but if he, directly or by implication, induces others to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition and suitable for such use, and for a breach of this obligation he is liable in damages to one injured thereby. This liability arises at common law, and has no connection with the duties imposed by statute upon railway companies with reference to public crossings. Thus, the keeper of an inn, or a shop or store to which the public are expected to come and deal, must keep his premises in a reasonably safe condition, for it is clear that the public are expected to use it, and are impliedly invited to do so. But in the case first stated the responsibility of finding a safe and secure passage is thrown upon the user. That the spaces between the wagon way and footways had never been dedicated to public use is shown by the undisputed facts, and it appears with equal clearness that the company had extended no invitation, either express or implied, to the public to use them as a walkway. Yet the plaintiff propounds the proposition that the company, by its silence and failure to protest, assumed the duty to repair this path, even when its dangerous condition was the result of wear by the footsteps of the public which daily used it. If the doctrine is sound, a like duty rests upon every owner of unfenced lands who acquiesces in the use of such lands for a neighborhood road, and to such a proposition we cannot subscribe. The authorities cited below tend to sustain the views we have announced. Am. & Eng. Ency. of Law, vol. 8, pp. 425, 426: Railway Co. v. Warner, 88 Tex. 647, 32 S. W. 868; Sweeny v. Railway Co., 10 Allen, 368, 87 Am. Dec. 644. Because the facts are undisputed and no liability shown, the judgment is reversed, and judgment here rendered for appellant. Reversed and rendered. ROBERTS v. FIELDER SALT WORKS.* (Court of Civil Appeals of Texas. Feb. 21, 1903.) MASTER AND SERVANT-RELATIONSHIP-IN 1. Where defendant corporation employed C., and placed him in charge of its shipping department as superintendent, giving him control thereof, defendant was liable for C.'s negligence whereby a laborer employed by him was injured. 2. Plaintiff was employed by defendant's superintendent to dig down certain banks of salt, and as he was doing so such superintendent, without plaintiff's knowledge, began to dig salt with a hoe near where plaintiff was working, and while so doing plaintiff was struck by the superintendent with the hoe, and injured. Held, that such facts required a submission of the issue of defendant's negligence to the jury. Appeal from Van Zandt county court; Jno. W. Davidson, Judge. *Rehearing denied March 7, 1903. Action by J. O. Roberts, by his next friend, against the Fielder Salt Works. From a judgment in favor of defendant, plaintiff appeals. Reversed. The appellant, a boy about 19 years of age, brought this suit by his mother, Laura Roberts, as next friend, to recover damages for personal injuries received by him by reason of the alleged negligence of appellee while in its employ. After hearing the evidence, the court instructed a verdict for the defendant. The jury returned a verdict in accordance with the instruction, upon which a judgment was entered, and the plaintiff appealed. The appellee is a corporation engaged in the manufacture, sale, and shipping of salt at Grand Saline, Tex. J. J. Williams is the general superintendent and agent of defendant company. Al. Conner was employed by said company to barrel, sack, and ship the salt manufactured by defendant, and said Conner was paid by the barrel, sack, or ton when he loaded salt in bulk. Conner employed the hands that worked under him, and paid them out of moneys furnished him for that purpose by the defendant company. Conner was employed by the superintendent, Williams, and was subject to be discharged at the will and pleasure of said Williams. Conner exercised control over the hands under him. Conner employed plaintiff. The plaintiff was directed by Conner to dig down certain banks of salt, which he was doing in a careful and prudent manner when Conner, without the knowledge of plaintiff, began to dig salt with a hoe near where plaintiff was at work. While so digging, plaintiff was struck on the right hand with the hoe by Conner, and his hand injured, whereby he lost the use of two of his fingers. The evidence shows that the injury is permanent. T. R. Yantis and Geo. W. Scott, for appellant. Germany & Davidson, for appellee. Con BOOKHOUT, J. (after stating the facts). Appellant insists that the facts raised the issue of negligence on the part of the defendant company, and that the court erred in instructing a verdict for defendant. ner was the superintendent of the shipping department, and its management was under his control. He employed plaintiff, and directed him as to his duties. The plaintiff was performing his duties as directed by Conner, and was doing so in a careful and prudent manner. He had no knowledge that Conner had begun to dig salt with a hoe near him. He was struck by Conner with the hoe, and injured. Conner was a witness on the trial, and did not attempt to explain how the injury occurred, or show that he exercised any care at the time of the inflicting of the injury. Conner having been employed by the defendant, and placed in charge of its shipping department, and given control of the same, negligence on his part was the negligence of the company. & Red. on Neg. sec. 230 (4th Ed.). Shear. The evidence was sufficient to raise the issue of negligence, and the court erred in instructing a verdict for defendant. Washington v. Railway Co., 90 Tex. 314, 38 S. W. 764; Railway Co. v. Hawk, 69 S. W. 1037, 5 Tex. Ct. Rep. 678; Jackson v. Railway Co., 23 Tex. Civ. App. 319, 55 S. W. 376. The judgment is reversed, and the cause remanded. final judgment. That judgment does not dispose of the case as against Jim Stewart, who was a party to the suit, and, therefore, it is not a final judgment, and, not being a final judgment, no appeal can be prosecuted from it. Hence we hold that this court has no jurisdiction, and that the appeal must be dismissed. Dismissed. STEWART v. LENOIR. (Court of Civil Appeals of Texas. Feb. 25, 1903.) APPEAL-FINAL JUDGMENT. 1. Judgment against P., in an action against P. and J., not disposing of the case as to J., is not a final judgment, and therefore not appealable; plaintiff and P. having agreed to a continuance as to J., because citation was not served on him, and it having been so ordered, and the case having then proceeded to trial by agreement of the same parties. Appeal from Falls county court; W. E. Hunnicutt, Judge. Action by W. T. Lenoir against Parazette Stewart and another. Judgment for plaintiff against said defendant, and she appeals. Dismissed. J. W. Spivey and Wm. Shelton, for appellant. KEY, J. Appellee brought this suit against Parazette Stewart and Jim Stewart. Upon trial a judgment was rendered in favor of the plaintiff against the defendant Parazette Stewart, and she has appealed. Though not adverted to by either party, the transcript presents a question of jurisdiction which this court must decide before it can reach the merits of the appeal. As a general rule, the appellate courts of this state have no jurisdiction until a final judgment has been rendered in the court below; and there is nothing to take this case out of the general rule. It is also well settled that a judgment which does not finally dispose of all the parties to the suit is not a final judgment. Batts' Ann. Civ. St. art. 1383; Andrews v. Andrews, Dallam, Dig. 427; Simpson v. Bennett, 42 Tex. 241; Martin v. Crow, 28 Tex. 615; Linn v. Arambould, 55 Tex. 611; Railway v. Smith Co., 58 Tex. 74; Mignon v. Brinson, 74 Tex. 18, 11 S. W. 903; Mills v. Paul, 1 Tex. Civ. App. 419, 23 S. W. 189; Id., 4 Tex. Civ. App. 504, 23 S. W. 395, 396. In this case, the judgment recites the fact that the plaintiff and Parazette Stewart agreed to a continuance of the cause as to the defendant Jim Stewart, because citation had not been served on him; and the judgment declares that it was so ordered. By agreement of the same partics, the case then proceeded to trial. But that agreement does not make the judgment that was rendered a 1. Under the statute providing that, in actions by two or more plaintiffs for negligent death, the jury shall apportion a verdict for the plaintiffs among the several parties plaintiff, failure to do so is not reversible error, where plaintiffs do not object, a general verdict for all of plaintiffs being sufficient to bar a subsequent action by any of them. Appeal from district court, Milam county; J. C. Scott, Judge. Action by John A. Lehman and wife against the International & Great Northern Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed. S. R. Fisher, J. H. Tallichet, and N. A. Stedman, for appellant. Monta J. Moore and Hefley, McBride & Watson, for appellees. KEY, J. This is a statutory action by a father and mother to recover damages on account of the death of their child, which was run over and killed by a railroad train in the town of Thorndale. From a judgment in favor of the plaintiffs for $3,500, the defendant has appealed. The case has been in this court once before (66 S. W. 214), on which occasion most of the questions now involved were decided against appellant. The verdict of the jury involves findings to the effect that the defendant was guilty of negligence in the manner charged in the plaintiffs' petition, and that the plaintiffs were not guilty of contributory negligence, and that, as a result of the defendant's negligence, the child was killed, and the plaintiffs sustained pecuniary loss to the extent of $3,500. After a careful reading of the statement of facts, we cannot say that these findings are not supported by testimony. Hence the objections to the verdict are overruled. The court's charge, in connection with special charges given at the request of the defendant, submitted the case to the jury fairly and correctly. The point made in reference to the verdict and judgment not apportioning the damages between the plaintiffs is not believed to pre Rehearing denied March 11, 1903, and writ of error denied by supreme court. 1. See Death, vol. 15, Cent. Dig. § 149. sent grounds for reversal. In our opinion, the provision of the statute in reference to apportionment was intended for the benefit of the plaintiffs; and if, as in this case, all the plaintiffs are adults, and do not ask for such apportionment, nor complain because it was not made, the defendant cannot be heard to object. In other words, we hold that in the case at bar the judgment is binding upon the plaintiffs as well as the defendant, and will preclude either of them from maintaining another action against the defendant upon the same cause of action here presented. No reversible error has been shown, and the judgment is affirmed. Affirmed. WESTERN UNION TEL. CO. v. WOF FORD. (Court of Civil Appeals of Texas. Feb. 18, 1903.) APPEAL-DELAY IN FILING TRANSCRIPT-AF. 1. Leave to file as an appeal the transcript for appeal presented for filing 10 months after the appeal was perfected, will be refused, the evidence showing no sufficient excuse for the delay. 2. Where appeal is abandoned, the transcript not being filed in time, and a writ of error is sued out, appellee may not have an affirmance on certificate filed after the term at which the transcript should have been filed, though he demanded from the clerk a certificate during that term, he having abandoned it on being told by the clerk that on account of being busy he could not then furnish it. 3. A writ of error proceeding against a dead person will not be considered the suing out of a writ of error, but the new petition and bond against his heirs, filed five days later, on discovery of his death, is part of one and the same effort to obtain a writ of error, and not the abandonment of one writ and the suing out of another. 4. Defendant may prosecute a writ of error, though plaintiff has died; but the defendants therein should be designated by name in the petition and bond, and not as "heirs of" deceased; and service should be had on them, service on deceased's attorney of record not being authorized; and, this not having been done, the writ should be perfected in the lower court, and a further transcript filed showing it. Error from district court, Gonzales county; M. Kennon, Judge. Action by W. D. Wofford against the Western Union Telegraph Company. Judgment for plaintiff. Defendant attempted to appeal and bring error. Appeal disallowed. Proceeding in error continued. Norman G. Kittrell and Burgess, Hopkins & Rainbolt, for plaintiff in error. Thos. McNeal and J. W. Ragsdale, for defendant in error. JAMES, C. J. An appeal in this case was perfected on March 5, 1902. The transcript for appeal was not presented to the clerk of this court for filing until January 9, 1903. The motion for leave to file it as an appeal will be refused, because the evidence submitted to us in connection with the motion shows no sufficient excuse for the delay. Appellant, in a later motion, filed January 24, 1903, alleges that its counsel, being advised that its original motion would be resisted, did, on January 17, 1903, file its petition for writ of error with supersedeas bond, and caused citation to be issued thereon, which was, on January 18th, returned with indorsement that Wofford had died before the petition and bond were filed, of which fact appellant and its counsel had no knowledge prior to such return. On January 22, 1903, it filed its further petition for writ of error with supersedeas bond against the heirs of Wofford as parties. In the new or supplemental motion filed here January 24, 1903, appellant alleges that it did not know that Wofford left heirs, nor who, if any person, is his administrator, nor, if he left heirs, who they are, or where they reside, and has not yet had time nor been able to ascertain the facts in this connection. The record on appeal presented here for filing on January 9, 1903, was not filed by the clerk, and as it now appears there have been added to it the petition for writ of error and the bond against the "heirs of Wofford," with a citation thereon served on Wofford's attorney of record, and the motion now before us is a motion to allow Western Union Telegraph Company to be heard either upon said appeal or writ of error, as it may be entitled. As already explained, the motion to allow the case to be heard on appeal is overruled. On January 30, 1903, appellee filed a motion to affirm on certificate. It will be ob served that the term at which the appeal was returnable expired about July 1, 1902, and appellee had ample time to file the motion during that term, but did not do so. In a reply filed January 19, 1903, by appellee's counsel, resisting the motion to file the transcript on appeal, counsel make known the fact that early in June, a short time after the expiration of the 90 days after perfecting the appeal, and before the end of that term of this court, he demanded from the clerk a certificate with which to make a motion to affirm; that the latter replied that, on account of being busy, he could not then fur nish it; and counsel, not being able to procure it, abandoned the same. So far as we have been able to find, affirmance on certificate has occurred in cases only when the certificate was filed at the term to which the record was returnable. Here we have one which was filed after the term, and appellee's counsel declares that he undertook to obtain a certificate for the purpose during that term, and saw fit to abandon it. The rule on the subject appears to be that an appeal may be abandoned, and a writ of error sued out; but the right to the latter, under such circumstances, is subject to be the absolute right to have the judgment affirmed on certificate at the term at which the tran script should have been filed. Ins. Co. v. Clancey, 91 Tex. 471, 44 S. W. 482. The first writ of error proceeding was against a dead person, and that effort can hardly be considered the suing out of a writ of error. The new petition and bond against the heirs, filed five days later, upon discovering that Wofford had died, was really a part of one and the same effort to obtain a writ of error, rather than the abandonment of one writ and the suing out of another. For the above reasons, we overrule the motion to affirm on certificate. The defendant in the judgment has the right to prosecute a writ of error. The record, however, is prematurely brought here, the defendants not being designated by name in the petition and bond, but generally as the "heirs of Wofford," and no service had. Service on Wofford's attorney of record, Wofford being dead, we think, is not authorized. But plaintiff in error may perfect the writ, and get citation on the proper parties. It is not our function to direct the details of such proceedings, which must be had in the district court, and brought here by transcript in due time. Under the authority of Hohenthal v. Turnure, 50 Tex. 3, the record will be allowed to be filed in this court as a proceeding by writ of error, but no further action will be taken thereon until the writ is perfected in the district court, and a further transcript filed here showing that it has been perfected. Due diligence will be required of plaintiff in error in such proceeding, to be passed on hereafter, if necessary. ETNA LIFE INS. CO. v. J. B. PARKER & CO. et al.* (Court of Civil Appeals of Texas. Nov. 27, 1902.) ACCIDENT INSURANCE-FAILURE TO PAY POLICY PENALTY RIGHT OF SUBROGATIONLOSS-DEFENSE-ACTION ON POLICY-VARIANCE-MATERIALITY. 1. Rev. St. art. 3071, authorizes a recovery of 12 per cent. of the loss and an attorney's fee as a penalty for the failure of an insurance company to pay its policy within the time specified. The article is found in chapter 3, tit. 58, entitled "General Provisions," but which deals with foreign insurance companies. Chapter 4 concerns "Home, Life and Accident Insurance Companies," but contains no such provision. Held, that the penalty could not be exacted from an accident insurance company. 2. The fact that insured, injured through the negligence of his employer, settled with the latter, and released it from liability, is not a defense to an action for his accident insurance, on the theory that the insurer was entitled to be subrogated to insured's action against his employer, identity of damage in the two causes of action being wanting. 3. A petition on an accident insurance policy described it as No. 188,695, issued to William Shelby, and alleged an assignment of policy No. 188,695, issued to William Shelby, to plaintiff. The policy introduced in evidence was No. 138,695, issued to William Selvey, and the *Rehearing denied. assignment introduced in evidence was of policy No. 138,695, by William Shelvy to plaintiff. Insured testified that his name was William Shelvy, and identified the policy as the one delivered to him by the company's agent, and on which he had paid premiums, and which he had assigned. The judgment correctly described the policy. Held, that the variance was immaterial. Appeal from Smith county court; Geo. W. Cross, Judge. Action by J. B. Parker & Co. and others against the Etna Life Insurance Company. Judgment for plaintiffs, and defendant appeals. Modified. Harry P. Lawther, for appellant. A. Morgan Duke and N. W. Brooks, for appellees. GARRETT, C. J. This action was brought by J. B. Parker & Co. against the Etna Life Insurance Company of Hartford, Conn., to recover of the defendant a stipulated indemnity for injuries received by the insured during the life of a certain policy of accident insurance issued by the company to William Shelvy, and which had been assigned by the said Shelvy to the plaintiffs; and as a penalty for the further sums of 12 per cent. of the amount of the indemnity due under said policy, and a reasonable attorney fee, which was alleged to be $50; the total amount for which judgment was prayed aggregating $371 and costs. William Shelvy intervened in the suit as plaintiff, and alleged that the amount due under the policy had been assigned to the plaintiffs, J. B. Parker & Co., to secure an indebtedness to them of $225. He adopted the pleadings of plaintiffs, and joined in the prayer for judgment against the defendant, and asked that the balance, after deducting the amount due by him to the plaintiffs, be directed to be paid to him. The defendant pleaded as a defense to a recovery upon the policy the right of subrogation to the claim of Shelvy against the railway company for damages on account of the injuries for which indemnity was claimed, and its deprivation of the right by the settlement of Shelvy with the railway company and the release of it from all liability for said injury. A demurrer by plaintiffs to so much of the answer as set up this defense was sustained, and it was stricken out. Shelvy was injured, as alleged, while in the service of the St. Louis Southwestern Railway Company of Texas by getting caught in a turntable of said company while cleaning the tank of an engine, and was disabled for 28 weeks and 5 days, for which time the company was liable to pay him indemnity at the rate of $10 a week, amounting to $287.14. Judgment was rendered in favor of all the plaintiffs as prayed for. Three questions arise upon the record: 1. Does article 3071 of the Revised Statutes, authorizing the recovery of 12 per cent. of the loss and an attorney fee as a penalty for failure of the insurance company to pay within the time specified in the policy apply to accident insurance? Statutes imposing penalties receive a strict construction against the penalty. A very clear distinction is made between life and bealth and accident companies in the provisions of the Revised Statutes relating to insurance. Article 3071, imposing the penalty, is found in chapter 3, tit. 58, entitled "General Provisions," but dealing with foreign insurance companies. Chapter 4 is concerning "Home, Life and Accident Insurance Companies," but contains no provision for a penalty in case of failure to make prompt payment. In the case of Etna Life Ins. Co. v. Hicks, 56 S. W. 87, in which this court affirmed a judgment upon an accident policy of insurance for a penalty as provided by article 3071, Rev. St., the question of the applicability of the statute was not raised, and its constitutionality only was passed on. The question does not appear ever to have been decided by the Supreme or Appellate Courts of this state, but the federal Circuit Court of Appeals for the Fifth Circuit had decided the precise question, and held that the statute has no application to accident insurance companies. Fidelity & Casualty Co. of New York v. Dorough, 46 C. C. A. 364, 107 Fed. 389. The opinion in the case quotes from the statutes, and gives reasons for the decision which, we think, are conclusive of the question. We are of the opinion, therefore, that the court below erred in adjudging the penalty provided in Rev. St. art. 3071, against the defendant. 2. Did the court err in sustaining the plaintiffs' demurrer to the answer setting up defendant's right of subrogation to the claim of Shelvy against the railway company, and its discharge by reason of the fact that it had been deprived of this right by Shelvy's act in settling with and releasing the railway company from further liability to him? The right of subrogation of the insurer to the claim of the insured for loss or damage to property covered by a policy of fire in surance, caused by the negligence of the carrier, is well established. 2 May on Ins. sec. 454; Sheldon on Subrogation, sec. 229; Wager v. Providence Ins. Co., 150 U. S. 99, 14 Sup. Ct. 55, 37 L. Ed. 1013. But there is an essential distinction between a liability for loss of property which has been insured and that for damages on account of injuries inflicted upon a person by the negligence of another. In the case of the destruction of property by fire in the first instance the damage or loss which has been caused by the carrier and that indemnified against is identical. It is the value that has been destroyed. But where a person has received personal injuries, caused by the negligence of another, several elements enter into the estimate of damages besides the mere stipulated indemnity for loss of time contracted for in the accident policy, and the loss is by no means identical. In the one there may be included full compensation for mental and physical suffering, loss of time, diminished capacity to earn money, etc., and in some instances punitory damages; while the other is a stipulated sum for loss of time only, which may or may not be full indemnity even for that. The accident policy undertakes to indemnify the insured, whether his injuries are the result of negligence or not, while the person or corporation inflicting the injuries can be held liable only for negligence; and, since so many elements enter into the estimate of the loss in the case of one that do not enter into or from any part of the other, there is wanting that identity of damage or loss that would entitle the insurer to subrogation on payment of the claim against him. 3. It remains to consider whether the court erred in admitting in evidence the policy of insurance, and in rendering judgment thereon over the objection to it on the ground of variance. The petition described a policy No. 188,695, issued to Wm. Shelvy. The policy introduced in evidence was No. 138,695, issued to Wm. Selvey. The petition declared an assignment of accident policy No. 188,695, issued to Wm. Shelby; and the assignment introduced in evidence was of accident policy No. 138.695 by Wm. Shelvy to J. B. Parker. Plaintiff testified that his name was Wm. Shelvy, and that the policy introduced in evidence was the one delivered to him by defendant's agent, and on which he had paid premiums, and had transferred to Parker & Co. The judgment correctly describes the policy introduced in evidence. The similarity of the names and numbers, together with the evidence as to the identity of the transaction, leaves no doubt that the policy sued on was the identical one issued to the plaintiff, Shelvy, and the defendant could not have been misled by variance; and, if it could not have been misled, and the judgment will protect it from another suit, the variance is not material. Bank v. Stephenson, 82 Tex. 435, 18 S. W. 583. The judgment of the court below is affirmed except as to penalty of 12 per cent. on the amount of the indemnity and the attorney fee, as to which it is reversed, and judgment will be finally rendered here in favor of the plaintiffs for the amount of the indemnity only. Affirmed in part; reversed in part. |