In the case before us the substituted service did not authorize a personal judgment against Smith. It is not claimed that Smith had any interest in the property upon which the lien was asserted. Hence it follows that in no respect could Smith have been bound by the judgment. In the absence of jurisdiction over Smith's person, or some property in which she had an interest, the railway company could procure no valid judg ment over against her, nor in any other way protect itself against the plaintiff's claim. Should the railway company seek in a subsequent suit to hold Smith for the amount of the lien established in this, Smith could defend as if this suit had never been brought. It is apparent that Smith is not a party to this suit in any sense, and, since the railway company has the right to insist that she be made a party, the judgment must be reversed and the cause remanded.

In view of another trial, other questions must be disposed of.

The facts bearing upon the existence of the lien are as follows: R. J. Smith had a contract with appellant to construct a part of its road. She let to the plaintiff and one Atkins the contract to distribute ties over 15 miles of the right of way, the contract price being two cents per tie. When only a portion of the work had been done, Atkins withdrew, and plaintiff took in one Allbritton, with whom he finished the contract and did some additional work. Most of the work appears to have been performed by teams and wagons owned by plaintiff and Allbritton, the labor being done by hired hands paid by them a daily wage agreed on; the subcontractors getting two cents a tie for all ties so handled and distributed. A part of the work seems to have been performed by plaintiff, Davis, and his partners, by their own personal labor with their teams.

It is well settled that a subcontractor procuring the work to be done through the labor of others does not come within the provisions of the statute imposing a lien on railroad property for the protection of laborers and mechanics who may perform work with teams or tools in its construction or repair. We think, however, the fact that plaintiff may have agreed to distribute ties at two cents apiece does not preclude him from claiming the lien for so many of the ties as he himself distributed by the personal use of his team. But for so much of the sum due as was earned by plaintiff's employés he has no lien.

The law of the case is so clearly indicated in Krakaner v. Locke (Tex. Civ. App.) 25 S. W. 702, Railway Company v. Berry (Tex. Civ. App.) 72 S. W. 1050, and Railway Company v. Foley (Tex. Civ. App.) 69 S. W. 1030, we do not deem it necessary to discuss it further. The cases cited will be a sufficient guide for the court below upon another trial. From what has been said, it is plain the

judgment must be reversed. It is remanded because plaintiff may be able to procure effective service on Smith, and because it does not appear with certainty how much of plaintiff's claim is secured by a lien, and how much is a mere personal claim against Smith.

Reversed and remanded.

EASTHAM v. PATTY & BROCKINTON et al.*

(Court of Civil Appeals of Texas. Nov. 26, 1904.)

BILLS AND NOTES DEFENSES-PAYMENT-APPLICATION-EVIDENCE-BURDEN OF PROOFVERDICT - JUDGMENT APPEAL-RIGHT TO ALLEGE error.

1. Where, in a suit on a note, defendants had pleaded a payment of $1,900 on a certain date, one of the defendants was not entitled to testify to such payment by his recollection of the entry thereof on a lost leaf which he had torn from his ledger, which did not constitute primary evidence.

2. Where there was no evidence that the amount of a certain check collected by one of the defendants had ever been paid on the note sued on, evidence as to the receipt and collection of such check was immaterial.

3. Where the jury found against an alleged payment on a note sued on, the erroneous admission of certain evidence on such issue was harmless.

4. Where, in an action on a note, there was evidence that one of the defendants remitted a certain sum to J., without instructions as to its application, and that J. was the agent of another creditor of such defendant as well as of plaintiff, an instruction that, though such sum was remitted to J. for plaintiff, still, if it was a payment on some other indebtedness due by defendants to plaintiff or some one else, it should not be considered as a payment on the note sued on, was improperly refused.

5. Defendants having pleaded payment, the burden was on them to show that a particular payment should have been applied to the note sued on.

to

6. In an action on a note the jury found, in ¡ answer certain questions, that certain amounts had been paid for which defendants were entitled to credit on the note. Such credits, with those admitted by plaintiff, not submitted to the jury, were sufficient to reduce the note to the amount of the judgment rendered by the court for plaintiff. The jury, however, also found that one of the defendants had overpaid plaintiff the principal and interest on the note sued on to the amount of $396.19. Held. that defendants' remittitur of such amount did not authorize the court to enter a judgment for plaintiff on the note in conflict with the verdict.

7. Where the judgment for appellant did not conform to the verdict, she was not precluded from objecting thereto on the ground that it was more favorable to her than the findings warranted.

8. Where defendants admitted plaintiff's cause of action except as to the defense of payment, on which issue the jury found an overpayment in favor of defendants, the fact that the defendants received more than they were entitled to did not entitle them to avail themselves of the court's error in rendering a judgment for plaintiff in conflict with the verdict.

Appeal from District Court, Hill County: W. Poindexter, Judge.

*Rehearing denied December 17, 1904.

Action by Delha Eastham against Patty & Brockinton and others. From a judgment for plaintiff notwithstanding a verdict in favor of defendants, plaintiff appeals. Reversed.

Wear, Morrow & Smithdeal and A. G. Walker, for appellant. Vaughan & Works, for appellees.

RAINEY, C. J. This is a suit by appellant to recover on a note executed by appellees Patty & Brockinton, and to foreclose a lien on certain lands claimed by the other appellees. The defendants pleaded payment, the answer, in substance, alleging that the land mentioned as security was sold to certain parties, made parties to this suit, with the consent of appellant; that the proceeds of such sale were to be applied to the payment of said note; that said land was sold for part cash and part notes for the deferred payments, and said cash and notes were paid to said appellant, who accepted the same as payments on the note sued on, which more than paid off and canceled said note. The court submitted special issues to the jury, who found that said note had been overpaid by $396.19, and judgment was rendered for appellees accordingly. In acting upon the motion for new trial, and upon the appellees entering a remittitur of said sum of $396.19, the court reformed the judgment, decreeing appellant the sum of $800.66. To this action appellant excepted, and prosecutes this appeal.

On the trial defendant Patty was permitted to testify, over objection, what his recollection was as to what payments he claimed were shown on the leaf he had torn out of his ledger, which leaf had been lost. The appellees had pleaded the payment of $1,900 on a certain date, and it was in reference to this payment the evidence was introduced. We think this evidence was inadmissible. If he recollected the paying of said amount, he could so testify, but it was improper to establish the payment by his recollection of the entry on the lost leaf. The entry amounted to a mere memoranda, from which he might have refreshed his memory had it been present; but it was not such an entry as constituted primary evidence. The jury having found against said payment, the admission of said evidence becomes immaterial, but we have discussed it that this error may not occur on another trial.

In reference to the payment of the said $1,900, evidence was admitted, over objection, showing that J. M. Loveless paid B. K. Brockinton a check for $2,000 on land, which check was collected by Brockinton. There is no evidence showing that any part of this $2,000 was paid on the note sued on. This being so, it was error to admit such evidence. This was immaterial, as the jury found against the $1,900, and is only noticed in view of another trial.

The court refused to give the following special instruction, requested by appellant, viz.: "You are instructed that, even though you believe that the sum of $330 in controversy was remitted to J. B. Jones for the plaintiff on the 16th day of July, 1899, still if the same was a payment on some other indebtedness due by Patty & Brockinton to the plaintiff, or some one else, you must not consider the same as a payment on the note sued upon." The evidence shows that this sum was remitted to J. B. Jones by Patty without instructions as to its application. Jones was the agent of T. A. Alston, as well as of plaintiff; Patty being indebted to both. Jones testified that all sums received by him were properly applied on the indebtedness of Patty & Brockinton to appellant and to T. A. Alston, and said sum was not credited on the note sued upon. Under this testimony the special charge should have been given. Defendants had pleaded payment, and the burden was on them to show that this payment should have been applied to the note in suit. Under the circumstances, the fact that the money was sent to Jones is not sufficient.

The judgment does not conform to the verdict of the jury. The jury found, in answer to certain questions asked by the court. that a certian amount had been paid for which Patty & Brockinton were entitled to credits on the note sued on. These credits, together with credits admitted by plaintiff, which were not submitted, were sufficient to reduce the note to the amount of the judgment. If this were all, then the judgment would find support in the findings. But the jury, in reply to the specific issue as to payment of the note, found that "the defendant Patty has paid off and discharged the note sued on, principal and interest," and, further, that "the defendant Patty has overpaid plaintiff the principal and interest of the note sued upon to the amount of $396.19." The findings were general in their nature, and disposed of the issue of payment in favor of the defendants, and the court had no authority to render a different judgment. It is true that appellees entered a remittitur of the $396.19, but that did not relieve the finding that the note had been paid off and discharged. In a jury trial it is settled law of this state that the judgment must correspond with the verdict. The citation of authorities is unnecessary. It is also held by our Supreme Court that, where there is a special verdict and a general verdict, which conflict, no judgment can be entered, and the verdict should be set aside. Blum v. Rogers, 71 Tex. 668, 9 S. W. 595. While the finding of the jury as to the special credits found is not in conflict with the general finding as to full payment, yet the judgment is in conflict with the finding that the note had been fully paid, and such judgment should not have been so entered. That the judgment

is more favorable to appellant than the finding of the jury warranted is immaterial. She is entitled to have a judgment that conforms to the verdict of the jury. The appellees admitted plaintiff's cause of action, except in so far as the defense of payment might be shown. The jury found in appellees' favor as to payment, and because they received more than they were entitled to they cannot avail themselves of the court's error in rendering a judgment different from the verdict of the jury.

For the errors indicated, the judgment is reversed, and cause remanded.

COBB v. BRYAN.

(Court of Civil Appeals of Texas. Nov. 30, 1904.)

TRESPASS TO TRY TITLE-NUL TIEL CORPORATION DEEDS GRANTEE-MISNOMEREVIDENCE-RECORDS-PROOF - APPEAL-AFFIRM

ANCE.

1. In trespass to try title, evidence held insufficient to justify a finding that the name of a corporate grantee was a misnomer only, and intended for a corporation under which plaintiff claimed title.

2. The nonexistence of a record being properly provable by the evidence of the lawful custodian of the record, evidence that witness had examined the files in the office of the Secretary of State, and failed to find any record of a charter incorporating an association by a particular name, was inadmissible to show nonexistence of such a corporation.

3. On an issue as to the existence of a corporation by a particular name, evidence that a witness had never heard of a corporation, partnership, or business concern of any kind doing business in the place where such corporation was alleged to have had its domicile, or elsewhere, under such name, was admissible.

4. Where, in trespass to try title, the issue as to plaintiff's possession prior to defendant's entry was not submitted to the jury, and the evidence on such issue was conflicting, the judgment could not be affirmed, notwithstanding other errors, on the ground that the evidence showed such prior possession in plaintiff as would entitle her to recover against defendant, who failed to show title to the land.

Error from District Court, Harris County; W. P. Hamblen, Judge.

Action by Mrs. Bettie Bryan against J. M. Cobb. From a judgment in favor of plaintiff, defendant brings error. Reversed.

O. T. Holt and L. B. Moody, for plaintiff in error. H. Masterson and A. R. Masterson, for defendant in error.

PLEASANTS, J. This is an action of trespass to try title, brought by defendant in error against plaintiff in error to recover the south half of 10-acre lot No. 51, a part of tract No. 48, a subdivision of the Obedience Smith survey, in Harris county. Both parties claim title under E. P. Claudon, to whom George Goldthwaite conveyed the whole of the 10-acre block, of which the land in controversy is a part. On July 16, 1872, to secure Goldthwaite in the payment of a part of the purchase money for

the land, Claudon executed a deed of trust to W. C. Wagley, authorizing him, in event default was made in the payment of the purchase-money note, to sell the land, and apply the proceeds to payment of the amount due upon said note. Claudon failed to pay the note, and at the request of Goldthwaite, Wagley, in the exercise of the power conferred upon him by the trust deed, sold the land. The deed from Wagley, which is of date May 13, 1875, conveys the land to the Odd Fellows Building & Savings Association. At the time of this conveyance the Odd Fellows Building & Exchange Company of Texas, a corporation organized by special act of the Legislature of this state, was doing business and had its domicile in the city of Houston, in Harris county. This corporation had power under its charter to take and hold lands. Dr. James Cowling, T. W. House, A. J. Burke, Henry Curtain, and T. E. Brynne, prominent citizens and business men of Houston, were stockholders and officers of the corporation. Shortly after the sale and conveyance of the land by Wagley, this corporation went into liquidation, and the gentlemen above named were appointed by the stockholders trustees to take charge of and wind up the affairs of the corporation. It is not shown that this corporation, or any one acting for it, ever asserted any claim to the land, paid any taxes thereon, or exercised any act of dominion over it, or ever knew of the existence of the deed from Wagley to the Odd Fellows Building & Savings Association, until the fall of 1896, when J. O. Davis informed some of the trustees above named of the existence of said deed, and made a contract with them, by the terms of which he agreed to take possession of the land, and hold it for the Odd Fellows Building & Exchange Company of Texas upon condition that they deed him a one-half interest therein. Acting under this contract, Davis took possession of the land, and fenced it in the fall of 1896 or the following winter. He cultivated it for two years. In 1899 he instituted a suit for partition against the Odd Fellows Building & Exchange Association, claiming one-half of the 10-acre tract under his contract with the trustees of the Odd Fellows Building & Exchange Company of Texas, before mentioned. While this suit was pending, Davis conveyed his interest in the land to Mrs. Bryan. She intervened in the suit, and a judgment of partition was rendered therein on October 25, 1899, awarding her the south half of said 10-acre tract which is the land in controversy in this suit.

Frank Andrews was employed by the trustees of the Odd Fellows Building & Exchange Company of Texas to represent said company as its attorney in this partition suit. He answered for said company in that suit in the name of the Odd Fellows Building & Exchange Association, the name by which it was sued. Plaintiff, over the ob

jection of defendant, proved by Frank Andrews that he had examined the files in the office of the Secretary of State, and found no record of any charter granted by the state to any association or company having the name Odd Fellows Building & Savings. Association. On April 15, 1897, E. P. Claudon conveyed the 10-acre tract to John Claudon, and on August 20, 1901, John Claudon conveyed by quitclaim deed to plaintiff in error, J. M. Cobb. The deed from E. P. to John Claudon was recorded August 9, 1901, and that from John Claudon to plaintiff in error on August 30, 1901. W. C. Wagley, who sold the land under the trust deed in 1875, and executed the conveyance to the Odd Fellows Building & Savings Association, also negotiated the sale for John Claudon to plaintiff in error, and received a part of the proceeds of said sale. Shortly after Cobb got his deed from John Claudon, he took possession of the land, and fenced it. His fence is on the outside of the lines of the fence built by Davis, and he testifies that when he fenced the land the fence erected by Davis had all disappeared, except a few wires near one corner of the land. As soon as Cobb took possession, Mrs. Bryan instituted this suit. She and Davis both testified that when she bought the land from him it was fenced, and a part of it in cultivation. She says that the fence was kept up until the storm of 1900, by which it was partially destroyed; that she had not repaired the fence at the time Cobb took possession, but that a large portion of it was then standing, and she had not abandoned her possession of the property. She further testifies that she notified Cobb, before he purchased from Claudon, that she owned the land. There is testimony to the effect that the books of the Odd Fellows Building & Exchange Company of Texas contain entries in regard to this land. These books, though not shown to be lost, were not offered in evidence, and the nature of the entries before mentioned is not disclosed. Wagley, who, as before stated, sold the land as trustee under the Claudon deed, and executed the deed to the Odd Fellows Building & Savings Association, was not a witness in the case. Plaintiff's petition alleges that there was a mistake in this deed, in that the real grantee was the Odd Fellows Building & Exchange Company of Texas, and the name appearing in the deed was a misnomer. This was the only issue submitted to the jury by the trial judge. The jury were instructed that if they found from the evidence that plaintiff's allegation as to the misnomer in the deed from Wagley were true, they should find for plaintiff; otherwise they should find for the defendant. The trial resulted in a verdict and judgment in favor of plaintiff for the land in controversy.

Under an appropriate assignment plaintiff in error assails this verdict on the ground

that it is not supported by any evidence. This assignment must be sustained. There is nothing in the evidence above set out from which the jury might reasonably infer that the sale by Wagley was to the Odd Fellows Building & Exchange Company of Texas. When given its strongest probative force, this evidence only shows that possibly there was a misnomer in the deed, and the real grantee may have been the Odd Fellows Building & Exchange Company of Texas. Evidence which only raises a mere surmise or suspicion of the existence of a fact sought to be established falls short of being "any evidence," and can never sustain a verdict. We think the evidence in this case has only this degree of strength. Joske v. Irvine, 91 Tex. 582, 44 S. W. 1059; Texas Loan Agency v. Fleming, 92 Tex. 458, 49 S. W. 1039, 44 L. R. A. 279. It is apparent that, if it be true that there was a misnomer of the grantee in the deed from Wagley, much more satisfactory evidence of that fact is obtainable than was produced on this trial; and, such being the case, we think the judgment should be reversed, even if the evidence adduced standing alone was sufficient to raise the issue.

As a general rule, the proper method of proving the nonexistence of a record is by testimony of the lawful custodian of such record. Under this rule it seems that the testimony of Frank Andrews to the effect that he had examined the files in the office of the Secretary of State and failed to find any record of a charter incorporating an association by the name of the Odd Fellows Building & Savings Association was not admissible. It was competent to show by the witness that he had never heard of a corporation, partnership, or business concern of any kind doing business in Houston or elsewhere under the name stated, but proof as to what was shown by the records in the office of the Secretary of State should be made by the testimony of that officer. Edwards v. Barwise, 69 Tex. 87, 6 S. W. 677.

Defendant in error contends that the judgment of the court below should be affirmed on the ground that the evidence shows such prior possession in plaintiff as would entitle her to recover against defendant, who failed to show any title to the land. If it be conceded that the testimony of plaintiff shows such possession of the land by her prior to and at the time of defendant's entry as would entitle her to re cover, the defendant having failed to show any title, this evidence was contradicted by the testimony of the defendant. It is clear from the record that the issue thus made was not passed upon by the jury, and there fore we cannot affirm the case upon this ground. Because of the insufficiency of the evidence to sustain the verdict the judg ment of the court below is reversed, and the cause remanded.

Reversed and remanded.

G. A. DUERLER MFG. CO. v. DULLNIG.* (Court of Civil Appeals of Texas. Nov. 23, 1904.)

INJURY TO SERVANT-EXPLOSION OF MINERAL WATER CARE REQUIRED OF MASTER-EVIDENCE OF

NEGLIGENCE-SUFFICIENCY-MIS

JOINDER OF ACTIONS.

1. Evidence in an action for injuries to an employé held insufficient to show any negligence on the part of defendant proximately causing the same.

2. A manufacturer of mineral water is not required to furnish masks to employés handling bottles, to prevent injuries from explosions it could not anticipate by the exercise of ordinary care and foresight.

3. In an action for injuries to an employé caused by an explosion of a bottle of mineral water, which he was handling, it is not enough for plaintiff to prove that he suffered damage by reason of the accident or by reason of some act or omission of defendant, but he must prove that defendant in such act or omission violated a legal duty, and facts from which it may be fairly inferred that defendant's negligence was the proximate cause of the injury.

4. The doctrine of res ipsa loquitur does not apply to cases of injuries to servants caused by explosions.

5. A master cannot be held responsible for the consequence of an act which ought not reasonably to have been foreseen, though the servant injured thereby was a minor.

6. An action for personal injuries to an employé cannot be joined with an action on a contract of insurance against accidents.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Henrietta Dullnig, as guardian of Robert Dullnig, against the G. A. Duerler Manufacturing Company. From a judgment for plaintiff, defendant appeals. versed.

Re

Houston Bros. and R. J. Boyle, for appellant. I. B. Henyan, for appellee.

NEILL, J. Appellee, as guardian of the estate and person of Robert Dullnig, sued the appellant to recover damages for personal injuries alleged to have been inflicted upon her ward by the negligence of appellant. She also, in the same suit, joined as a defendant the Ocean Accident & Guarantee Corporation, Limited, alleging that said corporation, as well as defendant, had contracted to insure Robert against the consequences of such an accident as that from which he was injured, and prayed judgment against them as insurers. As to the action against it for negligence, the appellant, after interposing general and special exception to the petition, answered by a general denial, and pleas of contributory negligence and assumed risk. As to that part of the petition which sought to hold defendants liable as insurers, they each, after excepting generally and specially to the petition, answered by a general denial and a plea of res adjudicata. The case was tried before a jury, who were peremptorily in

*Rehearing denied December 21, 1904.

6. See Action, vol. 1, Cent. Dig. § 469.

structed to find for defendants on the count against them as insurers, and, the case against appellant for negligence being submitted on the law and facts, a verdict was returned on it in favor of the appellee for $5,000, upon which the judgment appealed from was entered.

From a careful consideration of all the testimony in the light of the law applicable thereto, we have determined that the facts are wholly insufficient to show any negligence on the part of the appellant proximately causing the injury to Robert Dullnig, and to reverse the judgment on that ground alone.

The gist of the charge of negligence alleged by plaintiff may be stated thus: That on April 12, 1902, while plaintiff's ward, Robert Dullnig, was employed as the servant of appellant in handling bottles filled with highly carbonated Carrizo Springs water, one of the bottles exploded, in consequence of which he lost an eye; that such injury was proximately caused by the negligence of appellant, in that Robert was directed by the company to handle bottles filled with Carrizo Springs mineral water charged to a dangerously high pressure with carbonic liquid gas-the pressure being about 100 pounds to the square inch; that the gas with which the bottles were charged was highly explosive, and the handling of bottles of water charged therewith at such pressure was on that account very dangerous to one employed in manipulating them; that it negligently used old secondhand and unfit bottles, not strong enough to stand such high pressure; that the place where. Robert was put to work was insufficiently lighted; that the gauges, regulators, and bottling apparatus were unfit and dangerous, and the employés operating the same were careless and negligent; that Robert, on account of his youth (he being only 17 years old), was inexperienced and ignorant of the danger incident to handling bottles so charged; and that appellant was negligent in taking him from his work as a bottle washer, for which he was employed, without instructing him how to handle bottles charged at such pressure, or informing him of the danger incident to such employment, and in failing to provide him with a mask or screen for his face, designed for the safety of those engaged in such work, which would have prevented his injury resulting from such explosion.

While the evidence shows that Robert Dullnig was, when injured, about 17 years old, it fails to show that he was employed to wash bottles only. But it establishes the facts that he had been employed and up to that time had worked for the appellant for over two years in washing empty bottles, and in handling and packing filled bottles of soda and mineral water charged with carbonic liquid gas; that on April 12, 1902, while handling bottles filled with Carrizo