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Carriers

201 SOUTHWESTERN REPORTER

senger at railroad crossing, evidence that on prior eastward trip car was delayed ten minutes on account of controller dropping off, was inadmissible to prove negligence of conductor in failing to go ahead at crossing on westward trip to look for train.-Bergfeld v. Dunham, 201 S. W. 640.

In action against receivers of street railway for injuries to passenger at railroad crossing, evidence that car on prior eastward trip was delayed by controller dropping off was not admissible to show delay had thrown car behind time so that crew were too hurried to stop at crossing to look for train.-Id.

318(2) (Mo.) Evidence held not to show negligence of carrier in constructing and maintaining its freight yards, where it provided safe place for entering caboose, notwithstanding unsafe place could be used by prospective passenger on freight train.-Hamilton v. Pryor, 201 S. W. 550.

318(3) (Tex.Civ.App.) In passenger's action for personal injury when back seat gave way and his foot was caught under seat in front of him, evidence held to authorize finding of negligence in that seats had not been properly inspected.-Missouri, K. & T. Ry. Co. of Texas v. Rogers, 201 S. W. 417.

320(15) (Mo.) Whether conductor and motorman of street railway negligently failed properly to secure their car on slightly inclined track before leaving it, after colliding with brewery wagon, held for jury.-Delfosse v. United Rys. Co. of St. Louis, 201 S. W. 860.

or alarm was caused by negligence of railway. appearance of danger was imminent.-Delfosse if apprehension of peril was reasonable, and if v. United Rys. Co. of St. Louis, 201 S. W. 860. 382 (6) (Tex. Civ.App.) Mere retention in (F) Ejection of Passengers and Intruders. employment by railroad company of conductor, after knowledge he has wrongfully ejected passenger, does not require allowance of exemplary damages.-Texas & N. O. R. Co. O'Connor, 201 S. W. 437.

V.

conductor dark 382 (7) (Tex.Civ.App.) Where ejected aged man, who had a valid ticket, at a point six miles from the station on a night, in a driving rain, and he suffered mental anguish, fear, and was threatened with pneumonia, though not confined, verdict of $2,000 was excessive, and was reduced to $1,000.Houston E. & W. T. Ry. Co. v. Snow, 201 S. W. 224.

(G) Passengers' Effects.

387 (Ark.) Contract to carry baggage is an incident to contract to carry passenger.Bush v. Beauchamp, 201 S. W. 828.

an

interstate carrier cannot make it otherwise by 391 (Ark.) Jewelry is "baggage," and rules and regulations filed with the Commerce Commission, although it can properly limit the amount of its liability, under Kirby's Dig. § passenger received 404 (Ark.) Where a 6615.-Bush v. Beauchamp, 201 S. W. 828. permission of the station agent to leave baggage in the station for two or three days, the carrier was liable for its loss only as a wareDavenport, 201 S. W. 1114. houseman.-Jonesboro, L. C. & E. R. Co. v. 320 (19) (Mo.App.) Evidence held to pre-406 (Ark.) A sent jury question whether a street car started with undue violence and an excessive jerk, so as to throw passenger to the floor.-Shafer v. Kansas City Rys. Co., 201 S. W. 611.

Whether brakes of street car standing on incline, secured properly by motorman before he left car, were released by boys on front platform, held for jury.-Id.

through carrier selling a round-trip ticket, including passage over other lines, is liable for loss of baggage on the other 201 S. W. 828. lines on the return trip.-Bush v. Beauchamp, 320 (26) (Mo.App.) Evidence that defend-408(4) (Ark.) Evidence that a passenger ant street railways car, which had decreased arriving in the station left his baggage with speed or stopped at safety stop opposite post the baggage master, who agreed that he might office substation, resumed usual speed while leave it for two or three days, and that the plaintiff passenger was alighting, etc., held to baggage was never delivered to him, warrants a make defendant's negligence a jury question. finding of negligent failure to exercise due care. Hays v. Metropolitan St. Ry. Co., 201 S. W.-Jonesboro, L. C. & E. R. Co. v. Davenport, 201 S. W. 1114.

566.

320 (30) (Mo.App.) Evidence held to present a jury question whether a street car passenger's injuries and subsequent paralysis were

CAUSE OF ACTION.

the proximate result of her being thrown to See Action, ~6.
the floor of a car when it started with undue
violence. Shafer v. Kansas City Rys. Co., 201
S. W. 611.

CAVEAT EMPTOR.

3.

CERTAINTY.

320(31) (Tex.Civ.App.) In action against See Bailment,
two railroads for personal injuries to a passen-
ger, where it appeared that one had been run-
ning trains over the track of the other for 14
years, the court did not err in submitting to the See Deeds, 38.
jury the question as to whether there was an
agreement between the roads.-Texas & N. O.
R. Co. v. Jones, 201 S. W. 1085.

CERTIFICATE.

See Acknowledgment, 22-48.

CERTIFIED COPY.

321(9) (Mo.) In action against street rail-
way by girl passenger who jumped from car
moving backward down incline, held, that court
improperly refused defendant's requested in- See Evidence, 343.
struction that, if some one other than employés
on the car released brakes, plaintiff could not
recover.-Delfosse v. United Rys. Co. of St.
Louis, 201 S. W. 860.

(E) Contributory Negligence of Person In-
jured.

331(2) (Mo.App.) A street car passenger
was not negligent as a matter of law simply be-
cause she did not seat herself at the very first
opportunity, but passed to a seat more distant
from the door. Shafer v. Kansas City Rys.
Co., 201 S. W. 611.

338 (Mo.) Street railway was liable to girl
on incline
passenger who jumped from car
when it began to move backward only if peril

CERTIORARI.

See Habeas Corpus, 114.

I. NATURE AND GROUNDS. 5(1) (Tenn.) General appellate and revisory jurisdiction of circuit court over all inferior tribunals created by Legislature and vested with judicial powers, as juvenile court of county, may be invoked by certiorari and supersedeas, where no appeal or writ of error lies for correction of judgments of such inferior tribunals.-State v. Bockman, 201 S. W. 741.

14 (Tenn.) Proceedings in juvenile court must be reviewed in circuit court by certiorari. -State v. West, 201 S. W. 743.

II. PROCEEDINGS AND DETER

MINATION.

CHATTEL MORTGAGES.

See Acknowledgment; Pledges.

I. REQUISITES AND VALIDITY.

(A) Nature and Essentials of Transfers of Chattels as Security.

42 (3) (Mo.App.) Conclusions in petition for writ of certiorari that certain matters are insufficient, or improper, or void, or illegal 8 (Tex.Civ.App.) Written bill of sale and should be accompanied by allegations showing wherein or why matters complained of were improper.-State ex rel. Morrison v. Sims, 201

S. W. 910.

one

53 (Mo.App.) In certiorari to county superintendent of schools to quash proceedings for organization of consolidated school district, jurisdiction of such inferior tribunal as concerned in proceeding need not appear on face of any special paper, but only need appear somewhere in record.-State ex rel. Morrison v. Sims, 201 S. W. 910.

58 (Mo.App.) Proceedings in certiorari bring up the record only, and matters not appearing therein cannot be considered.-State ex rel. Pollard v. Brasher, 201 S. W. 1150.

contemporaneous agreement to retransfer the property on the seller's payment of the consideration were in effect a chattel mortgage and not a pledge, under which either party by agreement might have possession.-Keppler v. Kelly, 201 S. W. 447.

(B) Form and Contents of Instruments.

47 (Ky.) Mortgage stating that it was given to secure P. against loss because of her signature on notes bankable which were given to D. Motor Company for 1916 Dodge car sufficiently identifies automobile and notes.-Clark v. Ford, 201 S. W. 344.

III. CONSTRUCTION AND OPERA

TION.

(C) Property Mortgaged, and Estates and

Interests of Parties Therein.

60 (Tenn.) On certiorari bringing up question of eligibility of officer to hold office, the Supreme Court will consider the case, though term of office has expired, where matter of 126 (Mo.App.) Facts held to show that costs remains to be adjudicated, and this depends on the merits.-State v. Howard, 201 S.

W. 139.

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there was an agreed substitution of another piano for that originally covered by a purchasemoney mortgage, valid between the parties.Clough & Warren Co. v. Madden, 201 S. W. 938.

(D) Lien and Priority.

for injuries against operator of automobile sub138(1) (Ky.) One who secured judgment sequent to time mortgage was given by operator to surety on notes given for automobile, held not "subsequent purchaser for value" who could take advantage of fact that mortgage had not been recorded.-Clark v. Ford, 201 S. W. 344.

Lien of mortgagee of automobile acquired before plaintiff's suit against purchaser, held superior to attachment of plaintiff secured in suit to enforce judgment against purchaser of automobile.--Id.

IV. RIGHTS AND LIABILITIES OF
PARTIES.

70(9) (Tenn.) Where Supreme Court directed issuance of certiorari to review removal of one from office of chief of police, held, that appeals to discretion of court against issuance of writ were foreclosed.-City of Knox-172(2) (Mo.App.) In replevin by the asville v. Connors, 201 S. W. 133.

Where it was found on writ of certiorari that removal of petitioner from office of chief of police was unauthorized because he was not accorded trial as required by city's charter, and charges were not preferred against him, order of removal should be quashed, but court is without jurisdiction to direct reinstatement of petitioner.-Id.

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signee of notes and a chattel mortgage given to secure the price of goods sold, defendant may set up any matter of defense or relief she may have, including one of partial failure of consideration in that she has paid more than the worth of the property.-Scheidel Western X-Ray Co. v. Bacon, 201 S. W. 916.

IX. FORECLOSURE.

255 (Mo.App.) Where at request of mortgagor and for his benefit a new article is furnished to mortgagor, as a mere substitution for a like article previously furnished, covered by a purchase-money mortgage, mortgagee need not resort to equity to enforce his lien against the substituted article.--Clough & Warren Co. v. Madden, 201 S. W. 938.

260 (Mo.App.) Powers of sale in chattel mortgages must be strictly followed as to places and time of posting notices, and in all other particulars. Huber Mfg. Co. v. Ellis, 201 S. W. 931.

Where mortgagee obtained stipulation that sale be held in another county, but nothing was said about where notices should be posted, posting of notices must be where specified by mortgage.-Id.

drawn

by

262(1) (Mo.App.) Stipulation mortgagee regarding change of place of sale will not be added to by intendment.-Huber Mfg. Co. v. Ellis, 201 S. W. 931.

COMMERCE.

282 (Ark.) In administrator's action on chattel note, evidence that witness overheard deceased mortgagee promise to give defend- See Carriers; Evidence, 20. ant certain credits on note, and that defendant had furnished decedent with certain personal property, made question whether defendant was entitled to any offsets one for jury.Kirby v. Wooten, 201 S. W. 115.

See Fraud.

CHEAT.

CHECKS.

CHILDREN.

See Payment, 67.

I.

POWER TO REGULATE IN GEN-
ERAL.

8 (6) (Mo.App.) When federal Employers' Liability Act applies, it is supreme, and excludes every other remedy.-Spaw v. Kansas City Terminal Ry. Co., 201 S. W. 927.

8(7) (Ark.) Adherence by state court to common-law principle invalidating telegraph company's stipulation exempting it from liability for negligence in transmission of unrepeated message, etc., cannot be viewed as interference with interstate commerce, or as in conflict with authority of Interstate Commerce Commission. See Adoption; Infants; Guardian and Ward; -Des Are Oil Mill v. Western Union Telegraph Parent and Child.

CHOSE IN ACTION.

See Assignments.

CIRCUMSTANTIAL EVIDENCE.

See Criminal Law, 552, 784.

CITATION.

See Process.

CITIES.

See Municipal Corporations.

CITIZENS.

Co., 201 S. W. 273.

II. SUBJECTS OF REGULATION.

27 (2) (Mo.App.) Terminal company whose facilities are used and are necessary in transportation of persons and property by interstate trunk lines is engaged in interstate commerce.-Spaw v. Kansas City Terminal Ry. Co., 201 S. W. 927.

27(2) (Tex. Civ.App.) A railroad company in breaking up interstate trains at a junction point within the state to facilitate delivery of shipments to other points within the state is engaged in interstate commerce notwithstanding interstate cars were to be delivered within state or at terminal where trains were broken up.-Southern Pac. Co. v. Stephens, 201 S. W. 1076.

See Constitutional Law, 206, 229; Taxa-27 (5) (Mo.App.) Railroad yardmaster emtion, 37.

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COLLATERAL AGREEMENT. See Bills and Notes, 134; Evidence, 444.

COLLATERAL ATTACK.

See Executors and Administrators,
Judgment, 486-501.

COLLATERAL SECURITY.

See Pledges.

COLLATERAL UNDERTAKINGS. See Guaranty.

COLLECTION.

See Executors and Administrators,

COLORED PERSONS.

See Railroads, 226, 253.

COLOR OF TITLE.

See Adverse Possession.

ployed by terminal railway company, injured while engaged in attempting to replace derailed engine on track so as to remove it and clear tracks for transportation of interstate commerce, was engaged in interstate commerce at time of his injury.-Spaw v. Kansas City Terminal Ry. Co., 201 S. W. 927.

Railroad yardmaster engaged in taking an injured engine to a roundhouse for repairs after removing it from an interstate train which 202- then proceeded on its way, was engaged in interstate commerce.-Id.

Yardmaster, injured while replacing derailed engine pulling interstate train operating over lines of terminal company, held, in view of Rev. St. 1909, § 3079, an employe of both companies engaged in interstate commerce, and, hence, subject to the federal Employers' Liability Act exclusively.-Id.

27(5) (Tenn.) To be within the federal Employers' Liability Act, one need not be directly engaged in interstate train movement; the test being whether his task was so directly and immediately connected therewith as form a part or necessary incident, even though only preliminary thereto.-Cincinnati, N. O. & 349; T. P. Ry. Co. v. Morgan, 201 S. W. 128.

to

27(5) (Tex.Civ.App.) In an action by railroad employé who suffered injuries in California, evidence held to show that at the time he received his injuries he was engaged in interstate commerce, and so his cause of action fell within federal Employers' Liability Act, instead of the California Workmen's Compensation Insurance and Safety Act.-Southern Pac. Co. v. Stephens, 201 S. W. 1076.

27 (7) (Tenn.) Where a locomotive was habitually and exclusively used in interstate 87-138. train movements, and not designated for any intrastate or mixed use, an employé working upon it was engaged in interstate commerce.-Cincinnati, N. O. & T. P. Ry. Co. v. Morgan, 201 S. W. 128.

Where an engine had been specifically designated for a certain interstate train, and a hostler was told to fire and prepare the engine O for such train, and while doing so was in

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CONCLUSIVENESS.

59 (Ark.) Adherence by state court to See Evidence, 471, 591.
common-law principle invalidating telegraph
company's stipulation exempting it from liabil-
ity for negligence in transmission of unrepeat-
ed message, etc., cannot be viewed as inter-
ference with interstate commerce, or as in con-
flict with authority of Interstate Commerce
Commission.-Des Arc Oil Mill v. Western Un-
ion Telegraph Co., 201 S. W. 273.

See Appeal and Error. 1010; Divorce,
326; Judgment, 682-743.

CONDEMNATION.

See Eminent Domain.

CONDITIONS.

64 (Tenn.) Acts 1917, c. 70, imposing a privilege tax on wholesale dealers in foreignmade nonintoxicating beverages containing alcohol, and on domestic manufacturers of such See Bills and Notes, 396. drinks, is unconstitutional within Const. U. S. art. 1, § 8, subsec. 3, as imposing a burden on

CONFESSION.

interstate commerce.-Diehl & Lord v. Hailey, See Criminal Law, 518; Judgment,

201 S. W. 773.

29, 59.

CONFLICT OF LAWS.

Mere fact that privilege tax was imposed on manufacture in the state of nonintoxicating alcoholic beverages larger than that imposed on wholesalers of such drinks made outside the See Death; Insurance, 125, 147. state does not justify the classification in Acts 1917, c. 70, and omission to tax wholesalers of the domestic product.-Id.

CONNECTING CARRIERS.

Conceding that only foreign-made nonintoxi- See Carriers, 180, 193, 406.
cating alcoholic beverages were ever in the
state, Acts 1917, c. 70, imposing privilege tax

only on wholesalers of such foreign-made bev-See Rape, 13.
erages, is invalid as an imposition on interstate
commerce.-Id.

COMMERCIAL PAPER.

See Bills and Notes.

COMMISSION.

See Constitutional Law, 62; Criminal Law, 304.

CONSENT.

CONSIDERATION.

See Accord and Satisfaction, 5; Bills and
Notes, 518, 537; Contracts, 71; Evi-
dence, 419; Fraudulent Conveyances,
95, 96; Guaranty, 16, 17.

CONSTITUTIONAL LAW.

Enactment and validity of statutes in general, see Statutes, 1-64.

COMMISSION AND COMMISSIONERS. Special or local laws, see Statutes,

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94.

Subjects and titles of statutes, see Statutes,

119.

For validity of statutes relating to particular
subjects, see also the various specific topics.

II. CONSTRUCTION, OPERATION,
AND ENFORCEMENT OF CON-
STITUTIONAL PROVISIONS.

42 (Tex.Civ.App.) One who has no interest in subject of statute and is not injuriously affected thereby cannot question its constitutionality.-Atkins v. State Highway Department, 201 S. W. 226.

48 (Tex.Civ.App.) Where evidence did not show, and there was nothing in Acts 35th Leg., c. 190 and chapter 207 as amended by First Called Sess. 35th Leg. c. 31, providing for licensing of motor vehicles, to show that licenses were excessive, it must be presumed they were reasonable.-Atkins v. State Highway Department, 201 S. W. 226.

Act of Legislature should not be declared unconstitutional unless it clearly appears to be so.-Id.

III. DISTRIBUTION OF GOVERN.
MENTAL POWERS AND
FUNCTIONS.

(A) Legislative Powers and Delegation
Thereof.

62 (Mo.) The Legislature may confer upon certain bodies power to carry out in detail the legislative will, to promulgate rules and regulations, to ascertain facts upon which the operation of a statute would depend, or carry through certain prescribed procedure by which to put in force certain statutes in limited dis

tricts. State, on Inf. of Killam, v. Colbert, | No. 24751, § 1605, are not in violation of 201 S. W. 52.

62 (Tex.Cr.App.) Rev. St. 1911, art. 7312 et seq., and Acts 33d Leg. e. 169, § 3 (Vernon's Sayles' Ann. Civ. St. 1914, art. 7314b), giving the live stock sanitary commission authority to promulgate rules for quarantine areas, etc., are not invalid as delegation of legislative authority to administrative body.-Mulkey v. State, 201 S. W. 991.

Const. art. 2, § 30, providing that no person shall be deprived of property without due process of law.-City of St. Louis v. Baskowitz, 201 S. W. 870.

290 (3) (Mo.) While the authority to lay off special taxing districts may be granted by the Legislature to administrative bodies, yet before the land included can be burdened with special assessment for benefits, a notice and opportunity to be heard must be accorded the landowners to constitute "due process of law." State, on Inf. of Killam, v. Colbert, 201 S. W. 52.

(B) Judicial Powers and Functions. 70(1) (Ark.) Where the Legislature has fixed the amount of assessments which may be levied upon the lands benefited by a levee, its determination is conclusive of the amount, unless an arbitrary and manifest abuse of power is shown.-Alcorn v. Bliss-Cook Oak Co., 201328 (Ark.) Acts 1915, p. 432, providing S. W. 797.

VI. VESTED RIGHTS.

106 (Tex.Civ.App.) While remedies, remedial rights, and process are subject to legislative control, to construe a law, requiring presentation of claim to the city council for redress precedent to suit for injunction for irreparable injury, would make it invalid, as amounting to a denial of all remedy.-El Paso Union Passenger Depot Co. v. Look, 201 S. W. 714.

XII. RIGHT TO JUSTICE AND REME.
DIES FOR INJURIES.

for a levee tax in Chicot county, is not invalid, as making no provision for the taxpayer's day in court, in view of section 16 thereof, requiring hearing by the inspectors at the regular October meeting, and section 4, stating the times of meeting of the board.-Alcorn v. Bliss-Cook Oak Co., 201 S. W. 797.

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IX. PRIVILEGES OR IMMUNITIES AND CLASS LEGISLATION. 206(1) (Mo.) The provision for taxation on premiums received from business done in the state by a foreign insurance company under Rev. St. 1909, § 7099, is not in violation of Const. U. S. Amend. 14, § 1; such corporations See Trusts. not being citizens.-Massachusetts Bonding & Ins. Co. v. Chorn, 201 S. W. 1122.

CONSTRUCTIVE TRUSTS.

CONTAGIOUS DISEASES.

CONTEMPT.

208 (3) (Tenn.) Acts 1905, c. 376, § 2, pro- See Animals. viding a 90 per cent. exemption for persons with an income of less than $40 per month, and a maximum exemption of $36 to persons earning over $40 per month, is not unfair dis- See Vendor and Purchaser. crimination, but such classification is reasonable.-Frazier v. Nashville Veterinary Hospital, 201 S. W. 751.

208 (6) (Tex.Civ.App.) Legislature of state, without unjustly discriminating, could impose on railroads penalty in fixed sum in cases of persons negligently killed who were not employés, and, as to employés, give right of action for damages actually sustained, and make persons and corporations other than those operating railroad liable for all damages by negligent killing. Clay v. Atchison, T. & S. F. Ry. Co., 201 S. W. 1072.

X. EQUAL PROTECTION OF LAWS. 229(1) (Mo.) The provision for taxation on premiums received from business done in the state by a foreign insurance company under Rev. St. 1909, § 7099, is not in violation of equal protection clause of Const. U. S. Amend. 14, § 1. Massachusetts Bonding & Ins. Co. v. Chorn, 201 S. W. 1122.

CONTINUANCE.

See Criminal Law, 595, 598.

10 (Mo.) Where an appeal was pending in a partition proceeding involving title to property, a continuance until decision of the appeal should have been granted in an action in ejectment by a party to the former suit who had purchased under the former decree.-Brown v. Simpson, 201 S. W. 898.

26(11) (Tex.Civ.App.) Application for continuance because of witness' absence held not to show due diligence where witness lived near courthouse, and applicant knew his illness would prevent attendance, but made no effort to take deposition before trial.-Palm v. Theumann, 201 S. W. 421.

37 (Tex.Civ.App.) Trial court held within judicial discretion in overruling application of defendants for continuance, which was not in writing, where failure to put in writing and to verify was not waived by plaintiffs.-Lynch v. Bernhardt, 201 S. W. 1051.

court held

XI. DUE PROCESS OF LAW. 274 (Tex.Civ.App.) Resolution of board of 46 (10) (Tex.Civ.App.) Trial education for exclusion of unvaccinated chil- within judicial discretion in overruling applicadren from the schools held not to violate Const. tion of defendants for continuance, where tesart. 1, § 19, prohibiting deprivation of privileg-timony of defendants whose absence was basis es except by due course of the law of the land. of application was not shown to be necessary. -Staffel v. San Antonio School Board of Edu--Lynch v. Bernhardt, 201 S. W. 1051. cation, 201 S. W. 413.

283 (Mo.) The provision for taxation on premiums received from business done in the state by a foreign insurance company underRev. St. 1909, § 7099, is not in violation of due process clause Const. U. S. Amend. 14, § 1.-Massachusetts Bonding & Ins. Co. v. Chorn, 201 S. W. 1122.

287 (Mo.) The provisions for occupation tax of junk dealers in St. Louis City Ordinance

CONTRACTS.

See Accord and Satisfaction; Alteration of Instruments; Appeal and Error, 173; Assignments; Bailment; Bankruptcy, ~263; Bills and Notes; Brokers, 44-58; Cancellation of Instruments; Carriers, 218; Chattel Mortgages; Covenants; Customs and Usages; Damages, 121; Deeds; Evidence, 400-450; Exchange of Property; Frauds,

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