was part of the motion for new trial in the Judgment for plaintiffs, and defendant apcourt below, will not be considered. peals. Affirmed. 2. APPEAL AND ERROR 725 (2), 737 AsSIGNMENTS OF ERROR-FORM. An assignment which presents error in overruling defendant's demurrer, both general and special, to the petition, is multifarious, uncertain, and too general to entitle it to consideration. On a telegraph company's appeal from a judgment against it for failure to deliver a death message, an assignment of error which insists that the verdict is contrary to law and evidence, because it did not appear that addressee's wife would have been able to catch a train to bring her to funeral, merely raises a question of fact and presents no error. 9. APPEAL AND ERROR 301-ASSIGNMENTS OF ERROR-SUFFICIENCY, An assignment of error raising an issue not raised in a motion for a new trial will not be considered. Flippen, Gresham & Freeman, of Dallas, and Neyland & Neyland, of Greenville, for appellant. Evans & Shields, of Greenville, for appellees. HALL, J. C. N. Golden and wife sued appellant telegraph company to recover damages for failure to promptly deliver a telegram sent by Neal Townsend from Tenaha, Tex., to C. N. Golden at Greenville, Tex. The message was delivered to appellant's agent at Tenaha September 9, 1916, at 9:50 o'clock p. m., and was not delivered to plaintiffs, it is alleged, until September 11th at 4 o'clock p. m. The language of the message is: "Mother died at 7 p. m." It is further alleged that Mrs. Alice Golden, the wife of C. N. Golden, was the daughter of the woman designated as "mother" in the message. It is alleged that if Mrs. Golden had received the telegram promptly on the night of September 9th, she would have left Greenville on a train within a few minutes after its receipt, and would have arrived at Tenaha in time for the funeral of her mother, which took place in the afternoon of September 10th. It was further alleged that Neal Townsend was the brother of Mrs. Alice Golden, and that the defendant, its agents and servants, knew all of these facts, or could have known them by the exercise of ordinary care and diligence. It is further alleged that the plaintiffs have resided in Greenville for more than ten years; that C. N. Golden was, during the month of September, and for a long time prior thereto, engaged in business on the most prominent street in the city of Greenville; that their residence was at such time on a prominent residence street in the western part of town, and that they are and have at all times theretofore been well known to a great number of persons residing in Greenville; that the agents and servants of defendant, by the exercise of the slightest degree of care, could have found Golden and delivered the telegram to him within 30 minutes after the same was delivered to defendant's agent at Tenaha; that, if said telegram had been delivered to C. N. Golden with reasonable dispatch, and in accordance with defendant's contract and duty, Mrs. Golden would have left immediately for Tenaha; that she would have wired a reply to her brother that she was going to take the first train out of Greenville, and that the burial of her mother would have been postponed until her arrival at Tenaha; that when no telegram was received by her brother, Neal Townsend, and she did not arrive on the train of the following day, her mother was buried on the afternoon of Appeal from District Court, Hunt County; September 10th. By reason of such negligence Wm. Pierson, Judge. and carelessness plaintiff Mrs. Alice Golden Action by C. N. Golden and wife against was prevented from attending the funeral of Western Union Telegraph Company. her mother, and was caused to suffer great the 1082 201 SOUTHWESTERN REPORTER A physical and mental pain, distress, etc. trial resulted in a verdict and judgment in appellee's favor in the sum of $500. in the brief shall be numbered from the first [4, 5] In so far as the first assignment chal- objections raised by special exception. The [1] The first assignment of error is that the court erred in overruling all of the defendant's demurrers, both general and special, to which the defendant at the time excepted, for that the allegations of the plaintiff's petition did not show that the addressee and plaintiff had a wife, and, if so, that she was expected to act on the information contained in the message sued on; the plaintiff suing for the benefit of his wife. Appellee fundamental error, the rule does not apply to objects to the consideration of this assignment, and, except in so far as it raises the issue of the sufficiency of the petition as against a general demurrer, the objections are sustained. There is no reference in the assignment to the record showing that the assignment urged here was a part of the motion for new trial in the court below. Under the well-established practice this is a fatal defect. We have, however, referred to the amended motion for new trial, and find that the assignment presented in the brief is not a literal copy of the first ground for new trial contained in the motion. By reason of the fact that the addition or elimination of one word may change the entire sense and pur-eral demurrer. The contention made by the port of an assignment, as presented in the trial court, the rule requiring that the assignments, as set out in the motion, must be literally copied into the briefs, and be the assignments urged here, has been adopted, and the time of the appellate court should not be consumed in comparing and determining whether or not a slight change in the verbiage of assignments has in any way modified the assignment as presented to the trial judge. The appellant has no right, under the rules, to insist upon one matter in the trial court and to urge altogether a different prop-sidered, because it is not a copy of any ground osition here; nor should we be required to refer to the transcript in order to compare the assignments shown there with those preThere being no refersented in the briefs. ences to the record, we are not able to determine from a consideration of the assignments whether or not any exception was reserved to the ruling of the trial judge upon the demur rers. [2] The general rule is that an assignment [3] The next assignment, as contained in second proposition under this assignment is that the plaintiff should have alleged the route Mrs. Golden would have taken and the railroad connection she would have made to reach Tenaha, the place where her mother was to have been buried, in order to give deIf this fendant notice, and that the court erred in sustaining special exception No. 6, urged to the petition by reason of this defect. proposition was intended as the second assignment instead of the second proposition under the first assignment, it cannot be con set out in the motion for new trial, and does not, by reference to the record, show where it may be found, nor is it shown that any exception was taken to the ruling of the court upon exception No. 6. [8] Under the third assignment it is insisted that, even though the telegram had wife would have had less then 40 minutes been delivered immediately, the addressee's within which to catch the train leaving for Tenaha, and therefore the verdict is contrary to the law and evidence. Mrs. Golden testified that she could and would have caught the train if the telegram had been received no later then 20 minutes before the train left Greenville. This assignment raises a question of fact only, and, if it were otherwise entitled to consideration, presents no error. [9] The fourth assignment raises the issue of contributory negligence. It is subject to the same objections as the first and third assignments and to the additional objection that no such issue was raised in the motion for new trial. As heretofore stated, the peti tion is good as against a general demurrer, and also executed a chattel mortgage upon and, there being no reversible error presented in the brief, the judgment is affirmed. certain personal property. Prior to the execution of these notes and deed of trust, Mrs. Burkett had been married to one Ike Danley. After living with him a short time and after having removed from the homestead belong WILLIAMS v. FARMERS' NAT. BANK OF ing to the community estate of herself and STEPHENVILLE. (No. 8778.) (Court of Civil Appeals of Texas. Ft. Worth. 1. HUSBAND AND WIFE 169(1)—AUTHOR- arate estate. deceased former husband, Calvin Burkett, and because of Danley's drunkenness and his threats to kill her, Mrs. Danley returned to the old home with her youngest son, Albert, who became of age prior to the execution of the notes and deed of trust. The money secured on the notes was used for the purchase of necessaries and the payment of taxes on this home. Subsequent to the separation, Danley was convicted of and served a sentence in the penitentiary for a felony. The officers of the appellant bank did not know that Mrs. Burkett had been married to Danley at the time she executed the notes and 110-CONVEYANCES-ABAN- deed of trust, and believed that she was in 2. HUSBAND AND WIFE 304 "ABANDONMENT OF WIFE." The sentence of a husband to the penitentiary is equivalent to the abandonment of a wife. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Abandonment.] 3. HOMESTEAD DONED WIFE. An abandoned wife, without minor children or single daughters living with her, or other constituent members of a family, may mortgage her homestead. 4. WITNESSES 164(3) COMPETENCY "TRANSACTIONS WITH DECEDENT." Testimony that decedent was the person who signed note in suit is not testimony as to a transaction with the decedent within Vernon's Sayles' Ann. Civ. St. 1914, art. 3690. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Transaction.] fact still the widow of Calvin Burkett. She signed the said instruments in her name as Mrs. N. C. Burkett. Subsequent to execution of the notes, Mrs. Burkett, or Mrs. Danley, died. Suit was brought on these notes, and plaintiff asked for a foreclosure of the deed of trust lien and the chattel mortgage lien. Mrs. Pearl Williams, appellant here, had been appointed administratrix of the estate of her mother, Mrs. Burkett, or Mrs. Danley, and was made defendant in this suit. W. 5. WITNESSES 144 (13) — COMPETENCY Chamberlin, Sr., and W. Chamberlin, Jr., and TRANSACTIONS WITH DECEDENT — AGENT OF F. A. Chamberlin intervened in this suit, CORPORATION. Vernon's Sayles' Ann. Civ. St. 1914, art. predicating their cause of action on indebt3690, forbidding a survivor as against a person-edness alleged to have been incurred by Mrs. al representative to testify as to transactions with the decedent, does not apply to agents of a corporation with whom decedent had business relations, even though the business was transacted wholly through the agent. 6. HUSBAND AND WIFE 85(1) NOTES VALIDITY-NECESSARIES. A note executed by an abandoned wife stands on the same footing as if it was executed for necessaries, where the proceeds were used in the purchase of necessaries. Appeal from District Court, Erath County; J. B. Keith, Judge. Action by the Farmers' National Bank of Stephenville against Mrs. Pearl Williams, administratrix. From a judgment for plaintiff, defendant appeals. Affirmed. W. W. Moores, of Stephenville, for appellant. Chandler & Pannell, of Stephenville, for appellee. Danley in the sum of $800, and asked for a foreclosure of the chattel mortgage on certain personal property and deed of trust on the same land covered by the mortgage to the bank; this foreclosure, however, to be subject to that of the bank. They alleged that the indebtedness was incurred for necessaries. Defendant pleaded the coverture of Mrs. Danley at the time of the execution of these notes and obligations, the failure of her husband to join in the same, that the acknowledgment on the part of Mrs. Burkett, or Mrs. Danley, was not in form as required under the law for a married woman, and further pleaded that the land and premises upon which the deeds of trust had been given was at the time of the execution of the same the homestead of Mrs. Danley, formerly Mrs. Burkett, and therefore the mortgage fixed no lien upon said land. The cause was tried before the court without a jury, and judgment was rendered for the plaintiff and the interveners, and a foreclosure on Mrs. Burkett's interest in the 2282 acres was decreed, from which judgment the defendant has appealed. BUCK, J. This was an action by appellee to recover of the appellant on three promissory notes in the sum of $186.15 each, of date November 19, 1915, executed by Mrs. N. C. Burkett and Albert and G. Burkett. To secure the payment of said notes, Mrs. Burkett and her two sons executed a deed of trust [1-3] Appellant's first assignment of error upon 2281⁄2 acres of land upon which Mrs. urges that the court committed error in perBurkett and her son Albert lived at the time,mitting the introduction of the notes in ques also, Lee v. British Mtg. Co., 61 S. W. 138. From the above-cited authorities, and many others might be mentioned, we are of the opinion that Nos. 1, 2, and 4 of the questions above suggested as being raised by these two assignments must be answered in the affirmative, and in favor of a judgment. See Speer's Law of Marital Rights in Texas, § 202. Question 3 then becomes immaterial. tion, because at the time of the execution of, der foreclosure, subject to the right of the the same, Mrs. Danley, formerly Mrs. Burk- widow and minor children to occupy it. See, ett, was a married woman, and that the notes were void because she was not joined therein by her husband. The second assignment is directed to the foreclosure of the deeds of trust executed upon the 228% acres, because, it is insisted, the evidence showed that said premises were the homestead of Mrs. Danley, or Mrs. Burkett. These two assignments we will discuss together. In order to reach a proper conclusion with reference to the questions here presented, it will be necessary for us to decide: (1) May an abandoned wife mortgage her separate estate? (2) Was Mrs. Burkett an abandoned wife? (3) Did the premises constitute the homestead of Mrs. Burkett at the time of the execution of these notes? (4) May an abandoned wife, without minor children or single daughters living with her, or other constituent members of a family, mortgage her homestead under such circumstances? [4, 5] Under the third assignment, it is claimed the court erred in admitting, over objection of defendant, the testimony of W. H. Frey, president of plaintiff bank, to the effect that Mrs. N. C. Burkett was the person who signed the notes and deed of trust sued on herein. We are of the opinion that such testimony would not be with reference to a "transaction" with decedent, as that term is used in article 3690, V. S. Tex. Civ. Stats. Martin v. McAdams, 87 Tex. 225, 27 S. W. 255. But even if the matter of identification of Mrs. Burkett with the person who executed the notes and deed of trust should properly be held a "transaction," yet the objection must be overruled, because it has been held a number of times that the article in question does not apply to the agents of a corporation, or even to the agents of a natural person. In Saunders' Ex'rs v. Weekes et al., 55 S. W. 33, it is held that Revised Statutes, art. 2302 (now article 3690), forbidding either party to any action against the executors to testify as to any transaction with the deceased unless called by the opposite party, cannot be extended so as to include the agent of such party to a suit against executor, although the transaction sought to be established was done entirely by the deceased and the agent. In Mortgage Co. v. Thedford, 21 Tex. Civ. App. 254, 51 S. W. 263, this court held, in an opinion by Justice Hunter, that the inhibition did not apply to the officers or agents of a corporation. Lester v. Hutson, 184 S. In Slator v. Neal, 64 Tex. 222, it is held that the sentence of a husband to the penitentiary is equivalent to the abandonment of the wife, and she may dispose of her community property as a feme sole. In Hector v. Knox, 63 Tex. 613, it is held even though the property be a homestead it may be conveyed by an abandoned life. In Mabry v. Lumber Co., 47 Tex. Civ. App. 443, 105 S. W. 1156, writ denied, this court held that an abandoned wife might incumber her homestead situated on her separate property. A wife, having authority by reason of the husband's abandonment of her to bind the community estate for necessaries, can execute a valid mortgage thereon for debts theretofore incurred for necessaries. Fermier v. Brannan et al., 21 Tex. Civ. App. 543, 53 S. W. 699. In Grothaus v. De Lopez, 57 Tex. 670, it is held the surviving widow, occupying with her children her homestead in which she had at least a community interest and upon which she executed a deed of trust, conveyed thereby her interest in said homestead. Shannon v. Gray, 59 Tex. 251; Barrett v. Eastham, 28 Tex. Civ. App. 189, 67 S. W. 199; Ashe v. Yungst, 65 Tex. 636. The evidence discloses that the two sons of Mrs. Burkett were over 21 years of age, and that the daughter was married at the time of the execution of the notes to the bank. It is decided in Givens v. Hudson, 64 Tex. 471, that a family cannot be constituted by adult descendants other than unmarried daughters remaining with the family of deceased. In Harle v. Richards, 78 Tex. 86, 14 S. W. 257, after the death of a husband the widow and the son executed a mortgage on their interest in the residence; it was held that in a suit to foreclose the mortgage their interest in the CONNER, C. J., not sitting, serving on residence homestead was subject to sale, un-writ of error committee at Austin. See W. 268. [6] In the fourth and last assignment, complaint was made that the court erred in his conclusions of fact that the notes sued on were in part given for the procuring of provisions and necessaries on the part of Mrs. Burkett and her family. The fact that the money loaned was needed and used for the purchase of necessaries would give the transac tion the same character as if the notes themselves were made for necessaries. Fermier v. Brannan et al., supra. All assignments are overruled, and the judgment is affirmed. Affirmed. TEXAS & N. O. R. CO. et al. v. JONES. (No. 1298.) (Court of Civil Appeals of Texas. March 13, 1918.) 1. APPEAL AND ERROR 694(2) MENTS OF ERROR-STATEMENTS. ASSIGNWhere the statement merely sets out the petition, without the evidence, under a proposition that court erred in not directing verdict, the assignment will not be considered. 2. CARRIERS 320(31) AGREEMENTS BETWEEN ROADS-QUESTION FOR JURY. In action against two railroads for personal injuries, where it appeared that one had been running trains over the track of the other for 14 years, the court did not err in submitting to the jury the question as to whether there was an agreement between the roads. 3. RAILROADS 260 CENSEES. LESSEES AND LI jar or jerk knocked Mrs. Jones down against the floor. It is alleged that these acts were negligent and which negligence it is alleged Amarillo. was the proximate cause of her injury. It is further alleged that, if appellee was mistaken as to the engine moving back and the cars being the property of the Texas & New Orleans Railway Company, then it was alleged that it belonged to the Houston & Texas Central Railroad Company. It is alleged: That Mrs. Jones was hurt internally, the nature of which could not be given further than that she became deathly sick, began flooding and miscarried, and her nervous system was greatly shocked and permanently impaired by reason of the injury and miscarriage. Her health was greatly impaired and destroyed, until she is now an invalid, and that her injuries are permanent. That then and since she has suffered violent and excruciatalso alleged that each of the appellants were ing pains and will continue to do so. It was corporations and common carriers, incorporated under the laws of the state of Texas, and each was a common carrier for hire; that the Texas & New Orleans Railway Company owns and operates and maintains a line of railway from the town of Jacksonville, Tex., to the city of Dallas, where it connects with the line of its codefendant, the Houston & Texas Central Railroad Company, which last company owns a line from Dallas north into and through Dallas and into and New Orleans Railway Company used the through Collin county; that the Texas & tracks of the Houston & Texas Central Railroad Company in the city of Dallas, in reach A railroad is liable for negligence of other roads using its tracks, whether licensees or les sees. 4. Appeal and ERROR 994(1)—WEIGHT OF EVIDENCE. The appellate court cannot weigh each fact and decide as to the credibility of the several witnesses. Appeal from Collin County Court; M. H. Garnett, Judge. Suit by A. J. Jones against the Texas & New Orleans Railroad Company and the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed. See, also, 187 S. W. 717. G. R. Smith, of McKinney, and Baker, Botts, Parker & Garwood, of Houston, for appellants. R. C. Merritt and L. J. Truett, both of McKinney, for appellee. ing the union depot, which is the place where each received and discharged passengers, but the exact understanding and agreement existing between the two roads it is alleged was not known to appellee, but that it was not specially authorized by the legislative authority of Texas; that by reason thereof the Houston & Texas Central Railroad Com tified in the petition to produce such agreement or contract, or secondary evidence would be offered on the trial by plaintiff. HUFF, C. J. A. J. Jones, appellee, sued the Texas & New Orleans Railway Company and the Houston & Texas Central Railroad Company for damage, occasioned by injuries received by his wife while a passenger on the Texas & New Orleans Railway Company's train, October 24, 1914. It is alleged substantially on that date appellee's wife pany is liable for the torts and negligent acts and four children embarked on the Texas of the Texas & New Orleans Railway Com& New Orleans Railway Company's passen-pany, as above stated. They were each noger train at Jacksonville, Tex., on their way to Dallas, Tex., and after arriving there and after the train had gotten on the track of the Houston & Texas Central Railroad Company, in order to reach the Union Station, where Mrs. Jones was to alight, the train was uncoupled at a street crossing, which is alleged to have been Elm street, and the front end of the train moved across and pulled north towards the Union Station, and leaving Mrs. Jones and children in the coach just south of the street crossing, at which place passengers usually alighted, and, while she was alighting and while on the platform or steps of the coach, the front part of the train, to which was attached the locomotive, suddenly backed against the coach with great force and with unusual violence, and that the The jury found upon special issues that the train upon which Mrs. Jones was riding gave a violent and unusual jar, bump, or jerk, occasioned by reason of the movement of the front part of the train while she was attempting to alight therefrom; that such violent and unusual jerk or jar was negligence on the part of the defendant the Texas & New Orleans Railway Company, and such negligence was the proximate cause of the injury to Mrs. Jones; that by reason of such injury appellee was damaged $2,000. The jury also found that the miscarriage of Mrs. Jones was not the probable and natural sequence of her general condition, and caused |