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the examination of and the granting of cer- 8 30 (Mo.App.) Where contract to pay tificates to teachers, and Const. § 2, prohibiting plaintif commissions upon oil sold by him for arbitrary power to any officer of the state, held, defendant provided that plaintiff should get the that, where the board had reasonable grounds market prices for the oil, sales by plaintiff unfor refusing a certificate, its discretion would der an agreement to refund to his customers 5 not be controlled.-Id.

per cent. of his commissions would be a breach 8 98 (Ky.) Where a telephone company desires justifying discharge.-Goller v. Henseler Merto construct its line along the highways of a cantile Oil & Supply Co., 161 S. W. 584. county under Ky. St. $ 4679b, and the fiscal 841 (Tex.Civ.App.) Damages for breach of a court arbitrarily refuses to offer a franchise contract of employment for a year at a certain for sale, the telephone company. may compel amount per month held to include expense of such action by mandamus under Civ. Code Proc. moving and such other damages and loss sus8 474.-Christian-Todd Telephone Co. v. Com- tained, not to exceed the amount to which he monwealth, 161 S. W. 543.

would have been entitled had the contract been

performed.-Louisiana Rio Grande Canal Co. MANDATE.

v. Quinn, 161 S. W. 375.

A servant employed for a year, at a certain See Mandamus.

amount per month, on his discharge without

cause had an immediate right of action for the MANSLAUGHTER.

damages accruing from the breach, though only

those damages accrued at the time of the trial See Homicide, 88 36-63, 309.

are recoverable.--Id. MAPS.

III. MASTER'S LIABILITY FOR IN. See Appeal and Error, $ 543.

JURIES TO SERVANT.

(A) Nature and Extent in General. MARRIAGE.

8 86 (Ky.) Where a carrier is engaged in inSee Appeal and Error, $ 467; Bigamy; Crim, terstate commerce and an employé is injured

inal Law, 400; Divorce; Executors, and while employed in such commerce, the federal Administrators, $ 34; Husband and Wife.

Employer's Liability Act supersedes all state § 40 (Tex.Civ.App.) While persons seeking to laws and furnishes the only basis for recovery. trace their title to land through a marriage of -- Louisville & N. R. Co. v. Strange's Adm'x, the former owner have the burden of proving 161 S. W. 239. a marriage, it is presumed that the marriage Whether an action for injuries to or death of was valid,' and the burden of proof is upon Employer's Liability Act or the state law de

railroad employé depends on the federal those contesting its validity.-Adams v. Wm. Cameron & Co., 161 S. W. 417.

pends on whether the injuries were sustained $ 47 (Tex.Civ.App.) Declarations held incom- while the carrier was engaged and the employé

was employed in interstate commerce.-Id. petent to show invalidity or nonexistence of a

8 95 (Ky.) A servant under the age of 16 marriage.-Adams v. Wm. Cameron & Co., 161 S. W. 417.

years, employed in a mine without the consent $ 52 (Tex.Civ.App.) Where there is testimony in the course of his employment, regardless of

of his father, may recover for injuries received tending to rebut the presumption of validity of the negligence of the master, where it knew a marriage, an instruction on the presumption that the servant was under age, and was warnis properly refused; the whole matter being ed not to employ him.-Stearns Coal & Lumber for the jury.-Adams v. Wm. Cameron & Co., Co. v. Tuggle, 161 S. W. 1112. 161 S. W. 417.

$ 96 (Ky.) To recover for the master's negliMARSHALING ASSETS AND SE

gence it is necessary that the injury was the

natural and proximate result of the negligence. CURITIES.

-Cooke-Jellico Coal Co. v. Richardson's Adm's,

161 S. W. 537. $3 (Tex.Civ.App.) As a rule the doctrine of marshaling securities will not be applied so as (B) Tools, Machinery, Appliances, and to deprive a debtor, who has not waived his

Places for Work. rights thereto, of his homestead or exempt prop- 88 101, 102 (Ky.) In an action for death of a erty.-Pugh v. Whitsitt & Guerry, 161 S. W. railroad employé, plaintiff may recover for ordi953. The doctrine of marshaling assets will not be Strange's Adm'x, 161 S. W. 239.

nary negligence.- Louisville & N. R. Co. v. enforced so as to require a creditor, whose mortgage covers exempt and nonexempt property, to bound to furnish an absolutely safe place of

88 101, 102 (Mo.App.) An employer is not first resort to the exempt property, that other work but only one free from the dangers not creditors not secured by such property may ordinarily incident to the work.–Braden v. Chisatisfy their claims out of the nonexempt resi-cago, B. & Q. R. Co., 161 S. W. 279. due.-Id.

88101, 102 (Mo.App.) A master must exerMASCULINE GENDER.

cise ordinary care in furnishing a reasonably See Statutes, 8 188.

safe appliance.-Cabanne v. St. Louis Car Co.,

161 S. W. 597. MASTER AND SERVANT.

$$ 101, 102 (Mo.App.) The term “reasonably

safe," within the rule requiring an employer to See Appeal and Error, 88 1033, 1039, 1050, adopt a reasonably safe mode for the perform1068; Commerce, & 27 ; Corporations, $ 308; ance of the work, means safe according to the Evidence, &$ 126, 474; Garnishment, $_131; usages, and habits, and ordinary risks of the Pleading, 88 34, 369; Statutes, $ 221; Trial, business.-Marquez v. Koch, 161 S. W. 648. 88 244, 252, 258; Work and Labor.

8 103 (Tenn.) A master may impose upon a I. THE RELATION.

servant the duty of giving signals prescribed

for his own safety, and where such signals are (C) Termination and Discharge.

not given as his duty requires he cannot recov$20 (Ark.) Where an offer of employment er for injury resulting therefrom.-American did not specify any length of time of service, Zinc Co. v. Smith, 161 S. W. 494. an acceptance would create a contract termi- § 103 (Tex.Civ.App.) Where plaintiff, whose Dable at will.-Fulkerson v. Western Union Tel-duty it was to keep the machines adjusted and egraph Co., 161 S. W. 168.

repaired, knew that a jam nut was defective

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

and a wrench slipped from it, whereby he was a carpenter engaged in repairing the floor, injured, defendant's liability could not be predi- where the two acted entirely independently.cated on the defect in the nut.-Pruitt v. Frost. Louisville & N. R. Co. v. Moore, 161 S.W. Johnson Lumber Co. of Texas, 161 S. W. 421. 1129.

$ 107 (Mo.App.) A railroad company which $ 199 (Ky.) Servants in charge of different employed plaintiff to mow its right of way with coal cars in a mine are not fellow servants.a machine and by hand was not required to Stearns Coal & Lumber Co. v. Tuggle, 161 S. furnish him with a level surface to mow in W. 1112. order to discharge its duty.–Braden v. Chicago, B. & Q. R. Co., 161 S. W. 279.

(F) Risks Assumed by Servant. $ 107 (Mo. App.) When defendant overhauled 8 203 (Ky.) The defenses of contributory neg. an automobile for plaintiff's use in demonstrat- ligence and assumed risk are distinct, the docing, it was defendant's duty to exercise ordi-trine of assumed risk resting upon an agreenary care in reconstructing all parts of it, in- ment by the servant that the master shall not cluding the steering gear.--Cabanne v. St. Louis be liable for an injury ordinarily incident to the Car Co., 161 S. W. 597.

service, or arising from a known and obvious $110 (Tex.Civ.App.) In view of Rev. Civ. St. danger.-Cincinnati, N. 0. & T. P. Ry. Co. v. 1911, art. 6713, requiring railroads to equip Goldston, 161 S. W. 246. their engines and tenders with foot stirrups, $ 206 (Ky.) An employé assumes all of the and in view of defendant's nonperformance of ordinary risks incident to his employment.such duty, its requested instruction that it was Cincinnati, N. 0. & T. P. Ry. Co. v. Goldston, not required to maintain foot stirrups upon its 161 S. W. 246. engines or tenders held properly refused.–St.

8 206 (Mo.App.) One employed by a railroad Louis Southwestern Ry. Co. of Texas v. Martin, company to mow, with a machine and by hand, 161 S. W. 405.

a part of its right of way assumed the risk $ 125 (Mo.App.) A master who has exercised of injury to his team by one of the horses ordinary care to furnish a reasonably safe ap- falling into a ditch on the right of way.-Bradpliance is not liable for injuries resulting from en v. Chicago, B. & Q. R. Co., 161 S. W. 279. it becoming defective while in use, unless he should have known of the defect by exercising have assumed risk of injury where base on

$ 209 (Tex.) An experienced engineer held to ordinary care for a sufficient time to have en- which engine rested was too high, the space abled him to remove it.-Cabanne v. St. Louis between the base and the wheel pit too narrow, Car Co., 161 S. W. 597.

An employer who undertakes to construct and the pit was insufficiently guarded, and the floor furnish an appliance need not, as a condition to -Snipes v. Bomar Cotton Oil Co., 161 S. W. 1.

was slippery, caused by oil dropped by himself. liability for defects therein, be given notice of

$ 217 (Ky.) An employé assumes all risks of a defect which he could have discovered by erercising ordinary care in constructing the ap- which he may know in the exercise of ordinary

care, but he does not assume latent risks.-Cinpliance.-Id.

cinnati, N. 0. & T. P. Ry. Co. v. Goldston, 161 $ 125 (Tex. Civ. App.) Where defendant's

S. W. 246. switching foreman, directing the running of

8217 (Ky.) If the miner's own work made the cars in the nighttime at the rate of 10 miles an hour, failed to know the condition of the

room dangerous and, knowing of the danger, track on which they were run, whereby there he remained therein, he assumed the risk.-was a collision injuring a switchman, the de- Cooke-Jellico. Coal Co. v. Richardson's Admin, fendant was liable, irrespective of whether the 161 S. W. 537. foreman actually gave the signal to go at that $ 217 (Tex.Civ.App.) A servant, who knew and rate or not.-Missouri, K. & T. Ry. Co. of fully appreciated the danger involved in the use Texas v. Leabo, 161 S. W. 382.

of a wrench so defective as to slip, while he 8 129 (Tex.Civ.App.) That brakeman, on

was endeavoring to loosen a nut, yet, who chose the breaking loose of cars, exposed himself to such a wrench when he might have chosen one danger in an attempt to catch them to use the without defect and which would not have slipbrakes, and was thrown therefrom when they ped, assumed the risk of injury from the destruck a stationary one, did not break the caus- fect.-Pruitt v. Frost-Johnson Lumber Co. of al connection between the negligence of the Texas, 361 S. W. 421. railroad company, in furnishing insufficient $ 226 (Ky.) An employé does not assume couplers and defective tracks, and the injury.- risks created by the master's negligence.-CinFt. Worth Belt Ry. Co. v. Cabell, 161 S. W. cinnati, N. O. & T. P. Ry. Co. v. Goldston, 1083.

a

161 S. W. 216. (C) Methods of Work, Rules, and Orders. (G) Contributory Negligence of Servant.

$ 137 (Ky.) While a railroad brakeman as $ 233 (Tex.Civ.App.) Where a master furnishsumes the risks and hazards arising from usual ed a servant wrenches free of defects and reaand ordinary jerks incident to the operation of sonably safe for use, and the servant, instead of the train, yet, if he is killed or injured as the using one of them, chose and used a defective result of an unusual and unnecessary jerk so

wrench, the master discharged his duty.-Pruitt violent as to show want of ordinary care, a

v. Frost-Johnson Lumber Co. of Texas, 161 S. recovery may be had.-Louisville & N. R. Co. W. 421. v. Strange's Adm'x, 161 S. W. 239.

$ 243 (Tenn.) Servant's noncompliance with

the master's rule forbidding any one to come in(D) Warning and Instructing Servant.

to a mining shaft without giving notice thereof $ 150 (Mo.App.) If a danger is one not or by signal held negligence, defeating any recov. dinarily incident to the service, and the em ery for his death from a block falling in the ployer knows it, he is negligent for failing to shaft.-American Zinc Co. v. Smith, 101 S. W. warn the employé; otherwise in case of nonob- | 491. vious dangers.--Braden v. Chicago, B. & Q. R. $ 247 (Mo.App.) That an employé when in. Co., 161 S. W. 279.

jured was running an automobile in excess of $ 155 (Mo.App.) If a danger is obvious to the statutory speed limit will not bar recovery, one of ordinary intelligence and can be appre- unless such negligence proximately contributed ciated by hiin, the employer is not bound to to his injury.--Cabanne v. St. Louis Car Co.,

a servant thereof.--Braden v. Chicago, 161 S. W. 597. B. & Q. R. Co., 161 S. W. 279.

$ 248 (Tex.Civ.App.) In a car repairer's ac(E) Fellow Servants.

tion for injuries after he had jumped from cars

on a side track and ran in front of an engine es 198 (Ky.) Servants placing running boards on a parallel track, held, on the facts, that 10 a railroad car are not fellow servants with those in charge of the engine could not antici.

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pate injury to plaintiff as probable until it ap- 1 at a station held to sustain a finding of depeared that he was nearing the track without fendant's negligence in failing to have the other knowing of the engine's approach.- Internation- train on the side track, or if not, in failing al & G. N. R. Co. v. Walters, 161 S. W. 918. to warn plaintiff that the main track was ob

structed, and in not turning the switch for the (H) Actions.

side track.--St. Louis, B. & M. Ry. Co. v. Ver$ 250/4 (New, vol. 15 Key-No. Series] (Ky.) non, 161 S. W. 84. Where a general allegation of negligence is sufficient in the courts of a state, such allega- for injuries, evidence held sufficient to show

$ 278 (Tex.Civ.App.) In a brakeman's action tion is good in an action under the federal Em- that by use the outer top edge of a step on a ployers Liability Act. --Louisville & N. R. Co. tender had worn off, so that instead of present. v. Stewart's Adm'x, 161 S. W. 557. 8 256 (Tex.) Petition held insufficient as fail

--St. Louis Southwestern Ry. Co. of Texas v.

ing a square edge on top it slanted downward. ing to show upon what ground recovery was Martin, 161 S. W. 405. sought.-Snipes v. Bomar Cotton Oil Co., 161

In a brakeman's action for injuries by slipS. W. 1.

ping a worn step on the tender while attempt$ 258 (Mo.App.) Allegations, in an action for ing to board after opening a gate, evidence held injuries by the steering gear of an automobile sufficient to show that at the time of his injury coming apart and causing a collision while he was in the discharge of his duty:-Id. plaintiff was demonstrating for defendant, that Evidence held sufficient to show that such step the injuries were the direct result of defendant's was provided for the use of employés in going negligence in furnishing a car with defective upon the tender and train.-Id. steering apparatus, grounded the action on neg. ligence in not originally furnishing a reasonably

$ 281 (Ky.) Evidence, in an experienced minsafe appliance, and hence need not allege that er’s action for injuries from the falling of defendant should have known of the defect. - slate, held to sustain a finding that at the time

of the accident plaintiff was digging coal from Cabanne v. St. Louis Car Co., 161 S. W. 597.

$ 265 (Ky.) An employé, suing under the fed- the entry stump, contrary to the rules of the eral Employer's Liability Act for personal in- mine, and that his own negligence was the juries, has the burden of showing that defende proximate cause of his injury.-Sams v. Gray,

161 S. W. 553. ing his injury.-Cincinnati, N. o. & T. P. Ry. the steering gear of an automobile which plainant's employés were guilty of negligence caus

$ 285 (Mo.App.) In an action for injuries by Co. v. Goldston, 161 S. W. 246.

tiff was demonstrating for defendant coming § 265 (Mo.App.) The presumption that an employer did his duty with respect to furnishing apart and causing a collision with a tree, wheth

er the injury was caused by the defective steera reasonably safe appliance is not conclusive. -Cabanne v. St. Louis Car Co., 161 S. W. 597. ing gear or by the explosion of a tire held a $ 265 (Tex.Civ.App.) Acts 31st Leg. (1st Ex: l jury question.--Cabanne v. St. Louis Car Co.,

161 S. W. 597. tra Sess.) c. 10 (Rev. Civ. St. 1911, art. 6649), providing that the damages shall be diminished $ 285 (Tex.Civ.App.) In a personal injury acin proportion to the amount of negligence at- tion by a railroad brakeman, the question tributable to a plaintiff, did not abrogate the whether the employer's negligence was the proxrule placing the burden of proving contributory imate cause of the injury held under the evinegligence upon defendant.--St. Louis, B. & M. dence for the jury:- Ft. Worth Belt Ry, Co. Ry. Co. v. Vernon, 161 S. W. 84.

v. Cabell, 161 S. W. 1083. $ 274 (Tex.Civ.App.) Where

railroad 8 286 (Ky.) Whether a jerk by which plaincompany claimed that a brakeman's failure to tiff's decedent was thrown from his train and jump from wild cars was contributory negli- received injuries from which he died was an ungence, evidence that it would have been dan- usual and unnecessary one showing negligence gerous to have jumped, under the circumstanc- held for the jury.-Louisville & N. R. Co. v. es, was admissible.- Ft. Worth Belt Ry. Co. v. Strange's Adm'x, 161 S. W. 239. Cabell, 161 S. W. 1083.

8 286 (Tex.Civ.App.) Whether the outer step $ 276 (Ky.) Evidence held insufficient to show on a tender which was worn so as to slant that the master's negligence in failing to proper- | downward, instead of presenting a square edge ly support the roof of a mine and in allowing on top, made it more likely that one's foot one of the props to be taken from near the place would slip therefrom, and whether its mainteof the accident was the proximate cause of the

nance in such condition was negligence, held injury.--Cooke-Jellico Coal Co. v. Richardson's questions for the jury.–St. Louis Southwestern Adm'x, 161 S. W. 537.

Ry. Co. of Texas v. Martin, 161 S. W. 405. $ 276 (Ky.) In an action under the federal Employer's Liability Act for the death of an tion for injuries by being struck by an engine,

$ 286 (Tex.Civ.App.) In a car repairer's acengineer, evidence held not to show the negli- held, on the evidence, that the question whether gence of the rear flagman in applying the emer

the engineer saw plaintiff on the side of the gency air brake.-Louisville & N. R. Co. v. Stewart's Adm'x, 161 S. W. 557.

car from which he jumped and ran in front of

the engine was for the jury.- International & $ 276 (Tex.Civ.App.). Evidence in an action G. N. R. Co. v. Walters, 161 S. W. 916. for injuries to an engineer in a collision of his train with another standing on the main track

$ 286 (Tex.Civ.App.) On injury to a brakeheld to sustain a finding that negligence in not man, thrown from wild cars which had come having the other train on siding, or in not uncoupled, the question of the master's negliwarning plaintiff that the main track was ob- gence in furnishing insufficient couplers and in structed and turning the switch for the sid- |--Ft. Worth Belt Ry. Co. v. Cabell, 161 s. W.

maintaining defective tracks held for the jury. ing, was the proximate cause of plaintiff's in

1083. jury.--St. Louis, B. & M. Ry. Co. v. Vernon, 161 S. W. 84.

$ 288 (Ky.) Evidence held to make it a jury $ 278 (Ky.) In an action under the federal question whether the jerking of a train was Employers' Liability Act for the death of an only the ordinary movement of the train, the engineer, evidence held to show that the con- risk of which plaintiff assumed.--Cincinnati, N. ductor was negligent in giving signals to the O. & T. P. Ry. Co. v. Goldston, 161 S. W. 246. engineer.-Louisville N. R. Co. v. Stewart's $ 289 (Mo. App.) In an action for injuries Adm'x, 161 S. W. 557.

by the steering gear of an automobile furnished $ 278 (Tex.Civ.App.) Evidence in an engi- to plaintiff for demonstrating coming a part and neer's action for injuries in a collision of his causing a collision with a tree, whether plaintrain with another standing on the main track I tiff was guilty of contributory negligence in

the

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

exceeding the speed limit held a jury question. ternational & G. N. R. Co. v. Walters, 161 S. -Cabanne v. St. Louis Car Co., 161 S. W. 597. W. 916.

Whether plaintiff's negligence in running the When plaintiff seeks a recovery upon the isautomobile above the statutory speed limit prox- sue of discovered peril as well as upon other imately contributed to his injury held a jury theories, charges on contributory negligence question.-Id.

should be limited to be considered only upon 8 289 (Tex.Civ.App.) Evidence in an action the other theories, as such defense cannot be by a railroad engineer for injuries in a colli- urged to defeat liability arising by reason of sion of his train with train on the main track discovered peril.-Id. at a station held not to show plaintiff's contributory negligence as a matter of law in as

IV. LIABILITIES FOR INJURIES TO suming the track was clear because the switch

THIRD PERSONS. target was white.--St. Louis, B. & M. Ry. Co. (B) Work of Independent Contractor. v. Vernon, 161 S. W. 84.

8 315 (Ky.) If one making a railroad cut 8 289 (Tex.Civ.App.) On evidence, in a car was an independent contractor, over whom the repairer's action for personal injuries, held, company had no control, he alone, and not the that it was for the jury to say whether defend- company, was responsible for a trespass comant's employés on the engine which struck mitted by him in dumping earth on plaintiff's plaintiff exercised ordinary care to prevent the land.-Louisville Ry. Co. v. Wigginton, 161 S. injury, and, if they did not, whether their ex- W. 209. ercise of such care could have averted the injury.- International & G. N. R. Co. v. Walters, railroad right of way casting material on plain

$ 319 (Ky.) Where blasting operations on a 161 S. W. 916.

tiff's adjoining property were necessary in the 8 291 (Ky.) Where the negligence in issue in execution of a contract for the improvement a conductor's action for injuries was defective and such as would naturally result in injury to step of a caboose and sudden jerk of the train, plaintiff's property, even if done with ordinary an instruction, which coupled with the latter care, the railroad company could not escape lianegligent act, negligence of the engineer in bility because the work was performed by instarting before receiving a signal, was errone- dependent contractors.-Lexington & E. Ry. ous.-Cincinnati, N. O. & T. P. Ry, Co. v. Gold-Co. v. Baker, 161 S. W. 228. ston, 161 S. W. 246.

8 293 (Ky.) Instructions in an action for in- V. INTERFERENCE WITH THE REjuries from the sudden jerking of the train

LATION BY THIRD PERSONS. should have used the terms "violent, unusual,

(A) Clvil Llability. and unnecessary,'

," in characterizing the jerk, instead of "quick, violent, sud and unusual."

§ 340 (Ark.) In an action by one insurance -Cincinnati, N. 0. & T. P. Ry. Co. v. Gold- company against another, allegations charging ston, 161 S. W. 246.

interference with plaintiff's employés held not The court having submitted in one instruc

to state a cause of action.-Arkansas Life Ins. tion the issue of the sudden jerk of the train, Co. v. American Nat. Life Ins. Co., 161 S. W.

136. it was confusing to submit the same question in a second instruction also submitting the

MATERIALITY. question of a defective step.-Id.

8 293 (Mo.App.) An instruction, in an action See Alteration of Instruments, $$ 4, & for the death of an employé, held to contain inconsistent statements as to the duty of the

MAYHEM. employer to provide a reasonably safe place

8 (Tex.Cr.App.) Under the statute providto work.–Marquez v. Koch, 161 Š. W. 648.

ing that to maim is to willfully and maliciously An instruction, in an action for the death of deprive of an ear, etc., the injury, must be an employé, held to erroneously submit the is done willfully and maliciously, and, if it arises sue of the employer's reasonable care in view from a sudden attack without premeditated deof the evidence of the usual way adopted by sign, the offense is not maiming.–Key v. State, others engaged in a similar business.-Id.

161 S. W. 121. 8 293 (Tex.Civ.App.) In a brakeman's action

Where the statute prohibits an injury to a for injuries from a defective step on the tender, member, such as an ear, etc., which disfigures instruction held not objectionable as authoriz- the person, the whole member need not be deing a verdict for plaintiff, even though defend- tached to constitute the offense, but a sever. ant had exercised ordinary care to furnish a

ance of only a small part, which does not disproper step and keep it in repair.-St. Louis figure the person and could only be discovered Southwestern Ry. Co. of Texas v. Martin, 161 by close examination, is not an offense.-Id. S. W. 405.

An act is "willful" within the statute if it is $ 295 (Ky.) Where there was more evidence committed with evil intent, with legal malice, that the jerk of a train was only an ordinary and without reasonable ground for believing the movement than that it was violent and unneces-act to be lawful or legal justification, and is sary, the court should have instructed upon the malicious" if committed in a state of mind question of assumed risk.--Cincinnati, N. 0. & showing a heart fatally bent on mischief.-Id. T. P. Ry. Co. v. Goldston, 161 S. W. 246. If a maiming occurred under the immediate

$ 295 (Tex.Civ.App.) When plaintiff seeks a influence of sudden passion aroused by adequate recovery upon the issue of discovered peril as cause, such as an assault, the issue of simple well as upon other theories, charges on assum- assault by accused would not be in the case, ed risk should be limited to be considered only though accused only intended to commit a simupon the other theories, as such defense can- ple assault; Pen. Code 1911, art. 50, providnot be urged to defeat liability arising by reasoning that if one intending to commit a misdeof discovered peril.-International & G. N. R. meanor shall, through mistake, commit a felony Co. v. Walters, 161 S. W. 916.

he shall receive the lowest punishment for the $ 296 (Ky.) An instruction submitting the is. felony.-Id. sue of contributory negligence must charge that $ 2 (Mo.) Self-defense may be available to a it was the duty of the brakeman to perform charge of mayhem.-State v. Bunyard, 161 S. his duties in a reasonably safe way and exercise W. 756. the care of an ordinarily prudent person under 84 (Mo.) An information which alleged that like circumstances.-Nashville, C. & St. L. R. accused feloniously assaulted prosecutor with & Co. v. Banks, 161 S. W. 554.

knife, and of his malice aforethought cut and $ 296 (Tex.Civ.App.) In car repairer's action slit the nose of prosecutor, with intent to maim for personal injuries, instruction as to duty of and disfigure him, sufficiently charges the of defendant's employés after discovering his peril fense of mayhem, under Rev. St. 1909, $ 4480. held not without support in the evidence.-In-1-State v. Bunyard, 161 S. W. 756.

nished.

$ 6 (Mo.) Where the evidence raises the is. I held, that his lessee was an assignee of the sue of self-defense, the court must as required original lease and not a sublessee.-- Pennsylvania by Rev. St. 1909, § 5231, submit it to the jury. Mining Co. v. Bailey, 161 S. W. 200. -State v. Bunyard, 161 S. W. 756.

An assignee of a mining lease was liable to An instruction that, if accused sought or the original lessor for the stipulated royalty.-Id. brought on the difficulty or voluntarily entered

8 83 (Mo.App.) Mining licensees, though havinto it, he could not justify himself under the ing no estate or interest in the land, mines, or law of self-defense is erroneous, for not stating minerals, held to have substantial rights which the intention with which accused entered into the law would protect, and of which they could the difficulty.-Id.

not be deprived at will or arbitrarily, in the On a trial for mayhem, an instruction on absence of any substantial violation by them of self-defense held unauthorized under the evi- the license.-Ġates v. Steckel, 161 S. W. 1185. dence.-Id,

8 84 (Mo.App.) Under a license to mine on On prosecution for mayhem, in an assault on

certain lands, held that there had been no such a school-teacher who was conducting an enter: substantial violations of the terms and conditainment in the schoolhouse, the court must tions thereof by the licensees as justified the lipresume, in the absence of a contrary showing, censors in declaring a forfeiture, and a court that Rev. St. 1909, $ 10,784, had been complied of equity would therefore set the forfeiture with, and that the teacher had the right to aside.-Gates v. Steckel, 161 S. W. 1185. eject disturbers.--Id.

Where mining licensors, although aware that

licensees were not doing continuous mining, MAYOR.

made no complaint until at least a week after See Contempt, & 36.

the resumption of active mining operations,

held that they could not then declare a forfeiMEASURE OF DAMAGES.

ture for the past default.-Id. See Damages, 88 105–124.

MISTAKE.
MECHANICS' LIENS.

See Account Stated, § 12; Adverse Possession,

8 65; "Bills and Notes, & 102; Deeds, 8 69; See Bankruptcy, § 192; Subrogation, $ 24.

Reformation of Instruments, 88 19, 36, 45;

Sales, & 36.
II. RIGHT TO LIEN.

MODIFICATION. (B) Services Rendered and Materials Fur

See Contracts, 88 238–245. $ 47 (Ky.) One who rented a hoisting engine to contractors was not entitled to a lien for

MONEY LENT. such rent, under Ky. St. § 2463, giving one who furnishes "materials" a lien.-Henry Bickel Co. action.Gahren, Dodge & Maltby v. Farmers'

$ 6 (Ky.) A petition held to state a cause of v. National Surety. Co., 161 S. W. 1113.

Bank of Estill County, 161 S. W. 1127. III. PROCEEDINGS TO PERFECT.

MONEY RECEIVED. $ 132 (Tenn.) Under a building contract, including the installing of a sprinkler system, to See Payment, $8 82-89;. Pleading, $ 367 ; be approved by the State Inspection Bureau, Sales, § 391; Vendor and Purchaser, $ 343. the building is not completed, as regards the 81 (Mo.App.) An action for money had and time for filing notice of lien, till the work re- received lies for money which in equity and quired by the bureau on its inspection is done. right defendant ought to refund, for money paid -Harrison v. Knaffi, 161 S. W. 1003.

by mistake, or got through imposition, express or Within the statute giving materialmen 30 implied, or an undue advantage taken of plaindays from completion of the work provided by tiff's situation, contrary to laws made for the the contract within which to file notices of protection of persons under the circumstances, liens, they have 30 days from completion of the and is favored, -St. Louis Sanitary Co. v. Reed, work as enlarged by amendment of the contract 161 S. W. 315. between the owner and contractor, though part of their material was furnished before such money had and received, which defendant claim:

$ 17 (Mo.App.) The petition in an action for amendment and all of it was for the work pre-ed was paid him for services, should have set viously provided for by the contract.-Id.

forth the relation of the parties and the con

tract or wrong out of which the cause of acMEETINGS.

tion arose; it not being one on an account.-St. See Schools and School Districts, i 56.

Louis Sanitary Co. v. Reed, 161 S. W. 315.

$ 18 (M0. App.) In an action for money had MEMORANDA.

and received, which defendant claimed was paid

him by plaintiff for his services, it was error to See Witnesses, 8 257.

hold that the burden at the outset and by the

pleadings was on defendant.-St. Louis Sanitary MENTAL CAPACITY.

Co. v. Reed, 161 S. W. 315.
See Wills, 88 47-53, 329.

MONOPOLIES.
MENTAL SUFFERING.

I. VALIDITY AND EFFECT OF See Telegraphs and Telephones, $8 68, 71, 74.

GRANTS.

82 (Tenn.) Under Const. art. 1, § 22, forMINES AND MINERALS.

bidding perpetuities and monopolies, the LegislaSee Master and Servant, $$ 95, 199, 217, 243, ture cannot confer upon a municipality the 276, 281; Partition, $ 114; Vendor and Pur power to grant an exclusive franchise for the

conduct of a business which is of common right. chaser, $ 175.

-Noe v. Town of Morristown, 161 S. W. 485. II. TITLE, CONVEYANCES, AND

II. TRUSTS AND OTHER COMBINACONTRACTS.

TIONS IN RESTRAINT (C) Leases, Licenses, and Contracts.

OF TRADE. 8 64 (Ark.) Where mining lessee leased the $ 12 (Tex.Civ.App.) A contract by which property for a term extending beyond his term, plaintiff, in consideration of the execution of

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes seo same topic and section (8) NUMBER

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