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sonably safe for pedestrians was not objectionable as requiring a higher degree of care than the city was bound to assume.-Cowgill v. City of St. Joseph, 167 S. W. 1157.
(D) Defects or Obstructions in Sewers, Drains, and Water Courses.
XIII. FISCAL MANAGEMENT, PUB-
§ 845 (Mo.App.) In an action against a city for a surface water nuisance created by a railroad company building an embankment in the See Elections, §§ 180, 186. street and putting a pipe therein insufficient to drain the water through the embankment, the railroad company is not a necessary party, under Rev. St. 1909, §§ 8862, 9110.-Roth v. See Taxation, § 1; Waters and Water Courses. City of St. Joseph, 167 S. W. 1155.
§ 971 (Mo.) Where a city, having surrendered its special charter and become a city of the fourth class, levied a city assessment for 1908, on an abstract of the assessment for 1907, the validity of the assessment for 1907 was not material to the validity of the levy for 1908.-State ex rel. Chamberlain v. Young, 167 S. W. 995.
$978 (Tex.Civ.App.) Under Laredo City Charter, an action by the city attorney on behalf of the city for taxes due held presumptive ly authorized and want of authority is available as a defense under a sworn plea.-O'Connor v. City of Laredo, 167 S. W. 1091.
A petition in an action by a city for back taxes and for the foreclosure of a tax lien, which describes the personal property assessed for the taxes as "personal property in the nature of merchandise," sufficiently describes the property.-Id.
MUTUAL BENEFIT INSURANCE.
See Insurance, §§ 694-819.
Laredo City Charter creates a statutory remedy for the recovery of delinquent taxes, and Rev. St. 1911, arts. 7692, 7693, are inapplicable.-Id.
I. RIGHTS OF PUBLIC.
§ 19 (Ark.) The right of the state to regulate and control the beds of navigable streams does not imply a right to relinguish its control over a river bed or permit its use so as to interfere with navigation.-State v. Southern Sand & Material Co., 167 S. W. 854.
§ 957 (Mo.) An assessment of city taxes in a city for the year 1908, after it had elected to operate as a city of the fourth class, based on an See Navigable Waters, § 19. assessment obtained by the mayor from the county collector under Rev. St. 1909, § 9347, on which defendant's city taxes for 1907 had been assessed, held not double taxation.-State ex rel. Chamberlain v. Young, 167 S. W. 995.
II. LANDS UNDER WATER.
§ 36 (Ark.) The state holds its title to the beds of navigable streams as trustee for its citizens.State v. Southern Sand & Material Co., 167 S. W. 854.
All powers over navigable waters and the beds thereof, which, under the English system, vested in the king and in Parliament, are vested in the states under the American system; property rights therein being held in common by the people of the states, subject to legislative control and regulation.-Id.
The bed of a navigable stream being held by the state for the benefit of its citizens, the Legislature may require those taking sand and gravel therefrom to make compensation for the benefit of the state.-Id.
Acts 1913, p. 1088, providing for the removal of sand and gravel from navigable streams on payment of compensation to the state, held a proper exercise of the state's power to regulate and control the use of beds of such streams.-Id. Acts 1913, p. 1088, regulating the removal of sand and gravel from the beds of navigable streams, only requires payment therefor by corporations and not by natural persons.-Id.
The minimum price for sand and gravel taken from the beds of navigable streams by corporations fixed by Acts 1913, p. 1088, held a definite price which could not be increased by the Attorney General.-Id.
See Animals, §§ 70, 72; Bailment, §§ 31, 33; Carriers, §§ 92, 105-163, 228, 229, 247-408; Charities, § 45; Death; Electricity; Evidence, § 219; Highways, § 184; Husband and Wife, § 102; Judgment, § 143; Master and Servant, §§ 88-311; Municipal Corporations, §§ 705, 706, 763-822; Parent and Child, §§ 7, 13; Railroads, §§ 226-485; Street Railroads, $$ 93-117; Telegraphs and Telephones, §§ 27-73; Trial, §§ 191, 194, 203.
(A) Persons Injured in General.
$65 (Tex.Civ.App.). "Contributory negligence" is such want of ordinary care on the part of the person injured as, concurring with the negligence of the party causing the injury, proximately contributes to the injury.-Bryning v. Missouri, K. & T. Ry. Co. of Texas, 167 S. W. 826.
$72 (Ky.) The rule that one who, in the face of a threatened danger, and in an effort to escape it, brings on himself an injury which would not have occurred but for such effort is not necessarily guilty of contributory negligence is qualified by the requirement that in thus acting there must be a reasonable appearance of danger, and his conduct must conform to that of an ordinarily careful man under like circumstances. Millers Creek R. Co. v. Barnett, 167 S. W. 402.
$82 (Mo.App.) The violation of an ordinance will not defeat a recovery unless such violation is the proximate cause of the injury.-Blackburn v. Southwest Missouri R. Co., 167 S. W. 457.
(C) Rulings and Instructions at Trial. § 39 (Ky.) The court's discretion in granting a new trial because of an instruction authorizing a recovery for breach of an agreement to deliver goods within a reasonable time, where the contract was to deliver them as designated by turbed.-Greenberg v. Hyman & Oppenheim, 167 the buyer within six weeks, will not be disS. W. 914.
(D) Disqualification or Misconduct of or
§ 42 (Mo.App.) Where it developed on the trial of a case that two of the jurors were men whose names were on a list sent by defendant to the county court as men who would be fair jurors, she could not complain of the court's refusal to grant a new trial on the ground that against her.-Claxton v. Pool, 167 S. W. 623. those two jurors were thereby prejudiced
(F) Verdict or Findings Contrary to Law
§ 79 (Mo.App.) Though trial is by the court, it may grant a new trial, on the ground that its judgment was against the weight of the evidence.-Title Guaranty & Surety Co. v. Drennon, 167 S. W. 1181.
(H) Newly Discovered Evidence. $102 (Tex.Civ.App.) A motion for new trial for alleged newly discovered evidence was properly denied, where defendant knew of the evidence before the trial but did not produce it. and his only excuse was that it "slipped" his memory.-Clemmons v. Johnson, 167 S. W.
III. PROCEEDINGS TO PROCURE
§ 128 (Mo.App.) A motion for a new trial "because the verdict of the jury is not supported by the law and the evidence and the weight of the evidence" was not sufficiently definite, except on the assignment that the verdict was against the weight of the evidence.-Falloon v. Fenton, 167 S. W. 591.
$128 (Mo.App.) A ground of motion for new trial that the verdict is against the law, as declared in the instructions, is too general for consideration.-Raifeisen v. Young, 167 S. W.
A ground of a motion for new trial that the verdict should have been for plaintiff and not for defendant is merely equivalent to a contention that the verdict is against the weight of the evidence and is not sufficiently specific to be of any effect.-Id.
A motion for new trial must set out the reasons therefor so definitely as to direct the trial court's attention to the precise ground of complaint.-Id.
143 (Mo.App.) Affidavits of jurors as their misconduct will not be admitted to impeach their verdict.-Roth v. City of St. Joseph, 167 S. W. 1155.
See Criminal Law, § 302.
§ 3 (Mo.App.) Under Rev. St. 1909, §§ 10692, 10712, a notary could charge 50 cents for affixing his jurat and seal to an affidavit, which is included within the term "certificate"; there being valid reasons for giving a notary a larger fee than a justice, in view of sections 10180, 10181, requiring the notary to keep a seal and furnish bond.-Laclede Land & Improvement Co. v. Morten, 167 S. W. 658.
See Animals, § 70; Appearance, § 13; Bills and Notes, §§ 344, 396, 497, 526; Carriers, $218; Constitutional Law, § 309; Evidence, 88 185, 368; Executors and Administrators, $362; Fraudulent Conveyances, § 158; Insurance, §§ 198, 328, 379, 533-560, 748, 756; Intoxicating Liquors, 88 279, 287, 310; Judgment, § 17; Mechanics' Liens, § 115; Mortgages, 510; Municipal Corporations, 867; Telegraphs and Telephones, § 68; Trial, § 48; Vendor and Purchaser, 88 230, 231; Wills, § 840.
office, who claims the same under some color of title, as against an intruder, it devolves upon the incumbent to show that he himself is not a mere intruder and to establish by proof some right to the office he occupies.-Stamps v. Tittle, 167 S. W. 776.
Plaintiff was appointed, during recess, by the Governor as a prison commissioner under Acts 31st Leg. (4th Called Sess.) c. 10 (Rev. St. 1911, art. 6175), creating the board of prison commissioners, and thereafter, before the Legislature convened, Const. art. 16, § 58, was amended, so as to make the office a constitutional office, and the same day such amendment took effect the Senate confirmed the appointment, held, that plaintiff had no title to the con
See Appeal and Error, § 1170; Intoxicating stitutional office, and hence a court of equity Liquors, 88 259-279. would not restrain interference with his possession.-Id. OIL.
I. PRIVATE NUISANCES.
(D) Actions for Damages.
§ 48 (Mo.App.) A petition in an action for a nuisance, prosecuted after plaintiff's death by her administrator, which alleged damages for injury to plaintiff's health and to her property, See Criminal Law, § 451; Evidence, §§ 471demanded damages for injury to her health merely, and, even were it necessary to allege that the injury to the health did not result in death to state a cause of action as to that item See Courts, 88 89-107; Evidence, § 348.
of damages, defendant must either demur to
§ 50 (Ky.) Verdict for $1,000 for burying the carcasses of dead animals within a few feet of plaintiff's residence, the condition extending over several years and causing offensive odors, held not so excessive as to warrant reversal.-Cumberland R. Co. v. Bays, 167 S. W. 882.
OBLIGATION OF CONTRACTS.
See Constitutional Law, § 171.
II. PUBLIC NUISANCES.
(C) Abatement and Injunction.
886 (Tenn.) Failure of bill for injunction See Carriers, § 202. against maintenance of nuisance to allege that the state sustained any special injury and was entitled to an injunction held immaterial in a contempt proceeding.-State v. Ragghianti, 167 S. W. 689.
See Clerks of Courts; Corporations, $$ 308, 333; Costs, § 3; Counties, § 89; Injunction, § 118; Judges; Justices of the Peace; Notaries; Railroads, § 17; Receivers.
I. APPOINTMENT, QUALIFICATION,
§ 58 (Tex.Civ.App.) The power of the Governor, under the Constitution, to make appointments to certain offices in case of vacancies applies equally to filling vacancies occurring during the session as well as recess.-Stamps v. Tittle, 167 S. W. 776.
II. TITLE TO AND POSSESSION OF
$81 (Tex.Civ.App.) Where a person holds a certificate of election or a commission of appointment to an office, he is entitled to the possession of the office; such certificate or commission being the highest and best evidence of title to the office until it is annulled by a judicial determination in a quo warranto or other proceeding. Stamps v. Tittle, 167 S. W. 776.
See Mines and Minerals, § 58.
See Appeal and Error; Executors and Administrators, §§ 333-349, 360, 382.
See Municipal Corporations, §§ 108, 122, 278.
PARENT AND CHILD.
See Adoption; Adverse Possession, §§ 61, 85;
87 (Tex.Civ.App.) Where a father consented to the employment of his minor child for one kind of work, the employer, changing the work without the consent of the father to a more dangerous work, was responsible to the father for loss of the services of the child and expenses incurred following from the changed employment.-Southwestern Telegraph & Tele phone Co. v. Coffey, 167 S. W. 8.
In an action by a father for injuries sustain. ed by his minor son while an employé of defendant, evidence held to show that the father, consenting to the employment by defendant of ordered by defendant.—Id. the child, did not consent to a change of work
in a dangerous service without the consent of §7 (Tex.Civ.App.) One who employs a minor his parent is liable to the parent for any loss of the minor's services due to the employment,
without reference to whether the loss resulted from negligence of the master, or was due to the ordinary risks of the employment, or to the minor's contributory negligence.-Cook v. Urban, 167 S. W. 251.
As between the employer of a minor in a dangerous service and the minor's parent, the parent's knowledge of, and acquiescence in, the employment amounts to consent thereto.-Id.
Though a minor is employed in a dangerous service without the parent's consent, and is injured therein, the master, sued by the minor's parent for the loss of his services, may show that he did not know of the servant's minority,
$82 (Tex.Civ.App.) Though a court of equity will protect by injunction an incumbent of an
and, if the jury believe he thought he was of age the parent cannot recover, without regard to the questions of negligence, contributory negligence, and assumption of risk.-Id.
Though the parent of a minor consents to his employment in a dangerous service, he being injured therein through the negligence of the master, she may recover for his diminished earning capacity during his minority.-Id.
That the evening before plaintiff's minor son was injured in defendant's employment he advised plaintiff, his mother, that he would not return home that night, because he was employed by defendant to run his gin, is insufficient to raise the issue of her having consented to his employment.-Id.
§ 13 (Mo.App.) A parent may be liable for negligence in permitting a minor son to use a dangerous weapon by which plaintiff was injured. Charlton v. Jackson, 167 S. W. 670.
Where plaintiff, a caller in defendants' home was shot by defendants' minor son, 13 years of age, during the absence of the father, both mother and father were liable for their negligence in permitting the child to have and use the gun with knowledge of his careless habits. -Id.
Where plaintiff, as an uninvited guest, went to defendants' house to make a social call, she was entitled, even had she been a trespasser, to protection against injury by the negligent use of firearms by defendants' minor son.-Id.
See Abatement and Revival, § 73: Appeal and Error, 34; Carriers, 876; Equity, $91; Injunction, 114; Joint Adventures; Judgment, $$ 707-712; Limitation of Actions, 124; Mandamus, § 148; Partition, § 46 Municipal Corporations, § 845; Trusts, § 366; Venue, §§ 27, 32.
V. DEFECTS, OBJECTIONS, AND
$76 (Ky.) Under Civ. Code Prac. §§ 92 and 118, objection that the action could not be maintained against the defendant because it was a mere voluntary association was waived when not taken by special demurrer or answer by way of plea in abatement.-United Mine Workers of America v. Cromer, 167 S. W. 891.
See Boundaries, § 3; Deeds, § 211; Frauds, Statute of, § 68; Fraudulent Conveyances, §179; Judgment, § 707; Partnership, § 315.
pass to one of them, or there could have been no other reasonable purpose, the law will car ry out such intent, whether fully expressed in words or not.-Scott v. Watson, 167 S. W. 268.
II. ACTIONS FOR PARTITION. (B) Proceedings and Relief.
$9 (Tex.Civ.App.) Where parents, in anticipation of the death of one of them, made a partition of land among their children and each child and the mother and father pursuant to the agreement took possession of their respective interests and improved the property, and continued so to do for several years after the mother's death, the partition would be enforced in equity.-Suggs v. Singley, 167 S. W. 241.
$9 (Tex.Civ.App.) Where, in the partition of land, the facts show that it was the intention
§ 46 (Tex.Civ.App.) All persons interested in the estate must be parties to a partition suit.Vineyard v. Heard, 167 S. W. 22.
I. THE RELATION.
(A) Creation and Requisites. $5 (Mo.App.) The rule that a sharing of profits raises a prima facie presumption of a partnership as between the parties sharing in the profits is applicable only where there is no proof of actual agreement; and, where there is
See Criminal Law, § 444; Evidence, §§ 390- an actual agreement, the question of partnership 450. must be determined therefrom.-In re Whitlow's Estate, 167 S. W. 463.
§ 110 (Mo.) Where a partition decree of a homestead and dower tract described it in accordance with the partition report setting it off to the widow, which passed only the quantity specified, notwithstanding a conflict with one of the distances, and such quantity was marked by a fence well known to the purchaser, the deed passed only the quantity in the homestead and dower tract.-Walker v. Garner, 167 S. W. 955.
See Appeal and Error, § 1054; Evidence, 314; Insurance, § 328; Intoxicating Liquors, $$ 152, 171; Joint Adventures; Joint-Stock Companies; Witnesses, § 175.
89 (Mo.App.) An agreement between a contractor for railroad work and S., which shows that the contractor desired that S. should superintend the work, and that in consideration thereof he should receive a half of the proceeds, did not create a partnership.-In re Whitlow's Estate, 167 S. W. 463.
§ 17 (Mo.App.) The existence of a partnership is a question of intention, and each case must be determined in its own facts.-Willoughby v. Hildreth, 167 S. W. 639.
§ 22 (Mo.App.) A partnership as between the members results from their agreement evidencing an intention to create a partnership.In re Whitlow's Estate, 167 S. W. 463.
Where parties entered into a written agreement, the question whether they formed thereby a partnership must be determined by ascertaining their intention from a construction of the writing itself, in view of the surrounding circumstances.-Id.
§ 44 (Mo.App.) Participation in the profits of a business raises a presumption of the existence of a partnership.-Willoughby v. Hildreth, 167 S. W. 639.
I. BY ACT OF PARTIES. § 5 (Tex.Civ.App.) A parol partition of lands is valid.-Scott v. Watson, 167 S. W. 268.
Where R., W., and S. sold land, reserving a vendor's lien, and R. and S. orally agreed with W.'s widow that she should have the notes and their two-thirds interest in the land for her onethird interest in another tract, in pursuance of § 52 (Mo.App.) In joint ownership of personwhich the notes were delivered to her, and she al property, community of interest does not necsigned a deed for the other tract, the transac-essarily evidence a partnership; and when such tion constituted a parol partition.-Id. community of interest is held by members of a social or fraternal organization, the presumption is against its existence.-Willoughby v. Hildreth, 167 S. W. 639.
$46 (Mo.App.) Until a prima facie case is made out that a partnership exists, its existence cannot be proved by acts and declarations of an alleged partner.-Willoughby v. Hildreth, 167 S. W. 639.
$55 (Mo.App.) In an action against certain members of the "Farmers' Co-Operative League," in which it was sought to hold defendants as partners, evidence held not to show that defendants intended to form a partnership, nor an agreement among defendants to share profits.-Willoughby v. Hildreth, 167 S. W. 639.
§ 56 (Mo.App.) In an action to recover for
"Farmers' Co-Operative League," in which it was sought to hold defendants as partners, evidence held not to show that defendants held themselves out as partners, or that plaintiff supposed they were partners, and hence insufficient to establish a partnership by estoppel.Willoughby v. Hildreth, 167 S. W. 639.
IV. RIGHTS AND LIABILITIES AS TO THIRD PERSONS.
(D) Actions by or Against Firms or Part
$219 (Tex.Civ.App.) In an action against several carriers, as partners, for negligent delay and rough handling of live stock, where the pleadings of defendants denying the charge were unverified, plaintiff could recover the whole sum against either of the defendants.-Ft. Worth & D. C. Ry. Co. v. Shank & Dean, 167 S. W. 1093.
VI. DEATH OF PARTNER, AND SURVIVING PARTNERS.
§ 251 (Mo.App.) An administrator of a partnership estate is not entitled to possession of chattels not the assets of the partnership.-In re Whitlow's Estate, 167 S. W. 463.
$252 (Mo.App.) Rev. St. 1909, §§ 240, 241, held applicable to partnership assets by virtue of section 99, and the administrator of a partnership estate may be allowed a credit for debts charged in the inventory as due the estate, where the same cannot be collected by due diligence. In re Whitlow's Estate, 167 S. W. 463.
VII. DISSOLUTION, SETTLEMENT, AND ACCOUNTING.
(D) Actions for Dissolution and Accounting.
§ 317 (Tex.Civ.App.) That partner invested money in partnership to defeat his creditors held not to prevent a partition and accounting from the other partner.-Freidenbloom v. McAfee, 167 S. W. 28.
§ 336 (Ky.) In an action by a survivor against the estate of a deceased partner for an accounting, evidence held to support a finding that the deceased partner died indebted to the surviving partner in the sum of $10,274.38.-Newberry's Adm'x v. Rhinehart, 167 S. W. 674.
See Limitation of Actions, § 155.
See Carriers, §§ 247-408.
See Accord and Satisfaction; Compromise and Settlement: Insane Persons, § 70; Insurance, § 602; Limitation of Actions, § 155; Mortgages, §§ 84, 283; Taxation, §§ 524, 543.
§ 45 (Tex.Civ.App.) Where a petition in an action to foreclose several chattel mortgages did not show how the mortgagor's payments, which were sufficient to pay the first mortgage, had been credited, they would be applied to the payment of the first mortgage.-Marshall v. G. A. Stowers Furniture Co., 167 S. W. 230.
V. RECOVERY OF PAYMENTS.
§ 85 (Mo.App.) Where mistake of $565.75 was made in figuring an inventory by which plaintiff purchased goods from defendant, through her husband, acting as her agent, and it was not claimed that the husband fraudulently received the over payment, it would be regarded as having been made by mutual mis
See Appeal and Error, §§ 1064, 1066, 1068; Assault and Battery, §§ 27, 39; Attorney and Client, §8 143-190; Carriers, §§ 280-348; Charities, 45; Corporations, & 590; Damages, §§ 132, 185, 216; Electricity; Evidence, $ 506; Master and Servant, $$ 88-311; Municipal Corporations, §§ 763-822; Negligence; Parent and Child, §§ 7, 13; Pleading, 18; Railroads, §§ 22, 259-401; Release, 17; Street Railroads, §§ 93-117; Trial, 48, 191, 251-253, 296.
PHYSICIANS AND SURGEONS. See Damages, § 177; Evidence, § 506; Rape, § 38; Witnesses, § 220.
§6 (Tex.Cr.App.) Under Pen. Code 1911, art. 750, information for practicing medicine unlawfully held fatally defective, where it did not allege defendant's residence and that he had not registered his authority or license in the district clerk's office of the county of his residence. -Young v. State, 167 S. W. 1112.
See Appeal and Error, § 193, 195, 233, 238, 877, 1040, 1042; Appearance, § 13; Carriers, 8 408; Chattel Mortgages, § 287; Continuance, §§ 14, 30; Contracts, § 335; Counties, 89; Courts, §§ 122, 170, 480; Damages, §§ 143, 158; Death, § 57; Divorce, 214; Elections, 286; Equity, § 241; Frauds, Statute of, § 160; Guaranty, § 86; Highways, § 184; Husband and Wife, 332; Indictment and Information; Injunction, §§ 114, 118, 122, 231; Insurance, § 645; Intoxicating Liquors, § 279; Judgment, $$ 18, 85, 101, 251; Justice of the Peace 88 91, 135, 174; Libel and Slander, §§ 80, 94; Limitation of Actions, §§ 33, 127; Malicious Prosecution, § 34; Mandamus, §§ 154, 160; Master and Servant, §§ 256-264; Municipal Corporations, §§ 122, 816, 978; New Trial, § 26; Nuisance, $$ 48, 86; Partnership, § 219 Payment, § 45; Principal and Surety, § 101; Sales, §§ 267, 353; Specific Per
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER