full and efficient system for the laying out, working, and draining public roads in Dallas county, and for the condemnation of land for that purpose, separate and distinct from our general road law; that the provisions of the special road law for Dallas county are so dissimilar, and in such conflict with the general road law, that at least the provisions of the latter law relating to the condemnation of land for road purposes are repealed by the former law in so far as Dallas county is concerned. This conclusion renders unnecessary the discussion of any other question presented. A compliance with the special road law for Dallas county was necessary to effectuate a valid condemnation of appellant's land for road purposes. There is no pretense that this was done, and it follows that there was no legal condemnation of it. This being true, appellant's remedy by injunction to restrain the opening of the contemplated road over his land cannot be questioned, and under the pleadings and proof judgment should have been entered in his favor. We think appellant was entitled, perhaps to nominal damages for the trespass upon his land, which would have entitled him to a recovery of costs; but this result is accomplished by the disposition made of the case on this appeal, and further action upon that branch of the case becomes unimportant.

The judgment of the court below is therefore reversed, and judgment is here rendered perpetuating the injunction issued in this cause, and that appellant recover possession of the land described in his petition.

INTERNATIONAL & G. N. R. CO. v.
STILL.

(Court of Civil Appeals of Texas. June 7, 1905.)

1. SERVANT'S INJURIES-NEGLIGENCE-QUESTION FOR JURY.

In an action against a railroad company for injuries to a servant, owing to other servants having rolled a bale of cotton on plaintiff, held, that the question of their negligence was for the jury.

2. SAME-FELLOW SERVANTS.

Laws 1891, p. 25, c. 24, and Act June 18, 1897 (Laws 1897, p. 14, c. 6), provides that, in order to make the servants of railroad companies fellow servants they must be engaged in the common service of the master in the same grade and department of the service for a common purpose, and working together at the same time and place, in the same character of work, and at the same piece of work. Held, where several servants, constituting a "bridge gang," under the direction of one foreman, were divided into two squads, and ordered to move bales of cotton from one side of a platform, which was being repaired by the gang, to another, and one of them was injured by the servants in the other squad rolling a bale of cotton over on him, the injured servant and the others were not fellow servants. 3. SAME-CONSTITUTIONAL LAW.

Laws 1891, p. 25, c. 24, and Act June 18, 1897 (Laws 1897, p. 14, c. 6), determining who 88 S.W.-17

shall be fellow servants in the employ of a railroad company, is constitutional.

4. INJURIES TO SERVANT EVIDENCE.

In an action against a railroad company for injuries to a servant, evidence held not to show any negligence on the part of plaintiff's foreman.

Appeal from District Court, Rusk County; Richd. B. Levy, Judge.

Action by Joe Still against the International & Great Northern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

N. A. Stedman and Gould & Morris, for appellant. Johnson & Edwards. for appellee.

GILL, J. The appellee sued the appellant railway company for damages for personal injuries sustained by him, and in a jury trial procured a verdict and judgment, from which the defendant company has appealed.

Plaintiff's action was based on the alleged negligence of the defendant's servants in rolling a bale of cotton on his foot while he, in the service of the company, was engaged in rolling a different bale; and also on the alleged negligence of the foreman in superintendence of the work in failing to exercise care to avert the injury. The defendant answered by general denial, a plea of contributory negligence, and that the accident was due to the negligence of those who were fellow servants of plaintiff. Appellee was a member of a "bridge gang" in the service of appellant and in March, 1903, was injured under the following circumstances: The bridge gang, under the direction of its foreman, were engaged in repairing appellant's cotton platform at the town of Kilgore. There were about 25 bales of cotton on the north portion of the old platform. The workmen first reconstructed and repaired the south half or portion of the platform, leaving an open space about six feet wide between the new and the old portions. They bridged this space with planks, and undertook with their hands to roll the bales of cotton onto the new portion of the platform in order to reconstruct and repair the other portion. The men were not supplied with cotton hooks or other implements with which to handle the cotton. The foreman directed five members of his crew to move the cotton, and he divided these into two separate squads by directing appellee and one Gus Little to act together and roll the same bale, and the other three men to act together and roll a separate bale. Appellee and Gus Little, working together and rolling one bale at a time, had rolled about five bales onto the completed part of the platform; and the other three men, working together and rolling one bale at a time, had rolled about five bales onto the completed part of the platform, when appellee was injured. Appellee and Gus Little always rolled the same bale together, no other person aiding them;

and the other three men always rolled the same bale together, neither appellee nor Little aiding them. Appellee and Little were always in front with their bales, the other three men rolling their bales along behind them. On the unrepaired portion of the platform was a post supporting the corner of a small shed, and the men in rolling the cotton had to stop at or near this post each time and turn the bales by lifting or sliding the end around, so as to get them in position to be rolled directly across the planks; and this had been done by appellee and Little and by the other three men with each respective bale. After each squad had rolled about five bales of the cotton onto the new portion of the platform, appellee and Little were rolling another bale, and, reaching this post, halted an instant to turn the bale by sliding its end. Appellee was stooping to take hold of the bale again, with one foot behind the other and resting on the toe, when the other three men, rolling a separate bale, rolled the same up behind appellee, and rolled it against him, and it fell upon his leg and foot, seriously injuring him. The foreman was not immediately present at the time of the accident, but had started or gone to the business portion of the little town where the accident occurred. It is apparent from the facts stated that the negligence of those who rolled the bale on plaintiff's foot was an issue for the jury. Whether they were fellow servants of plaintiff is a question of law, the facts as to their relation to him being undisputed. The appellant assails the judgment upon four distinct grounds: First. That there was no evidence of negligence on the part of defendant's servants in rolling the bale of cotton against plaintiff's foot. Second. The employés rolling the bale which caused the accident were fellow servants of plaintiff, and this notwithstanding the fellow servants law, as amended by the act of 1897. Third. That, if the act in question be construed to apply to work of the character of that in which plaintiff was engaged at the time of the accident, the act is obnoxious to the federal Constitution. Fourth. The court erred in submitting to the jury the issue of the foreman's negligence, because there was no evidence to authorize its submission.

We have already disposed of the first objection in stating that the issue was presented by the evidence.

The second objection presents a question of greater difficulty. By the common law, as construed by our Supreme Court, all persons engaged in the service of the same master and working to a common purpose, whether or not they were in the same grade of service or in the same department, and however widely their service might be separated, were fellow servants within the rule which exempted the master from liability to one for the negligence of another. Railway Company v. Welch, 72 Tex. 298, 10 S.

W. 529, 2 L. R. A. $39. Against the rule thus broadly stated and as broadly applied, our Supreme Court had begun to protest, it being manifest that in many cases, under conditions now existing in many departments of business and commerce, such reasons as might justify the doctrine generally had ceased to exist. The rule, however, was too well defined and too firmly established to be set aside by the courts.. Welch's Case, supra. By the act of March 10, 1891 (Laws 1891, p. 25, c. 24), the rule as applied to railway companies was modified so that, in order to make their employés fellow servants, they must be engaged in the common service of the master; in the same grade of the service, neither being in superintendence over the other; engaged in the same department of service, working to a common purpose, and working together at the same time and place. A further change was made by the act of June 18, 1897 (Laws 1897, p. 14, c. 6), which, in effect, added two other elements to the provisions of the act of 1891, so that in addition to the requirements of that act, employés of railway companies, in order to come within the fellow servant rule, must be engaged in the same character of work, and must be working together at the same piece of work. It is thus apparent that for reasons which the Legislature regarded as sufficient the fellowservant doctrine as defined by our courts was restricted within a very narrow compass when applied to the employés of railway companies. The amendment must be held to have added some practical provision to the law then in force, or its passage would have been meaningless. Under the act of 1891 the plaintiff in this case would have clearly come within its provisions, for he and those who rolled the cotton on his foot were in the common service of the master. They were in the same grade of service. They were engaged in the same department of service. They were working for a common purpose, and working together at the same time and place. The plaintiff's case contains at least one of the additional elements of the law of 1897. He and those who injured him were engaged in the same character of work. But they were not working together at the same piece of work. The foreman had directed plaintiff and another to aid each other in moving each bale of cotton which fell to their lot to handle on the occasion in question. The foreman had directed three of his companions to aid each other in the handling of each bale which fell to their lot to move. In this sense the moving of each separate bale was a separate task, and it was not contemplated either that the three should aid the two or the two the three. The work was separable into pieces, and seems to fall within the purpose of the law. We fully realize that in apply. ing the language of the act to the infinite variety of situations which may arise many

difficulties will be presented, but, if we are right in our conclusion that the Legislature had in mind not only a piece of work in the general sense of the phrase when applied to a whole which might consist of many parts, but also any one of those separable parts when being separately handled or treated, then it seems to us the case before us is typical. The act came up for construction in Long's Case, 94 Tex. 53, 57 S. W. 802. There the members of a section gang were returning their tools to the toolhouse at the close of a day's work. Some were carrying them on a hand car, while others walked down the track with the implements in their hands. One of the latter was injured by the negligence of those operating the handcar. It was held that the injured man was not a fellow servant of those operating the hand car. The ground on which the discussion was based was that the character of the work being done by those on the hand car was different from that being done by those who were walking, but the opinion was also expressed that those carrying the tools by means of the hand car were engaged on a different piece of work, and the trend of the mind of the court is further indicated by the following expression: "But it would seem that an employé who was carrying one or more tools without the aid of another was engaged in a different piece of work from that which was being done by any one of his co-employés." The case cited strongly supports our conclusion in the present case, even if the language quoted be disregarded as mere dicta, for in holding that men who had occupied the relation of fellow servants during the entire working day ceased to be such when by different methods and in different ways they engaged in the common task of returning the tools to the tool house it was, in effect, decided that the statute applied to parts of an entire task when the task was separable into smaller parts capable of independent handling. Appellant cites the cases of Railway v. Howard (Tex. Sup.) 80 S. W. 229; Railway v. Cloyd (Tex. Civ. App.) 78 S. W. 43; and Lakey v. Railway (Tex. Civ. App.) 75 S. W. 566. In Cloyd's Case he and the man by whose negligence he was injured were both engaged in wiping the same engine at the same time. They were in the same grade of employment. It was very clear that they were engaged in the same character of work, and on the same piece of work, and it was held that they were fellow servants. In Lakey's Case the injured person and the man whose negligence caused his injury were engaged in unloading a railroad rail from a push car. It was the duty of one to call out when the latter end of the rail was about to drop from the car, so that those in front could drop it at the same time. The man whose duty it was to call out negligently failed to call, and his co-servant was injured by the fall of the rail. This court held them to be fel

low servants, and the holding was justified. They were clearly engaged on the same piece of work. We are unable to see in what respect Howard's Case, supra, bears upon the question one way or the other. If he was engaged, either actually or theoretically, in aiding the men on the engines in moving them into the roundhouse, they were all engaged on the same piece of work and in the same character of work, for there was but the one task, viz., the moving of the engines. We are of opinion the trial court did not err in assuming that the plaintiff and those who committed the act which injured him were not fellow servants.

We shall not indulge in a discussion of appellant's point that the statute is unconstitutional. Such statutes have generally been upheld. Campbell v. Cook, 86 Tex. 630, 26 S. W. 486, 40 Am. St. Rep. 878, and authorities cited.

The objection that the statute cannot rightly be held to include the character of labor in which the plaintiff was engaged at the time of his injuries without doing violence to the fourteenth amendment is not without force, but the language of the statute is general, and applies in terms to railway employés, rather than to the character of the labor in which they may engage. It leaves no room for construction. No authority is cited directly in support of the proposition, and we incline to think the distinction insisted on will not be made.

The last objection must be sustained. The court committed reversible error in submitting the alleged negligence of the foreman as a ground of recovery. The evidence did not present the issue. That such an error is harmful, and requires a reversal in all cases in which the judgment is predicated upon issues determined by the jury, has been held without exception. The point that the error was invited is not well taken. For the reasons given, the judgment is reversed, and the cause remanded.

Reversed and remanded.

WHALEY v. BANKERS' UNION OF THE WORLD.*

(Court of Civil Appeals of Texas. May 10, 1905.)

1. MUTUAL BENEFIT SOCIETY-FOREIGN CORPORATIONS.

Where corporations are created by different states, they can only consolidate under concurrent legislation of each state, in which event there is a separate and distinct corporation in each state, as the laws of each have no extraterritorial effect.

[Ed. Note. For cases in point, see vol. 12, Cent. Dig. Corporations, § 2672.]

2. SAME CONSOLIDATION.

Where two corporations organized under the laws of different states attempted to consolidate without any statute authorizing such con

*Rehearing denied June 14, 1905, and writ of error dismissed by Supreme Court for want of jurisdiction.

Where a mutual benefit society by which plaintiff's wife was insured for plaintiff's benefit made an ineffectual attempt to consolidate with defendant association, and the latter attempted to take over all of the assets and certificates of the former, but received nothing of value belonging to plaintiff or his wife, and made no promise or agreement with them based on any consideration, plaintiff could not recover from defendant, on his wife's certificate, after her death, on the ground of equitable estoppel. 4. SAME-ACTION AGAINST RECEIVER.

Where defendant, a mutual benefit society, made an ineffectual attempt to consolidate with an insolvent association and take over its assets and certificates, a holder of a certificate against such insolvent association could only enforce his rights through its receiver after the receiver had recovered the assets of the society so erroneously paid over.

5. SAME-DIVERSION OF BENEFIT FUND.

Acts 1899, p. 195, c. 115, § 1, provides that a fraternal beneficial association is a corporation formed and carried on for the sole benefit of its members and beneficiaries, and not for profit, and sections 2 and 3 authorize similar associations organized under the laws of other states to do business in Texas on complying with certain statutory requirements. Held, in the absence of proof to the contrary, it will be presumed that a foreign beneficial association doing business in Texas was created for the same purpose as that described in section 1, and hence a contract to divert its benefit fund to the payment of certificates issued by another corporation, with which it had no power to consolidate, is ultra vires and void.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action by John T. Whaley against the National Aid Association and another. From a judgment in favor of defendant the Bankers' Union of the World, plaintiff appeals. Affirmed.

Green & Blanton, for appellant. M. E. Murphy, for appellee.

NEILL, J. This suit was brought on the 12th day of March, 1902, by the appellant, John T. Whaley, against the National Aid Association and the Bankers' Union of the World, to recover $900 and interest, as balance due upon the benefit certificate or policy described in our conclusions of fact. It was alleged, as the ground of recovery against the Bankers' Union, that on the 26th of October, 1901, it, for a valuable consideration, agreed with the National Aid Association to pay all just and lawful claims for death and disability losses of its members, and that by virtue of such agreement it became obligated to pay plaintiff the amount due on the policy or benefit certificate referred to. The Bankers' Union by its answer specially denied the alleged agreement, and pleaded that if such agreement was ever made it was unauthorized, ultra vires, and void. The National Aid Association neither appeared nor answered in the case, and judgment was ren

dered against it by default. The case as to the Bankers' Union was tried before a jury, whom the court instructed, after hearing all the evidence, to return a verdict in favor of such defendant. From a judgment entered upon the verdict returned in obedience to the instruction, this appeal is prosecuted.

Conclusions of Fact.

The National Aid Association, organized under and by virtue of the laws of the state of Kansas, on the 21st day of February, 1899, issued to appellant and his wife, Caro A. Whaley, a certificate or policy of insurance whereby it promised to pay to the surviving member (being beneficiaries) the sum of $1,000, or such sum as might be derived from one assessment upon all the members of said association. In March, 1901, Caro A. Whaley, appellant's wife, died, all dues and assessments upon the benefit certificate having been paid up to the date of her death. Wherefore the National Aid Association became liable to appellant on said policy according to its terms in effect. On October 26, 1901, the National Aid Association, having become largely indebted and hopelessly insolvent, and unable to pay its outstanding indebtedness, consisting of death claims, salaries, etc., attempted to consolidate with the Bankers' Union of the World, also a beneficiary association organized under and by virtue of the laws of the state of Nebraska, whose certificate of incorporation is as follows: "The name or title of this society or association shall be "The Bankers' Union of the World.'" The object for which it was formed was, and is, the organization of a fraternal beneficiary society under the laws of Nebraska, as above designated, for the sole benefit of its members and their beneficiaries, and not for profit, and having a lodge system, with ritualistic form of work, and a representative form of government. By the proposition of the Bankers' Union to the National Aid Association which led to the attempted consolidation, the former offered to assume and pay all liabilities, including death claims, of the latter. The National Aid Association having received the proposition, through its directors, conducted negotiations with the Bankers' Union which led to the execution of a contract in writing purporting to be entered into between the two associations, which was signed by the president and secretary of each, the effect of which was that the management of the two associations should be combined by the resignation of all officers and directors of the National Aid Association, and the election in their places of persons for the respective offices selected by the management of the Bankers' Union; that upon consummation of such consolidation the Bankers' Union and E. C. Spinney, who was its president and general manager, should assume and agree to pay all just and lawful claims for death and disability losses, and all other claims and losses not otherwise

provided for, against the National Aid Association, which had then or might thereafter accrue; that upon consolidation the National Aid Association should turn over to the combined management of the fraternal order all moneys on hand or in bank, furniture, and supplies owned by it, and $1,300 on deposit with the National Security Company of New York; and by which agreement the said Spinney promised to furnish a schedule of the property owned by him of the value at least $50,000, to the end that the National Aid Association might have a full, complete, satisfactory, and conclusive proof of his ability personally to perform his part of the contract.

After this agreement was made, in pursuance thereof the officers of the National Aid Association resigned, and new officers of the Bankers' Union were e'ected, and all the property mentioned in the agreement, with books, furniture, and money on deposit of the National Aid Association, was turned over to the Bankers' Union, and it also executed 10 notes for the sum of $333 each to the officers of the National Aid Association.

It affirmatively appears from the evidence that there was no authority in the charter of either association, or in the statute of the state by virtue of which it was incorporated, authorizing either to consolidate or combine with the other or any other association. It does not appear from the evidence that this attempted consolidation or action on the part of the officers and directors of the respective associations was ever ratified by the lodges of the associations in the several states of the American Union to which the members of the association belonged, and which acted for and connected such members with the association to which they respectively belonged. After the attempted consolidation the Bankers' Union paid appellant, upon the benefit certificate or policy referred to, $100, and never paid him any more afterwards, but refused to pay the balance. The Bankers' Union of the World never at any time issued a certificate or policy of insurance to appellant or his wife, Caro W. Whaley, who died eight months before the attempted consolidation, and never received any money or thing of value from either of them, and was under no obligation, other than such as may arise from the facts stated above, to pay them or either any sum of money whatsoever.

Conclusions of Law.

As there was no contract, express or implied, between the Bankers' Union of the World and appellant upon which the liability of the former can be established in favor of the latter for the demand, or any part thereof, sued on, the liability of appellee, if it exists at all, must necessarily rest upon its attempted consolidation with the National Aid Association, whose benefit certificate or policy appellant holds for the death of his wife. Corporations have no power to consolidate

unless the power is expressly conferred by their charters, or by the charter of one of them, or by some other statute, and the consolidation must be effected in compliance with the terms of the statute. And when corporations are created by different states, as were those involved in this case, they can only consolidate under concurrent legislation of each state; but in such a case, since the laws of the state have no extraterritorial effect, they cannot create or aid in creating a corporation in another state; and there is, in law, a separate and distinct corporation in each state when corporations are consolidated by virtue of concurrent legislation.

When a consolidation of corporations has been attempted, but the result of the proceedings, through some defect or want of power, has not been a corporation de jure, the rights and obligations accruing will be determined by ascertaining whether a de facto corporation has been formed. Unless a consolidation statute, in force at the time of the proceedings, authorized the proposed consolidation, the result was a nullity, even if there was an attempt in good faith to consolidate, followed by an assumption of corporate powers. American Loan, etc., Co. v. Minn., etc., Ry. Co., 157 Ill. 641, 42 N. E. 153. An attempt to do that which the law does not permit can produce no result that the law will recognize. A body which cannot become a corporation de jure cannot become a corporation de facto. The mere user of corporate powers which might have been lawfully acquired, without a bona fide attempt to acquire them by forming a consolidation, does not create a consolidated corporation de facto; nor does an attempt to organize without user have that effect. An attempted consolidation, when no statute authorizes consolidation, is a nullity; and the corporate existence of a nominally consolidated corporation formed in the absence of legislative authority for such consolidation may be collaterally attacked, its acts and contracts are void, and it cannot be held liable for the debts of one of the corporations attempting to consolidate. Noyes on Intercor. Rel. §§ 92, 93; Finnegan v. Noerenberg, 52 Minn. 239, 53 N. W. 1150, 18 L. R. A. 778, 38 Am. St. Rep. 552; Continental Co. v. Toledo Ry. Co. (C. C.) 82 Fed. 653; American Loan, etc., Co. v. Minn., etc., Ry. Co., 157 Ill. 641, 42 N. E. 153; Kavanagh v. Omaha Life Assn. (C. C.) 84 Fed. 295; Pearce v. Madison, etc., Ry. Co., 21 How. 441, 16 L. Ed. 184; Mansfield, etc., R. Co. v. Brown, 26 Ohio St. 223; Mansfield, etc., R. Co. v. Drinker, 30 Mich. 124; Tuttle v. Michigan, etc., R. Co., 35 Mich. 247; Brown v. Dibble's Estate, 65 Mich. 520, 32 N. W. 656.

Appellant's claim cannot be based upon an equitable estoppel, for he paid nothing to appellee, nor did it receive anything of value belonging to him, or make any promise or agreement, based upon any consideration. with him. The appellee is liable, if to any one, to the National Aid Association for the mon