior mortbrought $166,703.65. At such sale the Land gages, etc. Sandford v. McLean, 3 Paige. Mortgage Bank bid in the property, upon 117; Insurance Co. v. Middleport, 124 U. S. which it had a lien for $26,300. The total 549, 8 Sup. Ct. 625. These requisites have expense of the receivership, costs, fees, back been met by appellee in this case. It paid taxes, betterments, and operating expenses debts due the holders of the receiver's cerof the electric railroad, all charged as first tificates, and due for costs and expenses inciliens under the decree of sale, amounted to dent to the receivership. About this there $14,355.75, of which amount it was ascer- can be no question, for the property upon tained that the Land Mortgage Bank was which it had a lien to secure the debts due liable for $4,525.84 as its pro rata share, ac- it from the improvement company sold for cording to the terms of said decree, which $4,700 less than the amount due. It would amount was paid by said bank. The terms have therefore been entitled to the entire of sale were one-third cash, and the balance proceeds of the sale-$26,300—-had it not secured by notes; but, by authority of the been compelled by the decree of the court to court, the Land Mortgage Bank's bid was pay the $4,525.84, which was adjudged a sucredited on its judgment, and a deed to the perior lien on the property, to save itself property, free from incumbrances, was made from loss by reason of such superior lien. to it by the receiver. (7) At the date of the Therefore it was subrogated to the right of decree there were no assets in the hands of the parties to whom the $4,525.84 was paid, the receiver other than the property ordered which was to have the amounts due them sold, all of which was incumbered by liens, on receiver's certificates, etc., paid by the except the liability of stockholders on un- Laredo Improvement Company. The appel. lee was not concluded from asserting this of land in Maverick county, who alleged that right by the decree of sale which established appellant had placed a patent on land owned a lien on the property superior to appellee's. by them. Appellant answered by general Instead of being concluded by it, its right of and special demurrers, and by special plea subrogation emanates from such decree. The alleging that there is no conflict between the decree simply determined that there was a land owned by appellees and that owned by lien on the property superior to that of the appellant, and that the field notes in appelLand Mortgage Bank, which was ascertained lees' petition describing their land are corin accordance with the decree to be $4,525, rect. This answer was verified by affidavit. and by it to this extent, but no further, was The case was tried without a jury, and judgthe appellee concluded. When the mortgage ment rendered in favor of appellees. bank discharged the lien, its right of subro- The cause of this suit is a conflict between gation attached, and, as such, existed with- survey No. 8, owned by appellees, and surout reference to whether or not a sufficient rey No. 35% owned by appellant. The sursum to discharge it would ever be realized vey of No. 8 was made on October 14, 1881, from other assets of the insolvent corpora- and was an older one than survey 3542. The tion. When a sum sufficient to reimburse field notes of the land claimed by appellees the mortgage bank was collected from the are as follows: "Beginning at a stake and stockholders, as is shown, upon which there stone set in ground for southwest corner of was no lien superior to that paid off by the number five (5) and northwest corner of this appellee, it was entitled to an order of the survey; thence east with the south line of court requiring the receiver to reimburse it number five (5) at 41 varas cross arroyo, at out of such amount. Clifford v. Campbell, 55 149 varas do., at 360 varas top of hill, at 901 Tex. 246. The appellee by a cross assignment varas cross arroyo, at 928 varas cross arroyo, of error complains of the court's not grant- 945 varas stake and stone set or planted in ing an order for $4,525.84, the amount prayed ground for northeast corner of this survey, for, instead of $3,000. It appears from the from which a mesquite 4 inches bears south record that all expenses of collecting by suit 70° east 52 varas; thence south 1,404 varas, or otherwise have been paid out of collections to a stake and stone planted in ground, befrom stockholders' liabilities, but the amount ing southeast corner of this survey; thence of such expenses is not in any way shown. west at 148 varas cross arroyo, at 228 yaras In the absence of such showing we must a do., at 244 varas same, at 739 varas a drain, presume that there was no error in the trial at 1,337 varas stake and stone mound on east court's not granting an order for the full line of survey number 31, and 165 varas from amount. Affirmed.

its southeast corner; thence north, with east line of number 31, at 84 varas pass stone set in ground, and marked •U. S. 1875, at 507

varas stone mound, being northeast corner HARTZ V. OWEN et al.

of No. 34, Fitch's well tower bears N. 66 (Court of Civil Appeals of Texas. May 16, E.; mence east, with the south line of num1894.)

ber 35, one hundred and fifty-two varas to SURVEYS-PAROL EVIDENCE TO VARY--ADMIS- the southeast corner of number 35; thence SIONS IN PLEADINGS.

north at 36 varas cross wagon road, at 381 1. Where the field notes in a survey call for the corners and lines of surrounding sur

varas do., at 672 varas northeast corner of veys, and contain no inconsistent calls, parol

No. 35; thence west with north line of No. evidence that a different survey was made is 35 at 408 varas cross gully, at 662 varas cross inadmissible to control the calls.

wagon road, at 710 varas a large stone 2. In trespass to try title, where defendant by his answer admits that the field notes of

mound on north line of No. 35, cross the survey of plaintiff's land as set forth in bears S. 85° 40' W., southeast corner of No. the complaint are correct, he cannot introduce 36; thence north with east line of No. 36 the testimony of the surveyor that a certain rock called for in the field notes as being on

125 varas, stake and stone mound, souththe line of an adjoining survey is not on such

west corner of P. S. Waters survey; thence line.

east with his south line 950 varas, stake and 3. Defendant's plea of "not guilty" did not mound its southeast corner; thence north remove the admission that the field notes were correct, and he is bound by that admission.

with his east line 100 varas to the begin

ning." These field notes are admitted by Appeal from district court, Maverick coun

appellant in his sworn plea to be correct, ty; Walter Gillis, Judge.

and, if correct, there can be no vacancy beAction of trespass to try title by J. Owen

tween survey No. 8 and the surveys surand others against F. H. Hartz. From a

rounding it, and, as the patent was issued judgment for plaintiffs, defendant appeals.

on the basis of a vacancy, the title of appelAffirmed.

lant by his own admission must fail. There J. M. Goggin and I. L. Martin, for appel- is no latent ambiguity in the calls of survey lant. Winchester Kelso and Clark, Fuller No. 8, but they are plain calling for the cor& Garner, for appellees.

ners and lines of the surrounding surveys,

and parol testimony was not permissible to FLY, J. This is an action of trespass to vary the calls made in the survey. There is try title, brought by appellees, to 320 acres no pretense that the calls are not the ones

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