Слике страница
PDF
ePub

connection with other instructions.-Kelley v., XIV. JUDGMENT, SENTENCE, AND State, 202 S. W. 49.

FINAL COMMITMENT.

Oww 100! (Tex.Cr.App.) Under Vernon's Ann. (H) Requests for Instructions.

Code Cr. Proc. 1916, art. 865b, it is only CW829(1) (Ark.) Court need not give request- burglary of a private residence, and not bured instructions in homicide case that are fully glary of a storehouse, which prevents the imcovered by other instructions.-Kelley v. State, position of a suspended sentence.-Ditto v. 202 S. W. 49.

State, 202 S. W. 735. (1) Objections to Instructions or Refusal

XV. APPEAL AND ERROR, AND Thereof, and Exceptions.

CERTIORARI. Ein 844(1) (Ark.) Erroneous definition of lar- (A) Form of Remedy, Jurisdiction, and ceny, if error, held not amenable to general ob

Right of Review. jection.-Banks v. State, 202 S. W. 43.

1024 (9) (Ky.) In case of a misdemeanor

punishable by fine only, the commonwealth may (J) Custody, Conduct, and Deliberations appeal from an acquittal, and on a reversal of Jury.

have a new trial.-Commonwealth v. Gritten, 854 (9).(Ky.) There was no separation of 202 S. W. 884. jury, requiring reversal, where during temporary lull in murder trial juror left his seat (B) Presentation and Reservation in Low.

er Court of Grounds of Review. and approached a person to ask him to look after juror's horse, and, sheriff interrupting,

Om 1039 (Ark.) Where evidence of state's witthe juror returned to his seat.--Thomas v.

ness is read to jury after submission of case at Commonwealth, 202 S. W. 498.

request of jury, defendant cannot complain that

evidence of his witnesses on same point was (K) Verdict.

not read, where it was not requested.–Kelley

v. State, 202 S. W. 49. 878(2) (Mo.App.) Where both counts of an information or indictment relate to the same fully selling intoxicating liquors, error in com

Om 1054(1) (Ark.) In a prosecution for unlaw. transaction, a general verdict is sufficient.- pelling defendant to answer questions concernState v. Evertz, 202 S. W. 614. In a prosecution for treating a sick person be reviewed, in the absence of exceptions.

ing a plea of guilty in a federal court will not without a license, held, that both counts of the Cunningham v. State, 202 S. W. 27. information obviously related to one and the same transaction, and that a general verdict Challenged' entire dying declaration, most of

em 1059(2) (Tenn.) Where exception below was sufficient.-Id. 884 (Mo.App.) Where but one offense is part of declaration will be overruled on appeal.

which was competent, assignment of error as to charged in two separate counts in an information under a statute imposing a minimum fine

- Dickason v. State, 202 S. W. 922. for each offense, the jury is authorized to Em 1066 (Tex.Cr.App.) Although an order was assess but one penalty.--State v. Evertz, 202 entered authorizing the filing of statement of S. W. 614.

facts and bill of exceptions after court bad 889 (Ter.Cr.App.) Verdict finding defend taken on 'motion for new trial, exceptions to

adjourned, this would not apply to evidence ant guilty on first count of indictment, where which must be filed during term time.-Thompsuch count had not been submitted, held properly sent back for correction under Code Cr.

son v. State, 202 S. W. 91. Proc. 1911, arts. 773, 774, as informal verdict, (C) Proceedings for Transfer of Cause, by substitution of the word "second" for

and Effect Thereof. “first."-Barnes v. State, 202 S. W. 949.

Om 1083 (Tex.Cr.App.) Where accused on con

viction gave notice of appeal and recognizance XIII. MOTIONS FOR NEW TRIAL before he was sentenced, the court nevertheAND IN ARREST.

less had jurisdiction to set aside the recog. m915. (Tex.Cr.App.) Under Bill of Rights, & nizance and sentence accused and to require a 10. in view of section 29, an indictment, leaving new recognizance.-Ingram v. State, 202 S. W. out the words "by the" in the formal clause

741. "by the authority of the state," held fatally de- (D) Record and Proceedings Not in Recfective, so that court erred in not allowing amended, motion for new trial for alleged discovery that indictment had been amended by Shows no notice of appeal, the appeal will be

m 1087(1) (Tex.Cr.App.) Where the

record inserting such omitted words.-Alvarado v. State, 202 S. W. 322.

dismissed.-Thompson v. State, 202 S. W. 91.

it Ewww938(1) (Ark.) Newly discovered evidence in m1087(2) (Tex.Cr. App.) Where appears prosecution for grand larceny held not to re

from the record on appeal that statement of quire new trial.- Banks v. State, 202 S. W. 43. facts and bill of exceptions were filed beyond cm 945(2) (Tex.Cr.App.) Where conviction of should be 'shown.-Thompson v. State, 202 S.

term time, an order of court for such filing burglary rested largely on finding tracks similar to those of accused at the scene of the

W. 91. burglary, and after conviction, a third person Emo 1087 (2) (Tex.Cr. App.) Bills of exceptions made affidavit that his house had been burglar- and statement of facts in misdemeanor case in ized and a similar track found while accused county court having no official stenographer was in jail, such testimony warranted new must be filed in term time or within 20 days trial on the ground of newly discovered evi- thereafter, and, if filed after adjournment, recdence.-Ditto v. State, 202 S. W. 735.

ord must show order duly entered extending ww949(3) (Tex.Cr.App.) The filing of

time within which filing might be made.-Lee v. amended motion for new trial is generally State, 202, S. W. 732. within the sound discretion of the trial court.

Omw 1090 (1) (Tex.Cr.App.) In the absence of -Alvarado v. State, 202 S. W. 322.

bill of exception and statement of facts, the 970(7) (Tex.Cr. App.) Failure of indictment only question raised is the sufficiency of the under Penal Code 1911, arts. 1421, 1422, for indictment.-Price v. State, 202 S. W. 948. swindling, to state the name of the particular 1090(7) (Tex.Cr.App.) In prosecution for person to whom the false representation was murder, refusal of continuance will not be remade, cannot be questioned after verdict, under viewed in absence of bill of exceptions.-Lewis Vernon's Ann, Code Cr. Proc. 1916, art. 849, v. State, 202 S. W. 86. as to motions in arrest of judgment.-Pruitt v. Om 1090(7) (Tex.Cr.App.) Overruling appli

ord.

an

where bill of exceptions was not reserved to Rev. St. 1909, $ 5313, on the mere ground of
ruling.-Anderson v. State, 202 S. W. 953. inadvertence of appellant's attorneys.-Id.
Suws 1090(11)_(Mo.App.) In a prosecution for Cmo 1109(2) (Mo.App.) Where a bill of excep-
violation of Rev. St. 1909, $ 8315, prohibiting tions was not signed by judge, appellant cannot
the practice of medicine without a license, an suggest diminution of record before Court of
attack on the constitutionality of the statute Appeals, where his attention was called to the
raised by motion will not be reviewed on ap- fact that it was not signed while case was be-
peal, where no bill of exceptions incorporating fore Supreme Court, to which it had first been
such motion has been signed by the court.- appealed, and be made no effort before either
State v. Sollars, 202 S. W. 623.

court to prove bill was in fact signed.-State
Em 1090(13) (Tex.Cr. App.) In prosecution for v. Sollars, 202 S. W. 623.
murder, statement by assistant prosecuting at- Om | 120(7) (Tex.Cr.App.) A bill of exceptions
torney commenting on failure of defendant to not stating object and purpose of testimony
deny that he signed confession will not be re- sought to be introduced is not entitled to con-
viewed in absence of bill of exceptions.-Lewis sideration.-Anderson v. State, 202 S. W. 953.
V. State, 202 S. W. 86.

w 1124(1) (Ky.) On appeal from a convic-
Om 1090 (14) (Tex.Cr.App.) In the absence of tion of murder, refusal to grant new trial for
bill of exceptions and statement of facts, al- | implied bias of a juror because of relationship
leged errors in refusing instructions cannot be to deceased will not be considered where ap-
determined.-Spohn v. State, 202 S. W. 732. pellant made no affidavit concerning such re-
C 1090 (16) (Tex.Cr.App.) Questions raised

lationship, but presented the ground only by
in motion for new trial are not reviewable, affidavits filed by his codefendant on a simi-

statement in his motion, referring therein to
where they are not verified by bills of excep; lar motion, and such affidavites were not made
tions and no statement of facts is contained
in record.—Young v. State, 202 S. W. 509.

a part of the record.-Bonar v. Commonwealth,

202 S. W. 676.
em 1090 (16) (Tex.Cr.App.) In absence of bill om 1124 (4) (Tex.Cr. App.) For review, as to
of exceptions, grounds of motion for new trial motion for new trial, the facts stated as
cannot be considered.-Spohn v. State, 202 S. grounds in the motion must be prepared and
W. 732.

sent with the record.-Williams v. State, 202
01091 (8) (Tex.Cr. App.) Bill of exceptions S. W. 958.
as to counsel's remarks with reference to ac-
cused's failure to place witnesses on stand to (F) Dismissal, Hearing, and Rehearing.
prove good reputation was too indefinite; it
not stating facts, or whether reputation was

Om 1131(7) Tex.Cr. App.) Defects in transcript
an issue.-Anderson v. State, 202 S. W. 953.

of appeal may be cured and dismissed case re-

instated, where defects were omissions of the
Om 1092(4) (Tex.Cr.App.) Where bills of ex clerk in failing to copy the necessary papers in-
ception are not filed within the time allowed, to the transcript.-Thompson v. State, 202 S.
and no additional time is granted, a motion tow. 91.
strike must be granted.-Harris v. State, 202
S. W. 958.

(G) Review,
Om 1092(11), (Tex.Cr.App.) Bill of exceptions ! 134(5) (Ky.) Error of trial court in sum-
not approved by trial judge cannot be consid- moning panel from county not "adjoining"
ered.-Anderson v. State, 202 S. W. 953.

county in which defendant was tried contrary
One 1093 (Tex.Cr.App.) In prosecution for in- to Cr. Code Prac. § 194, is not reviewable in
cest, bill of exceptions reciting that court per- wealth, 202 S. W. 653.

view of section 281,-Frasure 7. Common-
mitted witness to testify that defendant had al-
ways been called a certain person's son

cm 1144(6) (Tex.Cr.App.) It will be presumed
insufficient, as too indefinite.—Griffin v. State, that venue was proved unless it was a question
202 S. W. 87.

was

of serious import upon the trial or unless con-
In prosecution for incest, bill of exception re-

tested or verified in a bill of exceptions.-Sher-
citing that witness was asked if it was not prac-

man v. State, 202 S. W. 93.
tice for children to adopt name of their step- om 1144(10) (Mo.App.) In the absence of a
father, and that he would have answered in bill of exceptions to show what witnesses were
negative, was too indefinite for consideration. used by the state, it cannot be assumed on ap-

peal that certain witnesses whose names were
In prosecution for incest, bill of exception indorsed on the information were not used in
that witness had testified that her daughter making a case against defendant.--State v. Sol-
disappeared in certain county and could not be lars, 202 S. W. 623.
found was insufficient as being too indefinite. Om 1153(5) (Ark.) In prosecution for høg theft,
-Id.

it was discretionary to allow complaining wit-
Om 1099(5) (Tex.Cr.App.) To be considered by ness to remain in the courtroom, and a con-
Court of Criminal Appeals, statement of evi- viction will not be reversed unless prejudice
dence heard on motion for new trial must be is shown.-Sheptine v. State, 202 S. W. 225.
filed during term at which trial occurred.-om 1158(4) (Tenn.) Where fact of declarant's
Vestal v. State, 202 S. W. 94.

condition depends on credibility of witnesses.
Bus 1102 (Tex.Cr.App.) On criminal appeal, great weight is to be attached to conclusions
statement of facts made up of questions and of trial judge in holding a dying declaration
answers cannot be considered, and Attorney admissible, and court on appeal will not re-
General's motion to eliminate it will be sus-

verse, unless there is manifest error.-Dicka-
tained.-Ferguson v. State, 202 S. W. 733. son v. State, 202 S. W. 922.
el 106 (3) (Mo.) Where, in a felony case not new 1 159(1) (Mo.App.) Conviction will not be .
capital, the complete transcript was not filed, reversed as against evidence, except for total
and the docket fee not paid, for more than 1ź absence of evidence, or such complete failure
months after the appeal was allowed as the thereof as to create inference of prejudice or
statutes and court rule required, and good partiality.-State v. Spencer, 202 s W. 612.
cause for the delay as provided in Rev. St. Ons ! 159(2) (Ky.) Court of Appeals is not au-
1909, $ 5313, was not shown, the appeal will thorized to review conviction on ground verdict
be dismissed.-State v. Nelon, 202 S. W. 536. is against evidence unless it is flagrantly so.-

Failure to file full transcript and pay docket Board of Council of City of Danville v. Com-
fees within 12 months from the day of grant-monwealth, 202 S. W. 858.
ing an appeal in a felony case not capital can. Om 1159(3) (Tex.Cr.App.) In prosecution for
not be excused for good cause shown under / selling intoxicating liquor in violation of law,

-Id.

finding based on conflicting testimony will not , m 1171(1) (Ark.) In prosecution for unlaw-
be reviewed.-Goss v. State, 202 S. W. 956. fully selling intoxicating liquors, statement by
Om 1166(11) (Mo.App.) That the prosecuting the prosecuting attorney that the reason why
attorney, during the trial indorsed the name defendant sold the whisky openly in the pres-
of a witness on the information to correct an

ence of a police officer was that the law was
error in the spelling of his name as originally being openly violated. Held, not prejudicial
indorsed was not ground for reversal, where error.-Cunningham v. State, 202 S. W. 27.
the trial court found that prosecutor's error om 173(2) (Ky.) Since the minimum punish-
was unintentional, and that defendant was not ment for attempted rape is less than that fix-
misled thereby.-State v. Sollars, 202 S. W. ed for carnally knowing a female under 16
623.

years of age, failure to give an instruction on
w11661/2(1) (Ark.) In a case wherein the attempted rape is prejudicial.-Smith v. Com-
court fined an attorney for contempt, held, that monwealth, 202 s. 'W. 309.
there was no error to the prejudice of defend- em 178. (Ky.) Complaint that indictment for
ant in the proceedings.-Wright v. State, 202 murder is insufficient, raised for first time on
S. W. 236.

defendant's third appeal, need not be consid-
Om 11661/2(12)(Ark.) Where it was undisputed

ered; no objection to indictment being pre-
on trial of homicide case that knife shown in sented by brief.–Frasure v. Commonwealth,
evidence was same knife that was shown at 202 S. W. 653.
coroner's inquest, no prejudice resulted from

(H) Determination and Disposition of
remark of court that it had been identified by

Cause.
one of defendant's witnesses.-Kelley v. State,
202 S. W. 49.

1186(4) (Tex.Cr.App.) In a prosecution for
1168(2) (Tenn.) Where accused had testi- that conviction could be had upon proving sale

selling liquors in dry territory. an instruction
fied in his own behalf, and another witness tes.
tified he had offered to pay $500 if the prose though error,

to any one of the four named in the indictment,
cution were dismissed, error in refusing to al- where the evidence clearly proved sale to all

was not ground for reversal,
low accused to contradict such testimony in re- foir; such error being harmless under Code
buttal was prejudicial.–Arnold v. State, 202 Cr. Proc. 1911, art. 743.-Price v. State, 202
S. W. 935.

S.. W. 948.
1 169(1) (Tex.Cr.App.) Where the record On 1190 (Ark.) Where court suspended de-
plainly showed that deceased was interested in, fendants from offices of constable and deputy
and lived at, a house of ill fame, it was not constable when indictment charging violation of
prejudicial to refuse evidence that he received liquor laws was returned against them, and re-
part of the money earned by the women of the moved the from office as part of final judg-
house.-Houston v. State, 202 S. W. 84.

ment of guilty, reversal on appeal disposes of
Om 1169(2) (Ark.) Where it was undisputed on order of removal, but order of suspension, if
trial of homicide case that knife shown in evi- valid, remains in force.-Winfrey v. State, 202
dence was same knife that was shown at cor- S. W. 23.
oner's inquest, no prejudice resulted from ad.

CROPS.
ditional evidence of fact.-Kelley v. State, 202
S. W. 49.

See Landlord and Tenant, n332.
Om 1169 (6) (Tex.Cr.App.) In prosecution for
assault to murder, improper adınission of for-

CROSS-EXAMINATION,
mer testimony of absent witness and improper See Witnesses, em 268, 280, 330, 350.
admission of bloody coat of assaulted person's
brother, in connection with record ard verdict

CRUELTY.
were error requiring reversal.--White v. State,
202 S. W. 737.

See Divorce, em 130.
m 1 169(9) (Ky.) Statement of witness that
gunshot wound in deceased's back caused his

CURTESY.
death, if incompetent, because expert evidence
for which he did not qualify, was not prejudi- See Constitutional Law, Cm95.
cial; it being immaterial which shot caused On 2 (Tenn.) By Thomp. Shan. Code, $8 4234,
the death.-Thomas v. Commonwealth, 202 S. 4239, the husband's curtesy initiate is not en-
W. 498.

tirely destroyed, but merely reduced from a
On 1 170(1) (Ark.) Where defendant in homicide vested estate to a contingent right.-Day v.
case testified that he knew and did not ob- Burgess, 202 S. W. 911.
ject to men sleeping with certain girl, it was Though child was born alive before change
not prejudicial to refuse to permit him to tes- in character of curtesy initiate, a statute ma-
tify in rebuttal that he did not know or care terially changing such estate applies to all
whether the girl had deceased as her man.-property acquired by the wife subsequent to its
Kelley v. State, 202 S. W. 49.

enactment.--Id.
Om 1170(1) (Tex.Cr. App.) Where it was undis- Where the husband at the effective date of
puted that deceased was a quarrelsome and the Married Woman's Emancipation Act had
dangerous man, defendant was not harmed by only an estate by the curtesy initiate, which
exclusion of more evidence on such matter. was not a vested right, since his wife was
Houston v. State, 202 S. W. 84.

then living, the Legislature could pass such act
On 11704/2(1) (Ky.) Leading questions asked which prevented the accrual of the curtesy
to refresh recollection of witnesses after tes- consummate on the wife's death.-Id.
timony in answer to questions not leading, Om2 (Tenn.) The Married Woman's Emanci-
which resulted in no prejudice, were not re- pation Act (Thomp. Shan. Code, ş 4249a) did
versible error.-Davis v. Commonwealth, 202 not of itself abolish the estate of tenancy by
S. W. 633.

the curtesy consummate.-Hull v. Hull, 202 S.
Om 17072(2) (Tex.Cr.App.) Errcr of prose- W. 914.
cuting attorney in asking defendant if he did 7 (Tenn.) The requisites to a tenancy by
not know that he was lying was harmless, the curtesy are marriage, seisin of the wife,
where defendant replied that he did not.-Re- birth of a living child capable of inheriting,
dict v. State, 202 S. W. 743.

though it may afterwards die, and death of the
11701/2(6) (Tex.Cr.App.). Erroneous cross- wife in the lifetime of the husband.-Day v.
examination of accused's wife was harmless, Burgess, 202 S. W. 911.
where the judge, on his own motion, stopped 9(1) (Tenn.) Where husband pays for
the county attorney and did not permit the lands, directing grantor to convey them to the
questions to be answered.-Ingram v. State, wife, he acquires an estate by the curtesy con-

although no agreement between them, nor pro- 1 bility Act is virtually compensation statute, and
vision in the deed, dealt with curtesy.-Hull fixes liability for defective appliances, regard-
v. Hull, 202 S. W. 914.

less of negligence.-Galveston, H. & S. A. Ry.
en 10 (Tenn.) At common law, tenancy by the Co. v. Hopkins, 202 S. W. 222.
curtesy initiate was an estate which became 132(1) (Mo.App.) Verdict for $5,400,
vested at the birth of issue, and had no basis awarded boy of 15, who sustained cut over
of natural or moral right.-Day V. Burgess, left eye, leaving bright red scar, and deep
202 S. W. 911.

wound under left eye, leaving scar, gashes and
mil(4) (Tenn.) Where husband bought lacerations on nose and chin, weakening of
lands, and the deed ran to the wife, and they one eye, an injury to his back, and nervous-
later joined in a trust deed for money bor ness, was not excessive.-Newton v. Harvey,
rowed, the husband. on the wife's death in- 202 S. W. 249.
testate, could not establish tenancy by curtesy Om 132(1) (Mo.App.) Verdict for $7,500
consummate without personally discharging the against receivers of railroad in favor of their
mortgage for protection of their minor chil- servant, for personal injuries while tightening
dren.--Hull v. Hull, 202 S. W. 914.

plug in boiler, held not excessive.-Anderson

v. Lusk, 202 S. W. 304.
CUSPIDOR.

w 132(1) (Tex.Civ.App.) $6,500 was not ex-
See Carriers,
302,

cessive damages where arm was rendered use.
less, head and face were scarred, and brain

affected, and 48 days were spent in hospital.-
CUSTODY.

St. Louis, B. & M. Ry. Co. v. Webber, 202 S.
See Divorce, 299; Parent and Child,

W. 519.

Om 132(8) (Tex.Civ.App.) Where servant was
CUSTOMS AND USAGES. a healthy man of 29 years, earning $90 a month,

and had his right hand and arm to elbow crush
Om 17 (Tex.Civ.App.) Incidents sought to be ed and rendered worthless, was confined to the
imported into contract by custom must not be hospital four months, undergoing three opera-
inconsistent with its express terms or any nec- tions, at cost of $1,000, a verdict of $15,000,
essary implication therefrom.-Planters' Oil Co. is not excessive.-Farmers' Petroleum Co. v.
v. Gresham, 202 S. W. 145.

Shelton, 202 S. W. 194.
Where contract for sale of cotton oil did not am 132(9) (Tex.Civ.App.) Verdict of $20,000
provide for washing-out process, custom of
washing out such sales could not be set up to in favor of railroad switchman injured so that

amputation of foot and three subsequent am-
vary contract.-Id.

putations nearly up to knee became necessary,

held not excessive.-Galveston, H. & S. A. Ry.
DAMAGES.

Co. v. Hopkins, 202 S. W. 222.
See Carriers, cm 229; Costs; Death, em90-cm 134(3) (Ky.) For injuries causing many
99, 104; Eminent Domain, eww141; Evi- months of suffering and loss of time and result-
dence, em 471, 534; Fraud, Om59; Sales, ing in a "frail joint” which would "knuckle"
Em 384, 418; Telegraphs and Telephones, when plaintiff attempted to go down steps,
56-74; Trial, w290 ; Trover and Conver- and which decreased plaintiff's earning capacity
sion, Om 47.

about one-half, a verdict of $2,000 held not ex-

cessive.-Stewart Dry Goods Co. v. Boone, 202
I. NATURE AND GROUNDS IN GEN. S. W. 489.

ERAL.
6 (Mo.) Damages cannot be denied mere VIII. PLEADING, EVIDENCE, AND
ly because the exact amount is difficult or im-

ASSESSMENT.
possible of ascertainment; it being only the
measure which must not be uncertain.--City of

(A) Pleading.
Kennett v. Katz Const. Co., 202 S. W. 558.

em 148 (Mo.App.) In action for personal in-
III. GROUNDS AND SUBJECTS OF

juries governed by laws of sister state, ne-
COMPENSATORY DAMAGES.

cessity of pleading medical expenses is gov-

erned by lex fori, and in Missouri there can
(A) Direct Remote, Contingent,
Prospetive, Consequences or Losses.

be no recovery of such expenses, unless plead-

ed.-La Duke v. Dexter, 202 S. W. 254.
em 22 (Mo.) Where city contracted for sewer

Om 158(1) (Tex.Civ.App.) Proof in personal
construction at stipulated price and contractor injury actions should correspond with allega-
defaulted, the city's damages by increased cost tions of the complaint, and material injuries
of completion were not speculative.-City of not alleged should not be proven.-Northern
Kennett v. Katz Const. Co., 202 S. W. 558.

Texas Traction Co. v. Crouch, 202 S. W. 781.
(B) Aggravation, Mitigation, and Reducem 158(3) (Mo.App.) In action for personal in-
tion of Loss.

juries, evidence of vaginal hemorrhage follow-
Om62(2) (Ky.) Plaintiff servant injured while ing injury held not outside petition alleging
moving a piano was not required to undergo a back, spine, spinal cord, and muscles, nerves,
serious surgical operation in order to main- | ligaments, and blood vessels connected there-
tain an action for compensatory damages for with were torn and injured.-Bergfeld v. Dun-
pain and suffering and impairment of earning ham, 202 S. W. 253.
capacity.-Stewart Dry Goods Co. v. Boone, In action for personal injury, to justify evi-
202 S. W. 489.

dence of disabling effects of menstruation, and
While it is not, as a matter of law, duty of natural bodily function, resulting from the in-
injured servant to submit to serious surgical jury, and to authorize their consideration in
operation for purpose of effecting cure, he estimating damages, such effects should have
must exercise ordinary care not to aggravate been specially pleaded.-Id.
injury or increase his damage.-Id.

On 158(4) (Tex.Civ.App.) In action for dam-
VII. INADEQUATE, AND EXCESSIVE board defendant's street

ages sustained by minor while attempting to
DAMAGES.

car, statement by

minor, in describing how her injuries affected
Om 128 (Tex.Civ. App.) Public policy does not her, that she "had bells in her head" was not
demand that verdict in railroad servant's actior rendered inadmissible, although injury to the
for injuries should not be as large as $20,000 head had not been pleaded. - Northern Texas
on any grounds, though federal Employers' Lia- | Traction Co. v. Crouch, 202 S. W. 781.

or

[ocr errors]

on

(B) Evidence.

it showed that father was in such condition as
Om 189 (Tex.Civ.App.) Evidence of damages to require services of son.-Id.
suffered from breach of contract to furnish
moving picture films held not to warrant re-

(E) Damages, Forfeiture, or Fine.
covery, being too speculative.-Mutual Film

cm 90 (Mo.App.) In action for wrongful death
Corp. v. Pastime Theater, 202 S. W. 972.

of pedestrian struck by an electric car owing

to the motorman's failure to give warning or
(C) Proceedings for Assessment,

to keep an adequate lookout, it was permis-
em 215(1) (Mo.App.) Instruction, permitting sible for the jury to consider in fixing compen-
punitive damages if casting mine water satory damages facts attending the killing, con-
plaintiff's land was done willfully or reckless-stituting aggravated negligence, if pleaded and
ly “or to the discomfort and annoyance of proved.-Kamoss v. Kansas City & W. B. Ry.
plaintiff,"

held

erroneous. Dickensheet v. Co., 202 S. W. 434.
Chouteau Mining Co., 202 S. W. 624.

91 (Tex.Civ.App.) That children have an
Instruction, permitting punitive damages if older sister, who might nurture and care for
the act was "willful, that is, without lawful them as their deceased mother would have
excuse," held erroneous, as improperly defining done, is not to be considered in mitigation of
willful, and including a basis for actual dam- damages.-El Paso Electric Ry. Co. v. Benja-
ages only.-Id.

min, 202 S. W. 996.
Om 216(1) (Tex.Civ.App.) Where charge as to m99(1) (Tex.Civ.App.) $20,000 was not ex-
measure of damages was correct, special charge cessive damages for the death of a stout,
with reference thereto, which would merely healthy man 29 years old, who was earning
have had effect of explaining that “reasona- $125 å month, had a life expectancy of 36
ble probability" did not mean mere possibil years, and was in line for promotion to locomo-
ity," was properly refused.–Fisheries Co. v. tive engineer.- Galveston, H. & S. A. Ry. Co.
McCoy, 202 S. W. 343.

v. Hill, 202 S. W. 358.
DEATH.

ww99(4) (Tex.Civ.App.) Damages awarded to
two minor children, in respective sums of $3.-

000 and $6,000, for wrongful death of their
I. ACTIONS FOR CAUSING DEATH. mother, held not excessive.-El Paso Electric

(A) Right of Action and Defenses. Ry. Co. v. Benjamin, 202 S. W. 996.
w 18 (3) (Tex.Civ.App.) In action for death 99(5) (Tex.Civ.App.) In action for death
of adult son, financial condition of parents was of adult son by surviving parents, respectively
no bar to right of recovery.-Gulf, C. & S. F. 65 and 63 years old, verdict for $2.750 held not
Ry. Co. v. Hicks, 202 S. W. 778.

excessive.-Gulf, C. & S. F. Ry. Co. v. Hicks,
21 (Tenn.) The law of self-defense in a 202 S. W. 778.
civil suit is the same as that governing in crim-
inal prosecutions, except the cause must be de (F) Trial, Judgment, and Review.
cided on a preponderance of testimony.-Hunt-
Berlin Coal Co. v. Paton, 202 S. W. 935.

Om 103(3) (Tenn.) In an action for wrongful

death, evidence as to self-defense held to pre-
(D) Pleading and Evidence.

sent a question for the jury.--Hunt-Berlin Coal

Co. v. Paton, 202 S. W. 935.
Om55 (Ky.) Where death action went to trial em 104(2) (Tenn.) A charge on self-defense
only on the issue of negligence, an offered that, if the jury should find that the situation
amendment that the injury occurred on govern-
ment land and state law did not apply was a

or happenings were such as to lead a "prudent
separate and distinct defense, filing of which and cautious” man to believe he was in danger,
rested in the sound discretion of the trial court.

though he were not, the law would not hold
-Henry Bickel Co. v. Wright's Adm'x, 202 S. him liable, held reversible error for not quali-
W. 672.

fying the quoted words by the word "reason-
Where action for death of servant went to ably."—Hunt-Berlin Coal Co. v. Paton, 202 S.
trial on the simple issue of negligence, the W. 935.
trial court did not abuse its discretion in re Statement of a charge that, if decedent was
fusing to permit defendant to amend to show not making an assault on defendant which led
that the accident occurred on government prop- him necessarily and reasonably to believe his
erty, where there could be no recovery for life was imperiled, he had no right to fire, was
death.-Id.

erroneous in using the word “necessarily.”—Id.
Cw58(1) (Ky:) In action for death of servant Omw 104(6) (Tex.Civ.App.) In an action by mi-
occurring within the borders of the state, which nor children for the death of their mother, an
gives right of action for wrongful death, the instruction on the measure of damages for loss
burden is on the defendant to plead and prove of nurture, care, and education held proper.-
facts showing that accident occurred on gov El Paso Electric Ry. Co. v. Benjamin, 202 S.
ernment property, and that state laws did not W. 996.
apply.--Henry Bickel Co. v. Wright's Adm'x,
202 S. W. 672.
m58(1) (Tenn.) In an action for wrongful

DEBTOR AND CREDITOR.
death due to intentional act, burden is on plain. See Bankruptcy; Fraudulent Conveyances.
tiff to establish his case by sufficient proof, but
defendant must sustain his plea of self-de-
fense.-Hunt-Berlin Coal Co. v. Paton, 202 S.

DECEDENTS.
W. 935.

See Executors and Administrators.
64 (Tex.Civ.App.) In action for death of
adult son, evidence that son had stated that he
was going away to work a few weeks for spend-

DECEIT.
ing money because he received no pay from See Fraud.
plaintiffs, and that he intended to stay with
plaintiffs, parents, until their death, was ad-

DECLARATIONS.
missible on issue of parents' expectancy of fu- See Criminal Law, eww418: Evidence, w 272,
ture aid from son.-Gulf, C. & S. F. Ry. Co. v.
Hicks, 202 S. W. 778.

274; Homicide, 203-221.
In suit by parents for death of adult son,
evidence that father was suffering with ty- DECLARATIONS AGAINST INTEREST.
phoid fever nine years before, from which he

« ПретходнаНастави »