
    INTERNATIONAL & G. N. RY. CO. v. SNEED et al.
    (No. 5570.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.)
    1. Appeal and Error <§=^930 — Receiver — Discharge — Peremptory Instruction — Presumptions.
    Where suit for wrongful death was brought against the receiver of a railroad and afterwards the railroad was joined as a party defendant, the failure to give a peremptory instruction in-favor of the receiver who had been discharged was not reversible error on appeal from a verdict and judgment against the railroad alone, since the jury will not be presumed to have been influenced in fixing the amount of their verdict by the supposed fact that there were two defendants liable to the judgment.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. <©=> 930.]
    2. Marriage <@=»50 — Common-Law Marriage —Evidence—Suebtciency.
    In an action against a railroad to recover for wrongful death, where the defense as to some beneficiaries was that they were illegitimate because decedent had a common-law wife living at the time of his marriage to their mother, evidence held to warrant a finding that no such common-law marriage existed.
    [Ed. Note. — Eor other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. <®=>50.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Paralee Sneed and others against the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Cobbs, Eskridge & Cobbs, of San Antonio, for appellant. J. R. Norton and James Rout-ledge, both of San Antonio, for appellees.
   MOURSUND, J.

This is a suit for damages alleged to have been sustained by reason of the death of John Johnson Sneed, brought by Paralee Sneed, alleged to be the wife of John J. Sneed, John Roosevelt Sneed, a son of John J. Sneed, suing by his mother, Para-lee Sneed, as next friend, Emma Robinson, Charles Sneed, and Jake Sneed, children of John J. Sneed by a former wife, and Henry Sneed and Rachall Sneed, the father and mother of John J. Sneed. The original petition was filed on February 26, 1910, against T. J. Ereeman, receiver of the International & Great Northern Railroad Company. On April 5, 1913, plaintiffs by amended petition made the International & Great Northern Railway Company a party defendant. During the pendency of the suit the Railwáy Company settled with Paralee Sneed and took her release in full. James Routledge and J. R. Norton, attorneys of record for plaintiffs, filed their plea of intervention, alleging that they had a contract with Paralee Sneed, whereby she had assigned to them one-half interest in her cause of auction; that defendants had notice of such contract, and theiefore they were liable to such interveners for one-half of what the jury might find Paralee Sneed would have been entitled to had she not settled with the Railway Company.

The trial resulted in a verdict and judgment in favor of the plaintiffs, other than Paralee Sneed, and in favor of interveners, the sum being apportioned among them. Judgment was rendered upon such verdict against the Railway Company, but the receiver having been theretofore discharged, no judgment was rendered against him.

By the first assignment of error complaint is made because the court failed to give a peremptory instruction to find in favor of the receiver. Appellant contends that it is reasonable to suppose that the jury in fixing the amount of its verdict took into consideration the fact that there were two defendants from whom the judgment could be collected. We cannot assume that there is any probability of jurors so far forgetting or ignoring their plain duty as to make the amount of their verdict depend upon the number of defendants who would be liable for its payment. Besides the jurors certainly understood that Ereeman only held the railroad in a representative capacity, and realized that their verdict, if paid, would be paid from the assets of the Railway Company. No judgment was rendered against the receiver, and the failure to instruct the jury to find in his favor is not such an error as would justify the reversal of the judgment.

The remaining assignments of error complain of the judgment in so far as it awards a recovery to John Roosevelt Sneed and to James Routledge and J. R. Norton. The contention is that Paralee Sneed was not the lawful wife of John Johnson Sneed, and therefore not entitled to recover, and that John Roosevelt Sneed, the son of Paralee Sneed, for the same reason could not recover. This contention is based upon the theory that the undisputed evidence shows that at the time John Johnson Sneed and Paralee went before a justice of the peace and were declared husband and wife, said John Johnson Sneed had a common-law wife. The evidence shows that Sneed, after the death of his first wife, took Ellen Armstrong into his house, and she stayed with him from 5 to 7 years, and had two children by him. There were only a few colored people in the town in which they resided, and it was generally known in the community that they were living together as husband and wife. However, Ellen Armstrong’s testimony is to the effect that she did not recognize Sneed as her husband; that she was merely his housekeeper. She supposed that Sneed claimed in public that she was his wife, but that she never claimed in public that she was his wife, nor did she regard him as her husband at home. Two of Sneed’s children by his first wife testified they called her Mrs. Armstrong; that they never heard their father claim that she was his wife. Sneed’s father testified that Sneed never held her out to he his wife, and that she never claimed to be Sneed’s wife that the witness knew of. Ellen Armstrong also testified she stayed in Sneed’s house until he went off with Paralee to get married, at which time she left; that she had no row with him about Paralee; he told her he was going off to get married, and then she left; that Sneed’s children by his first wife then lived with him and Paralee; that about a month or two after he married Paralee he put up a little house for Ellen close to his mother’s place, in which she resided for a while, and then moved to San Antonio. It is true that she admitted making a statement in the presence of representatives of the railroad company, after Sneed’s death, to the effeet that she had two children by Sneed, and that she had been his wife 10 or 12 years before such statement was made, and testified further that she told the truth then. While the parties lived together and cohabited, and their conduct was such as to lead the public to believe they were married, the evidence supports a finding that there was no agreement to take each other for husband and wife. Both parties apparently regarded the relation as one which could be terminated at will, but naturally to avoid prosecution, permitted the public to believe they were husband and wife. We conclude that the evidence was of such a character as to warrant the jury in finding that no common-law marriage had been proven by appellant.

The judgment is affirmed. 
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