« 이전계속 »
the land in question was not controverted, evi- | (B) Order of Proof, Rebuttal, and Redence to that effect held immaterial.-Lester v. opening Case. Hutson, 167 S. W. 321.
In an action to recover an interest in land, where plaintiff relied upon possession by her intestate as a fact showing his right therein, evidence that, before defendant had purchased the land in question, intestate or his company was in possession, held admissible.-Id.
$39 (Tex.Civ.App.) In an action to recover an interest in land, where plaintiff relied upon her intestate's possession, evidence that defendant had borrowed money thereon to pay off his notes to prevent suit by intestate held admissible.-Lester v. Hutson, 167 S. W. 321.
$45 (Tex.Civ.App.) Where, in trespass to try title, plaintiffs claimed no title by limitation to land which passed from their ancestor to defendant, but only as to another tract in controversy, a charge that plaintiffs could not claim by limitation land which passed by regular chain of title from their ancestor to defendant was not misleading; there being no contention that defendant claimed title to the tract in controversy from plaintiffs' ancestor.-Gosch v. Vrana, 167 S. W. 757.
See Appeal and Error, §§ 169-305, 501, 847, 877, 882, 997-1011, 1033, 1062-1072, 1078, 1170; Assault and Battery, § 96; Bailment, $33; Bills and Notes, § 537; Carriers, §§ 229, 230, 280, 320, 321, 348; Conspiracy, & 48; Continuance; Contracts. § 353; Costs; Criminal Law, §§ 584-854, 1028-1063, 1091, 1159; Damages, § 216; Death, $ 47; Divorce, 184; Ejectment, §§ 110, 111; Elections, 305: Electricity, 8 19; Homicide. §§ 218, 297-309; Husband and Wife, § 335; Insurance, §§ 668, 669; Intoxicating Liquors, 8 317; Judgment, §§8 251-256; Jury; Libel and Slander, §§ 123, 124; Mandamus, § 187; Master and Servant, §§ 284-297; Municipal Corporations, §§ 706, 771, 821, 822; New Trial; Railroads, $$ 350, 398, 400, 401, 446, 485; Rape, § 59; Receiving Stolen Goods, §7; Sales, $$ 54, 88, 364, 398, 421, 446; Stipulations; Street Railroads, § 117; Taxation, $$ 791-810; Telegraphs and Telephones, $$ 66, 73; Trespass to Try Title, $ 45 Venue; Weapons, § 17; Work and Labor, § 30.
II. DOCKETS, LISTS, AND CALEN-
81 (Ark.) That plaintiff improperly sued in the chancery court to enjoin enforcement of a justice's judgment when he had had an adequate remedy at law was not ground for dismissal of his complaint, if it showed that the judgment was improper, but the action should have been transferred to the circuit court.Radford v. Samstag, 167 S. W. 491.
IV. RECEPTION OF EVIDENCE. (A) Introduction, Offer, and Admission of Evidence in General.
§ 48 (Ark.) In an action under the federal Employers' Liability Act, exclusion of statements of deceased as to cause of injury held proper, even though they were competent so far as the recovery for pain and suffering was concerned, where its admission and limitation to that issue were not requested.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83.
§ 48 (Tex.Civ.App.) Where, in an action for the price of machinery, the buyer relied on a breach of warranty, a letter by the buyer's manager to the seller with reference to the working of the machinery was admissible only to show notice to the seller of the defective machinery.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W.
§ 62 (Mo.App.) Where plaintiff's evidence tended to show that he was injured by a street car backing against him, while defendant's witnesses testified that he was injured alighting from the car while moving, evidence should have been admitted in rebuttal that he was not on any car that day, and did not step off of a moving car.-Wellman v. United Rys. Co. of St. Louis, 167 S. W. 655.
§ 133 (Tex.Civ.App.) If remarks of counsel in argument to the jury were inflammatory, they were not prejudicial, where the court withdrew them from the jury and instructed them not to consider them. Trinity & B. V. Ry. Co.
§ 133 (Tex.Civ.App.) Where objectionable argument is withdrawn by counsel making it, and the jury is instructed to disregard it, the error is cured.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279.
VI. TAKING CASE OR QUESTION FROM JURY. (A) Questions of Law or of Fact in Gen
$ 140 (Mo.App.) Where plaintiff had the burden of proof, and attempted to establish his case by his own uncontradicted testimony, and his reputation was impeached, the court had no right or power to refuse to submit the case to the jury.-Fehrenbach Wine & Liquor Co. v. Atchison, T. & S. F. Ry. Co., 167 S. W. 631.
§ 141 (Tex.Civ.App.) Where the liability of
defendant and the amount thereof were established by undisputed testimony, it was proper to direct a verdict for plaintiff.-Robinson Seed & Plant Co. v. Hexter & Kramer, 167 S. W.
$139 (Mo.App.) Where a fact to be estab-ing lished is relative and uncertain, such as the value of property, the evidence to establish the same is advisory only, and must be submitted to the jury.-Fehrenbach Wine & Liquor Co. v. Atchison, T. & S. F. Ry. Co., 167 S. W. 631. $139 (Tex.Civ.App.) A peremptory instruction for defendant may not be given on his uncorroborated testimony, proving facts material to his defense.-Iowa City State Bank v. Friar,
167 S. W. 261.
$191 (Mo.App.) In an action against a paving company for an injury to the driver of a wagon caused by his horse becoming frightened by the blowing of a steam whistle on defendant's steam roller, an instruction held not erroneous as assuming that the whistle was blown. -Phelan v. Granite Bituminous Paving Co., 167 S. W. 1059.
8191 (Tex.Civ.App.) There being evidence making issues for the jury, on which depended the question of a minor servant in a dangerous service having assumed the risks, unequivocally charging that he assumed all the hazards ordinarily incident to his employment was affirmative error.-Cook v. Urban, 167 S. W. 251.
§ 194 (Tex.Civ.App.) In an action against connecting carriers for injuries to cattle, a charge that there was no evidence warranting a findthat the cattle were roughly handled by the which that fact might have been inferred, was first carrier, where there was evidence from a charge upon the weight of testimony.-Houston & T. C. R. Co. v. Hawkins & Nance, 167 S. W. 190.
§ 191 (Tex.Civ.App.) In an action for injury to a railway mail clerk from a falling letter box, continued after his death by his surviving children, instruction as to defendant's negligence and liability held objectionable as upon the weight of the evidence in assuming that defendant furnished a defective car and failed to inspect the car.-Houston & T. C. R. Co. v. Walker, 167 S. W. 199.
death of an engineer by the failure of switch $194 (Tex.Civ.App.) In an action for the tenders to properly throw switches, where there to rely upon a signal received from one only of was evidence that the engineer had the right the switch tenders, a request requiring him to receive a signal from all was properly refused because upon the weight of the evidence.-Trinity & B. V. Ry. Co. v. Dodd, 167 S. W. 238.
$194 (Tex.Civ.App.) A requested charge on the weight of the evidence is properly refused. Burkhiser v. Lyons, 167 S. W. 244.
194 (Tex.Civ.App.) In brakeman's death from falling from a freight car, the submission of the issue whether he was killed directly and proximately by defendant's negligence, together with a definition of negligence, and the expression "violently thrown," used in several of the issues, were not objectionable as a charge on the weight of evidence.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279.
In an action for a brakeman's death a requested charge that there was no presumption that deceased was killed as a result of defendant's negligence held improper as invading the province of the jury.—Id.
§ 194 (Tex.Civ.App.) The requested instruction, in an action for delay in delivering a telegram, announcing death and place and time of funeral of the sister of plaintiff's wife, that the wife was presumed to know the schedule of trains which she could take and thereby seasonably reach such place is properly refused as on the weight of evidence.-Western Union Telegraph Co. v. Taylor, 167 S. W. 289.
$194 (Tex.Civ.App.) The rule that in a particular case the evidence must be clear and convincing to justify equitable relief by reformation of an instrument should not be given in the charge to the jury.-Western Assur. Co. v. Hillyer-Deutsch-Jarratt Co., 167 S. W. 816.
(B) Necessity and Subject-Matter. 8203 (Tex.Civ.App.) There was no error in refusing defendant's requests instructing the jury to find for it as to certain acts of negligence set forth in the petition, where the court did not make those allegations grounds of recovery in the instructions which he gave.Stone & Webster Engineering Corporation v. Goodman, 167 S. W. 10.
(C) Form, Requisites, and Sufficiency. § 229 (Tex.Civ.App.) Repeating 12 times in § 191 (Tenn.) A requested instruction which the charge that the jury must believe "from a assumes a fact not shown by the evidence is preponderance of the evidence" the facts alproperly refused.-Gulf Compress Co. v. Insur-leged by plaintiff tended to emphasize the burance Co. of Pennsylvania, 167 S. W. 859. den cast by law on plaintiff, and was probably harmful.-Cook v. Urban, 167 S. W. 251.
§ 233 (Tex.Civ.App.) While it may not be necessary to make a preliminary statement of the issues raised by the pleadings, it is not error in the charge to state the issues by copying a part of the petition.-Lisle-Dunning Const. Co. v. McCall, 167 S. W. 810.
§ 243 (Mo.App.) In an action by an attorney for legal services, instructions as to burden of
proof held inconsistent, necessitating a new trial
167 SOUTHWESTERN REPORTER
§ 244 (Tenn.) A requested instruction which lays stress on a special item of evidence is properly refused.-Gulf Compress Co. v. Insurance Co. of Pennsylvania, 167 S. W. 859.
§ 251 (Ky.) In a personal injury action, the court properly ignored in its instructions the subject of plaintiff's medical and nursing bills, where the petition failed to specially allege that any specific sum was expended, and there was no evidence of any such expenditures.-Prestonsburg Coal Co. v. Wallen, 167 S. W. 395.
(D) Applicability to Pleadings and Evidence.
$250 (Mo.) The instructions must be within both the proof and the pleadings, and must not be broader than the proof, though the plead-ting the hypothesis of negligence held error.ings would justify broader instructions. Riley Botts v. Chicago, B. & Q. R. Co., 167 S. W. v. City of Independence, 167 S. W. 1022.
the destruction of plaintiff's automobile at a § 253 (Mo.App.) In an action for damages for ing switching operations, an instruction omitcrossing by collision with defendant's cars dur
$251 (Mo.) In employé's action for injuries, where petition alleged specific acts of negligence, instruction authorizing a recovery, if defendant was negligent, held too general, as not restricting a recovery to the specific acts pleaded.Riley v. City of Independence, 167 S. W. 1022.
8251 (Mo.App.) Where, in an action upon a building contract, defendant did not seek a reduction of the amount due on the contract price because of defective work, etc., but pleaded such loss and damage as a counterclaim, a charge authorizing a recovery for plaintiff for the unpaid balance, if the jury found that he had substantially complied with his contract, was not erroneous; a separate instruction covering the counterclaim.-Knost v. Van Hoose, 167 S. W.
§ 252 (Ark.) In an action on a note, an instruction held properly refused because abstract and unsupported by evidence.-Harbison Hammons, 167 S. W. 849. v.
§ 252 (Mo.) Instruction in employe's action for injuries from electric shock on the theory that a switch was secure and safe at 7 p. m., before the accident, and thereafter became out of repair, held properly refused, where all the evidence showed that any defect in the switch was there prior to the hour named.-Riley v. City of Independence, 167 S. W. 1022.
fuse charges not supported by any testimony.§ 252 (Tex.Civ.App.) It is not error to reLisle-Dunning Const. Co. v. McCall, 167 S. W.
§ 252 (Mo.App.) An objection to an instruction relating to plaintiff's right to recover in an action for selling oils on commission that it was based on improper evidence was without merit, where the claim was admitted in the answer. Whitaker v. Bell Oil Co., 167 S. W. 619.
§ 252 (Tex.Civ.App.) The word "willfully," in connection with "knowingly," in an instruction that, if defendants did a thing willfully and knowingly, etc., they were negligent, authorized the jury to conclude the court was of opinion there was some evidence that defendant did such thing with a bad intent, making the instruction prejudicial; there being no such evidence. Corrigan, Lee & Halpin v. Heubler, 167 S. W. 159.
injuries to a member of a switching crew who $253 (Ky.) An instruction, in an action for jumped from a car negligently allowed to move the car for safety, he could recover, was erdowngrade, that, he, in good faith, believed that his life was in danger and jumped from question whether his conduct was rash or proroneous, as withdrawing from the jury the duced by a trivial occurrence.-Millers Creek R. Co. v. Barnett, 167 S. W. 402.
§ 252 (Tex.Civ.App.) Where an issue is supported by evidence, it is proper for the court to charge thereon.-Owens v. First State Bank of Bronte, 167 S. W. 798.
§ 252 (Ark.) Where a payee sought to recover on a note as originally executed, on the theory-Brickell v. Williams, 167 S. W. 607.
that the maker, by fraudulent representations, induced him to consent to an alteration of the note, a charge requested by the surety, not contracting with the payee for the alteration on the subject of fraud, held properly refused. -Waugh v. Cook, 167 S. W. 103.
death of a servant, a teamster, caused by a clevis breaking, causing the doubletree to fly § 253 (Tex.Civ.App.) In an action for the back and strike him in the head, a request predicating a finding for defendant if the doubletree was in the exclusive control of the servother ground of liability charged, and because ant was properly refused, because ignoring anthere was no evidence that the servant had exclusive control, etc.-Stone & Webster Engineering Corporation v. Goodman, 167 S. W. 10.
(E) Requests or Prayers.
§ 260 (Ark.) The court having charged as to cial paper it was not error to strike a similar what constitutes a bona fide holder of commerstatement from one of defendant's requested charges.-Little v. Arkansas Nat. Bank, 167 S. W. 75.
quest to charge, where the instructions given cor§ 260 (Mo.) It was not error to refuse a rerectly declared the law of the case.-Bimmerle v. Langdeau, 167 S. W. 532.
struction covered by another given is not error. § 260 (Mo.App.) Refusal of a requested in
instruction in an action for commissions for § 260 (Mo.App.) The refusal of a requested selling oils, wherein defendant counterclaimed for sales and oils not accounted for, that plaintiff could not recover commissions on sales not instructions required that plaintiff be charged accounted for was not error, where the other with the "full" amount of any sales not accounted for.-Whitaker v. Bell Oil Co., 167 S. W. 619.
on the refusal to give an instruction merely § 260 (Mo.App.) Error may not be predicated repeating in different language a matter clearly covered by another instruction.-Jackson v. Kansas City, 167 S. W. 1150.
by instructions given, may be properly refused. § 260 (Mo.App.) A request to charge, covered -Cowgill v. City of St. Joseph, 167 S. W. 1157.
charge was properly refused.-Trinity & B. V.
ready sufficiently covered by other instructions.
(F) Objections and Exceptions.
struction as submitting to the jury the deter-
(G) Construction and Operation. $295 (Mo.App.) In an action by a wife for alienation of her husband's affections, where an instruction stated that defendant had no right to interfere, and by any chance cut off the possibility of future affection between plaintiff and her husband, the use of the expression "by any chance cut off," instead of the expression "cut off any chance," was cured by the rest of the instruction, which clearly indicated its meaning.-Claxton v. Pool, 167 Š. W. 623.
§ 296 (Ky.) The error, in an instruction for injuries to a member of a switching crew jumprun ing from a car negligently allowed to downgrade, authorizing a recovery, if he, in good faith, believed that his life was in danger and jumped from the car for safety, was not cured by an instruction that, if he did not use the caution of an ordinarily prudent person, and but for his failure the accident would not have occurred, the verdict must be for defendant.-Millers Creek R. Co. v. Barnett, 167 S. W. 402.
§ 296 (Mo.App.) Error in instructing that the owner of railroad ties could not recover their value, if defendant bought them in good faith from one not the owner, was not harmless, though other instructions correctly submitted the defense, which was estoppel by clothing the seller with the appearance of ownership.-P. R. Walsh Tie & Timber Co. v. Chester, P. & S. G. R. Co., 167 S. W. 614.
plaintiff's commission at $1,000, and the seller was to pay $1 per acre, but, while the farm was listed as containing 1,000 acres, the purchaser refused to take it because it in fact only contained 600 acres.-Blakely v. Miller, 167 S. W. 1136.
X. TRIAL BY COURT.
(A) Hearing and Determination of Cause. § 386 (Mo.) Instructions are not only out of place in a lawsuit tried to the court without a jury on facts constituting an agreed case, but serve no useful office in equity.-Tevis v. Tevis, 167 S. W. 1003.
$296 (Tex.Civ.App.) In a personal injury action by a railroad servant, an instruction, allowing recovery for an act of negligence not counted on, held not erroneous in view of the others. Missouri, O. & G., Ry. Co. v. Dereberry, 167 S. W. 30.
§ 296 (Mo.App.) A judgment in favor of a servant will not be reversed because an instruction erroneously imposed on defendant the duty of an insurer instead of the obligation to use reasonable care, where the law was correctly charged in an instruction given at defendant's instance. Spaulding v. Missouri Lumber & Min- See Mortgages. ing Co., 167 S. W. 663.
$296 (Tex.Civ.App.) Instruction to find for plaintiff if freight train's employés were negligent, if erroneous as failing to state what acts would constitute negligence, held not ground for reversal, where special charges confined and defined the particular acts of negligence upon which the jury could make a finding.-Missouri, K. & T. Ry. Co. v. Wallace, 167 S. W. 168. an action for a § 296 (Tex.Civ.App.) In brakeman's death, held, in view of the other issues and instructions, that a charge requiring a finding as to the amount which would "fully compensate" the widow for her pecuniary loss was not objectionable as leading the jury to think that compensation should be large and should cover her mental anguish at the loss of
her husband's companionship.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279.
TROVER AND CONVERSION.
See Appeal and Error, § 877; Banks and Banking, 171; Carriers, §§ 57, 94; Corporations, § 333.
§ 35 (Mo.) One suing for the conversion of personal property purchased by him at an execution sale under a judgment of a justice of the peace in another state had the burden of establishing the court's jurisdiction to order the sale.-Kwilecki v. Holman, 167 S. W. 989.
§ 296 (Tex.Civ.App.) In an action against a bank for money which a depositor claimed was wrongfully paid out, a charge that the depositor had the burden of proving his case was not misleading and did not improperly place the bur den of proof on him, where the court charged that the bank had the burden of proving its affirmative defenses of payment with authority and ratification.-Owens v. First State Bank of Bronte, 167 S. W. 798.
See Assignments, § 119; Joint Adventures, § 7; Jury, 14; Limitation of Actions, §§ 102, 103; Navigable Waters, § 36; Vendor and Purchaser, § 230; Wills, §§ 686, 687.
I. CREATION, EXISTENCE, AND VALIDITY.
(A) Express Trusts.
§ (Mo.App.) A trust is a beneficial title or ownership of property of which the legal title is in another.-Shelton v. Harrison, 167 S. W. 634.
§§ 17, 18 (Ky.) An enforceable trust may be established by the parol agreement of a father to hold in trust for his daughter the legal title to property purchased in part with money given to her as an advancement out of his estate.Erdman v. Kenney, 167 S. W. 685.
§§ 17, 18 (Mo.) Under the statute of uses and trusts (Rev. St. 1909, § 2868), an express trust in land must be evidenced by some writing signed by the party to be charged.-Ferguson v. Robinson, 167 S. W. 447.
Under the statute of uses and trusts (Rev. St. 1909, § 2868) and the statute of frauds (section 2783), equity will not enforce an express trust created by parol, in the absence of any fraud prior to or contemporaneous with the creation of the trust by parol.-Id.
§§ 17, 18 (Tex.Civ.App.) An agreement whereby one of the parties constitutes himself a trustee for the specific purpose of carrying out an agreement for the sale and conveyance of an interest in land is not within the statute of frauds. -Lester v. Hutson, 167 S. W. 321.
(A) General Verdict.
§ 333 (Mo.App.) A verdict for $600 was responsive to the issue, where a contract fixed
§ 21 (Mo.) The court, to establish an express trust, must be able to determine, from the instrument signed by the party creating it, the ex
A resulting trust arises, as a matter of law, from the fact that the consideration for land is paid by one person and the title taken in the name of another; the trust arising whether in accordance with or against the intentions of the parties.-Id.
$75 (Mo.App.) That credit is given or money borrowed and subsequently paid is sufficient to raise a resulting trust, where property is purchased with funds furnished by one person and the title taken in the name of a stranger.-Shelton v. Harrison, 167 S. W. 634.
such a state of facts as will create a trust and define its terms and limits.-Ferguson v. Robinson, 167 S. W. 447.
(C) Constructive Trusts.
$91 (Mo.) A constructive trust rests on the public policy which requires that the law shall not become an instrument for the perpetration of fraud, and fraud, actual or constructive, is essential for the establishment of a constructive trust which, in view of Rev. St. 1909, § 2869, will be given force and effect.-Ferguson v. Robinson, 167 S. W. 447.
$110 (Mo.) Evidence held not to establish, as against a purchaser at execution sale, a constructive trust in the property sold for the benefit of the execution debtor.-Ferguson v. Robinson, 167 S. W. 447.
Oral admissions made by a party sought to be charged as constructive trustee are entitled to but little weight, especially where the evidence is inconsistent.-Id.
The evidence to support a constructive trust resulting from fraud must be clear, strong, and unequivocal, and leave no room for a reasonable doubt as to the existence of the trust.-Id.
A resulting trust cannot arise in the hands of one who is the real owner of the property, nor by the act or agreement of one party who both pays the consideration and takes the title in himself, nor by an act or agreement subsequent to the conveyance.-Id.
Where money was contributed by members of an association to purchase a fruit farm, title to which was taken in the name of defendant's husband, since deceased, but there was no agreement as to such title or that the land should be conveyed to a corporation, there was no ex
press trust, but a trust resulted in favor of the See Deeds, §§ 196, 211; Wills, §§ 155, 163. contributors, which was provable by parol.-Id.
$ 100 (Ky.) Where complainant, having purchased land worth $5,000 at a judicial sale, obtained $1,631.10 from her father, conveying the property to him on his agreement to hold the same in trust for her, equity would raise a constructive trust and decree that the father should hold the title in trust for his daughter or execute the trust in such manner as would protect her rights.-Erdman v. Kenney, 167 S. W. 685.
IV. MANAGEMENT AND DISPOSAL
8191 (Tex.) Where the owners of a town site conveyed it to trustees, to be represented by 1,000 shares to be sold by the trustees for the benefit of the owners and their associates, the purchasers to form a joint-stock company to continue the enterprise, the fact that the trustees conveyed the land to the directors of the joint-stock company did not preclude them from continuing to sell unsold shares.-Yeaman v. Galveston City Co., 167 S. W. 710.
VII. ESTABLISHMENT AND EN-
$359 (Mo.App.) The establishment of trusts and the enforcement of trust relations is an ancient ground of equity jurisprudence.-Shelton v. Harrison, 167 S. W. 634.
§ 366 (Mo.App.) Where several persons contributed to the purchase of a co-operative fruit farm, which was subsequently sold under foreclosure, resulting in a surplus, they were properly joined in a suit to enforce a resulting trust as to such surplus.-Shelton v. Harrison, 167 S. W. 634.
889 (Mo.) In an action by a divorced wife to See Limitation of Actions, § 127. establish a resulting trust in a house and lot, the title to which was in the husband, evidence held to sustain a finding that plaintiff during the marriage relation contributed at least onehalf of the price of the lot and one-half_the costs of the improvements placed thereon.-Robbins v. Robbins, 167 S. W. 502.
See Commerce, § 8: Courts, §§ 97, 366; Indians; Removal of Causes.
I. USURIOUS CONTRACTS AND
(A) Nature and Validity.
§18 (Ky.) Under Ky. St. § 2219, held, that the act of a mortgagee in exacting an additional one per cent. of the principal for consenting to present payment and the loss of further interest was not a "loan or forbearance" amounting to usury.-Hamilton v. Kentucky Title Savings Bank & Trust Co., 167 S. W. 898.
§ 27 (Ky.) Under Ky. St. § 2219, held, that the act of a mortgagee in exacting an additional one per cent. of the principal for consenting to present payment and the loss of further interest was not a "loan or forbearance" amounting to usury.-Hamilton v. Kentucky Title Savings Bank & Trust Co., 167 S. W. 898.
II. PENALTIES AND FORFEITURES.
rate of $3 a month were usurious, entitling § 138 (Tex.Civ.App.) Loans of $10 at the the borrower to recover double the amount of interest paid.-Cotton v. Barnes, 167 S. W. 756.
§ 107 (Mo.) A party seeking to establish a