*1 Ter.) PRODUCE & BROKERAGE CO. DAVIS v. JEFFORDS-SCHOENMANN !.w.) (261 аnswering you foregoing question “In are understand the Louisiana PRO DAVIS JEFFORDS-SCHOENMANN v. law, * the relation between Davis and Gussie al. BROKERAGE CO. et DUCE & Louisiana Davis in that illegal. plaintiff illicit was state (No. 8417.) upon The burden of rests (Court by preponderance of Texas. Galveston. of Civil to show of the evi- Denied, Rehearing legal Feb. 1924. dence that a status of wife has April 1924.) acquired parties been of Louisiana. since said left the state &wkey;s50(5) Marriage show held to 1. —Evidence told, however, You are Texas cere- n marriage. common-law marriage necessary monial is not to create the made Louisi- Evidence of legal wife, status of husband and and where wife, novated ana to become parties, marriage capable contracting two of coming freside, ratified on to Texas continued faith, good wife, agree man and become compact, holding living together them- under the agreement by and follow cohabitation said introducing hus- sеlves band each other as out and assuming responsibilities the duties and of mar- marriage to show relation, common-law the status law riage in Texas. - marriage legal. thus established begins But cohabitation in state where if the &wkey;>40(4) Marriage illicit 2. relations —-Prior pre- marriage required, a ceremonial the law raising presumption not shown continuance relation illicit nature sumes legal by in Texas that relations were parties tween to it is continues unless shown illegal. gun in state where changed. have been Whether or such sufficient to com- Where evidence was show you say change of light in the occurred is Texas, marriage in error mon-law here be- all the and circumstances facts began in instruct that if cohabitation where ceremonial Louisiana you.” fore required it is presumed between the have the illicit nature relation appellant this court contends [1] In continued, parties unless shown erroneous, charge was and that the ver changed. against undisputed thereon dict evidence, <g=»302(6) conclusively Master servant liable showed —-Owner negligence to lunch. of truck driver was his common-law wife Louisiana Davis employer hand, Appellees, upon Where allowed driver retain use truck at all control hours so rendered insist the convenience, day order that he for his .the (1) only proper reasons: two longer by might going saving time hours charge given ap more favorable The pellant end of work to, and the he was entitled than employer times, meal for injipúes liable amply supported; finding driving by lunch. one struck driver while recover, appellant (2) event could be in no undisputed by it was established cause Court, Appeal Coun- Harris from District of the accident evidence “Oscar ty; Boyd, Judge. Ewing voluntarily Godfrey turned by Jef- Davis Gussie Action prosecution his master’s aside Brokerage & Produce fords-Sehoenmann master’s work and furtherance of Judgment Company for de- and others. in an affair fendants, plaintiff appeals. Reversed thereby suspended own, the rela remanded. master servant.” tion of Sargent Harvey, and Pritchett record, undisputed Nichols & As we view the Houston, appellant. all of testimony common-law disclosed Streetman, Myer Andrews, Sewall Louisiana Da- Gussie between Houston, appel- Mobley, Logue apart independent vis, wholly from and lees. in Louisi- their status back what given charge аs was therefore ana. The Appellant appel- GRAVES, developed, sued J. applicable facts alleged negli- their lees accordingly erroneous. killing gence running over parties, ganancial relations of —with If the operated God- trucks their auto and associat- their facts about Davis, frey, regular alone, Texas, standing driver —Louisiana charged to his wife at the whom he them husband and as to constitute laws, a valid common-law virtue of obviously could under our wife make legal in Texas. charac- no when difference Judgment was rendered favor below here became sub- ter ject this association jury appellees, answered judicial our courts determination in special jurisdiction issue “No” to submitted to in another it had been what where formerly the court: lived. testimony matter main about the The “Was of Gus- Davis the lawful wife Louisiana below, plaintiff appellant, no that of suit, Davis, plaintiff in this at the sie of hеr death? Answer you ‘No,’ to controvert effort Wes’ or be. shows com- find facts to much of it we think and so topic Key-Numbered . Digests cases see same and KEY-N UMBER and Indexes <§£s>Far jurisdiction May *Writ want of error dismissed S.W.—26 *2 261 SOUTHWESTERN REPORTER year. quoted Martinville, La., St. a is at about I think mon-law St. this I Martinville the home of woman length was as follows: living was with. Her Mar- name was Louisiana live, “My at 1111 name is Gussie Davis. I living tin when I first met with her. She was county, Houston, Shearn Tex. street,, Harris just her father at time. I went out to St. years plaintiff in I am 25 I am this old. Mаrtinville I first there. I over a visit. worked August, day of suit. the 10th On or about began to live Louisiana in Mar- with St. street, 1921, city Houston, living I at 1109 Andrew was tinville, La. I her at lived the home county, Tex. Prior to Harris parents. sir; No, her not house. at her own 1921, August, day Davis the 10th Louisiana I moved there about three I met months after together together. living and I lived were We her, from to there I Beaumont went got time killed. from to the me as she Prior 1918 until her, written about a week came she accepted she Louisiana Dаvis death of Yes; a that. parish seat, I was that St‘. Martinville knew my accepted as I her husband and her they a courthouse. where together. my cooked wife. We cohabited She where the courthouse I knew was. killed, got Louisi- meals. ana dry she Prom 1918 until where to how to a license. I knew my kept my laun- meals Davis cooked usually people to married wanted by went clean She did housework. and of did, just agreed to did not I that. do During the name Davis. Louisiana living wife; just live man we went to as together. out from 1918 went to we together man Then came over as we wife. wife. We be- were as husband and introduced Beaumo,nt Martinville to Texas. Prom St. to Martinville, gan living in 1918 in St. Houston, just and it and from Beaumont the same in Texas was to Louisiana about I think left state La. Louisiana. There as in year Beau- the mont is in county. We went to Beaumont. any except change, not state cross to over Texas, in Jefferson state out other. When Louisiana worked Beaumont, got I I to Just usually by piece. got paid she She Louisiana, over came to and she to written Beaumont. We cohabited Beaumont. We aprons pressing. They right over were together in lived there, pressing She she them out. stayed about a in Beaumont high to week.” $15 $18 as a made sometimes as year half; here over then came living guess in Houston had been Houston. I On redirect: year just Louisiana half before and a about by live “After came to Texas name of we continued to went Davis killed. She here, together. husband, me her and I She called insurance I Louisiana Davis over my any her not the called In- name wife. She did other Davis. I Louisiana the life of She Texas Louisiana Davis. policy National besides the American insurance receipt by time, in- premum name all and I Company book surance husband, company troduced as her she insurance me. I saw which is handed my my was introduced policy premium receipt wife.” book and the These were house. there with her other death, Davis Louisiana recalled, things being be added that be bad of her On living.” up we were person in the house where married other never been killed, time Louisiana Davis was to tbe point appellant in evi- introduced At sbe bad married never tbat policy issued October dence an insurance bimself, than least bis 1920, by Insurance American National knowledge, bim sbe sbe never bad told Galveston, Company lifе Lou- on the been. Davis, payable isiana to himself as her hus- couple Tbe woman at whose bouse tbe band, premium receipt with a book lived testified: payment showing weekly premiums there- “I live at 1109 Andrews know street. under. Davis; year him Gussie have known about a Continuing, testified: prior I reckon. Louisiana Davis knew her “The time I saw last alive was 8' time she I had known six was killed. her about morning, day August, o’clock 10th they my ‘months I before came to house reckon arrangements 1921. her yеars I made funeral and had They my to They to room. came house. were Louisiana buried. Davis stay they place came told it there nice day August, 10th old on the they stayed prior Just that time date she and that was was paid killed. until her bills her she Gussie Davis way. state, family She a delicate in a up in there all He advance. introduced pregnant. sickly woman. She was persons wife. He came my took Louisiana Davis 1918 care of house from reg- registered; our we havе house 1921; my meals; cooked she clean- she just there. I don’t ister when how there at come know my up something to- ed house. She contributed They long there. lived living expenses during wards the our married death.” time of her during tíme I her. lived with She life— worked; money, during her she saved A witnesses number of other testified working time she was out. Prior this ac- living as tbe manner kindly lovingly. me cident'she treated She general wife, and to mutual introductions my me. loved an She took affairs. such, of them as tbe other оver helped along.” She period entire of their residence tbe On cross-examination: body comprehended There within tbe every essential Martinville, La., “I lived attribute St. before I came stayed Crowley, Texas, to Texas. I born in La. valid common-law ferent jury’s but, done under what us, jury themselves arise the relation tion tion charge habiting tal gether, Worth Yates v. wife.” that both of these to their ana; fer 59 quently sions cross over ment as we construe Court Reinhardt, deceased as husband of Cuneo cohabitation stituted “it ing that “she I agreed this 51 Ed. 869. tory agreement Gorman ent (Tex. Tex.) “In Finally, Next [2] Nor is accepted There is here first reflected L. laid differently S. W. 284. the court should continued union, to intent and else. since the state, that, day. of Louisiana Davis’ Case, as was It with reference verdict there impediment Texas to v. De Court system of so does just there is not and wife acceptance DAYIS v. JEFFORDS-SCHOENMANN both invalid was very Houston, (Tex. friends and appellаnt’s is likewise however, accepted It as was in amounted supra, from one state to of the two her made out 205 U. S. See, also, prior has was not under lawful between 'these full Cueno, presupposes courts novated and ratified crossing of Civil nature of coming in of this doubted United States interpreted, incorporated The Civ. purpose reside, between the same in always been the rule with some is added in this declaration: to become time. in my association entire three of the mutual relation such circumstances me jurisprudence. things necessarily relation principle presumption introducing each other inquiry App.) 24 upheld by merely effect Tex. unbroken any change, Louisiana, steady living and co- to their life wife” can continued to the wife -after Edelstein v. Brown circumstances as to the as her husband rendered having Tex., have Texas as in Louisi- this life in reference we their so also 27 appellant’s creating public generally border parties, and their made, of husband and in the appellee parties statement Civ. these compact, in Travers v. an affair instructed the husband the other” to not in under a dif early think. a constant Sup. the line of deci- the received in years occurred mean noth this Gorman v. offered repetition except App. presump it introduc the line W. the Port Supreme on com a opinions Ct. a mari- relation, live holding Having case removal original quoted lawful might subse arise, state. state dura- That, pres- Gor con- 436, into (261 S.W.) to- of- to so the noon Most upwas My through, delivers fore that through. make have several at, and we unloads afternoon. made the wholesale time of this ings truck. The then years. if ness Brokerage Company, I Jeffords-Schoenmann relevant ment. which think that there pany pose lunch. I had dence. about 5 the mann Produce cident Andrew 12 truth of happened during my mony ton, auto have been set aside on the motion for drew the trial as shown to have expecting servant between them street. As matter of the 900 streets, Company, down Godfrey himself, “I don’t “I had “I would “I have been I had “I [3] Neither do we came on to town. narrow PRODUCE & BROKERAGE time was suspension it city there neighborhood. go I had occasion street, owned mostly truck, deliveries on occurred, came -to proceeded likewise different times I evenings, 1 After I had Under the wanted on going by appellees have street, I hour, have is or 6 neighborhood delivery, block, I this o’clock. I me whether grocers. know, August 10, sense dinner a earlier. We Jeffords-Schoenmann Produce street worked here hour for lunch. delivering Houston my go and I the truck. an had no Jeffords-Shoenmann matter and we to lunch I had drivers. Oompany feature working casualty. going years. are cars to so own hour each and while I was between Buckner and negro, sir, west but reproduced: on Commerce driver, and unloads cars all out but if go say the to in a did turned aside to due for I living made racing I lunch hour. For lunch on then, down on Commerce Just so I had occasion to back to towards the west. was how always have been is, I go go 1921. That me undisputed, own there at think the other Produce can I was out relation place fact, on so at came practically word for the Jefford-Schoen- ate off of Gordon, I city, in I drive a truck too. each * * * different something populous on I and midday. delivery to take where we work here Andrew street. yes, works until we live long do It occurred while as to there or support each work in the morn- whenever a Andrew of business of the eats due. Now, Hiner exclusively headed toward or work at 6 o’clock to turn in the undisputed driving the time this himself at 11 months. Be- sir. truck, for lunch. This here Sewall driving until we only Godfrey, go on a place where have street. The- things in my lunch, other down CO. takes deliveries in traveling my I master and when hаd truck. we do not Produce all that section of rushing street, The to are at. Brokerage gets mornings, groceries, street, driving day long; 10 or hour into delivery, going I between a Andrew of busi- caused & trucks proofs street, Hous- am *3 issue, I I home judg large testi Com- Myer pur- new Oo., evi- An- We- the are off. ac- <¡n 12 in to- in is & a (Tex. 261 SOUTHWESTERN REPORTER owing eat, eat dinner. struck. to how waht I He could not be said therefore according I exclusively to what I do. Sometimes own, take have on an been' errand dinner, only an hour for sometimes I take mingling but аt least was so his master’s I half an hour off for dinner. If have whole business with his own incidental do, only lots take few If not minutes. conveyance they for lunch in a do, much to fore the afternoon. I be- I take an hour. have eaten him for furnished in' that the convenience both 1 o’clock noon. eaten respect" brief time * * for the * involved, the of master and relation serv- July, got “I truck to drive about ant was not broken or terminated. These lieve, month about a sometimes. аny lights squarely bring facts rather with- accident. It had the case fore-the got applied from the time I v. Kitts in the Studebaker rule accident, the instructed or brackets. (writ er- S. *4 early lights coming on in down so that there denied, xix). S. ror 154 W. supposed get lights. have I am I would down down time the By testimony this em the uncontroverted anywhere To come from to 6 o’clock. ployee violating no instrue-. was at the some time I have to that would rightfully master, tions ing us of his but was to drive the truck have earlier. would conveyance expressly au their My When down. home is the Fourth ward. purpose, indubitably they lights thorized in such -were the these stairway, any right-hand the for his lunch —in store side under circumstances on the they time neighborhood pursuing not car and prior been on where he was their accident, during the time I drove his service. business —was but incidental unloading this truck was used. In cars conditions, Under the master liable. till dark. after it would take Sometimes Brading Oil Ass’n v. 212 S. 707; Reciprocal Lumbermen’s Ass’n v. W. night. freight cars at “I have unloaded lots (Tex. Civ. App.) Behnken 226 S. stay evenings until finish. there In the Id., 72;W. v. 112 Tex. Whimster night. daytime finish We start in the don’t at Holmes, App. 130, unloading sir, Mo. 164 S. W. at know, we finished when hap- night page par. this accident that company pened will let The railroad or not. From it follows that the these conclusions time, you freight I have ears at unload up- judgment reversed, that, should night. not I could lots of them unloaded trial, proof should be con- on another the give you we unloaded a as to datе when damage, any, if the fined amount .of keep up ,not with the I do dark. car after plaintiff or- in the cause sustained. That freight rail- in on different comes dates. The accordingly der has been entered. track on railroad 12 cars We have 10 or roads. Reversed and remanded. time; tracks. on all different ones something putting sir; my Yes, said folks Rehearing. On Motion lights cars could unload so that this car on early night, come could that we at the so parties, filed both and thе The briefs light to to and morning. have had to orig- arguments in therewith on connection work, arrested.” or would from only questions: hearing, presented inal two First, of his or not evidence under appears whether this truck that thus proper application periods es- the law thereto employers a£ all control' a common-law Tex- driver’s tablished hours by each Davis; as second, and Louisiana between Gussie a custom and be- virtue of not it was shown that or whether effect. Under that ar- to that tween them rangement Godfrey, appellees’ kept night driver of ear Oscar it over so that he casualty, prosecute turned time of so at the further better he could the getting affair his own in an aside to hjs down earli- business master’s suspended thereby regular morning, working the relation as after to have er in the hours, and servant between them there of master dark whenever and after shortening that, the in- himself. occasion for ap- questiоn discussing rest In this latter his own tervals for. refreshment called pellees’ brief, conceding master’s It was therefore that Godfrey times run been shown that he should at was at time auto truck regular public city appellee’s streets of around the driver of one trucks, proceeded general very way dispute if no furtherance their'business existed .the as doing when he ran over whether truck drove amuck he caused he accident,' on occasion which this has this court assumed that cause particular passing to do. The use he was none did on the matter. accident, go- Accordingly, determining the ear the time of these two only questions, we did if lunch not so as were the expected it, only cause, and, he was make of ones at issue in the during holding charge it over to him but turned trial court’s erroneous purpose, noon hour go he and facts adduced existence neighbor- to' his lunch in was to so hood, common-law in Texas suffi- one, when had made was out on a he cient to establish concluded
delivery
them,
whenever
noon hour
not demonstrate
the evidence did
Tex.)
MOTOR
W. D. SESSUM
CO. v. WHITE
(261 i.w.)
Godfrey
of this acci-
automobile, suing
at the time
<&wkey;442(2)Buyer
bad
3. Sales
—
a¿
warranty,
account
sev-
held
acces-
dent
acted
his own
no ctaim
so
supplied by
sories
himself.
servant
ending
be-
er the relation of master
warranty
In
of an
appellees,
for breach of
.action
tween himself and
buyer
automobile,
be-
if
rеcovers difference
opinion
follows:
represented
tween
value
of automobile
it follows that
these conclusions
“From
gets damages
value,
its actual
he
he
entitled
reversed,
an-
should be
and
be
to, and
value
has
claim
of accessories
no
trial,
proof
the
the
other
amount of
confined
supplied.
plaintiff
any,
damage,
if
&wkey;>442(5)Buyer
not
accordingly
4. Sales
of automobile
order has
sustained.
—
cause
compensation
loss
entitlеd to
entered.”
work.
warranty
In
of auto-
action
breach
ap-
motion of
and able
The earnest
mobile, buyer
compensation
not entitled
pellees
attention the
has called to
work, such
for loss
of time
controversy as to wheth-
ing too remote.
woman,
Godfrey’s
over the
truck ran
er
<&wkey;430
prove
Sales
thus
entitled
than the two
as other issues
—Seller
well
value
use of
assumption
automobile.
of,
disposed
hence our
fore
that
warranty
In
autо-
action for
death,
breach
Godfrey’s
caused
buyer’s
mobile,
prove
seller could
value
.of
consequent
declaration that
*5
use of it.
upon
trial
another
confined
be
should
sustained,
damage plaintiff
<&wkey;l
Principal
agent
amount of
24(3) Authority
—
agent
special warranty question
should have said
was inadvertent.
to make
for
jury.
upon
upon
issues
these two
if
warranty
In
au-
proved
action for breach of
of an
to be
otherwise
trial
tomobile, authority
аgent make
seller’s
Godfrey’s
a.
and showed
special warranty should have
submitted
deceased,
trial court
killed the
jury
request.
on seller’s
jury.,
It
either of
not submit
as' to
trial
cut off a
intended to
was not
Appeal
Court,
County;
from District
Smith
opinion
involved. That
matters
Warren, Judge.
J. R.
leaving
corrected,
is-
is now so
Action
J.
Jo. White
the W. D.
sues unaffected.
Company.
Judgment
Sessum Motor
carefully
motion
considered
plaintiff,
appeals.
and defendant
Reversed
ques-
rehearing
thesе two
affects
and remanded.
discussed,
formerly
uncon-
but are
tions
See, also,