the Payne tract on the ground and give each | must be taken by you as placed in the Hartract its measurement north and wind up at grave by the Hermann-Payne partition suit, the river, as the surveyor says he did in otherwise not." Because the submission of figuring the tracts in making his field notes the meaning or intent of the partition surin the office, then each gets approximately the veyor or commissioners, as done, was erroamount the commissioners reported to the neous as applied to the facts of this case. court each should have, and there would be no land unpartitioned.

[5] Having determined that from a proper construction or interpretation of the facts of this case they show such an ambiguity as required the trial court to submit the case to the jury, then, to determine whether the charge of the court complained of was error, it becomes necessary to determine what issues involved were necessary to be passed on in order that the court might render a proper judgment.

[3, 4] It will further be noted that the beginning corner of the 108-acre tract was not located on the ground, but was located at the northwest corner of the Dunman, and the measurements for each subdivision were calculated from the southeast corner of the Dunman. If we had no evidence as to how these descriptions were arrived at, then we would, under the rules applicable, begin at [6, 7] As was said in Barnett v. Mahon, 31 the San Jacinto river and come south in lo- S. W. 329: "The partition being the act of cating the lines, because the field notes call the court, the intention of the court is what for them that way; but since the field notes is to govern." The decree consists of the in the decree of partition do not cover all approval or adoption of the report of the the ground, and they were all made at the commissioners. This report was accompanied same time by the same surveyor, and that by an attached plat and field notes. The diwhich is called the beginning subdivision is vision intended then is that portrayed in the of no more importance by reason of its po-plat and field notes. The plat expressly made sition in the report of the commissioners as a part of the report of the commissioners, adopted by the court than any other, for the and also adopted by and made a part of the same reason that that which is designated as decree of the court. Since the plat covers the beginning corner of a survey is not usu- all the ground intended to be partitioned, ally of any more importance in determining and the field notes as they appear in the the location of a survey than any other cor- report do not cover all the ground, the maner in such survey, so we conclude that the terial matter of inquiry was what was the inlaying out and platting of lands into sub-tent of the commissioners in their report, and divisions is one piece of work, and if there is the court's intention in its adoption by deuncertainty as to the location, the jury must cree? So the question was whether the compass upon the matter. State v. Sulflow, 128 S. W. 653; Lyon v. Waggoner, 37 Tex. Civ. App. 205, 83 S. W. 46. So we conclude that the trial court did not err in submitting the

question to the jury.

intended to be.

What we have said above disposes of the third and fourth assignments; they having raised virtually the same questions.

missioners began at the south and platted to the north, thus fixing the line between the Hargrave and the J. D. Bourgeois, where the appellees contend it is, or whether they be The second assignment of error groups the gan at the north and coming south fixed or fifth, sixth, and eighth as raising the same intended that the line in question should be question, viz,: Did the court err in submit-fixed where appellants claim it is; and, beting the case under the following paragraphs sides, the line in question was not run, and of its charge: "(6) On the other hand, if you the jury must necessarily find where it was do not believe from a preponderance of the evidence that the said boundary line, as fixed in the Hermann-Payne partition suit, was north of the wells in question, as claimed by the plaintiffs; or if you believe the commissioners did not mean to put the boundary line north of the wells in question-then in either event named in this paragraph you will find for the defendants. (7) If you believe from the evidence that the northwest corner of the M. Bourgeois, as called for in the Hermann-Payne partition suit, cannot be ascertained with accuracy, but that its northeast corner can be, and that by reversing from that point the calls of such field notes for such tract, and then tying thereto in their order by course and distance the Boudreau, the J. D. Bourgeois, and the Hargrave tracts, the 90-foot strip in dispute will be in the Hargrave, and you believe that The other assignments are to the quessuch result conforms to what was done and tion of oil taken from the 90-foot strip and intended by the surveyor in the Hermann- not necessary to decide. Payne partition suit, then such 90-foot strip Affirmed.

[8] The sixth and seventh assignments charge that the trial court erred by its general charge in submitting to the jury as one of fact the question of agreed boundary and estoppel instead of determining the issue as one of law against the defendant.

There was ample evidence to raise the question of agreed boundary, and the court should have submitted the question, as he did, to the jury; but if we are in error in this, there being two grounds upon which defendants could recover upon a finding by a jury in their favor, and not knowing whether the first was controlling, we would not set the judgment aside.

the porter pushed the deceased off the train

MISSOURI, K. & T. RY. CO. OF TEXAS v. | while it was running, and that his death re

BROWN.

(Court of Civil Appeals of Texas. Austin. April 2, 1913.) 1. CARRIERS (§ 383*) - PASSENGER'S ACTION FOR INJURIES-SUFFICIENCY OF EVIDENCEQUESTION For Jury.

In an action for the death of a person thrown off a railroad train by a porter, evidence held sufficient to make a question for the jury as to whether deceased was a passenger or a trespasser.

sulted from that wrongful act; but the contention is that the evidence fails to show that the deceased was a passenger. The proof indicates that the deceased boarded the train without a ticket for the purpose of going from Bruceville to Lorena, a distance of five or six miles, and that he had in his pocket more than enough money to pay his fare. The plaintiff also submitted testimony to the effect that, soon after the train

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1492-1496; Dec. Dig. § 383.*] left Lorena, the deceased was found lying 2. CARRIERS (§ 239*)-CARRIAGE OF PASSEN-across the track in a semiconscious condi

GERS "PASSENGER"-"TRESPASSER."

"

A person who boarded a train, intending to pay his fare when demanded by the person entitled to receive it, and who would have paid it upon such demand to the conductor, was a "passenger," and not a "trespasser," although he had already delivered a sum equivalent to his fare to the porter, who had no authority to collect fares.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 974, 975; Dec. Dig. § 239.*

For other definitions, see Words and Phrases, vol. 6, pp. 5218-5227; vol. 8, pp. 7748, 7094.j

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Action by Mark Brown against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reformed and affirmed on condition that plaintiff file remittitur.

Spivey & Carter, of Marlin, for appellant. Nat. Llewellyn, of Marlin, for appellee.

KEY, C. J. This is the second appeal in this case (Railway v. Brown, 135 S. W. 1076), and reference is here made to our former opinion for a full statement of the nature of the case. The former judgment was reversed on account of an error in the court's charge, and in the refusal of a requested instruction. At the last trial the case was properly tried, and a verdict and judgment were rendered for the plaintiff for $2,000, to reverse which this appeal is prosecuted.

But two assignments are presented in appellant's brief, and these are, first, that the evidence was not sufficient to authorize the court to submit to the jury whether or not the deceased was a passenger on appellant's train at the time he received the injuries which resulted in his death; and, second, that the verdict is excessive.

tion.

John Bolden testified as follows: "I remember the occasion of Spencer Brown being hurt on the railroad at Lorena. No. 4 came up. I do not remember the date; it has been so long, but I know it was in the evening about dusk. No. 4 ran in and I was there at the depot, and after it left some one says, "There is a man lying across the And then some of us track back there.' rushed back to see what it was, and found this boy. I did not know him. We made arrangements to take him over and put him in a house. After we got there, we never could get anything out of him though. He was unconscious. He would wake up, it seemed like, when we would say something to him. We never could get him to talk, except he seemed to have money on his mind, and every now and then he would say, 'I had money; I paid my way,' and he would go back unconscious. That is all we could get out of him. He was kept there all night and taken to Waco next morning. That is all I know about it. I know now who the boy was; I just know he was a Brown; I never did pay much attention to his name. I disremember what the boy's name was. Yes, sir; he made that assertion several times that he had money and paid his way; and we would ask him who he was and where he was from, none of us knew him, and it seemed like he would sink back unconscious."

Dr. Gordon, who went immediately to see the deceased and testified as to the nature of his injuries, also stated: "When I got to him he was in an unconscious condition and suffering from a considerable shock. He did not make any direct statement to me, but I heard him saying something while I was attending to him about being on the train and they shoved him off; he was in a semiconscious condition."

Claude Elliott testified that as the train approached Lorena he went into the negro coach, saw the porter and another man standing on the front platform of that coach, and he stated, in effect, that the porter pushed the other man off the train.

[1] As to the first question, the testimony is substantially the same as it was on the former trial, and as stated in our former opinion, and we held that it was sufficient to require the court to submit the case to the jury. It is true that, in order for the plaintiff to recover, it was necessary to prove that the deceased was a passenger on appellant's train, and that he was pushed off of it by the porter, as alleged by the plaintiff. It is Counsel for appellant contend that the not denied in this court that there was suffi- mere statement of the deceased to the effect cient evidence to warrant a finding that that he had money and had paid his way

RICE, J., being disqualified, did not sit court to compel a justice of the peace to send

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Mandamus,

hear the evidence and to determine the right of the party to his appeal."

"Art. 2395. When the bond, or the affi

Cent. Dig. §§ 427-437; Dec. Dig. § 187;* Ap- davit in lieu thereof, provided for in the peal and Error, Cent. Dig. § 570.*] two preceding articles, has been filed, and the previous requirements of this chapter Appeal from Wilbarger County Court; have been complied with, the appeal shall R. S. Houssels, Judge.

Mandamus by W. N. Wilson against P. L. Hart, Justice of the Peace. From the judgment, defendant appeals. Reversed and re

manded.

Berry & Stokes, of Vernon, for appellant. Storey & Warlick, of Vernon, for appellee.

HENDRICKS, J. This action is one of mandamus, instituted in the county court of Wilbarger county, Tex., by appellee, to compel Hart, the justice of the peace, and appellant herein, to "prepare a complete record and transcript of all the proceedings had" in the justice court in the case of Stultz v. Wilson, "in order that a trial de novo may be had in said county court of Wilbarger county"; the record and evidence in this mandamus proceeding showing that, at the trial of the original cause in the jus

be held to be perfected."

In discussing this matter, it is to be noted that the statute regulating appeals from the justice court, prescribing the affidavit in forma pauperis, is in substance the same and in language in some respects identical, as the statutes prescribing the same affidavits in lieu of an appeal bond in cases of appeal from the district and county courts; and the decisions of the higher courts in construing the latter statutes, on account of the identity of the statutes, would necessarily control the construction of the statute with reference to appeal from justice courts: "The statute defines what the proof it requires shall be, when it provides that it shall consist of the affidavit of said party, stating his inability to pay the costs, and its evident purpose is to enable the appellant to make prima facie proof of his inability to give the required security and to tice court, Stultz, the respondent in manenable those having conflicting interest to damus, and appellant herein, obtained a controvert such proof." Smith v. Buffalo judgment against Wilson in the justice In the court for $129.95 and foreclosure of an at- Oil Co., 99 Tex. 78, 87 S. W. 659. tachment lien upon certain horses, the evi- absence of a contest, "the affidavit of the dence further disclosing that the appellee party is sufficient," without further proof, and relator herein, as the unsuccessful lit- to make out the prima facie case of inabiliigant in the justice court proceeding, at-ty. Graves v. Horn, 89 Tex. 78, 33 S. W. tempted first to perfect his appeal by giving security for costs, which was unavailing, and, second, within the requisite ten days, in lieu of the appeal bond attempted to comply with the other provisions of the statute, by filing an affidavit in forma pauperis, and making proof of his inability to pay the costs, or any part thereof.

322.

The statute with reference to appeal from justice court, where appellant is unable to "pay the costs of appeal, or to give security therefor," says that, "in order to do so, he shall be required to make strict proof of his inability to pay the costs or any part thereof." New Revised Statutes, art. 2394. The statutes with reference to appeal from district and county courts uses the identical language quoted, and in passing upon the above language of the statute the Supreme Court said, in the case of Pendley v. Berry, 95 Tex. 74, 65 S. W. 33: "We think the statute means that where the party can pay the costs, or a part thereof, he must do so. This is implied in the rule that unless he can show his inability to pay any part of the costs he cannot appeal upon affidavit alone. Plainly, if this state of facts cannot be shown, the intention is that the party shall do that which he cannot show his inability to do." (The emphasis is ours.)

[1] The articles of the statute with reference to appeals by affidavit from a judgment of the justice court are as follows: "Art. 2394. Where the appellant is unable to pay the costs of appeal, or to give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the same, at any time within ten days from and after the date of the judgment rendered therein, and shall consist of the affidavit of said party stating his inability All these statutes also use the following to pay the costs; which affidavit may be language: "Such proof shall contested by any officer of the court or sist of the affidavit of said party stating his party to the suit; whereupon, it shall be the inability to pay the costs." And the Supreme duty of the court trying the case, or the Court further, in commenting upon the case justice of the peace of the precinct in which of Stewart v. Herdenheimer, says that the said case was tried, or the county judge of case simply held that the words "or any the county in which the suit is pending, to part thereof," with reference to the inabil

*

con

ity to pay, does not have to be inserted in [ [3] This record conclusively shows that the affidavit, and the affidavit without such four horses were conveyed to the relator's language is sufficient "when uncontested," wife, and suggests that it was done in conas was previously held in the Graves-Horn sideration of the relinquishment of her homeCase, supra; but when it comes to a con- stead right, transferred previously by hustest, the words of the statute, "he shall be band and wife; and the horses conveyed to required to make strict proof of his inabil- her, as indicated in the record, in order ity to pay the costs, or any part thereof," that she might hold the property for reinis construed by the Supreme Court in the vestment in another home. Relator said, following language: "But the previous part "that the bill of sale was issued to her for of the statute cannot be wholly rejected the reason that she refused to sign the (meaning the last quotation from the stat- deed to the home unless this property was ute) and its operation is to require that up- placed in her name." "She wanted it that on contest the facts must show the inability way so that she could see that it went into spoken of" that is the inability to pay a another home." The same were the facts in part of the costs as well as the whole the case of Blum v. Light, 81 Tex. 420, 16 costs, where the inability of the appellant S. W. 1090, except that the bill of sale in is questioned and contested by the appellee. that case is shown to have been a conveyPendley v. Berry, supra. ance to the wife of the horses and cattle as her separate property, by the terms of the conveyance. The evidence in this case shows that, a "short time" (but when is not shown) before the filing of the affidavit, the homestead was sold, and considering the statute with reference to exempting the proceeds of the homestead for a period of six months after the sale, and the testimony that the wife signed the deed in consideration of the conveyance to her in order that she could see that the proceeds went into another home, we are not disposed to disregard the court's findings. But as to the three head of cattle, the two cows and a yearling heifer, which the record conclusively shows was owned by them (presumptively as community property) and not shown to have been the proceeds of the homestead, and uncontradicted that they were worth $105, with no testimony whatever that they were milch cows or that the grown cows had ever been milked and were dry, or were intended to be used as milch cows, we are unable to agree with the court's finding that they should be eliminated in considering the relator's ability to pay the costs or any part thereof. In the Pendley-Berry Case, supra, the district judge had found that the appellant had $40 and was able to pay a part of the costs of the appeal, but disregarded it on the contest and sustained the affidavit, and the Supreme Court said: "The decision of the district judge that the appellant was entitled to appeal without paying or depositing the sum named is not conclusive. The statute says, it is true, that the judge hearing the contest shall 'determine the right of the party to his appeal,' but this means evidently that he shall determine the facts which are in issue before him on which the right to appeal is made to depend. After ascertaining and stating such facts, he cannot conclude the appellate court by judging that the right to appeal does or does not exist." The trial court's finding of fact is just as deficient, when in the face of the record, as a finding of law, and this record is conclusive upon this appeal that the three head of cattle mentioned constitute community proper

[2] Of course, under the rulings of the Supreme Court, when a contest is filed, the "facts must show the total inability" mentioned in the statute, in order to preserve the right of appeal, or at least, if the record shows the ability to pay the costs or a part thereof, the affidavit is overturned and the right is lost. And in order for the mandamus to lie against the opposite party, who is an officer, "We must see that the act which it is sought to compel him to perform is one that is imperatively required of him by law to perform." Insurance Society v. Love, 102 Tex. 278, 115 S. W. 26. In this matter the act sought by mandamus to compel respondent to perform is to send up the transcript in order that relator may perfect his appeal, and if the facts do not show a total inability to pay or are suggestive of an ability to pay the costs, or a part thereof, then it is not "imperatively required of him to perform." Chief Justice Rainey expressed it rather succinctly as to this particular question, in the case of Trapp v. Frizzell, 98 S. W. 947: "The Constitution gives the right to appeal, and the law has provided the mode for so doing. When a party takes an appeal from a judgment against him, and makes affidavit of his inability to give security, as required in article 1401, Rev. St. 1895, and it is then contested, he is then 'required to make strict proof of his inability to pay the cost of any part thereof.' If he does this, then the jurisdiction of the appellate court attaches, and the power does not lie with the court or judge before whom such proof is made to deny the right of appeal"-citing Pendley v. Berry, quoted by us, supra, and Murray v. Robuck, 89 S. W. 782, decided by Justice Neill of the Fifth district. In the latter case all the property respondent had was a cow, a calf, a sow, some pigs, a growing crop on 15 acres of rented premises and which the San Antonio court said, in sustaining the right of appeal and mandamus, "this property was all exempt under the law from execution," and that is where this case departs from that

case.