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ing and agreement that for their services on and for services in the partition suit, within behalf of the plaintiff they were to be paid the intention of the parties, was included in by her the sum of $1,500. It appears that the general contract under which the defendshortly after the administration proceedings ant firm was employed by plaintiff. Based were begun defendants brought an action to upon these findings, the court entered judg. partition the real estate of which said dece ment in favor of plaintiff for the difference dent died seised. To this action the other between the sum of $1,500 and the aggregate heirs appeared, and by consent of parties a of the attorney's fees paid to defendant by decree was entered confirming in each of the the referees and by the said claimants, to parties a one-third interest in said real es- wit, the sum of $815 and interest. tate, and providing for a sale thereof by refer We shall not undertake to set forth or disees; and a sale of said real estate was made. cuss in this opinion the evidence introduced and therefrom was realized the sum of $31,- | by the parties on the trial. It is sufficient 260. In the decree confirming the sale and di- to say that we have read the same with care, recting distribution of the proceeds thereof the and we are satisfied that the trial judge cordefendant firm was awarded attorney's fees in rectly reached the conclusion that defendants the sum of $352.60, and said sum was paid | led plaintiff to believe that the sum of $1,500 them by the referees. Plaintiff, who resided in was to cover all services rendered to her in the state of Wisconsin, on the request of de the settlement of said estate matter; further, fendants, forwarded to them a receipt for the that from what took place plaintiff was waramount due her from the proceeds of the sale ranted in believing that the services renderafter deducting expenses, including attorney's ed by the defendant firm in connection with fee, as above stated, and the amount of her said claim was to be regarded as included in one-third interest was paid over to defendants her contract of employment. by the referees. From such amount the de- It follows, from this, that there was no erfendants deducted the sum of $1,500 and re- | ror in the judgment, and it must be, and is, mitted to her the balance.
affirmed. It further appears that in the course of the Jettlement of the estate the defendant firm was employed to prosecute against the estate
FLOYD COUNTY v. WOLFE et al. claims on behalf of Mrs. Henry Hecht and
(Supreme Court of Iowa. July 7, 1908.) Mrs. M. E. Post, each claiming that the estate was indebted to them, respectively, in
1. HOMESTEAD – NATURE OF ESTATE-CON.
STRUCTION OF STATUTORY PROVISIONS. the sum of $2,000, due for services rendered
Homestead rights are the creatures of leg. to said Warner in his lifetime. It seems that islative enactment; and, while the statute such employment of the defendant firm came
should be liberally construed to effect its beney
olent purposes, the court may not by interpretaabout in this way: It was conceded by plain
tion unduly extend its scope for the benefit tiff that said claims were just and should be persons not expressly or by fair implication paid out of the estate; but the other heirs
included in the list of its beneficiaries. were not so minded. Finally Mrs. Hecht and
[Ed. Note. For cases in point, see Cent. Dig.
vol. 25, Homestead, 7.] Mrs. Post, on the suggestion of plaintiff,
2. WORDS AND PHRASES—"FAMILY.” went to defendant to arrange for the filing
The word "family" in its most usual sig. of their claims, and such was done. After nification is the group comprising the husband some negotiations between the heirs, the ad and wife and their dependent children. In a
broader sense it consists of a person acting as ministrator, and defendants, an agreement
head or manager with others living with and was reached whereby Mrs. IIecht and Jirs.
depending upon him and occupying the same Post were allowed each the sum of $1,000. home. That sum of money being paid over to the (Ed. Note. For other definitions, see Words, defendant firm, there was deducted there
and Phrases, vol. 3, pp. 2673–2691; vol. 8, p.
7061.) from and retained the sum of $500 as attor
3. MARRIAGE-NATURE OF CONTRACT. ney's fees, and the remaining sum of $1,500
Under the express provisions of Code, $ was turned over to the claimants. The court 3139, marriage is a civil contract, requiring below that the contention of defendants re the consent of parties capable of entering into specting the terms of their employment was
other civil contracts, and hence without such
consent no marital rights are acquired nor sustained by the evidence, and that said firm
marital duties imposed, and, if one or both of was therefore entitled to deduct from the the parties be insane and therefore incapable moneys coming into their hands and retain
of giving consent, there is no marriage, but in
the interest of good order the courts will astherefrom the sum of $1,300. The court
sume jurisdiction to decree the annulment of found, however, that within the intention of the union though annulment is not necessary the parties said sum of $1,500 was to cover
to clothe the parties with all the rights of unall services to be performed by defendants
[Ed. Note.-For cases in point, see Cent. Dig. in connection with said estate on behalf of
vol. 21, Marriage, ss 1, 9, 113. plaintiff'. The court further found that the For other definitions, see Words and Phrases, services performed by defendant in present vol. 5, pp. 43904398; vol. 8, p. 7717.) ing the claims against said estate mentioned 4. HOMESTEAD-PERSONS ENTITLED-DIVORC. were in reality rendered for and on behalf
ED WIFE - ANNULMENT OF MABRIAGE
"FAMILY"'-"DIVORCE.". of plaintiff. The court further found that the
Section 2973 of the Code provides that a attorney fee allowed the defendant firm as widow or widower, though without children,
shall be deemed a family within the meaning of l obtained by the guardian constitutes all the the chapter while continuing to occupy the real
property of the ward, and the guardian ofestate used as a homestead at the death of the husband or wife, and such right shall continue
fers to "turn it over to the county in part to the party to whom it is adjudged in a de
payment of its claim, provided the superincree of divorce during continued personal oc tendent of the hospital where the ward is cupancy. A man obtained a decree annulling his
confined will furnish a certificate that she is marriage to a woman who was confined in an insane asylum on the ground of her insanity at
and will remain incurably insane." On this the time of marriage. Held, that the decree showing the trial court held with the contenof annulment was not a decree of divorce with
tion of the guardian that the moneys sought in the statute, but simply operated to declare the union not a marriage, and hence the woman
to be reached were exempt to the ward as had no homestead rights as a divorced wife. the proceeds of the sale of a homestead, and
1 Ed. Note.--For other definitions, see Words denied the prayer of the petition, without and Phrases, vol. 3, pp. 2149-2150.)
prejudice to the renewal of the application, 5. SANE-PERSONAL OCCUPANT OF PROPERTY. "in the event that for any reason the funds The woman even had she been a divorced
cease to be exempt.” The one question prewife would not be entitled as such to homestead rights, since being without children, and hav
| sented by the appeal is whether under the ing been confined in the asylum for several agreed facts the ward's share in the moneys years, she was not in personal occupancy of the arising from the sale of the property occupremises.
pied by her and the said Louis Wolfe as a (Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Homestead, 88 40–43.)
home previous to the annulment of their
marriage is exempt from execution. The Appeal from District Court, Floyd Coun
claim of exemption is based upon the theory ty; C. H. Kelly, Judge.
that for the purposes of the homestead statAction to recover on account of moneys ex
ute the ward, after the annulment of the pended for the support of the insane ward
marriage, is entitled to the homestead rights in the state hospital. Judgment for defend
of a divorced wife. The statute as to the ants, and plaintiff appeals. Reversed and re
homestead rights of a divorced person reads manded.
as follows: "Sec. 2973. Family Defined. A L. 0. Rue, Co. Atty., for appellant. Eg widow or widower, though without children, gert & Lockwood, for appellees.
shall be deemed a family within the meaning
of this chapter, while continuing to occupy WEAVER, J. In the year 1895 the defend the real estate used as a homestead at the ant Ernestina Wolfe, was married to one death of the husband or wife, and such right Louis Wolfe. In 1893 they became possessed shall continue to the party to whom it is adof a house and lot in Charles City, Iowa, judged in a decree of divorce, during conwhich they occupied as a home until the year | tinued personal occupancy.” It is also fur190, when the said Ernestina was adjudged ther provided that no change of the homeinsane, and committed to the state hospital stead without the concurrence of the husprovided for such unfortunates. Since that band or wife shall affect his or her rights time the plaintiff Floyd County has expend therein, and that a new homestead to the ed for her support in said institution the extent of the value of the old is exempt in sum of $733.50, no part of which has been all cases where the old one would have been. repaid. In the year 1905 Louis Wolfe Appellees seek to further support their conbrought suit in the district court of Floyd tention by reference to the statute regulatcounty to annul said marriage, on the ground ing the annulment of marriages. Without that the defendant was at the date thereof setting it out in full, it may be said that this insane and incapable of contracting a valid statute provides that a marriage may be anmarriage. Upon due notice of the proceeding | nulled where either party was insane or and trial to the court, a decree was entered idiotic at the time of the marriage (Code, granting the relief prayed, and providing for $ 3182), and except as otherwise provided a division of the homestead property, one | the pleadings and practice in such cases shall third to the defendant Ernestina Wolfe and be the same as in actions for divorce. Code, two-thirds to the said Louis Wolfe. Since $ 3183. Homestead rights are the creatures that time the property has been sold in par of legislative enactment, and, while the stattition proceedings, and the proceeds of the ute is to be construed with generous liberalone-third interest therein of Ernestina Wolfe, ity to effect its benevolent purposes, the court something less than $300. is in the hands of may not by interpretation or construction unthe defendant Eggert, her guardian. In the duly extend its scope for the benefit of percase at bar the county presents a claim for sons not expressly or by fair implication inthe moneys expended for the support of the cluded in the list of its beneficia ries. The ward, and asks that the fund in the hands of homestead which the law exempts is "the the guardian be applied to its payment. homestead of every family.” Code, $ 2972. There are no children of said marriage, and The word “family” in its most usual significathe ward is still in the hospital. In the tion is the group comprising the husband and agreed state of facts to the above effect, it wife and their dependent children. In a is also conceded that said ward is not the somewhat more enlarged sense, it consists of a head of a family, has no family dependent person acting as head or manager with others on her, and is not married. The money thus | living with and depending upon him and oc
cupying the same home. Parsons v. Living. | valid marriage, ceremonial or otherwise, beston, 11 Iowa, 104, 77 Am. Dec. 135; Arnold | tween the ward and Louis Wolfe, if she was V. Waltz, 53 Iowa, 706, 6 N. W. 40, 36 Am. / not his wife by any contract or bond which Rep. 248; In re Rafferty (D. C.) 112 Fed. the law would recognize or enforce, and if 512; Sheehy v. Scott, 128 lowa, 551, 104 N. the decree adjudging the alleged marriage
W. 1139, 4 L. R. A. (N. S.) 363, 111 Am. St. to have been void is not a decree of divorce · Rep. 184. The definition is still further en within the meaning of our statute (and we larged by the statute above quoted, and made see no way to escape either conclusion)to include the widow or widower, though then this unfortunate woman is included in without children, while continuing to occupy none of the classes named by the homestead the real estate used as a uomestead at the statute as being entitled to its benefits. We death of the spouse and the divorced person do not mean to be understood as holding that to whom it is adjudged or given by the terms under no circumstances can a woman whose of the decree of divorce during his or her marriage has been declared void successfully continued personal occupancy. Code, § 2973. assert homestead rights. She and her chilNo person can claim the benefit of homestead dren, if she has any, may constitute a famexemption unless he or she comes within ily within the meaning of the law, and there one of the classes above mentioned. The may be other circumstances not appearing ward in this case is confessedly not the head in this case under which she could justly of a family. It is clearly evident that she is claim exemption. But, as a single or unnot a widow, and, unless she is to be class married person which she has been adjudged as a wife to wnom the homestead has been to be, without children or others depending adjudged in a decree of divorce, she is very upon her, we are clear that no such exemption clearly not one of those for whom the statute exists in her favor. It is worth while also to clothes the property with exemption from ex notice that the exemption which the statute ecution.
provides for the benefit of a divorced perUpon this question we are constrained to son continues only so long as he or she shall disagree with the learned trial court. “Mar continue in the personal occupancy of the riage is a civil contract requiring the consent homestead. This woman is not and concededof parties capable of entering into other civil ly was not in the personal occupancy of this contracts." Code, $ 3139. Without such con- property, nor had she been for several years sent no marital rights are acquired and no at the time of its partition sale. It is true marital duties imposed. If one or both of that, being insane and incapable of consentthe parties be insane, and thereby incapable | ing to her own removal to the hospital, she of giving the consent necessary to constitute may be considered as having been in cona contract, there can be no marriage in law structive possession of her home until it was or in fact between them, although in the in: sold and disposed of, and probably, had she terest of good order the courts will assume left a family, there a liberal construction jurisdiction to decree the annulment of such of the statute would allow us to say she conunion. But such annulment is not neces tinued in personal occupancy of it, but no sary to clothe the parties with all the rights such modifying circumstance exists, and we of unmarried persons. Powell v. Powell, 18 are not justified in saying that, although for Kan. 371, 26 Am, Rep. 774; Wagmire v. Jet years confined in the hospital for the insane, more, 22 Ohio St. 271; Wightman v. Wight the ward was at the same time in the actual
man, 4 Johns. Ch. (N. Y.) 343; Dare v. Dare, occupancy of her home in a distant part of 52 N. J. Eq. 195, 27 Atl. 654; Patterson v. the state. Still other reasons could be adGaines, 47 U. S. 553, 12 L. Ed. 553; Drum duced for sustaining the claim of the appelmond y. Irish, 52 Iowa, 41, 2 N. W. 622. In lant; but those already mentioned we regard Wier v. Still, 31 Iowa, 107, this court stated as sufficient. the rule as follows: "This contract rests up The authorities cited by appellee are not inon the consent of the parties thereto. If one | consistent with this conclusion. Higgins V. of them was legally incapable of consenting, Higgins, 117 Ky. 725, 78 S. W. 1124, decided it is void, and may be so declared by a court by the Kentucky court, is authority for the of chancery.” In the case of Stewart v. Van proposition that the incarceration of a wife dervort, 34 W. Va, 534, 12 S. E. 736, 12 L. R. in an insane asylum after her husband's A. 50, a claim for alimony was allowed by the death does not affect her homestead rights. trial court to the defendant in a decree an In the opinion thus stated we fully concur; nulling the marriage, although there was no but it has no application to the case of a wostatute authorizing such allowance. In re man who is neither wife nor widow. The deversing that order the court says: “It is very cision in Wiser v. Lockwood's Estate, 42 Vt. clear that without authority of statute ali 720, is cited to the effect that after the death mony could not be decreed for it never was of the husband insa né at the date of mara marriage. The woman was never a wife." riage, and where no proceedings have been In Powell v. Powell, supra, the court used taken to have such marriage annulled or dethis language: “A marriage of an insane clared void, the wife becomes entitled to the person is absolutely void by reason of the rights of a widow. With this also we may want of capacity of such party to contract." | agree, but the rule stated is not pertinent to If, then, in the case before us there was no the facts in the case at bar. Counsel for ap
pellee also cite the case of Barber v. Barber, 74 | on the rail, and ran alongside for some distance Iowa, 301, 37 N. W. 381, as holding that a wo- l in an effort to board, when finally his hold was man who married an insane person in igno
broken or relinquished, and he fell and was in
jured, the question whether his fall was the rance of his insanity is entitled to the rights of proximate result of the negligent starting of the a widow after his death. The opinion cited car, if the facts permitted of a question, was does not so hold. In that case the marriage
for the jury. was adjudged void at the suit of the wife on 6. NEGLIGENCE-PROXIMATE CAUSE. the ground that the husband was insane
A negligent act, putting another in a posi
tion of danger, continues and controls as long when such marriage took place, and she was
as the danger continues, unmodified by any inpermitted to recover from him compensation dependent, affirmative, and voluntary act of the for her services, and for the impairment of person affected, or by some intervening, controlher health occasioned by the defendant's treat
ling circumstance. ment of her. The court nowhere expresses
[Ed. Note.--For cases in point, see Cent. Dig.
vol. 37, Negligence, 88 69–79.] the view that a woman married under such circumstances is entitled to the rights of a
7. SAME — CONTRIBUTORY NEGLIGENCE – Con.
DUCT IN EMERGENCY. widow after the death of the husband, nor
Where what is done by a person in the face was such question presented by the issues of an emergency is no more than may be exthere being considered.
pected from an ordinarily prudent person under It is unnecessary to further pursue the dis
like circumstances, due care is not wanting. cussion. As we have already stated, rights of
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 37, Negligence, &$ 99, 100.] the character here claimed by the appellee are of statutory origin, and can be claimed
8. SamE-QUESTIONS FOR JURY.
Where reasonable minds might differ whethand enjoyed only by those persons or classes
er a person in the face of an emergency acted designated by the Legislature in the creation with due care, the question is one for the jury. of the right. The ward in this case belongs [Ed. Note.-For cases in point, see Cent. Dig. to none of the classes thus favored.
vol. 37, Negligence, § 340.] It follows from what we have said that the l 9. CARRIERS - CARRIAGE OF PASSENGERS-ACcause must be reversed and remanded for fur TIONS FOR INJURIES-QUESTIONS FOR JURY-
CONTRIBUTORY NEGLIGENCE. ther proceedings not inconsistent with the
Whether a passenger, thrown from his footconclusions herein announced.
ing in attempting to board a street railway car Reversed.
by the negligent starting thereof, was guilty of contributory negligence in not releasing his hold on the rail and in running alongside and attempting to regain his position and board the
car held for the jury, and especially where the BURGER V. OMAHA & C. B. ST. RY. CO. starting of the car was slow. (Supreme Court of Iowa. July 9, 1908.) 10. SAME_"EMERGENCY."
In the sudden and unexpected starting of 1. APPEAL AND ERROR-OBJECTIONS IN LOWER
a street car while a passenger is attempti COURT
to board, there is presented an emergency; an Where an objection to evidence was proper
"emergency” being a sudden or unexpected haply orerruled when made, the fact that it later
pening or occasion calling for immediate action. appeared that the evidence was incompetent is
(Ed. Note.-For cases in point, see Cent. Dig. not available on appeal, where no further action
vol. 9, Carriers, $ 1352. was taken in regard to it. 2. SAME — REVIEW - QUESTIONS OF FACT-DI
For other definitions, see Words and Phrases, BEC TED VERDICT.
vol. 3, p. 2361.) On review of a refusal to direct a verdict,
11. SAME--INSTRUCTIONS. the Supreme Court is required to consider the
An instruction, in an action for injury to a evidence in the light most favorable to the par
street railway passenger, after advising the jury tr against whom a directed verdict is sought.
that plaintiff could not recover if his own neg. (Ed. Note. For cases in point, see Cent. Dig. ligence contributed to the accident; that the vol. 3, Appeal and Error, $ 4024.]
fact that plaintiff did not let go of the car, but 3. CABRIERS-CARRIAGE OF PASSENGERS-AC
kept his hold on the rail, and ran alongside tryTIONS FOR INJURIES-EVIDENCE-SUFFICIEN
ing to get on after it had started, did not neces
sarily show that he was guilty of contributory Evidence, in an action for injury to a street
negligence; that if by reason of the starting of railway passenger, held sufficient to go to the
the car an emergency arose, then, even though
his action was ill judged, if under the facts Jury on the question of whether he was in the exercise of due care.
he acted as a man of ordinary prudence in a (Ed. Note.-For cases in point, see Cent. Dig.
like situation, and had used ordinary care in his
original attempt to get on the car. he was not Fol. 3. Carriers, $ 1402.]
guilty of contributory negligence--correctly stat4. SAME.
ed the law, and without confusion. Evidence, in an action for injury to a street
12. TRIAL – INSTRUCTIONS - REQUESTED INrailway passenger, held sufficient to go to the
STRUCTIONS COVERED BY THOSE GIVEN. JUTT on the question of whether defendant was
A refusal of a requested instruction that, Brzlizent in starting the car, proximately re
if a witness had willfully sworn falsely with Elting in the injury.
reference to any material fact, the jury were at (Ed. Note.--For cases in point, see Cent. Dig. |
liberty to disregard his testimony, or to give it Tol. 9, Carriers, $ 1160.]
only the weight and credit to which they be5. SANE - QUESTIONS FOR JURY – PROXIMATE lieved it entitled, was without prejudice, where CAT SE.
the court charged that the jury were the judges Where the immediate effect of the negligent of the credibility of the witnesses, and that, starting of a street car was not to throw a where there was a conflict in the evidence, they
a senger, who was attempting to board, to should harmonize it if they could, but that if Le ground, but instead he maintained his hold | they could not do so, they should give to each
witness such credit as they deemed him entitled, favor, on the grounds: (1) Negligence on the or none if entitled to none.
part of defendant had not been proven; (2) (Ed. Note.—For cases in point, see Cent. Dig.
the acts of negligence sought to be established vol. 46, Trial, 88 651-659.]
were not the proximate cause of the injury 13. APPEAL AND ERROR – REVIEW-HARMLESS
of which plaintiff complains; (3) freedom ERROR-INSTRUCTIONS.
Where, in a personal injury action, there from contributory negligence had not been were other elements of damage alleged than loss proven. The motion was overruled, and of of time, to which evidence was addressed, and
this defendant complains. A determination the verdict was for $5,000, there was no prejudice in the court's failure, in its instructions, to
of the question thus made involves, of course, place any limitation on the amount recoverable
a review of the evidence. Presenting the for loss of time, though the petition alleged dam same in the light most favorable to plaintiff, age, on that account, of but $1,000.
as we are required to do, there was warrant [Ed. Note. For cases in point, see Cent. Dig.
for a jury finding of this state of facts: Devol. 3, Appeal and Error, 38 4225–4228.]
fendant's line of railway, at the point in ques14. CARRIERS-CARRIAGE OF PASSENGERS-AC
tion, runs east and west, and is double trackTIONS FOR INJURIES - PLEADING – SUFFI
ed; the east-bound cars using the south CIENCY.
Where the trend of the allegations of fact, track. While there is a platform on the in a petition for injury to a street railway pas north side of the tracks at the Gun Club senger, was to the effect that he was in the ex
Station, there is none on the south, and enercise of due care for his own safety, an allegation that the injury was not due to any act of
trance to cars must be made from the ground. negligence of his was sufficient as a conclusion, Plaintiff had been attending a shoot at the or, at least, the pleading was not wholly wanting gun club, and, in company with one Craybill, in an allegation on that subject; and if the
came down from the club grounds—carrying street railway company desired more, it should have moved therefor.
his gun case in his hand-to take the car east
from the station. As the car approached, Appeal from District Court, Pottawattamie
a stop signal was given, and they stepped County; W. R. Green, Judge.
across to the south side of the tracks. PlainAction to recover damages for a personal
tiff says that when the car stopped, three or injury. Trial was had to a jury, resulting
four passengers got off ; that “Craybill got in a verdict and judgment for plaintiff. De
on the car first, and I took my gun in my fendant appeals. Affirmed.
right hand and set it on the platform, and Harl & Tinley, for appellant. S. B. Wads
he took the gun. I took hold of the (hand) worth, F. E. Gates, and George B. Lynch, for rail with my left hand, and put my right appellee.
foot on the step, and just started to get on,
and took hold of the opposite rail, when the BISHOP, J. Defendant operates a street car started with a jerk, and I fell on the railway line in Council Bluffs, and the claim rail behind the car. The car was standing of plaintiff is that, while attempting to board still when I put my gun on the platform, and one of defendant's cars, at what is known as the instant I put my foot on the step it startthe “Gun Club Station," the car was sudden ed, just as I went to take hold of the opposite ly started forward, whereby he was thrown rail." Craybill, as a witness for plaintiff, to the ground and injured. We shall take up says: "Three or four persons got off the car. the several matters of error occurring on the I climbed right on as soon as these people trial in the order of their presentation in got off. Burger took hold of the rail; handargument.
ed me his gun first, just as quickly as I got 1. As a witness in his own behalf, plaintiff on. He got hold of the railing and tried to testified, in chief, that his occupation was get on. He undertook to make a step up that of a barber; that before the accident there. I think he had a foot on the step. in question, he was an able-bodied man. He The car started as tight as it could go from was then asked: “What was your earning the start. Burger fell down. It dragged him capacity per month before the time of the ac. | down. After he fell the car went from 150 cident?” This question was objected to as to 200 feet.” Discussion ought not to be nec
vetent and immaterial, and the objec- essary to make it clear that here was a case tion was overruled. The ruling is assigned to go to the jury. Accepting plaintiff's story as error. We think there was no error. At -as the jury might well do-he was in the the time of the ruling only the fact that exercise of due care. The defendant was plaintiff was by trade a barber appeared of negligent in starting its car before passengers record. All the matters on which the argu had opportunity to board the same, and in ment for error is built up came out subse the manner of starting; and such negligence quently on cross-examination. If counsel was the proximate cause of the accident. conceived that the effect of such matters was 3. Some of the witnesses for defendant to make clear the incompetency of the ev testified that plaintiff continued his hold upidence, given on direct examination, respect on the hand rails after the car started, and ing earning capacity, it was open to them to ran along beside the car a distance of severprefer challenge thereto, but this they did al feet before his hold was broken or relinnot do.
quished, and he fell. Predicating its request 2. At the close of all the evidence defend- | on the testimony to this effect, defendant ant moved for an instructed verdict in its | asked an instruction directing the jury that.