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XI. TAX TITLES.

(A) Title and Rights of Purchaser at Tax Sale.

days, as required by contract, was without merit, where plaintiff presented claim within 60 days after learning of company's default.-Western Union Telegraph Co. v. Lee, 192 S. W. 70. 732 (Ky.) In view of Ky. St. 88 4154, 4159, 54(5) (Ky.) Where plaintiff failed to receive 4030, held, that a sheriff's deed of real estate unrepeated interstate telegraph message on acsold for taxes does not extinguish a legally account of company's delay, he could not recover quired mortgage lien created upon property be more than the limitation of liability provided; fore assessment and existing at time of sale and Act Cong, June 18, 1910, recognizing such limiexecution of tax deed.-Hall v. Hall, 192 S. W. tation.-Western Union Telegraph Co. v. Lee, 76. 192 S. W. 70.

(C) Actions to Confirm or Try Title.

810(3) (Mo.) In action to quiet title, where defendant relied on title through state tax sale, and plaintiff introduced order of publication and judgment numbered differently and naming different parties, defendant's failure to produce correct order of publication justified finding that the order introduced was the only process issued in the suit.-Orchard v. Laclede Land & Improvement Co., 192 S. W. 405.

TAX TITLES.

See Taxation, 732, 810.

TEACHERS.

See Schools and School Districts, 133.

TECHNICAL ERRORS.

See Appeal and Error, 1170.

TELEGRAPHS AND TELEPHONES. See Commerce, 8, 28; Taxation, 8.

I. ESTABLISHMENT, CONSTRUCTION, AND MAINTENANCE. (Tex.Civ.App.) Telephone companies have no right to place wires over railway tracks in space necessary to railway company's use without consent or condemnation, and, in absence of such right, must place wires at a reasonable elevation.-Southwestern Telegraph & Telephone Co. v. Clark, 192 S. W. 1077.

Telephone company, when occupying its own zone above a railway track, is similar to tenant of upper story of building, and it must use its property so as not to interfere with railway company's right.—Id.

15(3) (Tex.Civ.App.) A telephone company held liable for injury to a traveler on a road through its wire being too low, though lowered by a third person, it not having remedied it in a reasonable time after notice.-Texarkana Telephone Co. v. Burge, 192 S. W. 807.

54(6) (Tenn.) In action against telegraph company for error in transmission of message, it was error to confine plaintiff's recovery to $50 and interest, where the telegram was written on a blank piece of paper and there was no showing of acceptance of the message under conditions that would incorporate, as part of the carrier's contract, the limitation clauses generally on the back of the telegraph blanks. Western Union Telegraph Co. v. Schade, 192 S. W. 924.

56(1) (Ky.) Both the sender and receiver of telegram may recover damages for delay in delivering message.-Western Telegraph Co. v. Lee, 192 S. W. 70.

68(1) (Tenn.) Under federal law applicable to interstate telegraph service, damages for mental anguish are allowable as an element of recovery where plaintiff has sustained personal injury.-Western Union Telegraph Co. v. Schade, 192 S. W. 924.

68(2) (Tenn.) Under the federal law applicable to interstate telegraph service, damages for mental anguish only, claimed to be due to the carrier's default, are not recoverable.-Western Union Telegraph Co. v. Schade, 192 S. W. 924.

68(5) (Ky.) In action for failure to deliver death message transmitted between intrastate points but passing through another state en route, plaintiff could not recover for mental suffering; such message being interstate commerce, and Act Cong. June 18, 1910, not permitting such recovery.-Western Union Telegraph Co. v. Lee, 192 S. W. 70.

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24 (Tex.Civ.App.) Though an insurer which proves the amount of its liability to be less than the face of the policy and tenders such amount to the plaintiff is entitled to a judgment limited to the amount of the tender, such rule is of no avail where the amount was not tendered to the court, and the insurer pleaded nullity of the contract, although there had been a tender to plaintiff's attorney.-Floyd v. Illinois Bankers' Life Ass'n of Monmouth, Ill., 192 S. W. 607.

TERM.

20(4) (Tex. Civ.App.) Where pleadings charged telephone company with placing wires above railway track at such elevation that See Municipal Corporations, 149. plaintiff, a brakeman, was injured, no right to place them at such elevation being pleaded, the only issue was whether such wires encroached. -Southwestern Telegraph & Telephone Co. v. Clark, 192 S. W. 1077.

20(5) (Tex.Civ.App.) That a railway brake

See Wills, 38-55.

TESTAMENTARY CAPACITY.

TESTIMONIALS.

man, walking on top of a furniture car in dis- See Master and Servant, 33.

charge of his duties, was struck by a telephone

wire above the track, alone was evidence that

the wires were within the railway zone, from

ern Telegraph & Telephone Co. v. Clark, 192

which jury might infer negligence.-Southwest- See Larceny.

S. W. 1077.

THEFT.

TIMBER.

Evidence held to authorize verdict for plaintiff See Logs and Logging. brakeman, injured by telephone wire improperly placed above railway track.-Id.

II. REGULATION AND OPERATION.

54(4) (Ky.) In action for damages caused by failure to deliver telegraph message, defense that claim was not presented within 60

TIME.

See Adverse Possession, 40; Appeal and Error, 230; Criminal Law, 577; Fixtures, 32; Frauds, Statute of, 45; Indictment and Information, 87; Interest, 39-46; Reference, 100.

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TORTS.

(B) Jurisdiction, Parties. Preliminary Proceedings, and Pleading.

40(4) (Tex.Civ.App.) Plaintiff's petition alleging that defendant manager of defendant's store used toward her harsh and insulting language in the presence of other shoppers, but failing to set out words used, held not to state cause of action on the case.-Sisler v. Mistrot, 192 S. W. 565.

(C) Evidence.

46(1) (Ky.) In action for trespass, evidence held sufficient to warrant a finding that appel

(D) Damages.

See Animals, ~53; Assignments, 24; At-lant, one of defendants, aided and advised trestachment, 357-375; Carriers, 104-184, pass.-Weaver v. Ficke, 192 S. W. 515. 218-327; Conspiracy, 18; Death; Elec tricity, 14, 19; False Imprisonment; Fraud; Husband and Wife, 209, 325-335; 56 (Ky.) Punitive damages may be allowed Innkeepers, 11; Landlord and Tenant, for trespass, where entry is made maliciously 164, 166; Libel and Slander; Limitation or in wanton disregard of plaintiff's rights.of Actions, 55; Master and Servant, Weaver v. Ficke, 192 S. W. 515. 88-316; Municipal Corporations, 705822; Negligence; Nuisance; Principal and Agent, 158; Railroads, 270-482; Searches and Seizures, 8; Street Railroads, 93, 102; Telegraphs and Telephones, 38(1) (Tex.Civ.App.) Plaintiff, claiming un15-68; Trespass; Trover and Conversion. der a sheriff's deed in which the description was 10 (Mo.) Under Bill of Rights, § 4, if a insufficient without aid of extrinsic evidence, person wrongfully deprives a laborer of right had the burden of offering such proof.-Leal v. to labor for another, the wrongdoer at common Moglia, 192 S. W. 1121. law is liable for damages.-Cheek v. Prudential 45(2) (Tex.Civ.App.) In trespass to try title, Ins. Co. of America, 192 S. W. 387.

TOWNS.

TRESPASS TO TRY TITLE.

II. PROCEEDINGS.

where plaintiff claimed alternatively for statutory amount of land by adverse possession as well as by metes and bounds, refusal to charge that plaintiff could recover no greater amount

See Counties; Highways, 118; Municipal than shown by field notes describing the properCorporations.

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ty by metes and bounds was proper.-Houston Oil Co. of Texas v. Ainsworth, 192 S. W. 614.

47(1) (Tex.Civ.App.) In action of trespass to try title to land claimed by plaintiffs under mineral land patents from the state, held, that errors in field notes could be corrected to conform location to ground actually covered, marked, and identined when locations were made.Plummer v. McLain, 192 S. W. 571.

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IV. RECEPTION OF EVIDENCE. (A) Introduction, Offer, and Admission of Evidence in General.

(A) Right of Action and Defenses. 25 (Tex. Civ.App.) Unauthorized permission by one other than the owner after a tres-54(1) (Ark.) Testimony as to transaction bepass was no defense.-Dincans v. Keeran, 192 S. W. 603.

30 (Ky.) One who aids, abets, assists, or advises a trespasser in committing the trespass is equally liable with the trespasser.-Weaver v. Ficke, 192 S. W. 515.

31 (Ark.) If two defendants, acting not as agents of another, and not as coconspirators with him, cut, removed, and appropriated to their own use plaintiffs' timber, they were solely and primarily liable to plaintiffs.-Morgan v. Langford, 192 S. W. 885.

tween maker and payee of the note in action by the holder, alteration being claimed, should be limited to question of alteration, and jury instructed to consider it for no other purpose. -Hamilton Nat. Bank v. Emigh, 192 S. W. 913. (B) Order of Proof, Rebuttal, and Reopening Case.

60(1) (Tex.Civ.App.) In trespass to try title, a sheriff's deed whose description was insufficient without aid of extrinsic evidence should have been excluded, where such extrinsic

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

evidence was not offered.-Leal v. Moglia, 192 | probative force is so weak that it merely raises S. W. 1121.

a suspicion of existence of fact sought to be established, and there is no room for ordinary minds to differ as to the conclusion to be drawn from it.-Sovereign Camp of Woodmen of the World v. McCulloch, 192 S. W. 1154.

61 (Tex. Civ.App.) It was within discretion of trial court to admit testimony of other fires on defendant's right of way, although admissible only in rebuttal in anticipation of testimony of defendant's master mechanic to support al-140(1) (Ark.) In the face of sharp and irreclegations in answer that all of its locomotives had been properly constructed.-St. Louis Southwestern Ry. Co. of Texas v. Wood, 192 S. W. 812.

oncilable difference of opinion, it is within the province of the jury to choose between the wit nesses or to discard all their evidence.-Reiff v. Interstate Business Men's Acc. Ass'n of Des Moines, Iowa, 192 S. W. 216.

140(1) (Mo.App.) Although cross-examina tion of witnesses had a tendency to weaken their evidence, if evidence is not weakened until there is no substance left it should be submitted to ju ry.-Independence Electric Co. v. Farley Bros., 192 S. W. 129.

68(1) (Ark.) In an action for breach of a written contract to give agents an interest in undisposed of leases, it was not an abuse of the trial court's discretion to refuse to reopen the case to permit defendant to introduce a letter written by one of the agents stating that he had come to an understanding with defendant about the commission.-Engles v. Blocker, 192143 (Ark.) On material issues a disputed S. W. 193.

(C) Objections, Motions to Strike Out, and Exceptions.

79 (Mo.) Where question was asked witness, plaintiff objected, and court ruled against it, there was no necessity for repetition of objection to question after court had ruled.-Wabash R. Co. v. Cockrell, 192 S. W. 443.

question of fact must always go to the jury.National Life & Accident Ins. Co. v. Henderson, 192 S. W. 206.

143 (Ky.) Where evidence is conflicting as to an issue, question is for jury.-Louisville & N. R. Co. v. Schneider, 192 S. W. 834.

(B) Demurrer to Evidence.

82 (Mo.App.) If evidence objected to is ad-156(3) (Mo.App.) A demurrer to the evimissible for any purpose within the issues of the case, a mere general objection thereto will not suffice.-McGinniss v. Kansas City Western Ry. Co., 192 S. W. 115.

dence admits as true every fact which the testimony tends to prove, and every inference that may be reasonably drawn therefrom.-Lebrecht v. Miller, 192 S. W. 1050.

(D) Direction of Verdict.

82 (Tex. Civ.App.) In action for wrongful death, evidence that railway company did not produce conductor and brakeman who were pres-169 (Tex.Civ.App.) That counsel for plainent at accident, is not subject to objection that it is immaterial.-Texas & P. Ry. Co. v. Hughes, 192 S. W. 1091.

83(1) (Mo.App.) In action by widow for death of husband when struck by car, where she stated that no letters of administration were taken out, that she did not think there were any, but had never made a search, the objection that such testimony was irrelevant, incompetent, immaterial and a conclusion of the witness was sufficient.-McGinniss v. Kansas City Western Ry. Co., 192 S. W. 115.

89 (Mo.App.) Evidence immaterial on the issues and insufficient to establish the point toward which it was introduced should on motion be stricken from the record.-McGinniss v. Kansas City Western Ry. Co., 192 S. W. 115.

tiffs indulged in improper argument beyond the issues did not entitle defendant to a directed verdict.-Padgett v. Hines, 192 S. W. 1122.

177 (Tenn.) A motion for peremptory instructions, even where made by both parties, does not operate to withdraw case from jury.Brackin v. McGannon, 192 S. W. 922.

178 (Ky.) Peremptory instruction is not authorized, unless it appears that, after admitting the testimony offered and every reasonable inference therefrom, there exist no sufficient evidence to support the cause of action or defense. Louisville & N. R. Co. v. Allen's Adm'r, 192 S. W. 863.

VII. INSTRUCTIONS TO JURY. (A) Province of Court and Jury in General.

102 (Mo.App.) Defendant saved its point where, to its motion to strike an irresponsive194(16) (Tex. Civ.App.) An instruction that answer as immaterial, the court replied that it unless you believe from the evidence by a prewas immaterial, but it would let it stand, and ponderance thereof that the said injuries, if defendant excepted.-Hecke v. Dunham, 192 S. any, received by said H. were direct and proxiW. 120. mate cause of death, you cannot find for plaintiff, is not on weight of evidence in assuming that defendant is responsible for injuries.-Texas & P. Ry. Co. v. Hughes, 192 S. W. 1091.

V. ARGUMENTS AND CONDUCT OF
COUNSEL.

114 (Tex.Civ.App.) The statements of counsel, in argument, that the first four special issues represented plaintiff's theory and the last four defendant's, was not prejudicial where the effect of the answers to the questions was apparent and obvious.-Galveston, H. & S. A. Ry. Co. v. Miller, 192 S. W. 593.

that

194(17) (Tex.Civ.App.) Instruction brakeman had right to assume that no telephone wires crossed track with which he could come in contact, and that character of work and surrounding conditions might be considered in determining contributory negligence, held not objectionable as charging upon the weight of evidence.-Southwestern Telegraph & Telephone Co. v. Clark, 192 S. W. 1077. Lum-194(19) (Tex.Civ.App.) In freight conductor's action for injuries, requested instruction that, if plaintiff stumbled over a stake in the yards while at work, that alone would not warrant affirmative answer to a special interrogatory, was properly refused as invasion of the jury's province.-Galveston, H. & S. A. Ry. Co. v. Miller, 192 S. W. 593.

133(5) (Tex. Civ.App.) In servant's action
for injuries, argument of counsel held reversible
error, despite court's admonition.-Kirby
ber Co. v. Youngblood, 192 S. W. 1106.

VI. TAKING CASE OR QUESTION
FROM JURY.

(A) Questions of Law or of Fact in Gen

eral.

139(1) (Tex.Civ.App.) Wherever there is a question of fact for the jury, no matter how slight the evidence in support thereof, a verdict should not be instructed.-Holtzclaw v. Moore, 192 S. W. 582.

139(1) (Tex.Civ.App.) Where there is slight testimony, court should instruct a verdict if its

199 (Mo.App.) In brakeman's action for injuries, instruction submitting, instead of concrete facts, question whether railroad "carelessly and negligently" permitted hole to exist in railway yard, was erroneous as submitting question of law; an instruction must be explicit and

submit concrete facts.-Winslow v. Missouri, K.
& T. Ry. Co., 192 S. W. 121.

In brakeman's action for spraining ankle
when he jumped from car door into hole, in-
struction held mere assertion hole was carelessly
and negligently permitted to exist, and not sub-
mission of that question to jury.-Id.

[struction submitting the defense that the con-
tract was that plaintiff was to serve intestate
during her lifetime and not marry, but that she
did marry and leave her service, where notice
of such defense was not given in the answer.-
Benge's Adm'r v. Creech, 192 S. W. 817.

251(8) (Mo.App.) In action for death of
pedestrian struck by car, where complaint al-
(B) Necessity and Subject-Matter. leged that he was walking in street, but evidence
214 (Tex.Civ.App.) In a suit to set aside a showed that he was on the company's right of
conveyance of land as fraudulent, an instruction way, it was error to refuse instruction requiring
that, if property was homestead of such maker as prerequisite to recovery that deceased must
at time of conveyance, it could not have been a have been walking upon the street.-McGinniss
fraudulent conveyance, was a proposition of law v. Kansas City Western Ry. Co., 192 S. W. 115.
which was not essential to aid jury in answering 252(1) (Ky.) Instructions in a civil case
issues of fact, and hence was properly refused.- should be confined to the issues made which are
Colgrove v. Falfurrias State Bank, 192 S. W. supported by evidence.-Benge's Adm'r. v.
580.
Creech, 192 S. W. 817.

Special charge, which merely stated law which
would follow finding of certain facts submitted
to jury, and which would not have aided jury
in answering proper issues, was properly re-
fused.-Id.

(C) Form, Requisites, and Sufficiency.

252(9) (Ark.) Where there is evidence that
long train was backed across street on dark
night, and that no lookout was kept on nearest
car, it was not error to give in instruction the
lookout statute (Acts 1911, p. 275).-Louisiana &
A. Ry. Co. v. Woodson, 192 S. W. 174.

Where plaintiff testified that as he approached
tracks he kept listening and looking, instruction
that if his peril could have been discovered in
time to avoid injury the jury should find for
plaintiff, held proper.-Id.

233(1) (Mo.App.) In brakeman's action for
injuries, plaintiff's instruction, telling jury that
action was governed by federal Employers' Lia-
bility Act, which was then set out in form,
could serve no purpose, and might easily con-252(10) (Mo.App.) Where a passenger's per-
fuse jury with reference to certain issues personal injury complaint against a street railroad
missible as defenses under act.-Winslow v. Mis- alleged its employé knew of his dangerous posi-
souri, K. & T. Ry. Co., 192 S. W. 121.
tion on a step, and that it was customary for
passengers to so ride, an instruction that, if the
"issue in this case" be found for plaintiff, dam-
ages should be assessed, etc., is erroneous, where
the alleged knowledge or custom was not prov-
ed.-McKinley v. Metropolitan St. Ry. Co., 192
S. W. 1052.

236(1) (Ark.) Instruction that jury may be-
lieve one witness opposed to all the others if his
testimony "comports more nearly with the
truth," held not objectionable as authorizing ju-
ry to believe testimony that only approaches to
ward the truth.-Louisiana & A. Ry. Co. v.
Woodson, 192 S. W. 174.

237(1) (Ky.) Instruction to find for master
unless "from preponderance of evidence" acci-
dent was due to his negligence held objection-
able.-Louisville & N. R. Co. v. Allen's Adm'r,
192 S. W. 863.

241 (Ark.) Unless the meaning of a stat-
ute as applied to the facts in the case is sus-
ceptible of more than one construction, it is not
error to read the statute to the jury.-Louisiana
& A. Ry. Co. v. Woodson, 192 S. W. 174.

242 (Ark.) In action for injuries at railroad
crossing, giving in charge legal definition of neg
ligence, held not misleading.-Louisiana & A.
Ry. Co. v. Woodson, 192 S. W. 174.

242 (Mo.) In action for rent of locomotives,
defendant claiming they were not suitable and
were sidetracked to await plaintiff's orders, in-
struction using word "use," instead of "reten-
tion," held not erroneous, as misleading.-South-
ern Iron & Equipment Co. v. Smith, 192 S.

W. 754.

(D) Applicability to Pleadings and Evi-
dence.

248 (Ark.) In action for injuries at railroad
crossing, giving in charge legal definition of neg-
ligence, held not abstract.-Louisiana & A. Ry.
Co. v. Woodson, 192 S. W. 174.

251(1) (Ky.) A defense should not be sub-
mitted by an instruction when notice is not
given by the answer that such a defense will
be relied upon.-Benge's Adm'r v. Creech, 192
S. W. 817.

252(11) (Tex.Civ.App.) In action for inju-
ries to freight conductor in yards when he stum-
bled over an object variously described as a
stake, stob, or stub, where testimony referred
to it in each of those terms, submission of is-
sue whether there was a stake or stub without

limiting it to a grade stake was not error; the
word "stob" being a variation of the word
"stub," which means a small post.--Galveston,
H. & S. A. Ry. Co. v. Miller, 192 S. W. 593.

It is not error in freight conductor's action
for injuries when he stumbled over a stake in
the yards, where the evidence is overwhelming
that he did not know of its presence, to refuse
requested instructions on assumption of risk.

-Id.

252(12) (Ky.) In action against bankrupt
on promise to pay barred indebtedness, where
proof showed parties, in conversations on which
plaintiff relied as constituting new promise to
pay regarded indebtedness as one debt, though
made up of several items, instruction treating
several obligations as one debt was proper.-
Brashears v. Combs, 192 S. W. 482.

252(12) (Mo.App.) In action by custom mill
operator against mine operators to recover for
cleaning ore-bearing dirt and rock, wherein de-
fendants counterclaimed for waste, evidence held
to make clear conflict justifying giving of defend-
ants' instruction that if defendants employed
plaintiff, and plaintiff unnecessarily wasted
quantities of the ore, jury should find for de-
fendants on their counterclaim.-Osborne v. Eys-
ter, 192 S. W. 143.

253(3) (Tex. Civ.App.) In an action for value
251(2) (Tex. Civ.App.) In proceedings on
of a horse killed on defendant railroad's right of
judgment creditor's motion against constable and
way, an instruction which, in authorizing a
sureties on bond to recover against them amount verdict for plaintiff if defendant's acts were as
of plaintiff's judgment, where there were no alleged, did not require a finding that such
pleadings upon which to base a requested in- acts were negligent, held erroneous.--Quanah,
struction, the court did not err in refusing it.-A. & P. Ry. Co. v. Price, 192 S. W. 805.
Sharp v. Morgan, 192 S. W. 599.

251(4) (Ky.) In action for services rendered
intestate, it was proper to refuse a requested in-

Whether certain facts constitute negligence
being for the jury, unless duty is imposed by
statute, etc., it is error to direct finding upon

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
192 S.W.-80

mere finding of existence of acts alleged, without | 261 (Ky.) In personal injury suit where de-
further finding on part of jury that such acts
constitute negligence.-Id.

253(4) (Ky.) In action for death of locomo-
tive fireman, requested instruction held objec-
tionable as predicating recovery on negligence
in one respect only where the master was liable
for negligence in any respect.-Louisville & N.
R. Co. v. Allen's Adm'r, 192 S. W. 863.

253(9) (Ky.) In an action for death of loco-
motive fireman, requested instruction held ob-
jectionable as assuming absence of evidence of
negligence.-Louisville & N. R. Co. v. Allen's
Adm'r, 192 S. W. 863.

253(9) (Mo.App.) In action for brakeman's
assault on trespassers, where evidence showed
that he supposed plaintiffs were trying to get
on freight train, instruction avoiding this propo-
sition was properly refused.-Barnes v. Missouri
Pac. Ry. Co., 192 S. W. 1040.

fendant's requested specific instruction upon
presented defense of contributory negligence is
not technically correct, the court should prepare
and give a proper instruction.-Cumberland R.
Co. v. Girdner, 192 S. W. 873.

(G) Construction and Operation.

286 (Ark.) In an instruction that whenever
a person is struck or injured by a train at a pub
lic crossing, the presumption is that it was caus
ed by the negligence of the railroad's servants,
"whenever" means "if."-Louisiana & A. Ry. Co.
v. Woodson, 192 S. W. 174.

295(1) (Tex.Civ.App.) Instructions must be
considered as a whole.-Atchison, T. & S. F. Ry.
Co. v. Stevens, 192 S. W. 304; Magnolia Mo
tor Sales Corp. v. Chaffee, Id. 562.

295(6) (Ark.) In action for injuries to a sec-
tion hand, the instructions on the issues of neg
ligence, contributory negligence, and assumption
of risk held correct, and not in conflict with each
other when considered as a whole.-Scullin v.
Still, 192 S. W. 198.

(E) Requests or Prayers.
255(2) (Tex.Civ.App.) On judgment credi-
tor's motion for judgment against constable and
his sureties for failure to levy execution, if con-295(7) (Ark.) In action for injuries to a sec-
stable desired to have issues with reference to tion hand, the instructions on the issues of neg
each execution submitted separately, a special ligence, contributory negligence, and assumption
charge should have been asked to that effect. of risk held correct, and not in conflict with each
Sharp v. Morgan, 192 S. W. 599.
other when considered as a whole.-Scullin v.
Still, 192 S. W. 198.

255(11) (Tex.Civ.App.) In an action for per-
sonal injuries defendant cannot complain of the
defendant's omission to instruct the jury as to
the measure of damages, where he made no re-
quest for such an instruction.-Andrews v. York,
192 S. W. 338.

295(12) (Tex.Civ.App.) In an action for con-
version of automobile alleged by defendant to
have been retaken under terms of mortgage be-
cause it believed its debt insecure, where instruc
tions in several places referred to taking of car,
fendant meant legal right to retake car.-Mag-
it was sufficiently plain that "legal right" of de-
nolia Motor Sales Corp. v. Chaffee, 192 S. W.

562.

256(8) (Tex.Civ.App.) Where court correct-
ly states law under Vernon's Sayles' Ann. Civ.
St. 1914, art. 6484, on authority of railroad
company to cut down trees on land of another, 296(3) (Mo.) In a servant's action against a
defendant, in the absence of request, cannot com-
plain that such instruction does not also embody
law of articles 6505, 6530, requiring consent of
owner. Texas & P. Ry. Co. v. Hughes, 192 S.
W. 1091.

260(1) (Ky.) Instructions offered by defend-
ant, not presenting any new theory of the law
applicable to the case which was not incorporat-
ed in an instruction given, were properly refus-
ed.-Brashears v. Combs, 192 S. W. 482.

railroad, an instruction requiring the jury to
find that a switch stand was negligently main-
tained and was not a reasonably safe appliance
is not erroneous because requiring a verdict for
where negligence was defined as want of ordi-
plaintiff, unless the switch was absolutely safe
Thompson v. St. Louis & S. F. R. Co., 192 S.
nary care, and ordinary care was also defined.—

W. 1034.

In a servant's action against a railroad, an
260(1) (Mo.App.) An instruction was prop-instruction requiring the finding of negligence
erly refused where it was covered in a given generally is not erroneous for failure to define
charge so far as correct.-Barnes v. Missouri the standard of care where defendant secured
Pac. Ry. Co., 192 S. W. 1040.
instructions regarding the effect of railroad
usage and custom.-Id.

re-

260(1) (Tex.Civ.App.) The refusal of
quested instructions is not error where such in-
structions are sufficiently given in general charge.
--McIntosh v. Atchison, T. & S. F. Ry. Co., 132
S. W. 285.

260(1) (Tex.Civ.App.) It is not error to re-
fuse additions to an instruction the only effect
of which would be to satisfy the party's prefer-
ence of an expression. Galveston, H. & S. A.
Ry. Co. v. Miller, 192 S. W. 593.

260(1) (Tex.Civ.App.) Where requested
charges are covered in the general charge, re-
fusal to give them is not error.-Southwestern
Telegraph & Telephone Co. v. Clark, 192 S. W.

1077.

An instruction sufficiently left open the ques-
tion of plaintiff's assumption of risk where de-
fendant secured another instruction giving it
the full benefit of such defense,-Id.

An instruction that plaintiff could recover if
exercising such care as a person of ordinary pru-
dence is not erroneous where defendant procured
principle which it was entitled to have placed
an instruction giving it the benefit of every
before the jury.-Id.

296(6) (Tex.Civ.App.) Error, if any, in the
charge on assumption of risk in an action for
injuries to a fireman, held cured by subsequent
portions of the charge and by a charge given at
defendant's request.-Atchison, T. & S. F. Ry.
Co. v. Stevens, 192 S. W. 304.

VIII. CUSTODY, CONDuct, and de-
LIBERATIONS OF JURY.

260(6) (Tex.Civ.App.) In action for conver-
sion of automobile, an instruction, directing
jury to find whether defendant in taking posses-
sion believed that security of its notes against
automobile had become insecure sufficiently pre-
sented defense under terms of mortgage for tak-315
ing automobile, and any further instruction was
properly refused.-Magnolia Motor Sales Corp.
v. Chaffee, 192 S. W. 562.

(Tex.Civ.App.) An agreement by jurors
to write upon separate papers the amount for
which each juror desired to find and to use such
papers merely as a working basis is not improp-
er.-Andrews v. York, 192 S. W. 338.

IX. VERDICT.
(A) General Verdict.

260(9) (Ark.) In an action for the wages of
a discharged servant for the balance of the term
for which he was employed, requested charges as
to the necessity of the servant's obedience to the
commands of the master held covered by the in-344 (Ark.) Under Kirby's Dig. § 2423, a ver-
structions given.-Leonard v. Henderson, 192 S.
W. 180.

dict cannot be impeached by affidavit of a juror
that he or some jurors or the entire jury did not

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