For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER the judgment describes the land.-Bement v. Commonwealth, 218 S. W. 294. A default judgment forfeiting title to land for nonassessment and nonpayment of taxes being void, where the petition did not describe the land and was not accompanied by a copy of the grant or instrument of title, an appeal might be prosecuted from an order overruling a motion to set it aside at any time allowed by law, notwithstanding the provision of the statute for an appeal within 30 days from the entry of judgment.-Id. TELEGRAMS. See Appeal and Error, 1064; Sales, 79. TELEGRAPHS AND TELEPHONES. See Appeal and Error, 1064; Bridges, II. REGULATION AND OPERATION. 65(2) (Tex.Civ.App.) A petition, alleging that plaintiff's telegram, reading "Mr. J. not expected to live come at once," was delivered to defendant's agent, who was advised that J. was ill and not expected to live, and that the addressee was the son of plaintiff and stepson of her husband, J., and that she desired his presence at once, held sufficiently to allege that defendant had notice that plaintiff would suffer mental anguish in case the message was not properly transmitted.-Western Union Tel. Co. v. Johnson, 218 S. W. 781. 65(6) (Tex.Civ.App.) Allegations, in a petition for damages for mental anguish caused by failure to promptly deliver a death message to plaintiff's son, "that if the message had been delivered * * * he could have started for K. to be with plaintiff, and by the customary routes of travel from L. to K., to wit, from L. to B. S. dollars damages was not excessive for mental anguish, caused a mother by failure to promptly deliver a message to her son, so that he could come to her in her bereavement on the death of her husband.-Western Union Tel. Co. v. Johnson, 218 S. W. 781. by automobile route, same being the regular used and traveled passenger route, and from B. S. to K. via railway travel," etc., sufficiently stated what facilities the son could avail himself of in to testify to the route he took, which, if the reaching K., and the son was properly permitted 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 71 (Tex.Civ.App.) One thousand United States government, pursuant to joint resolution July 16, 1918 (U. S. Comp. St. Ann. Supp. 1919, § 3115x) and proclamation of the President, defendant was not liable, under Kirby's Dig. 7947, as to recovery of damages for mental anguish "for negligence in receiving, transmitting or delivering messages," and 73(5) (Tex.Civ.App.) Where husband, in suit cannot be maintained against it.-Western Union Telegraph Co. v. Davis, 218 S. W. 833. 27 (Tex.Civ.App.) Where there was a continuous transmission of a telegraph message from a place in Mississippi to a place in Texas, the message was interstate commerce, and, where a separate agency in the latter state undertook to further its transmission to destination point, its liability for the negligent failure to deliver the death message was governed by the law of the state where the contract was made; and, where such law precludes damages for mental anguish alone, defendant telegraph company's requested peremptory instruction should have been given.-Mackay Telegraph & Cable Co. v. Martin, 218 S. W. 133. 27 (Tex. Civ.App.) In suits based upon interstate messages, laws of the state where the message originates must determine whether mental anguish alone can be regarded as an element of actual damages.-Western Union Telegraph Co. v. Epley, 218 S. W. 528. leaving sick wife, promised to immediately return in case she telegraphed, and the wife, after sending a telegram: "Come home at once. Answer"-which was not delivered, became greatly disturbed and more seriously ill because of husband's failure to answer, and he not only answered a similar message sent three days later by the wife's sister, but came at once, it was error to direct a verdict for the telegraph company.-Prevolos v. Western Union Tel. Co., 218 S. W. 812. TENDER. See Cancellation of Instruments, 37; Mines 59; Vendor and Purchaser, THREATS. See Homicide, 44, 45. TICK ERADICATION. TIME. 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 be referred to the Arkansas statutes (Kirby's Dig. § 7947), as construed by the courts of that state, and, since the Arkansas courts following the federal Supreme Court would deny recovery in suit for damages for mental anguish alone, there can be no recovery in the Texas courts. Id. 38(1) (Tex. Civ.App.) Damages for mental anguish caused by failure to promptly deliver a death message may be recovered without showing that the telegraph company received a valuable consideration for transmitting it.-Western Union Tel. Co. v. Johnson, 218 S. W. 781. 38(6) (Tex.Civ.App.) Where plaintiff wrote, "Come at once, death message, mother," and defendant's agent changed the wording to, "Mr. J. not expected to live, come at once, Mother," the messages, taken together, constituted notice that the message was sent for the benefit of the plaintiff, the mother, and that she would likely suffer mental anguish if it should not be delivered promptly, and therefore deprive her of the presence of her son, the addressee.-Western Union Tel. Co. v. Johnson, 218 S. W. 781. 218 S.W.-78 See Abatement and Revival, 83, 84; Appeal and Error, 351, 395; Contracts, 212, 322, 353; Criminal Law, 1092, 1099, 1106; Divorce, 145; Execution, 221; Injunction, 187; Insurance, 534, 539; Logs and Logging, 3; Sales, ~421; Taxation, 851. TORTS. See Action, 47; False Imprisonment, TOWNS. II. GOVERNMENT AND OFFICERS. 27 (Mo.) Where the office of township collector in a county had been abolished, a prior incumbent of that office, who continued to exer 58 (Ky.) In an action by a church for trespass consisting of cutting trees in the churchyard, leaving the church practically without shade, a verdict of $700 held not excessive under the evidence.-Shutt v. Methodist Episcopal Church, 218 S. W. 1020. TRESPASS TO TRY TITLE. See Adverse Possession, 114; Appeal and Error, 1175; Deeds, 208; Dismissal and Nonsuit, 81; Evidence, 158, 271; Injunction, 123, 126; Limitation of Actions, 127; Trial, 396. 1. RIGHT OF ACTION AND DEFENSES. (Tex.Civ.App.) Suits for land, in ejectment or trespass to try title, are possessory in their nature, whether based on prior possession or title; and one having prior possession of land is not required to exhibit his full title to recover against a mere trespasser.Butler v. Borroum, 218 S. W. 1115. 6(1) (Tex.Civ.App.) Plaintiff in trespass to try title must recover on the strength of his own title, and not on the weakness of the title of his adversary.-Dittman v. Cornelius, 218 S. W. 109. 6(1) (Tex.Civ.App.) In trespass to try title, plaintiff must show title in himself from the sovereignty, title by limitation, or such prior possession as entitles him to recover.-Schoonmaker v. Clardy, 218 S. W. 1112. II. PROCEEDINGS. 38(1) (Tex.Civ.App.) The rule which permits a plaintiff in an action of trespass to try title to recover against a mere trespasser, on proof of prior possession without further evidence of title, is a rule of evidence only, and not a rule of estoppel, and when defendant shows affirmatively that the plaintiff has no title, and thus rebuts the presumption arising from his prior possession, defendant, though a mere trespasser, will not be disturbed.-Butler v. Borroum, 218 S. W. 1115. 47(3) (Tex.Civ.App.) Where record title was in defendant and plaintiff failed to sustain her claim to title under the five and ten year statute of limitations, it was proper for the trial court to decree title to be in defendant who filed a cross-action.-Conn v. Houston Oil Co. of Texas, 218 S. W. 137. TRIAL. See Continuance; Costs; Criminal Law, For review of rulings at trial, see Appeal and III. COURSE AND CONDUCT OF 25 (7) (Tex. Civ.App.) A petition by a beneficiary under a life policy and a supplemental life policy providing double liability in case of accidental death, set up two distinct causes of action, one on the plain life insurance policy and the other on the supplemental policy; and where defendant set up suicide in its answer, and then filed an admission under rule 31 for district courts (142 S. W. xiii), defendant did not thereby admit that the death under the plain policy was an accident, although its effect was to admit that the death was accidental as far as the count on the supplemental action on the policy was concerned.-Federal Life Ins. Co. v. Wilkes, 218 S. W. 591. Rule 31 for district courts (142 S. W. xiii) is simply one of practice and for the purpose to expedite the trial and relieve the plaintiff of the necessity of proving his case upon consideration that the defendant take the burden.-Id. 25(9) (Tex.Civ.App.) In an action under a supplemental life policy, providing for double liability in event of accidental death, insurer was not entitled to demand the right to open and close by filing an admission under rule 31 for district courts (142 S. W. xiii), insurer claiming that death was by suicide, since the effect of such an admission was to admit that the plaintiff was entitled to recover, and that the death was not accidental.-Federal Life Ins. Co. v. Wilkes, 218 S. W. 591. 28(2) (Mo.App.) In servant's action for injuries received in a sawmill when a lever on a carriage flew back and struck him by reason of the alleged worn condition of the pawls in the ratchet machinery, court did not abuse its discretion in refusing to permit jury to view the machinery, where at time of trial the mill was not running.-Gunn v. Hemphill Lumber Co., 218 S. W. 978. 29(1) (Tex.Civ.App.) Where plaintiff's attorneys objected that defendant's counsel had violated the order putting witnesses under the rule, and the court stated that, while their action might not be a technical violation of the rule, it appeared to be a violation of its spirit and intent, but later instructed the jury at defendant's instance to disregard such remarks and the observations of the court thereon, if the court's remarks were improper, they are not ground for reversal in view of charge to disregard them.-Hines v. Messer, 218 S. W. 41(1) (Tex.Civ.App.) In trespass to try title, evidence held not to show that plaintiff had prior and continuous possession, by virtue of which he was entitled to recover. 611. Schoonmaker v. Clardy, 218 S. W. 1112. In trespass to try title, held that plaintiff was not entitled to recover by virtue of prior possession of alleged owners from whom he claims to have purchased, or by virtue of title acquired by such owners under the 10-year statute (Vernon's Sayles' Ann. Civ. St. 1914, art. 5675). -Id. 41(1) (Tex.Civ.App.) Suits for land in trespass to try title are possessory in their nature, whether based on prior possession or title; and one having prior possession of land is not required to exhibit his full title to recover against a mere trespasser.-Butler v. Borroum, 218 S. W. 1115. IV. RECEPTION OF EVIDENCE. (A) Introduction, Offer, and Admission of Evidence in General. 39 (Ky.) The reading to the jury of a deed sufficient to warrant their belief that it conveyed lands as a part of the testimony amounts to an introduction of the deed in evidence.Kentucky Coal Lands Co. v. J. D. Hughes Lumber Co., 218 S. W. 1024. 39 (Mo.App.) In an action against an indemnity company, where the acquittal of plaintiff of the charge of drunkenness was excluded, as was proper, it was error to permit it to get be 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-120(1) (Ky.) Great latitude should be allowhibits.-Brinkman v. Western Automobile In- ed counsel in making their arguments, but counsel should be careful in the presentation of demnity Ass'n, 218 S. W. 944. their case to confine themselves to facts brought out in the evidence and to reasonable deductions to be drawn therefrom.-Pullman Co. v. Pulliam, 218 S. W. 1005. 41(4) (Tex.Civ.App.) It is within the sound discretion of the trial court to permit a witness not under the rule, who had heard a part of the testimony, to testify.-American Automobile Ins. Co. v. Struwe, 218 S. W. 534. 45(3) (Mo.App.) In action for death of a minor, an offer to prove the qualifications of a witness, and then prove by him what boys | would earn from the ages of 14 on to and including the 20th year," was too general and properly rejected.-Linstroth v. Peper, 218 S. W. 431. 46(2) (Tex. Civ.App.) In an action for damages by one tarred and feathered on account of his attitude toward the Red Cross, refusal to permit testimony of certain prior acts of the plaintiff was not error, where offer of proof failed to show that the incident sought to be shown became known to the defendants prior to the time plaintiff was tarred and feathered.Walker v. Kellar, 218 S. W. 792. (B) Order of Proof, Rebuttal, and Reopening Case. error 129 (Tex. Civ.App.) Assignments of that statement of counsel for defendant in argument, "I don't see how you can answer 'Yes' to the first question and thereby make your answer a basis for judgment in favor of the plaintiff," informed jury of legal effect of the answer to issue whether defendant executed a deed in favor of plaintiff will be overruled; the argument being responsive to arguments of plaintiff appellant.-Vaello v. Rodriguez, 218 S. W. 1082. VI. TAKING CASE OR QUESTION (A) Questions of Law or of Fact in Gen eral. 139(1) (Mo.App.) The evidence not being contradictory of the physical facts or inherently incredible, its credibility is for the jury.-Davis v. Springfield Hospital, 218 S. W. 696. of 60(2) (Ky.) In broker's action against cor-139(1) (Tex.Civ.App.) The question poration for commissions under parol brokerage contract made with corporation's president, where defense was that president had no authority to make such contract, evidence as to the making of the contract was admissible before authority had been proved; it being immaterial in such cases whether contract or authority is first proved.-Caddy Oil Co. v. Sommer, 218 S. W. 288. whether there is any evidence is one for the court, and whether sufficient evidence is one for the jury. City of San Antonio v. Newnam, 218 S. W. 128. 62(1) (Tex. Civ.App.) Plaintiff may testify in rebuttal of the testimony of witnesses introduced by defendant.-American Automobile Ins. Co. v. Struwe, 218 S. W. 534. (C) Objections, Motions to Strike Out, and Exceptions. 139(1) (Tex.Civ.App.) When a state of facts is presented from which an ultimate question must be drawn and reasonable minds might differ as to what conclusion should be drawn from the ultimate facts proven, the question is for the jury.-Bradshaw v. Brown, 218 S. W. 1071. 140(1) (Ky.) Jury are judges of witnesses. Chesapeake & O. Ry. Co. v. Salyers, 218 S. W. 474. 141 (Ky.) Court erred in submitting to jury issue upon which evidence was uncontradicted. -Baker v. Clark, 218 S. W. 280. 143 (Tex.Civ.App.) Affirmative matters of defense should be submitted to the jury, where the evidence is conflicting.-Jackson v. Martin, 218 S. W. 4. (B) Demurrer to Evidence. 83(1) (Tex.Civ.App.) In an action against several tort-feasors, an objection to evidence tending to show the financial standing of one of the defendants was sufficient to require the court to sustain the objection, for the reason that the financial standing of one defendant cannot be shown for the purpose of augmenting 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 Miswas 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 witness' answer was clearly admissible, the denial of a motion to suppress the whole answer and to strike out the same is not error.-American Automobile Ins. Co. v. Struwe, 218 S. W. 534. 105(1) (Mo.App.) Where evidence which is outside the pleading is introduced without objection, it is not error to instruct on these matters as well as on the case made by the pleadings. Frank Hart Realty Co. v. Ryan, 218 S. W. 412. 105(5) (Ark.) Parol evidence of payment of taxes, though not the best evidence thereof, held sufficient, where not objected to.-Laughlin v. Fisher, 218 S. W. 199. V. ARGUMENTS AND CONDUCT OF COUNSEL. (D) Direction of Verdict. 180 (Tex.Civ.App.) In an action on a supplemental life policy, providing for double liability in event of accidental death, where insurer filed answer setting up defense of suicide, and filed an admission under district court rule 31 (142 S. W. xiii), and the court erroneously permitted it to open and close, it was error, after the case was submitted, to recall the jury and direct a verdict in favor of plaintiff on the ground that the defendant had admitted that the death was accidental, as by failing to so hold until that time the insurer was deprived of the right to move to withdraw the admission, and in equity is entitled to a new trial.-Federal Life Ins. Co. v. Wilkes, 218 S. W. 591. VII. INSTRUCTIONS TO JURY. 1082 (Mo.App.) In action by father for (A) Province of Court and Jury in Gendeath of an infant son, that counsel for plain eral. tiffs, the panel being under examination, men-191(1) (Mo.App.) An instruction is erronetioned the fact that defendant was of the Peperous which assumes as true facts without estabfamily, and stated that she was a widow of lishing which plaintiff could not 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 191(6) (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 his own convenience, and not to be held by 244(2) (Tex. Civ.App.) Every statement made defendant as warehouseman, an instruction requiring plaintiff to establish defendant's negligence would have been erroneous, as assuming that it held the cotton as warehouseman; negligence not otherwise being an essential element. St. Louis & S. F. Ry. Co. v. Black, 218 S. W. 377. by the court in discussing and passing on the sufficiency or insufficiency of certain evidence to justify a particular finding in a given case need not be incorporated in the instructions given as a guide to the jury in determining the probative force of the testimony submitted for its consideration, as result would be to give undue prominence to such matters.-Bradshaw Brown, 218 S. W. 1071. V. (D) Applicability to Pleadings and Evidence. 191(9) (Tex.Civ.App.) In an action against a railroad company for refusing to transport plaintiff between its depot and that of another company as required by her ticket, where the driver denied that he was the railroad's agent or that he told plaintiff he was the railroad trans-250 (Mo.App.) Instructions must not be fer man, instruction held erroneous as assum- broader than the evidence, no matter how broad ing that he was defendant's agent.-Gulf, C. the petition, nor shall they be broader than the & S. F. Ry. Co. v. Gordon, 218 S. W. 74. petition.-Gunn v. Hemphill Lumber Co., 218 S. 192 (Mo.App.) It was not error to assume W. 978. in an instruction a fact about which there was no controversy.-Frank Hart Realty Co. v. Ryan, 218 S. W. 412. 194(9) (Tex. Civ.App.) In contest of 79 year old testatrix's will on ground of mental incompetence, requested charge on testamentary capacity as affected by old age and sickness held properly refused as on the weight of the evidence.-Bradshaw v. Brown, 218 S. W. 1071. 194(14) (Mo.App.) In an action for false arrest and imprisonment, instruction using the word "competent" in connection with the word "evidence" is improper as a comment on the evidence. Harris v. Terminal R. Ass'n of St. Louis, 218 S. W. 686. 194(19) (Tex.Civ.App.) In an action for death of a fireman killed by reason of a derail ing switch being left open, the court properly refused, as being on the weight of the evidence, a request to instruct "that, if you believe the engine was caused to leave the track on account of defects in the derailing appliances, and those defects were caused by the repair man having taken some pipes, rods, and connections out temporarily to repair them, and said repairs were necessary to maintain the appliance in proper condition, and they were to be kept out only a short time, then you cannot find that such act was an act of negligence."-Hines v. Mills, 218 S. W. 777. (B) Necessity and Subject-Matter. 205 (Tex. Civ.App.) A court which has not instructed on the burden of proof should do so on request, if necessary for the better aid and guidance of the jury, though special issues have been framed for a finding so as to indicate the burden.-Goree v. Uvalde Nat. Bank, 218 S. W. 620. 214 (Mo.App.) In an action for false arrest and imprisonment, where defendant introduced testimony tending to establish that plaintiff was guilty of the theft for which it procured her arrest, it was entitled to an instruction stating that plaintiff could not recover if she was guilty. Harris v. Terminal R. Ass'n of St. Louis, 218 S. W. 686. (C) Form, Requisites, and Sufficiency. 225(2) (Tex.Civ.App.) The failure of the trial judge to sign the charge is not reversible error.-McDonald v. Axtell, 218 S. W. 563. 233(3) (Mo.App.) An instruction which requires the jury to look to the pleadings to ascertain any of the facts or law would be erroneous.-Pollard v. Carlisle, 218 S. W. 921. An instruction which fully sets forth all of the essential facts necessary to plaintiff's recovery was not objectionable, notwithstanding use of phrase "as alleged in the pleadings," such reference to pleadings being merely incidental and surplusage.-Id. 243 (Mo.App.) An instruction which directs a verdict and omits to submit an essential fact, where other instructions submit such fact, creates a conflict.-Pullam v. Vaughn, 218 S. W. 889. 251(3) (Mo.App.) In replevin by holder of chattel mortgage, where defense was that the mortgagor's wife was owner, and not that the wife's title was superior to that of plaintiff, for the reason that plaintiff failed to record his chattel mortgage, an instruction for plaintiff was proper which did not require the jury to find that the mortgage was filed for record, although it appeared in evidence that the defendant, after the execution of the mortgage, had given the wife bills of sale of the property; there being no such issue in the case.-Cook v. Wheeler, 218 S. W. 929. 251(8) (Mo.App.) Instruction authorizing recovery on proof of one of two grounds of negligence averred, and making no reference to the other, is not open to criticism of broadening the issues.-Kaenter v. Missouri Pac. Ry. Co., 218 S. W. 349. 251(8) (Mo.App.) In an action for injuries to plaintiff by the use of pads, purchased from defendant and advertised as a cure for rupture, but containing injurious ingredients, an instruction predicated on the relation of physician and patient, and holding defendant responsible for failure to exercise the care and skill of average physicians, was erroneous, as not justified by the pleadings.-Harmon v. Plapao Laboratories, 218 S. W. 701. In action for damages to plaintiff by the use of pads, advertised and sold as a rupture cure, but containing injurious substances, an instruction that to recover plaintiff must show that the character and ingredients of the compound contained in the pads were concealed from plaintiff by defendant, was erroneous, as not being based on an essential part of the plaintiff's right to recover.-Id. 251(9) (Tex. Civ.App.) In an action by one tarred and feathered and chased out of the county on account of his attitude towards the Red Cross, where the damage alleged was loss of profits caused by the inability of plaintiff to give his personal services to the carrying on of his business, a charge of the court, authorizing the jury to allow him the "loss sustained in his business as the direct result of his so being driven from his home and business," was erroneous, as authorizing recovery of losses not pleaded.-Walker v. Kellar, 218 S. W. 792. 252(8) (Mo.App.) In an action by a street sweeper for injuries sustained when run down by defendant's automobile, where plaintiff pleaded that he was standing in the street when struck, and testified that he was standing midway between a street car track and the curb when struck, positively affirming that he had not been on the street car track, an instruction authorizing a recovery on a finding that "plaintiff stepped from in front of a street car" and that at the time plaintiff "was stepping" from in front of the car defendant saw, or by the exercise of ordinary care could have seen, him in time to have stopped, was too broad and was prejudicial.-Latham v. Harvey, 218 S. W. 401. 252(9) (Mo.App.) In action for the value of mules struck by a railroad motorcar, the failure 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 260(1) (Tex.Civ.App.) Refusal to give spe- S. W. 343. (F) Objections and Exceptions. 281 (Ark.) If instruction as modified was (G) Construction and Operation. 253(4) (Mo.App.) Where plaintiff was injur- Laboratories, 218 S. W. 701. 253(10) (Mo.App.) In action on account for (E) Requests or Prayers. 296(2) (Mo.) In an action for purchase price 296(2) (Mo.App.) In an action on a fire pol- 255(4) (Tex.Civ.App.) Although the party 255(11) (Mo.App.) Contributory negligence, deliver potatoes sold, the first instruction re- 256(13) (Ark.) In an action against the Di- 258(1) (Tex. Civ.App.) Where seven special ed by the use of pads purchased as a cure for 296 (4, 5) (Mo.App.) In an action for in- |