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is for the sole benefit of the owner and furnishes ( hospital district in B. county, held to provide no basis for subrogation by an unpaid material- taxation for a “public purpose" within Const. man.-Russellville Water & Light Co. v. Sauer- art. 10, $ 3.-Board of Com'rs of Tuberculosis man, 161 S. W. 502.

Hospital Dist. of Buchanan County v. Peter,

161 S. W. 1155. SUFFERANCE.

$ 47 (Ky.) Under Ky. St. 88 4077-4080, the See Landlord and Tenant, g 120.

amount assessed by the state board as a fran

chise tax against a street railroad held in part SUMMARY PROCEEDINGS.

double taxation, and illegal.City of Newport

V. South Covington & C. St. Ry. Co., 101 S. See Landlord and Tenant, $ 306.

W. 222.

III. LIABILITY OF PERSONS AND
SUMMONS.

PROPERTY.
See Process.

(B) Corporations and Corporate Stock

and Property. SUNDAY.

$117 (Ky.) A franchise tax is not a license See Telegraphs and Telephones, $ 38.

or occupation tax, but simply an ad valorem

or property tax.-City of Newport v. South SUPERSEDEAS.

Covington & C. St. Ry. Co., 161 S. W. 222.
See Appeal and Error, 88 467, 1043.

V. LEVY AND ASSESSMENT.
SUPPORT.

(A) Levy and Apportionment. See Husband and Wife, $8 283, 297.

$ 301 (Tex.Civ.App.) Where the burden of

taxation is authorized to be laid upon the propSUPPRESSION.

erty of citizens under certain conditions, a com

pliance with all such conditions is essential to See Depositions, 8 83.

the validity of the tax.–Cochran v. Kennon,

161 S. W. 67. SUPREME COURTS.

(G) Review, Correction, or Setting Aside See Courts, $ 231.

of Assessment.

$ 463 (Ky.) Under Ky. St. 88 4077-4080, and SURCHARGING.

4083, relating to franchise taxes a railroad See Account Stated, &$ 12, 19.

claiming an overassessment of its franchise tax

in a city was not required to apply within 30 SURETYSHIP.

days to the state board for correction, since

before the valuation became final it had no See Principal and Surety.

means of knowing what the assessment would

be.-City of Newport v. South Covington & C. SURFACE WATERS.

St. Ry. Co., 161 S. W. 222. See Waters and Water Courses, &$ 118, 126.

XI. TAX TITLES,

(B) Tax Deeds. SURPLUSAGE.

8 776 (Mo.) Tax deed construed and held only See Indictment and Information, $ 119; Plead- to convey a part of the tract assessed, and on ing, 35.

which the tax lien was imposed.-Davidson_v. SURRENDER.

Laclede Land & Improvement Co., 161 S. W.

686. See Insurance, 88 239, 241.

XIII. LEGACY, INHERITANCE, AND
SURVIVAL.

TRANSFER TAXES.
See Abatement and Revival, 8 39.

$ 867 (Ky.) Under Ky. St. § 4281a, held, that personalty of a nonresident intestate, situated

in this state at the time of her death and deSURVIVING PARTNERS.

scending to her heirs, was subject to an inherSee Partnership, § 246.

itance tax.-Barclay's Trustee v. Commonwealth,

161 S. W. 510. TAXATION.

8 893 (Ky.) An administrator of estate of de

ceased nonresident held not entitled to settle the See Abatement and Revival, $ 22; Adverse Pos- question of liability of the estate to inheritance

session, 8831, 79, 95; Appeal' and 'Error, 8 tax by proceeding against the sheriff.-Barclay's 1056; Counties, & 190; Levees, $ 25;

Licens- Trustee v. Commonwealth, 161 S. W. 510.
es; Municipal Corporations, $$ 408–586;
Schools and School Districts, 88 97–107.

TEACHERS.
L NATURE AND EXTENT OF POWER See Schools and School Districts, & 135; Stat-
IN GENERAL.

utes, & 141.
8 29 (Mo.) Const. art. 10, § 1, held a limita-
tion on the sources of the taxing power, pre- TELEGRAPHS AND TELEPHONES.
cluding the Legislature from conferring such
power on a hospital district which could not be See Appeal and Error, 88 882, 1175; Evidence,
regarded as a municipal corporation.-Board $ 5; Mandamus, $ 98.
of Com’rs of Tuberculosis Hospital Dist. of Bu-
chanan County v. Peter, 161 S. W. 1155.

I. ESTABLISHMENT, CONSTRUCTION,

AND MAINTENANCE. II. CONSTITUTIONAL REQUIRE

$10 (Ky.) Under Ky. St. $$ 4306, 4679b, a telMENTS AND RESTRICTIONS.

ephone company, without first having acquired § 38 (Mo.) Laws 1911, p. 130, $ 8, as amend- a franchise by purchase, as required by Const. $ ed by laws 1913, p. 143 et seq., providing for 161, had no right to construct and operate its the levy of a tax to support the tuberculosis' line along the highways of a county.-Christian

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (3) NUMBER

161 S.W.-82

Todd Telephone Co. v. Commonwealth, 161 S. fectual. Kirby's Dig. $ 7947.-Western Union W. 543.

Telegraph Co. v. Hearn, 161 S. W. 1025. Under Const. & 164, a telephone company can $ 54 (Ark.) A limitation of the company's linot occupy the highways of a county for its tel ability, contained in a telegraph blank, to the ephone line without first making compensation sum of $50, held not binding on the sender.-. therefor by bidding for a franchise.-Id.

Western Union Telegraph Co. v. Alford, 161 S.

W. 1027. II. REGULATION AND OPERATION.

§ 55 (Ark.) If the initial company does not op8 26 (Ky.) The fiscal court of a county, being erate a telegraph line to destination, a sender authorized to prohibit the use of the highways by has the right to select the route beyond such a telephone company without a franchise, was company's last receiving office.-Western Union authorized not only to regulate the construction Telegraph Co. V. Alford, 161 S. W. 1027. and maintenance of the line but to regulate Where, though the initial telegraph company's rates and impose restrictions to prevent discrim- lines do not extend to the destination of a mesination.—Christian-Todd Telephone Co. v. Com- sage, there is a continuous telegraphic route, monwealth, 161 S. W. 543.

the telegraph company is liable for resulting 8 34 (Ark.) Kirby's Digest, 8 7948, authoriz- damages if it transmits to final destination by ing recovery of penalties from a telephone com

telephone.-Id. pany for discrimination, is merely declaratory 8 65 (Tex.Civ.App.) A petition, in an action of the common law for the purpose of prevent for delaying a message, which alleges that the ing discrimination, with penalties added.-Mont-company accepted the same for delivery and also gomery v. Southwest Arkansas Telephone Co., the sender's guaranty of payment of any special 161 S. W. 1060.

charges for delivery, held to set forth a special While telephone companies may in good faith contract.-Western Union Telegraph Co. v. Kerdetermine the limits within which they will sten, 161 S. W. 369. carry on their business, they are obligated to 8 66 (Ark.) Where a telegraph company negli. give the same service on the same terms to all gently delay the transmission of a message ofwho apply therefor, without partiality or un- fering plaintiff employment at will, it cannot reasonable discrimination.-Id.

be presumed that the employment would conA telephone company held not liable for the tinue for any given length of time, so as to penalties prescribed by Kirby's Dig. $ 7948, for entitle plaintiff to a recovery for his loss durrefusal to continue giving telephone service, un- ing that period, and hence evidence of the profder its contract to furnish service to a rural | its he would have made had he obtained the line, to a person who moved from his residence position is inadmissible.-Fulkerson v. Western on the rural line to a residence within the city Union Telegraph Co., 161 S. W. 168. limits, and connected his new residence with the

$ 66 (Ark.) Defendant telegraph company held rural line.-Id.

to have the burden of excusing its delay.$ 37 (Ark.) message addressed to two per- Western Union Telegraph Co. y. Hearn, 161 S. sons jointly may be delivered to either, and a W. 1025. delivery to one is a delivery to the other.Western Union Telegraph Co. v. Westbrook, 161 liver message, which was telephoned to M., the

8 66 (Ark.) In an action for failure to de S. W. 1062.

ultimate destination, though it could have been $ 37 (Tex.Civ.App.) In the absence of a special transmitted by telegraph, evidence that many contract, a company is not liable for failure to farmers were in M. about that time was admissideliver a message beyond the limits of the city ble to corroborate evidence of the operator at M. of destination or beyond the free delivery lim- that if the message had been received he would its thereof.-Western Union Telegraph Co. v. have found means of getting the information to Kersten, 161 S. W. 369.

sendee.-Western Union Telegraph Co. v. Al. 838 (Ark.) Where a telegraph company ac ford, 161 S. W. 1027. cepted a death message for transmission on Sun $ 66 (Tex.Civ.App.) In an action for delay in day, it cannot excuse its failure solely on a the delivery of a message announcing the death showing that the lineman refused to repair a of the sendee's brother, evidence held not to susdefect on that day.-Western Union Telegraph tain a finding that he would have attended the Co. v. Hearn, 161 S. W. 1025.

funeral had the telegram been promptly deliver8 38 (Ark.) person living a mile and a half ed.- Western Union Telegraph Co. v. Kersten, from a town having a population of less than 161 S. W. 369. 5,000 is beyond the free delivery limits of a

$ 68 (Tex.Civ.App.) A mistake in substituting telegraph company establishing free delivery “Dallas” for "Galveston" as the sender's adlimits within a radius of half a mile from its dress, by reason of which no answer was reoffice, and a delivery of a message by promptly ceived to a telegram wiring for money and placing it in the post office addressed to the ad- stating that the sender's wife had just died, was dressee is sufficient.-Western Union Telegraph the proximate cause of mental anguish to the Co. v. Westbrook, 161 S. W. 1062. Where the addressee of a message resided be- his wife because of lack of money. - Western

sender, resulting from inability to properly bury yond free delivery limits, and the messenger Union Telegraph Co. v. McFarlane, 161 S. looked around the town to find some one by W. 57. whom he could send the message and, failing to do so, deposited it in the post office and advised when a message was sent, requesting money im

Though a telegraph company was not told, the postmaster of the facts and the contents of mediately and stating that plaintiff's wife bad the message, the company was not guilty of any just died, that plaintiff desired the money for breach of duty.-Id.

Where the sender of a message was informed embalming his wife, it was sufficiently informed of the fact that the addressee resided beyond probably cause plaintiff mental anguish from in

that its failure to properly transmit would free delivery limits and expressed, satisfaction ability to properly embalm his wife on the nonwith the mailing of the message, the company receipt of the money.-Id. did not breach its duty, notwithstanding its rule for special messenger service on the sender guar $71 (Tex.Civ.App.) Evidence, in an action anteeing the charges therefor.-Id.

for damages for mental anguish, etc., through 8 39 (Tex.Civ. App.) The substitution of “Dal- failure to deliver a telegram requesting money, las” for “Galveston,” Tex., as the sender's ad- held not to show that a verdict for plaintiff for dress, was negligence entitling the sender to $1,500 was excessive.-Western Union Teledamages, if no answer was received because of graph Co. v. McFarlane, 161 S. W. 57. such mistake.-Western Union Telegraph Co. $ 73 (Ark.) Where a telegraph company negliV. McFarlane, 161 S. W. 57.

gently delayed the transmission of an intelligible $ 54 (Ark.) A stipulation on a telegraph blank business message, disclosing on its face that it limiting damages for a delay to $50 held inef was of importance, it is liable at least for nom

on

inal damages, and it is improper to direct a ver- Tenant, & 120; Logs and Logging, $ 3; Masdict in its favor.-Fulkerson v. Western Union ter and Servant, $20; Mechanics Liens, & Telegraph Co., 161 S. W. 168.

132; Mortgages, 463 ; Partition, $ 44; Prin$ 73 (Ark.) In an action for damages for de- cipal and Surety, $8 46, 104, 108; Sales, $ lay in transmitting a death message, evidence of 334; Statutes, & 253; Taxation, $ 463. negligence held sufficient to go to the jury.Western Union Telegraph Co. v. Hearn, 161 s.

TITLE. W. 1025.

See Attachment, $ 308; Execution, $ 275; $74 (Tex.Civ.App.) An instruction the question of mental anguish resulting from plain

Landlord and Tenant, $$ 55, 61; Limita

tion of Actions, $ 47; Logs and Logging, $ tiff's inability to properly embalm and bury his

3; Marriage, 8 40; Partition, $ 13; Partner wife as a result of failing to receive an answer

ship, $ 246; Quieting Title; Replevin, § 8; to a telegram held not affirmatively erroneous

Stipulations, or misleading.- Western Union Telegraph Co.

14; Taxation, § 776; Tres

pass to Try Title; Trial, § 397; Trusts, 8 v. McFarlane, 161 S. W. 57.

31; Vendor and Purchaser, 88 54, 79, 239, 8 74 (Tex.Civ.App.) An instruction, in an ac- 242. tion for delay in the delivery of a message, held objectionable as imposing on the company the

TOOLS. absolute duty to deliver the message in a reason

See Master and Servant, 88 101-129. able time.- Western Union Telegraph Co. v. Kersten, 161 S. W. 369.

TORTS. $ 79, (Tex.Cr.App.) The expression "son of a bitch" is vulgar, obscene, or indecent language See Assault and Battery, 88 2–35; Carriers, 88 over the telephone, within Penal Code 1911, art. 132, 134, 280-366; Conspiracy; Electricity, 471.-Darnell v. State, 161 S. W. 971.

§ 16; Executors and Administrators, &_119;

Fraud ; Libel and Slander; Malicious ProseTENANCY.

cution; Master and Servant, $8 315, 319; Mu

nicipal Corporations, 88 745-821; Negligence; See Landlord and Tenant.

Nuisance; Trover and Conversion.
TENANCY IN COMMON.

81 (Ky.) One is not liable for injurious con

sequences incidental to the performance_of a See Partition, 88 9, 13, 85.

lawful act in a proper manner.-Gott v. Berea II. MUTUAL RIGHTS, DUTIES, AND College, 161 s. W. 204. LIABILITIES OF COTENANTS.

$10 (Ky.) Even if a college rule prohibiting

students from entering eating houses in the 8 15 (Mo.) The mere possession of land by a town, not controlled by the college, was unreacotenant was not sufficient to compel his coten- sonable, one who ran a restaurant near the ants to bring ejectment before maintaining a campus, which was largely patronized by stusuit in partition.-Boothe v. Cheek, 161 S. W. dents but who had no children in the school, 791.

could not recover damages for injury to his 8 15 (Mo.) To establish adverse possession in business resulting from enforcement of the favor of one cotenant as against another there rule.-Gott v. Berea College, 161 S. W. 204. must be such outward acts of exclusive ownership as to impart notice of adverse possession

TOWNS. to other cotenants, but actual notice is not necessary.-Hynds v. Hynds, 161 S. W. 812.

See Municipal Corporations; Schools and There is a rebuttable presumption that the School Districts. possession of one cotenant is the possession of all, and the burden is on a cotenant seeking to

TRADE UNIONS. rebut it to do so by cogent proof.-Id.

$ 28 (Ky.) Each tenant in common is equally See Conspiracy, $ 19; Injunction, $$ 101, 114. entitled to use the common property, and neither is entitled to the exclusive use, enjoyment,

TRANSCRIPTS. and possession thereof.—Derrington v. Childers, See Appeal and Error, 88 625, 635. 161 S. W. 216.

8 38 (Ky.) One joint owner cannot maintain forcible entry against his cotenant.-Derrington

TREATIES. v. Childers, 161 S. W. 216.

See Adverse Possession, $ 7. TESTAMENTARY CAPACITY.

TREES.
See Wills, $8 47-53, 329.

See Covenants; Logs and Logging.
TESTAMENTARY POWERS.

TRESPASS.
See Powers; Wills, $$ 6, 693.

See Master and Servant, 8 315; Railroads, 88 THEATERS AND SHOWS.

358, 359. See Commerce, & 16; Monopolies, $ 12.

TRESPASS TO TRY TITLE.
THEFT.

See Adverse Possession, 88 85, 115; Appeal

and Error, 88 877, 1027; Evidence, § 213; See Larceny.

Husband and Wife, $ 270'; Judgment, $ 693; TIMBER.

Sequestration, $20; Stipulations, 14. See Covenants; Logs and Logging.

I. RIGHT OF ACTION AND DEFENSES. TIME.

8 6 (Tex.Civ.App.) In an action to enjoin the

enforcement of a judgment upon land which See Account Stated, 8 12; Appeal and Error, plaintiff claimed was her individual estate, a

$$ 197, 395, 653, 1127; Brokers, $8 54, 60; deed not executed in favor of plaintiff until Carriers, $ 287; Contracts, $ 216; Divorce, 8 after the institution of the injunction suit, and 181; Executors and Administrators, § 362; not referred to in the pleadings, is inadmissible. Justices of the Peace, $ 164; Landlord and -Childress v. Robinson, 161 S. W. 78.

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

case

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II. PROCEEDINGS.

II. DOCKETS, LISTS, AND CALEN.

DARS. $ 32 (Tex.Civ.App.) A petition in trespass to try title, which averred that defendants based

SIT (Ky.) Under Civ. Code Prac. § 10, sub

to the their claim of sole title on a deed executed by sec. 4, permitting transfer of a plaintiffs as members of a firm, which includ equity docket if it involves complicated aced only the firm property, and that the land was

counts, an action for the value of services, the individual property of plaintiffy, states a

etc., was properly transferred where there were cause of action.—Dye v: Livingston Lumber Co., more than 400 separate items of charges and 161 S. W. 53.

countercharges.-Garvey v. Garvey, 161 S. W.

526. Counts of a petition held to state no cause of action.-Id.

A case should be transferred to the equity

docket, under Civ. Code Prac. $ 10, subsec. 4, 8 35 (Tex.Civ.App.) Where defendants stipu- in all cases where there is difficulty in adjust lated that plaintiffs held whatever title A. ing accounts, or the issues are so numerous and had at his death, and he died in 1870, evidence complicated 'as to make a jury trial impractito show acquisition of adverse title thereafter cable.-Id. is inadmissible.-Adams v. Wm. Cameron & Co., 161 S. W. 417.

IV. RECEPTION OF EVIDENCE. 8 38 (Tex.Civ.App.) In trespass to try title, plaintiff must establish prima facie his title (C) Objections, Motions to Strike Out, and

Exceptions. and right to recover, before the defendant is required to make any defense.—Childress v. objection, testified to a matter pertinent to the

$75 (Tex.Civ.App.) Plaintiff having, without Robinson, 161 S. W. 78.

issue, it was not error to permit another wit. 838 (Tex.Civ.App.) A plaintiff has the bur- ness for plaintiff to testify to the same matter. den of establishing the location of the ancient -Lattimore v. Puckett & Wear, 161 S. W. 951. grant under which he claims, so as to include

$ 82 (Ark.) On objection to evidence, the the land sued for.-Campbell' v. Gibbs, 161 s. court's attention should have been called to the W. 430.

particular objection.- Western Union Tele8 41 (Tex.Civ.App.) Evidence held sufficient graph Co. V. Alford, 161 S. W. 1027. to support a conclusion that defendant's grantor $ 84 (Ark.) Ordinarily a general objection to by deed or settlement had acquired the title evidence is sufficient to raise the question of its of two of his brothers to their interest in the competency.-Western Union Telegraph Co. F. land.-Le Blanc v. Jackson, 161 S. W. 60. Alford, 161 S. W. 1027. Evidence as to talk in the family that defend

$ 84 (Tex.Civ.App.) In a personal injury acant's grantor had acquired the title of his tion by a railroad brakeman, evidence tending brothers held admissible as bearing upon the to show his freedom from contributory negliknowledge of the grantor's claim on the part gence held admissible on general objection, as of the brothers' heirs.--Id.

against the contention that it showed negli8 41 (Tex.Civ.App.) In trespass to try title gence of defendant not pleaded.- Ft. Worth to recover land under ancient grants, evidence Belt Ry. Co. v. Cabell, 161' S. W. 1083. held to sustain a finding that the land claimed $ 89 (Tex.Civ.App.) A collateral oral contract had not been located and surveyed on to pay the debt of another being within the ground, so as to embrace the land claimed by statute of frauds (Rev. Civ. St. 1911, art. 3965), plaintiff.-Campbell v. Gibbs, 161 S. W. 430. testimony by plaintiff that defendant made such 841 (Tex.Civ.App.) In trespass to try title debtedness on defendant's part and should be

an agreement is incompetent to show an inwherein an intervener and certain of the de: stricken.- Johnson v. Tindall, 161 S. W. 401. fendants claimed under the ten-year statute of limitation by reason of improvements and pos services were rendered to defendant's married

8 95 (Tex.Civ.App.) Testimony that, after the session by their ancestor, evidence held not to daughter, defendant orally promised to pay if show that their ancestor had conveyed 160 the daughter's husband did not, while objecacres to a third person.-Mixon v. Wallis, 161 tionable because showing a contract in contraS. W. 907.

vention of the statute of frauds, was properly

received over objection that the promise, having TRIAL.

been made after the services were rendered and

not being in writing, was not binding on de See Adverse Possession, 8115; Appeal and fendant.-Johnson v. Tindall, 161 S. W. 401.

Error, $8 207, 216, 231, 232, 265, 499, 688, $ 105 (Ark.) Evidence as to the contents of
699, 714, 719, 742, 743, 835, 842, 843, 882, a recorded deed could be considered though the
927, 989-1012, 1031, 1033, 1060, 1064-1070, original deed was in existence, where admitted
1170, 1171; Attachment, '8 311'; Bills and without objection.-Felker v. Rice, 161 S. W.
Notes, $ 537; Boundaries, 88 40, 41; Bro- 162.
kers, § 88; Carriers, 88 320, 321, 347; Con-
tinuance; Contracts, $$ 142, 323; Costs; V. ARGUMENTS AND CONDUCT OF
Criminal Law, 88 619-885, 1037–1064, 1090,

COUNSEL.
1097, 1153, 1159, 1163, 1165, 116612, 1171, $ 106 (Tex.Civ,App.) The scope of the argu-
1172; Damages, 88 208, 216, 221; Death, $ment of counsel rests largely in the discretion
101 ; Deeds, $ 78; Dismissal and Nonsuit; of the trial court.—Texas Midland R. R. .
Estoppel, $ 119; Homicide, 88 282–313, 340; Wiggins, 161 S. W. 445.
Insurance, 88 668, 825; Intoxicating Liquors,
8_239; Jury; Justices of the Peace, 88 173,

VI. TAKING CASE OR QUESTION 174; Libel and Slander, $ 7; Marriage, $ 52;

FROM JURY. Master and Servant, &$ 285-296; Mayhem, $ 6; Municipal Corporations, & 821; Navigable (A) Questions of Law or of Fact in GenWaters, & 26; Negligence, 88 101, 136, 141; New Trial ; Partnership ; Physicians and Sur- $ 136 (Tex.Civ.App.) Where there is no amgeons, $ 24; Principal and Surety, $ 162; Rail- biguity in a written contract. it is the duty roads, $8 282, 337, 338, 350, 351, 400, 446, of the court to construe it and to instruct the 447; Rape, &$ 14, 59; Reference; Release, jury what its legal effect is.-Conn v. Rosamond, 58; Robbery, s$ 27, 28; Sales, $$ 53, 446; 161 S. W. 73. Seduction, $ 50; Sheriffs and Constables,

$ 139 (Mo.App.) In an action against several 153; Stipulations; Street Railroads, 88 117, defendants, where the evidence wholly failed 118; Telegraphs and Telephones, $$ 73, 74; to show the liability of some of them, their deTrespass to Try Title; Venue, $8 36–72; murrer to the evidence should be sustained.-Wills, 88 324, 329; Witnesses, 8 317.

Livingston v. City of St. Joseph, 161 S. W. 304.

the

eral.

eral.

two

or

more

$ 139 (Tex.Civ.App.) The court should not di- , not hear it, held properly refused.—Johnson v. rect a verdict on an issue of fact unless the evi- Springfield Traction Co., 161 S. W. 1193. dence shows that reasonable men could not

8 194 (Tex.Civ.App.) In a brakeman's action draw a different conclusion.-Zimmerman

v. for injuries by slipping from a step of the tendBaugh, 161 S. W. 943.

er, instruction as to the dangerous condition $ 141 (Mo.App.) The court should declare the of the step and as to defendant's negligence in legal effect of uncontradicted facts.-Russell v. maintaining it held not on the weight of the St. Louis & S. F. R. Co., 161 S. W. 638. evidence.-St. Louis Southwestern Ry. Co. of

Texas v. Martin, 161 S. W. 405. (D) Direction of Verdict.

§ 194 (Tex.Civ.App.) In action for price of § 178 (Mo.App.) In passing on a motion for lumber which defendant claimed to have rejecta peremptory instruction for defendant, the ed, where his pleading and evidence showed the court will consider the evidence in the light use of a small quantity of the lumber by mismost favorable to plaintiff.–Marts v. Powell, take, instruction that he could not accept in 161 S. W. 871.

part and reject in part held properly refused
as on the weight of the evidence.-Continental

Lumber & Tie Co. v. Miller, 161 S. W. 927.
VII. INSTRUCTIONS TO JURY.
(A) Province of Court and Jury in Gen-

(B) Necessity and Subject-Matter. $ 191 (Mo.App.) Where plaintiff's horse while grounds of negligence are alleged as the basis

8 203 (Tex.Civ.App.) Where being driven by S. was killed on defendants of the plaintiff's action, and the court submits crossing, an instruction that defendant was lia: the case only upon one of them, the other ble if the property was destroyed on account ground of negligence is thereby withdrawn from of the joint or concurrent negligence of both the jury's consideration, and the defendant is defendant and S. held objectionable as assuming that the damage was caused by such con- -St. Louis Southwestern Ry. Co. of Texas v.

not entitled to have any special charge thereon. current negligence. --Fife v. Chicago & A. R. Martin, 161 S. W. 405. Co., 161 S. W. 300.

$ 217 (Ark.) A cautionary instruction as to $ 191 (Mo.App.) In an action for services, a request to charge that, though defendant told the right to sue in a county for an injury ocplaintiff to take charge of certain mules, that the court's attention was called to a newspa

curring in another county held proper, where statement would not constitute a contract of employment on defendant's part individually per article published as to the trial of cases held properly refused.—Hatfield v. Swift, 161 brought in counties other than those where the S. W. 359.

injuries complained of occurred.-St. Louis, I.

M. & S. R. Co. v. Thurman, 161 S. W. 1054. $ 191 (Mo.App.) An instruction allowing plaintiff commissions for selling oil for defend

$ 219 (Mo.App.) An instruction, on a trial of ant, which was required to be sold at the mar.

an interplea filed by a third person claiming ket price, that, if it was not agreed that plain- goods levied in attachment, held defective for tiff could allow rebates, defendant could refuse failing to state what character of frauds defeat to permit him to give rebates, etc., held errone

a sale within Rev. St. 1909, $8 2881, 2887, ous as assuming that an agreement relating to making a sale of personalty without delivery rebates, made contemporaneously with the writ- void as to creditors.-Keet-Rountree Dry Goods ten contract, was valid.-Goller v. Henseler

Co. v. Hodges, 161 S. W. 862.
Mercantile Oil & Supply Co., 161 S. W. 584. $ 219 (Tex.Civ.App.) The court need not de-

$ 191 (Mo.App.) In an action for injuries fine to the jury the meaning of the words
from a collision, an instruction that if the jury would hold water” in a contract for construc-
believed that the motorman saw, or by ordina- tion of a dam; they being of common use and

Puckett & ry care could have seen, the plaintiff's wagon in easily understood. -Lattimore dangerous nearness to the track, held not ob- | Wear, 161 S. W. 951. jectionable, as assuming that the car was "in dangerous nearness thereto” without the qualifi

(C) Form, Requisites, and Suficiency. cation, "If you so find.”—Johnson v. Spring

$ 228 (Tex.Civ.App.) An instruction, in an field Traction Co., 161 S. W. 1193.

action for damages tó a piano in transit, that $ 191 (Tex.Civ.App.) In contractor's action if it was injured by defendant's negligence the for damages from refusal to permit him to per- jury should find for plaintiff the difference in form, instruction on measure of damages as to its cash market value in the condition in wbich considering irregularity of the job, distance it was delivered to it if delivered in good confrom the contractor's home, and other expenses, dition, and “said piano should have arrived in held properly refused as assuming that such at Dallas, the difference in” its cash market matters were parts of the expense of perform- value in the condition in which in did arrive at ance.-Waterman Lumber & Supply Co. v. Dallas, held not erroneous because of the quoted Holmes, 161 S. W. 70.

part.-Missouri, K. & T. Ry. Co. of Texas v. $ 191. (Tex.Civ.App.) In action for injuries Western Automatic Music Co., 161 S. W. 380. to property in crossing accident, an instruction

$ 229 (Ky.) In a personal injury action, held properly refused, even if otherwise proper, where one instruction correctly stated the rule because it made driver's failure to heed warn- as to damages, it was not necessary in another ing negligence per se, whether or not an ordi- instruction, on the question of defendant's lianarily prudent person would have observed the bility, to restate the rule.-Stearns Coal & warning.- Texas Midland R. R. v. Nelson, 161 Lumber Co. v. Tuggle, 161 S. W. 1112. S. W. 1088.

$ 229 (Tex.Civ.App.) Where the evidence is § 194 (Ark.) In an action for injuries while so conflicting as to authorize the jury to find attempting to board a moving, train, instrue for either party, instructions so emphasizing tion as to plaintiff's right to rely on the assur. and repeating the theory of plaintiff's cause ance of defendant's agent on the train held not that they amount to a peremptory instruction objectionable as taking the issue of contributory for him are erroneous.-Risinger v. Sullivan, negligence from the jury.–St. Louis, I. M. & 161 S. W. 397. S. Ry. Co. v. Green, 161 S. W. 148.

$ 233 (Ky.) The instructions must be suffi$ 194 (Mo.App.) An instruction that positive ciently concrete to bring before the jury the evidence of witnesses, that they heard the gong law of the case, and instructions which do not of a street car was entitled to greater weight present a party's theory of the case are insuffithan negative evidence of witnesses who said cient.-Nashville, C. & St. L. R. Co. v. Banks, that they were in a position to hear it but did | 161 S. W. 554.

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

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