§ 127. The filing of a supplemental petition,
instead of an amended petition, in an action on
a note barred by limitation, held a mere irregu-
larity, not preventing declaring on a new prom-
ise from stopping limitation from the filing of
supplemental petition.-Cotulla V. Urbahn
(Tex.) 1108.
§ 127. Plaintiff's action on a note held not
barred because more than four years elapsed
from the date of a new promise to pay to the
time of filing plaintiff's amended original peti-
tion, where the promises were pleaded in his See Damages, §§ 76, 78.
previous supplemental petition filed within four
years after they were made.-Cotulla v. Urbahn
(Tex. Civ. App.) 13.
III. ACKNOWLEDGMENT, NEW
PROMISE, AND PART
PAYMENT.
§ 172. The fact that limitations barred an
action by a debtor for the misapplication of
money collected by the creditor held not to pre-
vent him from pleading the collection in de-
fense as a payment in an action by the credit-
or for the debt.-Vernor v. D. Sullivan & Co.
(Tex. Civ. App.) 641.
§ 149. An agreement between parties held
not to affect the running of limitations against See Intoxicating Liquors.
a right of action.-Vernor v. D. Sullivan &
Co. (Tex. Civ. App.) 641.
V. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.
LIMITATION OF LIABILITY.
Of carrier in respect to goods, see Carriers, §§
147, 180.
Of telegraph or telephone company for negli-
gence or default in transmission or delivery
of message, see Telegraphs and Telephones,
$ 54.
IV. OPERATION AND EFFECT OF
BAR BY LIMITATION.
§ 172. Where a claim was barred as against
the estate, claimant could not maintain an ac-
tion against the heirs to subject property de- See Navigable Waters, § 39.
scending to them for the payment of the claim.
-Stewart v. Thomasson (Ark.) 86.
LIQUIDATION.
In general, see Assignments for Benefit of Cred-
itors; Bankruptcy.
Of banks, see Banks and Banking, § 77.
LIQUOR SELLING.
§ 190. In an action on a note not instituted
within four years after maturity, where de-
fendant pleaded limitations, plaintiff held en-
titled to allege in a supplemental petition facts
constituting a new promise to pay by defend-
ant made less than four years before the bring-
ing of the action.-Cotulla v. Urbahn (Tex. Civ.
App.) 13.
§ 195. In an action for single damages for
trespass by cutting and removing timber, de-
fendant, relying on the five-year statute of lim-
itation (Rev. St. 1899, § 4273 [Ann. St. 1906,
p. 2349]), held to have the burden of showing
what timber was cut prior to the five years
before the bringing of the action.-Pemiscot
Land & Cooperage Co. v. Davis (Mo. App.) 218.
LIS PENDENS.
Pendency of other action ground for abatement,
see Abatement and Revival, §§ 6, 8.
§ 195. A defendant who pleads the statute
of limitations has the burden of bringing him-
self within the statute, and this burden rests
on him throughout all the incidents involved in
the plea.-Pemiscot Land & Cooperage Co. v.
Davis (Mo. App.) 218.
§ 180. In a suit on a note, if it appears up-
on the face of the petition that more than four
years has elapsed since its maturity, the peti- See Venue, §§ 2–11.
tion is subject to exception.-Cotulla v. Urbahn
(Tex. Civ. App.) 13.
LIVE STOCK.
Carriage of, see Carriers. §§ 212-230.
Injuries to, by operation of railroad, see Rail-
roads, §§ 413-447.
LOANS.
For gambling purposes, see Gaming, § 18.
Interest on, see Interest.
Usurious loans, see Usury.
LOCAL ASSESSMENTS.
§ 189. A further pleading by plaintiff in an
action on a note held to be to cure a defect in See Municipal Corporations, §§ 407, 449, 531.
the petition, so that it should be by amendment
to the petition and not by supplemental peti-
tion.-Cotulla v. Urbahn (Tex.) 1108.
§ 190. In an action on a note brought with- See Statutes, §§ 76-93.
in four years after its maturity, plaintiff's sup-
plemental petition alleging a new promise by
defendant made less than four years before the
action was a complete answer to defendant's
defense of limitation.-Cotulla v. Urbahn (Tex.
Civ. App.) 13.
LOCAL OPTION.
Judicial notice, see Criminal Law, § 304.
Traffic in intoxicating liquors, see Intoxicating
Liquors, 40.
LOGS AND LOGGING.
Liability for loss of logs from obstruction of
navigation, see Navigable Waters, § 19.
LOSS.
Causes of loss within insurance policy, see In-
surance, § 466.
Of goods by carrier, see Carriers, §§ 110-134.
LOST INSTRUMENTS.
Destruction or loss of primary evidence, as
ground for admission of secondary evidence,
see Evidence, § 178.
Proof of contents of instrument before proof
of loss, see Trial, § 60.
§ 18. An action by the indorsee of a lost
note against the payee is an action on an in-
strument transferable by delivery only, within
Civ. Code Prac. § 7, requiring indemnity to de-
fendant in such actions.-Hoyland v. National
Bank of Middlesborough (Ky.) 356.
$ 22. Under Civ. Code Prac. § 7, held not suf-
ficient to show that the note was lost or de-
stroyed.-Hoyland v. National Bank of Middles-
borough (Ky.) 356.
§ 22. Under Negotiable Instrument Act
(Laws 1904, c. 102) § 63, where a petition in a
suit on a note did not show that defendant in-
dicated, in writing, his intention to be bound
in any other capacity, held, that the court on
appeal will conclude that he was bound as in-
dorser.-Hoyland v. National Bank of Middles-
borough (Ky.) 356.
§ 22. Where, in a suit against the indorser
of a note, no facts were alleged in the petition
showing that defendant fell within any of the
exceptions to the rule requiring presentment and
notice of dishonor, the court on appeal will con-
clude that he was entitled to presentment and
notice of dishonor.-Hoyland v. National Bank
of Middlesborough (Ky.) 356.
$ 23. Evidence held sufficient to establish a
lost deed to the land in controversy to the an-
cestor of plaintiff's grantor.-Felker v. Breece
(Mo.) 424.
LOTTERIES.
Matters relating to wages and gambling in gen-
eral, see Gaming.
LUNATICS.
MACHINERY.
Annexation to real property, see Fixtures.
Dangerous machinery, liability of master for in-
juries to servant, see Master and Servant, §§
101-129, 209.
See Justices of the Peace.
See Champerty and Maintenance.
Separate maintenance of wife, see Husband and
Wife, § 286.
MALICE.
Element of homicide, see Homicide. § 158.
Instructions as to, see Criminal Law, § 772.
MANDAMUS.
Change of proceedings from appeal to manda-
mus, see Courts, § 209.
I. NATURE AND GROUNDS IN GEN-
§ 10. Mandamus does not issue to enforce a
right resting merely on a contractual obliga-
tion.-State ex rel. Porter v. Hudson (Mo.)
ERAL.
§ 3. Mandamus does not issue where there
is any other adequate remedy.-State ex rel.
Porter v. Hudson (Mo.) 733.
733.
§ 12. Mandamus will not issue to compel
the performance of an act which is unlawful
or against public policy.-State ex rel. Porter
v. Hudson (Mo.) 733.
§ 12. Mandamus does not issue to compel
the performance of an executory contract.-
State ex rel. Porter v. Hudson (Mo.) 733.
II. SUBJECTS AND PURPOSES OF
RELIEF.
(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers.
$ 59. Mandamus held not to lie to compel
the retaxation of costs after a motion for re-
taxation was overruled.-Maxey v. Coffin (Ark.)
729.
(B) Acts and Proceedings of Public Off-
cers and Boards and Municipalities.
§ 72. Mandamus will issue to coerce action,
but not to regulate or control a discretion re-
posed by law in an official while acting.-State
ex rel. Porter v. Hudson (Mo.) 733.
§ 84. Relators held not entitled to enforce
by mandamus an agreement with the park com-
mission of Kansas City for the construction of
a boulevard.-State ex rel. Porter v. Hudson
(Mo.) 733.
$92. Under St. Joseph City Charter (Laws
1903, p. 64, § 9 [Aun. St. 1906, § 5747-9]), the
discretion of the board of public works in award-
ing a municipal contract cannot be controlled
by mandamus.-State ex rel. Montfort v. Meier
(Mo. App.) 986.
III. JURISDICTION, PROCEEDINGS,
AND RELIEF.
$153. In mandamus to compel the district
clerk to issue execution, the judgment debtors
were properly permitted to intervene to show
why the writ should not be granted.-Kruegel
v. Murphy & Bolanz (Tex. Civ. App.) 680.
§ 168. In mandamus to compel the district
clerk to issue execution, where the judgment
debtors were permitted to intervene, the burden
is on them to show why the writ should not be
MALPRACTICE.
By physician or surgeon, see Physicians and granted.-Kruegel v. Murphy & Bolanz (Tex.
Surgeons, § 18.
Civ. App.) 680.
MANDATE.
See Mandamus.
To lower court on decision on appeal or other
proceeding for review, see Appeal and Error,
§§ 1207, 1215.
§ 154. A plaintiff in mandamus may be per-
mitted to amend his petition and writ in ac-
cordance with the proofs.-State ex rel. Porter
v. Hudson (Mo.) 733.
MANDATORY INJUNCTION.
Notice of application for, see Injunction, § 143.
To compel extension of water mains, see Wa-
ters and Water Courses, § 201.
§ 7. Mandamus is a discretionary writ, is-
suing only in the exercise of a sound judicial
discretion.-State ex rel. Porter v. Hudson
(Mo.) 733.
$1 Mandamus will not issue in cases of
doubtful right.-State ex rel. Porter v. Hud-
son (Mo.) 733.
§ 10. One asking relief by mandamus must
allege and prove that he has a clear and specif-
ic right to the thing claimed.--State ex rel.
Porter v. Hudson (Mo.) 733.
See Husband and Wife.
MANUFACTURES.
Municipal regulation of buildings used for man-
ufacturing purposes, see Municipal Corpora-
tions, § 603.
MARKET VALUE.
Of property, competency of expert witnesses,
see Evidence, § 543.
Of property, opinion evidence, see Evidence, §
489.
§ 60. A marriage brought about by fraud is
only voidable, and can be annulled only at the
instance of the injured party, and not by his
heirs.-Henderson v. Ressor (Mo. App.) 203.
MARRIAGE.
See Divorce; Husband and Wife.
$ 58. In an action to annul a marriage on
the ground that one of the parties was mental- III. MASTER'S LIABILITY FOR IN-
ly incompetent, his mental condition at the time
of the marriage must govern the question of
his capacity to make the marriage contract.
Henderson v. Ressor (Mo. App.) 203.
-
(B) Statutory Regulation.
$ 102. Blacklisting Act (Acts 30th Leg. c.
67) § 1, requiring corporations to give to their
discharged employés service letters stating the
true reasons of their discharge, held retroactive
in operation.-St. Louis Southwestern Ry. Co.
of Texas v. Hixon (Tex. Civ. App.) 338.
II. SERVICES AND COMPENSATION.
(B) Wages and Other Remuneration.
Priority of lien of employé over lien of mort-
gage or conveyance of railroad, see Railroads,
§ 171.
(C) Termination and Discharge.
Act requiring corporation to give discharged
employés service letters as authorizing un-
reasonable searches and seizures, see Searches
and Seizures, §7; as denial of due process
of law, see Constitutional Law, § 275; as de-
ying liberty of speech, see Constitutional
Law, § 90; as deprivation of equal protection
of laws, see Constitutional Law, § 238; as
ex post facto law, see Constitutional Law, 8
199; as impairing obligation of contract, see
Constitutional Law, § 154.
§ 80. Evidence held to support a finding that
a contract of employment was by the year.-
Arnold v. Railway Steel Spring Co. (Mo. App.)
795.
$32. Under the blacklisting statute (Acts
30th Leg. c. 67, § 1), a railroad employé held to
have a good cause of action for the failure of
the railroad to furnish him with a service letter
stating the true cause of his discharge.-St.
Louis Southwestern Ry. Co. of Texas v. Hixon
(Tex. Civ. App.) 338.
JURIES TO SERVANT.
Statutory actions for death, see Death, §§ 18-
104.
(A) Nature and Extent in General.
Liability of lessor of railroad, see Railroads, §
259.
Right of action by parent for injuries to child
unlawfully employed, see Parent and Child,
§ 7.
$ 88. Evidence held to show that an employé
of an engineering company hired by an electric
company was an employé of the latter company,
and could not recover for injuries resulting from
the negligence of employés of the latter company.
262.
-Walker v. El Paso Electric Ry. Co. (Tex.)
MASTER AND SERVANT.
I. THE RELATION.
(A) Creation and Existence.
Employment of agents, see Principal and Agent, sonably safe tools and appliances is a continu-
§§ 101, 102. A master's duty to furnish rea-
§ 20.
ing duty, the degree of care required varying
with the natural dangers from the work.-Ogan
v. Missouri Pac. Ry. Co. (Mo. App.) 191.
§ 97. Where the master furnishes his serv-
ants a reasonably safe place to work, he is not
liable for a transitory danger arising out of a
single occurrence in which he is not at fault,
and of which he has no notice or opportunity
to correct. Redmond v. Quincy, O. & K. C.
R. Co. (Mo.) 159.
(B) Tools, Machinery, Appliances, and
Places for Work.
$$ 101, 102. A master is not an insurer of a
servant's safety, being only required to exer-
cise reasonable care to furnish a reasonably
safe place of work and reasonably safe appli-
ances and tools.-Ogan v. Missouri Pac. Ry. Co.
(Mo. App.) 191.
§§ 101, 102. It is the duty of the master to
use ordinary care to furnish an employé a rea-
sonably safe place to work.-Athens Cotton Oil
Co. v. Clark (Tex. Civ. App.) 322.
§ 119. If ordinary care required a telephone
company to place current breakers on guy wires
supporting a pole which ran near a power com-
pany's wires, its failure to provide breakers
was negligence.-Citizens' Telephone Co. of
Kentucky v. Wakefield (Ky.) 127.
§ 123. A defect in electrical apparatus used
in operating a printing press, which allowed
the press to start suddenly when the power was
turned off, was not latent, though hidden from
view and discoverable only by an expert exam-
ination.-Oborn v. Nelson (Mo. App.) 178.
§ 124. A railroad must, through its car in-
spector, search for hidden defects in its cars.-
St. Louis, I. M. & S. Ry. Co. v. Rogers (Ark.)
375, 1199.
§ 124. Inspections by the master at intervals
of two or three weeks of a safety brake appli-
ance held not as frequent as necessary in view
of the danger attending the work.-Scheurer v.
Banner Rubber Co. (Mo.) 1037.
§ 32. Under the blacklisting statute (Acts
30th Leg. c. 67, § 1), requiring corporations to
give service letters to their discharged employés,
an employé held within the act though he was
discharged and made demand for a letter before
the act took effect.-St. Louis Southwestern Ry.
Co. of Texas v. Hixon (Tex. Civ. App.) 338.
§ 124. It is the master's duty to see that
proper inspections are made of the machinery,
tools, and appliances with or about which his
servants are at work.-Scheurer v. Banner Rub-
ber Co. (Mo.) 1037.
$ 145. A rule of a railroad held not to change
the obligations of the railroad and a brakeman.
-St. Louis, I. M. & S. Ry. Co. v. Rogers (Ark.)
375, 1199.
to show the negligence of the operators of the
forward train.-International & G. N. R. Co.
v. Brice (Tex. Civ. App.) 613.
to
(D) Warning and Instructing Servant.
§ 150. A telephone company's failure
warn a lineman that guy wires on a pole which
he was required to climb were charged with
electricity held negligence.-Citizens' Telephone
Co. of Kentucky v. Wakefield (Ky.) 127.
§ 150. A telephone company held bound to
remedy a defect in its wires at a certain pole
within a reasonable time after being informed
thereof, or to have warned its servant before
sending him there to work so as to make its
omission to do so negligence.-Citizens' Tele-
phone Co. of Kentucky v. Wakefield (Ky.) 127.
§ 150. It is the duty of a master to warn his
servant of dangers incident to his employment
unless they are such as he may assume that the
servant has knowledge, or will acquire knowl-
edge thereof.-Texarkana & Ft. S. Ry. Co. v.
Brandon (Tex. Civ. App.) 703.
§ 153. A railroad company held liable to
its servant for injuries resulting without his
fault where its foreman directed him to do
work he had not contracted to do, and failed
to warn him of the danger.-Texarkana & Ft.
S. Ry. Co. v. Brandon (Tex. Civ. App.) 703.
§ 153. Where a servant is directed to per-
form a dangerous operation, and the danger is
not obvious and injury results, the master is
liable, though its foreman did not know of the
servant's ignorance where the servant's ignor-
ance is apparent.-Texarkana & Ft. S. Ry.
Co. v. Brandon (Tex. Civ. App.) 703.
$155. Where dangers incident to employ-
ment are not obvious, and where the servant
has not contracted to perform the service, it
is the master's duty to warn the servant of
dangers.-Texarkana & Ft. S. Ry. Co. v. Bran-
don (Tex. Civ. App.) 703.
(E) Fellow Servants.
§ 180. Plaintiff held injured while engaged in
operating a car within the meaning of the stat-
ute declaring that the fact that injuries in such
cases were due to the act of a fellow servant
will not defeat recovery.-Freeman v. Shaw
(Tex. Civ. App.) 53.
$ 185, The engineer of a train which collided
with the second section of a train he was to
meet at a certain place held not a fellow serv-
ant with those charged with the duty of notify-
ing him that there was a second section.-Cincin-
nati, N. O. & T. P. R. Co. v. Silvers (Ky.) 120.
§ 185. Where a yard foreman was killed by
an engine run by his helper, who was not at
the time acting under the foreman's orders, but
was a trespasser, the company would not be
liable.-Matthews v. Chicago, B. & Q. R. Co.
(Mo.) 1005.
§ 189. A foreman held a vice principal to an
employé, though he could employ and discharge
only after consultation with the master's presi-
dent. Sullivan-Sanford Lumber Co. v. Cooper
(Tex. Civ. App.) 35.
$ 190. Where it is the duty of the servant to
keep the machine he is operating in proper con-
dition for use, the act of the foreman in under-
taking to repair a defect therein is that of a
mere intruder, for whose unauthorized act the
master is not responsible.-Quinn v. Glenn Lum-
ber Co. (Tex.) 2.
$ 190. Where it is the duty of the foreman
in a sawmill to keep the machinery in proper
condition, he represents the master in the per-
formance of a nondelegable duty, and is not a
fellow servant of the sawyer.-Quinn v. Glenn
Lumber Co. (Tex.) 2.
§ 146. In an action for injuries to an engi-
neer in a rear-end collision, the evidence held
§ 201. A master held liable for injury to a | Telephone Co. of Kentucky v. Wakefield (Ky.)
servant through its negligence, notwithstanding 127.
concurring negligence of a fellow servant.-Sul-
livan-Sanford Lumber Co. v. Cooper (Tex. Civ.
App.) 35.
§ 229. It is the duty of an employé to use
ordinary care for his own safety.-Athens Cot-
ton Oil Co. v. Clark (Tex. Civ. App.) 322.
(G) Contributory Negligence of Servant.
$229. It was a telephone lineman's duty in
climbing a pole in discharging his duties to take
ordinary care for his own safety.-Citizens'
§ 243. In an action against a railroad com-
pany by an engineer for injuries sustained in a
collision, where it was his duty under the rules
of the company not to start his train until the
acted upon a signal he knew or had reason to
proper signal was given by the conductor, if he
believe did not come from the conductor, he
could not recover.-Cincinnati, N. O. & T. P. R.
Co. v. Silvers (Ky.) 120.
§ 243. In an action against a railroad com-
pany by an engineer for injuries sustained in a
§ 240. If a switchman was negligent in going
between cars to uncouple them, and his injury
was caused by catching his foot between the
guard rail and the main rail which was not
blocked as required by law, his negligence con-
tributed to his injury, and he could not recover.
-Brannock v. St. Louis & S. F. R. Co. (Mo.
App.) 552.
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