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For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER the judgment describes the land.-Bement v. 1 em 65(2) (Tex. Civ. App.) A petition, alleging Commonwealth, 218 S. W. 294.
that plaintiff's telegram, reading "Mr. J. not exA default judgment forfeiting title to land for pected to live come at once, was delivered to nonassessment and nonpayment of taxes being defendant's agent, who was advised that J. was void, where the petition did not describe the land ill and not expected to live, and that the adand was not accompanied by a copy of the grant dressee was the son of plaintiff and stepson of or instrument of title, an appeal might be prose- her husband, J., and that she desired his prescuted from an order overruling a motion to set ence at once, held sufficiently to allege that deit aside at any time allowed by law, notwith- fendant had notice that plaintiff would standing the provision of the statute for an suffer mental anguish in case the message was appeal within 30 days from the entry of judg. not properly transmitted.-Western Union Tel. ment.-Id.
Co. v. Johnson, 218 S. W. 781.
Om65(6) (Tex.Civ.App.) Allegations, in a petiTELEGRAMS.
tion for damages for mental anguish caused by See Appeal and Error, Ow1064; Sales,
failure to promptly deliver a death message to 79.
plaintiff's son, "that if the message bad been
delivered * he could have started for K. TELEGRAPHS AND TELEPHONES. of travel from L. to K., to wit, from L. to B. S.
to be with plaintiff, and by the customary routes See Appeal and Error, Om 1064; Bridges,
by automobile route, same being the regular used 5; Commerce, em 28; Courts, Em97; Evi- and traveled passenger route, and from B. S. to dence, 123.
K. via railway travel,” etc., sufficiently stated
what facilities the son could avail himself of in II. REGULATION AND OPERATION. I to testify to the route he took, which, if the
reaching K., and the son was properly permitted 2634 [New, vol. 7A Key-No.' Series] telegram had been promptly delivered, would
(Ark.) Where negligent act complained have carried him to K. in time.-Western Union of was committed while defendant's telegraph Tel. Co. v. Johnson, 218 S. W. 781. lines were under control and operation of the em71 (Tex.Civ.App.) One thousand dollars United States government, pursuant to joint damages was not excessive for mental anguish, resolution July 16, 1918 (U. S. Comp. St. Ann. caused a mother by failure to promptly deliver Supp. 1919, $ 311544x) and proclamation of the a message to her son, so that he could come to President, defendant was not liable, under Kir- her in ber bereavement on the death of her husby's Dig. § 7947, as to recovery of damages band.- Western Union Tel. Co. v. Johnson, 218 for mental anguish "for negligence in receiv. S. W. 781. ing, transmitting or delivering messages,” and w73(5) (Tex.Civ.App.) Where husband, in suit cannot be maintained against it. - Western leaving sick wife, promised to immediately Union Telegraph Co. v. Davis, 218 S. W. 833. return in case she telegraphed, and the wife, aftm27 (Tex.Civ.App.) Where there was a con er sending a telegram: "Come home at once. tinuous transmission of a telegraph message Answer"-which not delivered, became from a place in Mississippi to a place in Texas, greatly disturbed and more seriously ill because the message was interstate commerce, and, of husband's failure to answer, and he not only where a separate agency in the latter state un- answered a similar message sent three days dertook to further its transmission to destina- later by the wife's sister, but came at once, it tion point, its liability for the negligent failure was error to direct a verdict for the teleto deliver the death message was governed by graph company.- Prevolos v. Western Union the law of the state where the contract was Tel. Co., 218 S. W. 812. made; and, where such law precludes damages for mental anguish alone, defendant telegraph
TENDER. company's requested peremptory instruction should have been given.-Mackay Telegraph & See Cancellation of Instruments, em 37; Mines Cable Co. v. Martin, 218 S. W. 133.
and Minerals, Ow59; Vendor and Purchaser, Em 27 (Tex.Civ.App.) In suits based upon in
148. terstate messages, laws of the state where the
THREATS. message originates must determine whether mental anguish alone can be regarded as an
See Homicide, 44, 45. element of actual damages.-Western Union Telegraph Co. v. Epley, 218 S. W. 528.
TICK ERADICATION. The right of recovery for mental anguish due See Animals, 29; Eminent Domain, 2. to failure of defendant's agent in Arkansas to send death message to plaintiff in Texas must
TIME. be referred to the Arkansas statutes (Kirby's Dig. 8 7947), as construed by the courts of that See Abatement and Revival, Om83, 84; Appeal state, and, since the Arkansas courts following and Error, 351, 395; Contracts, 212, the federal Supreme Court would deny recov 322, 353; Criminal Law, m1092, 1099, ery in suit for damages for mental anguish 1106; Divorce, Om145; Execution, 221; alone, there can be no recovery in the Texas Injunction, 187; Insurance, m534, 539; courts.-Id.
Logs and Logging, On3; Sales, 421; ww38 (1) (Tex.Civ.App.) Damages for mental Taxation, em851. anguish caused by failure to promptly deliver a death message may be recovered without show
TORTS. ing that the telegraph company received a valuable consideration for transmitting it.-Western See Action, Cw47; False Imprisonment, an Union Tel. Co. v. Johnson, 218 S. W. 781.
5-39; Husband and Wife, C332; Libel and www3816) (Tex.Civ.App.) Where plaintiff wrote, Slander, Caws 7-124; Municipal Corporations, "Come at once, death' message, mother," and
en 805–822; Negligence, On 6-142; Nuidefendant's agent changed the wording to, “Mr.
sance, w5–36; Trespass, 58; Trover J. not expected to live, come at once, Mother,”
and Conversion. the messages, taken together, constituted notice that the message was sent for the benefit of
TOWNS. the plaintiff, the mother, and that she would likely suffer mental anguish if it should not
II. GOVERNMENT AND OFFICERS. be delivered promptly, and therefore deprive her ww27 (Mo.) Where the office of township colof the presence of her son, the addressee.-West. lector in a county had been abolished, a prior ern Union Tel. Co. v. Johnson, 218 S. W. 781.) incumbent of that office, wbo continued to exer
For cases in Dec.Dig. & Am.Dig, Key-No.Series & Indexes see same topic and KEY-NUMBER
fore the jury indirectly in one of plaintiff's ex w 120(1) (Ky.) Great latitude should be allow-
hibits.-Brinkman v. Western Automobile In- ed counsel in making their arguments, but coun-
demnity Ass'n, 218 S. W. 944.
sel should be careful in the presentation of
C 41(4) (Tex.Civ.App.) It is within the sound their case to confine themselves to facts brought
discretion of the trial court to permit' a wit-out in the evidence and to reasonable deduc-
ness not under the rule, who had heard a part tions to be drawn therefrom.--Pullman Co. v.
of the testimony, to testify.-American Auto- Pulliam, 218 S. W. 1005.
mobile Ins. Co. v. Struwe, 218 S. W. 534.
Om 129' (Tex.Civ.App.) Assignments of error
45(3) (Mo.App.) In action for death of a that statement of counsel for defendant in ar-
minor, an offer to prove the qualifications of gument, "I don't see how you can answer 'Yes'
a witness, and then prove by him what boys to the first question and thereby make your
would earn from the ages of 14 on to and in- answer a basis for judgment in favor of the
cluding the 20th year," was too general and plaintiff," informed jury of legal effect of the
properly rejected.-Linstroth v. Peper, 218 S. answer to issue whether defendant executed a
deed in favor of plaintiff will be overruled; the
ww46(2) (Tex.Civ.App.) In an action for dam- argument being responsive to arguments of
ages by one tarred and feathered on account plaintiff appellant.–Vaello v. Rodriguez, 218 S.
of his attitude toward the Red Cross, refusal to | W. 1082.
permit testimony of certain prior acts of the
plaintiff was not error, where offer of proof VI. TAKING CASE OR QUESTION
failed to show that the incident sought to be
shown became known to the defendants prior to (A) Questions of Law or of Fact in Gen-
the time plaintiff was tarred and feathered.-
Walker v. Kellar, 218 S. W. 792.
Cu 139(1) (Mo.App.) The evidence not being
contradictory of the physical facts or inherently
(B) Order of Proof, Rebuttal, and
incredible, its credibility is for the jury.-Davis
v. Springfield Hospital, 218 S. W. 696.
60(2) (Ky.) In broker's action against cor- em 139(1) (Tex.Civ.App.) The question of
poration for commissions under parol bro- whether there is any evidence is one for the
kerage contract made with corporation's presi- court, and whether sufficient evidence is one for
dent, where defense was that president had no the jury.--City of San Antonio v. Newnam, 218
authority to make such contract, evidence as S. W. 128.
to the making of the contract was admissible mm 139(1) (Tex.Civ.App.) When a state of facts
before authority had been proved; it being im- is presented from which an ultimate question
material in such cases whether contract or au- must be drawn and reasonable minds might dif-
thority is first proved.-Caddy Oil Co. v. Som- fer as to what conclusion should be drawn from
mer, 218 S. W. 288.
the ultimate facts proven, the question is for
a62(1) (Tex.Civ.App.) Plaintiff may testify the jury.–Bradshaw v. Brown, 218 S. W. 1071.
in rebuttal of the testimony of witnesses in cm 140(1) (Ky.) Jury are judges of witnesses.
troduced by defendant.-American Automobile
-Chesapeake & O. Ry. Co. v. Salyers, 218 S.
Ins. Co. v. Struwe, 218 S. W. 534.
m 141 (Ky.) Court erred in submitting to jury
(C) Objections, Motions to Strike Out, and issue upon which evidence was uncontradicted.
-Baker v. Clark, 218 S. W. 280.
ww83(1) (Tex.Civ.App.) In an action against Om 143 (Tex.Civ.App.) Affirmative matters of
several 'tort-feasors, an objection to evidence defense should be submitted to the jury, where
tending to show the financial standing of one
the evidence is conflicting.--Jackson v. Martin,
of the defendants was sufficient to require the 218 S. W. 4.
court to sustain the objection, for the reason
that the financial standing of one defendant
(B) Demurrer to Evidence.
cannot be shown for the purpose of augmenting Cww.150 (Mo.App.) While the practice of giving
damages against all the defendants, although the an instruction in the nature of a demurrer to
testimony was not objected to on the specific the evidence is often referred to as a demurrer
ground that it tended to show the financial to the evidence, there is no such thing as a
condition of one of the defendants and that he common-law demurrer to the evidence in Mis-
was a man of wealth.-Walker v. Kellar, 218 souri.-Proctor v. Garman, 218 S. W. 910.
S. W. 792.
96 (Tex. Civ.App.) Where a part of a wit-
(D) Direction of Verdict.
ness' answer was clearly admissible, the denial on 180 (Tex.Civ.App.) In an action on a sup-
of a motion to suppress the whole answer and plemental life policy, providing for double lia-
to strike out the same is not error.--American bility in event of accidental death, where in-
Automobile Ins. Co. v. Struwe, 218 S. W. 534. surer filed answer setting up defense of suicide,
Com 105(1) (Mo. App.) Where evidence which is and filed an admission under district court rule
outside the pleading is introduced without ob- 31 (142 S. W. xii), and the court erroneously
jection, it is not error to instruct on these mat- permitted it to open and close, it was error,
ters as well as on the case made by the plead- after the case was submitted, to recall the jury
ings.-Frank Hart Realty Co. v. Ryan, 218 S. and direct a verdict in favor of plaintiff on the
ground that the defendant had admitted that
105(5) (Ark.) Parol evidence of payment of the death was accidental, as by failing to so
taxes, though not the best evidence thereof, held hold until that time the insurer was deprived
sufficient, where not objected to.-Laughlin v. of the right to move to withdraw the admission,
Fisher, 218 S. W. 199.
and in equity is entitled to a new trial.-Fed-
eral Life Ins. Co. v. Wilkes, 218 S. W. 591.
V. ARGUMENTS AND CONDUCT OF
VII. INSTRUCTIONS TO JURY.
cm 108/2 (Mo.App.) In `action by father for (A) Province of Court and Jury in Gen-
death of an infant son, that counsel for plain-
tiffs, the panel being under examination, men-cu 191(1) (Mo.App.) An instruction is errone-
tioned the fact that defendant was of the Peperous which assumes as true facts without estab-
family, and stated that she was a widow of lishing which plaintiff could rot recover.-Gunn
one of the Pepers who died a year before, did v. Hemphill Lumber Co., 218 S. W. 978.
not require discharge of jury on ground that ca 191(0) (Ark.) In an action for the value of
minds of jurors had been turned towards cotton destroyed by fire while on a station
wealth of defendant.-Linstroth v. Peper, 218 platform, where the jury might have found
S. W. 431.
that plaintiff put the cotton on the platform
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
of an instruction to hypothesize the trainmen's , in one instrument, it was not the duty of the
constructive knowledge that the mules were on trial judge to sever and separate the good
the track and running towards a trestle was not from the bad, nor to send to the jury portions
error, where there was no evidence as to where marked "Given" with those refused, which is
the mules were, or that they were where they a practice not to be commended.--Standard
could have been seen before they were seen on Scale & Supply Co. v. Chapin, 218 S. W. 645.
the trestle.--Garrett v. Deering Southwestern am 260(1) (Tex.Civ.App.) Refusal to give spe-
Ry., 218 S. W. 894.
cial charge substantially embraced in the court's
om 252(10) (Ky.) In an action by a passenger charge was not error.-Wight v. Bell, 218 S. W.
against Pullman Ccmpany for damages from an 532.
assault by an unknown person on plaintiff while emo267(3) (Mo.App.) Plaintiff's case being bas-
in her berth, it was error in instructions to re-ed on a charge of negligent moving of a train
fer to the liability of Pullman Company for as- without any warning, modifying defendant's re-
sault by agents or servants, where there was quested instruction, that if a warning was
no evidence that the assaults complained of sounded verdict should be for it, by insertion of
were made by any agent or servant of the de- the condition, immaterial to plaintiff's case, if
fendant.---Pullman v. Pulliam, 218 S. W. 1005. the train was moved "west," was error.-Israel
Cm 252(20) (Mo.App.) In a mother's action for v. Wabash R. Co., 218 S. W. 916.
injuries to her minor son in an assault on him
by defendant street railway's conductor, in the (F) Objections and Exceptions.
absence of evidence for plaintiff showing the mo278 (Ark.) An objection to an instruction
reasonable value of her services as a nurse for should be exact, and a mere general objection
her son, an instruction, authorizing the recovery will not reach an improper use of a word.-
of such value, was improper as
Thompson v. United Rys. Co. of St. Louis, 218m 281 (Ark.) If instruction as modified was
Rogers v. Robertson, 218 S. W. 206.
S. W. 343.
worded so as not to accurately submit a ques-
m 253(4) (Mo.App.) Where plaintiff was injur- tion, evidently intended, particular attention
ed by the use of pads purchased as a cure for should have been called thereto by specific ob-
rupture, because of injurious substances con- jection.-Missouri Pac. R. Co. v. Block, 218 S.
tained therein, an instruction attempting to cov: W. 682.
er the whole case, but omitting the elements
that the pads contained injurious ingredients, (G) Construction and Operation.
which caused plaintiff's injuries, and that de-
knew or should have known the char. had given instructions assuming as a matter of
Ema 296(2) (Ky.) In action for libel where court
acter of the pads by the exercise of ordinary law that a qualified privilege existed subject to
care, was erroneous, and could not be cured by be lost upon conditions named, an instruction
any 'subsequent instruction.-Harmon v. Plapao purporting to set out what would constitute
Laboratories, 218 S. W. 701.
rent from May, 1917, to February 12, 1918, 296(2) (Mo.) In an action for purchase price
Om 253(10) (Mo.App.) In action on account for defendant's privilege held irrelevant.–Baker v.
where defendant vendor's evidence squarely
contradicted purchaser as to any rent to Janu-
and sample books containing
ary 1, 1918, but defendant admitted that he did
or small samples of cloth from
pot move off until 1 month and 12 days, after which suits were to be ordered made, an in-
he was to deliver possession, the court erred in struction to find for plaintiff if all the books
were like the copy approved by defendant was
giving instruction to find for defendant if he
was to retain possession without payment of not bad as omitting the requirement that the
rent until January 1.-Pullam r. Vaughn, 218 books must in all respects be uniform, when
considered with the other instructions to find
S. W. 889.
for defendant if the books were not uniform.-
(E) Requests or Prayers.
U. S. Fashion & Sample Book Co. v. Montrose
Cloak & Suit Co., 218 S. W. 867.
Pes 255(4) (Tex.Civ.App.). Although the party am 296(2) (Mo.App.) In an action on a fire pol-
objecting to the introduction of evidence admis- icy, an instruction that “the defendant is not
sible for a particular purpose should ordinarily liable for any damage caused by explosion of
request an instruction limiting it, where the any kind unless fire ensued,” etc., held not mis-
effect of the objection amounted to a request leading as causing the jury to think that no
to limit the testimony and the ruling of the recovery could be had if a fire preceded the ex-
court admitting it "in evidence for whatever plosion and caused the explosion, in view of
it proves," it was not necessary for appellant other instructions.--Hallander Jefferson
to make formal motion to limit such evidence.- Mut. Fire Ins. Co., 218 S. W. 418.
Texas Employers' Ins. Ass'n v. Downing, 218 mm 296(2) (Mo.App.) In an action for failure to
S. W. 112.
deliver potatoes sold, the first instruction re-
www255(11) (Mo. App.), Contributory negligence, quiring the jury to find there was a contract of
even under the federal Employers' Liability Act sale between the parties was not erroneous as
(U. S. Comp. St. $$ $657-8605), is a matter of misleading where the next instruction correctly
defense on which defendant should request an stated that the correspondence between the
instruction, if desired.-Lafever v. Pryor, 218 parties showed a valid contract of sale, since
S. W. 970.
instructions must be read together.---Mayo v. J.
256(1) (Tex.Civ.App.) If defendant desired L. Price Brokerage Co., 218 S. W. 932.
an addition to the charge, such further charge am 296(3) (Mo.App.) Where plaintiff was injur-
should have been requested.--City of San An- ed by the use of pads purchased as a cure for
tonio V. Newnam, 218 S. W. 128,
rupture, because of injurious substances con-
ww256(13) (Ark.) In an action against the Di- tained therein, an instruction attempting to cov-
rector General of Railroads for injuries to a er the whole case, but omitting the elements
passenger assaulted by a drunken fellow pas- that the pads contained injurious ingredients,
senger, instruction on the measure of damages which caused plaintiff's injuries, and that de-
that, if the jury found for plaintiff, they should fendant knew or should have known the char-
assess damages at such sum as would fairly and acter of the pads by the exercise of ordinary
reasonably compensate her for any injuries sus care, was erroneous, and could not be cured by
tained by reason of the other passenger's in- any subsequent instruction.-Harmon v. Plapao
sults and assaults, though too general, was not Laboratories, 218 S. W. 701.
fatally defective, in the absence of a prayer for 296 (4,5) (Mo.App.) In an action for in-
more specific instruction.-Hines v. Rice, 218 s. juries in a collision when plaintiff's automobile
truck was turned in front of a street car 250
(ww258(1) (Tex.Civ.App.) Where seven special feet șway approaching at the rate of 25 miles
charges or issues were requested by defendant 1 an hour, an instruction that plaintiff and his