to the property because he thought it was just to the wife that she should have the increase of her separate property, such fact would sustain the claim of gift. The evidence in this record is sufficient to sustain a gift as to the mare, but leaves it doubtful as to the mules.

For the reason that the finding of the jury as above set out is insufficient as a basis for the judgment, the same is reversed, and the cause remanded for another trial. Reversed and remanded.

On Motion for Rehearing.

*

[3] Appellees in their motion for rehearing have called our attention to the act of 1913, page 114, wherein article 1971 of the Revised Statutes is so amended as to read as follows: * He [the court] shall submit all controverted questions of fact only to the decision of the jury." In the instant case, the court submitted to the jury the issue as to when R. B. Lane gave the property to his wife Minnie B. Lane, and the effect of our decision is that the jury did not answer this question. If R. B. Lane ever gave the property to Minnie B. Lane, the court should not have propounded the question as to when such gift was made, as the uncontroverted evidence showed that such gift was made, if at all, prior to the time R. B. Lane became indebted to appellant. As such question should not have been propounded, it is immaterial that it was not answered.

The case was submitted on special issues, and the jury found that R. B. Lane gave the property to his wife. The evidence is not clear as to the two mules, but it is sufficient

to sustain the verdict.

For the reasons stated, appellees' motion for a rehearing is granted, and the judgment

of the trial court is affirmed.

Motion granted. Judgment affirmed.

any, was the negligence of fellow servants cured the defect in the petition.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.*] 3. CHARITIES (§ 45*)-LIABILITY FOR TORTS-INJURIES TO EMPLOYE.

A charitable hospital, which administers to the sick of all nations and creeds, accepting pay if the patients are able to pay, but otherble for damages to an employé for personal inwise rendering the service gratuitously, is liajuries sustained through its negligence, and its property is not exempt from execution to enforce the payment of such demand.

[Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-104; Dec. Dig. § 45.*]

4. MASTER AND SERVANT (§ 151*) — INJURIES TO SERVANT DUTY OF MASTER - WARNING AND INSTRUCTING SERVANT.

for the negligent act of its employés or not, it
Whether a charitable hospital was liable
is liable for injuries to a servant caused by the
negligent failure to warn and instruct the serv-
ant, since that is the duty which cannot be del-
egated by the master.

Servant, Cent. Dig. § 298; Dec. Dig. § 151.*]
[Ed. Note.-For other cases, see Master and

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by Ramona Armendariz against Hotel Dieu. Judgment for the plaintiff, and defendant appeals. Affirmed.

See, also, 145 S. W. 1030.

T. A. Falvey and Davis & Goggin, all of El Paso, for appellant. Ralf Border, Gunther Lessing, and O. L. Bowen, all of El Paso, for appellee.

HIGGINS, J. Ramona Armendariz brought this suit to recover damages arising from personal injuries, sustained while in the service of appellant. At the time of the acgle, and received injuries to her hand upon cident she was engaged in operating a manwhich the suit is based. It was alleged that the mangle was dangerous and its operation hazardous; that she was a minor, inexperienced and ignorant of its danger and of the

HOTEL DIEU v. ARMENDARIZ. (No. 315.)† proper method of its operation, and defend

Where the causal connection between the negligence of the master and the injury to the servant is sufficiently shown by reasonable deduction from the facts set up in the petition, the petition is good against a general demurrer, although a special exception to its sufficiency in that respect would have been well taken.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. 205.*]

ant was negligent in failing to give proper instruction and warning regarding the mangle and its operation. Defendant answered by exceptions, general denial, and a special plea as follows:

"That on or about the 7th day of July, A. D. 1892, defendant was duly incorporated by and under the laws of the state of Texas for the purpose of erecting and maintaining a hospital in the city of El Paso, Tex., for benevolent and charitable purposes, at which hospital the members of said corporation are to administer to the sick and afflicted of all nations, and to enable its members to receive the sick, the helpless and afflicted, and to nurse and care for and alleviate their pain and suffering, and to restore them as far as possible to health; that by the terms of said charter said corporation is to exist for 50 years from said date of 1892, and Where a servant's petition for damages for that it has still thereafter existed and now exinjuries sustained was defective in not show-ists and owes its life and function to said charing causal connection between the master's negligence and the injury, an answer, which alleged that the proximate cause of the injuries, if •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

2. PLEADING (§ 403*) - PETITION-CURE BY ANSWER.

ter; that the members of said corporation are Sisters of Charity, and that no person can be at any time a member of said corporation un

the exception to that portion of the answer [3, 4] The trial court properly sustained first above quoted. This question was fully considered and passed upon by the San Antonio Court of Civil Appeals upon the former appeal of this case. Armendarez v. Hotel Dieu, 145 S. W. 1030. It was there held that a corporation of a charitable nature, such as appellant, is liable in damages to an [1] A number of assignments are predicat- employé for personal injury sustained ed upon the proposition that the petition is through negligence chargeable to it, and that insufficient and subject to general demurrer its property is not exempt from execution to because it is not averred that the injury enforce payment of such demand. See, also, complained of was proximately caused by the St. Paul's Sanitarium v. Williamson, 164 S. negligence alleged. Upon general demurrer W. 36, by the Dallas Court of Civil Appeals, every reasonable intendment arising upon which is practically to the same effect. And the pleading excepted to must be indulged in since such a corporation is held subject to favor of its sufficiency. Applying this rule, the ordinary rules of liability between masthe causal connection between the alleged ter and servant, it would seem to necessarily negligence and injury is sufficiently shown follow that the doctrine of respondeat suby reasonable inference and deduction from perior applies in its full vigor; but, however

where the negligence relied upon is a failure [5. INJUNCTION (§ 16*)-ISSUANCE—ADEQUATE to instruct and warn. REMEDY AT LAW. In any case in which, for any reason, the master owes his servant that an injunction shall be issued where the Under Rev. St. 1911, art. 4643, providing the duty of explaining and giving instruc- applicant is entitled to the relief demanded, and tions regarding dangers to which his work the relief requires the restraint of some act normally exposes him, that duty is not dis- prejudicial to the applicant, an applicant is entitled to an injunction, regardless of his remedy charged by delegating its performance to an at law; the amendment of 1909, which added agent. Such duty rests primarily and abso- a provision, authorizing the issuance of injunclutely upon the master, and is nondelegable. tions to prevent irreparable injury to real prop4 Labatt on Master & Servant (2d Ed.) gerty, irrespective of any legal remedy, not changing the previous rule. 1508; 17 Am. & Eng. Ann. Cases (note) p. 491; Industrial Lbr. Co. v. Bivens, 47 Tex. Civ. App. 396, 105 S. W. 831. Therefore, since appellant's duty to instruct and warn was a nondelegable duty which it owed the appellee, the doctrine of respondeat superiority has no application one way or the other.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 15; Dec. Dig. § 16.*] 6. INJUNCTION (§ 49*)-ISSUANCE—“IRREPA

RABLE INJURY.

As a landowner would be put to a multiplicof suits to recover damages at law, and as defendants might in time acquire an easement, an injunction restraining defendants from erecting a telephone line over plaintiff's property should be issued, under Rev. St. 1911, art. 4643, providing for the issuance of injunctions in case irreparable injury to real estate is threatened, irrespective of any remedy at law, for by the term "irreparable injury" it is not meant that the injury must be beyond the possibility of repair by money compensation, but that it must be of such a nature that no fair and reasonable redress may be had in a court of law, and to refuse an injunction will work a denial of justice.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 102; Dec. Dig. § 49.*

For other definitions, see Words and Phrases, vol. 4, pp. 3772-3774.]

AND TELEPHONES (8_10*)-7.

RIGHT TO CONSTRUCT LINE-STATUTES. Rev. St. 1911, arts. 1231, 1235, relating to the use of streets and roads by telegraph companies, applies only to companies organized to construct and maintain telegraph or telephone

lines.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.*]

2. EMINENT DOMAIN (§§ 13, 69*)-RIGHT OF CONDEMNATION.

Land cannot be taken for private purposes in any event, and, upon being taken for public use, compensation must be paid; hence a private concern should not be allowed to appropriate another's property by the denying of an injunction to prevent the appropriation.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 51-53, 171-179; Dec. Dig. §§ 13, 69.*]

3. EMINENT DOMAIN (§ 47*)-CONSTRUCTION OF TELEPHONE LINE-EFFECT.

Where the fee of a county road as well as that of the right of way of a railroad company remains in the landowner, the erection of a telephone line on either is an appropriation of his property which cannot be justified, except in case of condemnation by a public service telegraph or telephone company.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. 88 107-120; Dec. Dig. § 47.*] 4. TELEGRAPHS AND TELEPHONES (§§ 10, 11*) -CONSTRUCTION-EASEMENTS.

Neither a county which has an easement in a public road, nor a railroad company which has an easement in a right of way over plaintiff's land can authorize the establishment of a private telephone line over such ways, as easements granted for public purposes cannot be used for private purposes.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 6, 7; Dec. Dig. §§ 10, 11.*]

INJUNCTION (§ 12*)-ISSUANCE.

An injunction will not be issued to prevent an act already committed.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.*]

8. INJUNCTION (§ 118*)-ISSUANCE-PETITION -SUFFICIENCY.

A petition merely alleging that plaintiff did
not consent to defendants' erection of a tele-
ciently negative plaintiff's acquiescence therein
phone line over plaintiff's land does not suffi-
such a line.
to warrant an injunction to restrain the use of

Cent. Dig. §8 223-242; Dec. Dig. § 118.*]
[Ed. Note. For other cases, see Injunction,

Appeal from District Court, Hardeman
County; J. A. Nabers, Judge.

Action by the Acme Cement Plaster Company against the American Cement Plaster Company and others. From an order denying a writ of injunction, plaintiff appeals. Reversed and remanded.

Decker & Clarke, of Quanah, for appellant. Huff, Martin & Bullington, of Wichita Falls, and S. D. Bishop, of Lawrence, for appellees.

HUFF, C. J. This is an appeal from the order of the district judge refusing to grant the prayer for writ of injunction, because the petition presented to him did not disclose such an equity as would justify him in granting the writ prayed for. The appellant, the Acme Cement Plaster Company, complained of the American Cement Plaster Company and C. H. Newby, alleging substantially that the appellant was a corporation

tion 208; that some of the holes now excavated for the telephone line are on and in the Quanah & Childress public road aforesaid, and some are on the other lands of plaintiff ; that defendants will continue to operate and construct said telephone lines, unless restrained, and the plaintiff has no adequate remedy at law. Appellant's prayer was for a writ of injunction restraining appellees' agent and employés from further using and maintaining the telephone lines now in operation above described, and from erecting and maintaining the telephone lines above set out as under construction, and from further going upon and over and across plaintiff's land, other than along the public roads, and from further digging holes and pits in the public roads across said land or upon other parts of said lands, and from further operating a telephone over and across the public roads on said lands, and from further operating a telephone over the remainder of said lands above described, etc.

Appellant's first assignment is substantially that the court erred in refusing the writ of injunction prayed for, because the petition showed that appellees were naked trespassers upon appellant's land, doing an unlawful act over the protest and objection of appellant in constructing a telephone line over the lands held and possessed by appellant in fee simple. The propositions thereunder present

duly chartered under the laws of Illinois, | state that it is their intention to place the and doing business in Texas, and that the remainder of the telephones on and along appellee American Cement Plaster Company the public roads on the west side of secis a corporation chartered under the laws of the state of Kansas, for the purpose, and with powers, to mine, manufacture, and sell gypsum and its products, and doing business in Texas, and was not chartered for the purpose, nor had it the power or authority, to construct and maintain magnetic telegraph lines, and that C. H. Newby was the agent and manager of the company in Harde man county, Texas. It is alleged that on the 1st day of January, 1910, and at all times since then, appellant was and is the owner of the fee in and to all those parts of sections 208 and 209, Block H. W. & N. W. Ry. Co. Surveys in Hardeman county, Tex., lying north of the Ft. Worth & Denver City Railway Company's right of way, and that on all of said days and dates it was lawfully seised and possessed of said land, holding the same in fee simple, with the exception: (a) That there is a public road meandering across said lands in a westerly direction, from the town of Quanah, known as the Quanah & Childress road, same being about 60 feet in width; (b) a public road extending in a northerly direction from intersection with the last-named road along the west side of section 208, occupying a strip of about 20 feet off of said section; that Hardeman county owns an easement over said land used as a public road for road purposes, but that the fee thereto is now and has been on all the dates afore-ed are: (1) That an injunction will lie to prosaid in the plaintiff; (c) that the Acme Tap Railroad Company is the owner of an easement over and across said section 208 in a northerly direction from a connection with the Ft. Worth & Denver City Railway Company, the said right of way being 100 feet in width, but that the fee of said right of way is vested in the appellant; that on or about January 1, 1911, the appellees, without the consent of appellant, erected their telephone line over and across plaintiff's said land owned and held in fee, and over and along the right of way of the Acme Tap Railway Company and since said time has been using said line for the purpose of transmitting messages from Quanah to the plaster mill of appellees, and that about Janaary 1, 1914, appellant notified appellees to remove said telephone line from appellant's land; that about February 10, 1914, appellees, over the objection and protest of appellant, began digging holes in and along and across and over appellant's land above described, and said that it is their intention to place telephone poles in said holes and wires on said poles, and use said telephone line for their use and benefit; that at this time the holes have been dug over and across sections 208 and 209, about 54 feet north of the north boundary line of the Ft.

tect the owner's possession of real property from a forcible trespass. (2) That it appears from the allegation that appellees are not corporations organized and chartered for the

purpose of constructing and maintaining a magnetic telegraph line, and had no right as which appellant has the fee. (3) That the such to construct over the public roads of restraining order should have been granted, restraining the operation over the railway right of way, the fee to which was owned by appellant, as well as to the abutting lands.

[1-3] The allegations show that the appellees are not such corporations as are given the right of eminent domain or the right to construct and maintain telephone lines over the public highways. Under articles 1231 and 1235, R. S., this court held, in Roaring Springs Townsite Co. v. Paducah Telephone Co., 164 S. W. 50, "The statute gives the privilege only to corporations created for the purpose of constructing and maintaining telephone lines," and, if not such a corporation, it should be treated as a trespasser in attempting to construct its line, and the owner of land would be entitled to an injunction. The allegations in the petition show that the line, as constructed and used, and the proposed extension is for the private use of appellees. Land cannot be taken for private purposes in any case, and can be taken for public