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

[blocks in formation]

See Divorce; Husband and Wife; Seduction,
52, 54; Wills, 183.

be-

9 (Tex.) The Supreme Court, under Const.
art. 5, § 3, may issue writ of mandamus to re-20(1) (Tex.Civ.App.) An agreement
quire district court to enforce judgment, al- tween a man and a woman then to become and
though prior thereto the Court of Civil Appeals thence afterwards to be husband and wife is
under Rev. St. 1911, art. 1595, has issued a
writ of mandamus directing court to retry case.
the gist of a common-law marriage.-Edmond-
Gulf, C. & S. F. Ry. Co. v. Muse, 207 S. W. son v. Johnson, 207 S. W. 586.
897.

not

16(1) (Tex.Civ.App.) The court will
grant the mandamus sought by relator, where
the writ would be unavailing and useless.-Pol-
lard v. Speer, 207 S. W. 620.

II. SUBJECTS AND PURPOSES OF
RELIEF.

(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers.

30 (Tex.Civ.App.) Mandamus will not lie
to compel the district judge to hold a special
term of court under provisions of Vernon's
Sayles' Ann. Civ. St. 1914, art. 1720, since
the statute clearly leaves the matter of calling
such sessions to the discretion of the district
judge.-Pollard v. Speer. 207 S. W. 620.
31 (Tex.Civ.App.) By Vernon's Sayles'
Ann. Civ. St. 1914, art. 1595, Court of Civil
Appeals cannot issue writ of mandamus to
compel district court to proceed with trial of
cause pursuant to law, unless its action in con-
tinuing cause amounts to a refusal so to pro
ceed.-Matagorda Canal Co. v. Styles, 207 S.
W. 562.

31 (Tex.Civ.App.) Under Vernon's Sayles'
Ann. Civ. St. 1914, art. 1595, the Court of
Civil Appeals may, by mandamus, compel a
judge of the district court to proceed to trial
and judgment in a cause "agreeable to the
principles and usages of law," but cannot di-
rect the character or kind of his decision.-
Pollard v. Speer, 207 S. W. 620.

III. JURISDICTION. PROCEEDINGS,
AND RELIEF.

151(2) (Tex.Civ.App.) The city was not a
necessary party in madamus by district attor-
ney to compel judge and clerk of corporation
court to permit petitioner to prosecute all
criminal cases, and to tax costs in such cases
in his favor, although city ordinances attempt-
ing to deny him such right were involved.-
Monk v. Crooker, 207 S. W. 194.

164(3) (Tex.Civ.App.) In mandamus by dis-
trict attorney to compel judge and clerk of
the city court to permit him to prosecute all
criminal cases in such court, where the judge
specially denied an allegation in the petition
that he refused to permit the plaintiff to prose-
cute cases in his court, but did not deny an
allegation in a verified supplemental petition
that he purposely set cases so that plaintiff
or his assistants could not be present, the dis-
trict court was authorized, in the absence of
other evidence, to find that the judge refused to
recognize plaintiff's right.-Monk v. Crooker,
207 S. W. 194.

187(4) (Tex. Civ.App.) In mandamus a party
who did not object to the court's deciding the
case on the evidence before it, and did not of-
fer any further evidence, cannot complain that
there should have been a further hearing on
the facts, if the facts before the court were
sufficient to sustain the judgment.-Monk v.
Crooker, 207 S. W. 194.

187(9) (Tex. Civ.App.) If the facts in man-
damus did not show that defendant had denied

MASTER AND SERVANT.

See Appeal and Error, 1060, 1062, 1064,
1067, 1170; Assignments, 52, 85; Com-
merce, 8, 27; Contracts, 108, 138;
Courts, 97; Damages, 173; Death,

39, 86; Evidence, 471, 539; Land-
lord and Tenant, 66; Larceny, ~15, 57;
Limitation of Actions, 127; Municipal
Corporations, 724; Pleading, 69, 403;
Railroads, 278; Subrogation, 23;
Trial, 29, 191, 252, 260, 296, 331, 351.
SERVICES AND COMPENSATION.

II.

(B) Wages and Other Remuneration.

72 (Mo.App.) A servant employed at a stip-
ulated wage per week, plus commissions upon
sales, cannot recover for extra work performed
upon evenings or holidays, in the absence of
an express contract therefor, where the cir-
cumstances were not so extraordinary as to
weiler v. Lundquist, 207 S. W. 838.
infer a contract for extra compensation.-Gut-

Where plaintiff continued to accept employ-
ment as a clothing salesman from year to year
at a stipulated compensation, knowing that he
was expected, about twice a year, to assist in
codifying inventory lists on evenings or holi-
days, as an employé, he cannot after several
years enforce a claim for extra payment there-
for.-Id.

III. MASTER'S LIABILITY FOR IN-
JURIES TO SERVANT.

(A) Nature and Extent in General.
89(3) (Mo.) The fact that on going to work
a shoveler found the other shovelers incidental-
ly breaking boulders with dynamite under the
eye of a foreman, and no one there ready to
break boulders for him, was an implied com-
mand for him to break boulders with dynamite,
as far as the liability of the master was con-
cerned.-Batesel v. American Zinc, Lead &
Smelting Co., 207 S. W. 742.

89(3) (Tex.Civ.App.) Employé of railroad
company, injured while riding upon track in a
motorcycle by invitation of another employé
after working hours, motorcycle being run down
by freight train, held a "trespasser."-Frick v.
International & G. N. Ry. Co., 207 S. W. 198.

90 (Mo.App.) It is the duty of a master to
always exercise due care to the end that his
servant will not be injured.-Daugherty v. Neo-
sho Granby Mining Co., 207 S. W. 253.
(B) Tools, Machinery, Appliances,

Places for Work.

and

106(4) (Mo.App.) Though plaintiff's employ-
er had leased tracks to its codefendant, that did
not relieve the employer from duty to keep
safe the place where plaintiff, who, with others,
was repairing the tracks, was required to work
at the time of his injury.-Bequette v. Pitts-
burgh Plate Glass Co., 207 S. W. 852.

107(2) (Mo.App.) Where plaintiff, in obeying
the command of his foreman directing the work
of repairing tracks, was required to place him-

self between the track on which he was working,
and a cable used to haul cars, held, that it was
the duty of the foreman to keep the place rea-
sonably safe while plaintiff was required to oc-
cupy it.-Bequette v. Pittsburgh Plate Glass
Co., 207 S. W. 852.

107(3) (Mo.App.) Where deceased, a hauler,
was doing a mere detail of the work at a clay
pile under direction of his immediate superior,
who took precautions for haulers and shovelers,
held that, where deceased was directed to a
point of danger and a slide from the pile killed
him, the master cannot escape liability on the
ground that deceased and his vice-principal
were digging at the pile to cause the clay to fall.
-Medley v. Parker-Russel Min. & Mfg. Co.,
207 S. W. 887.

himself out as being capable of performing the
work, with its attendant danger, and as know-
ing and comprehending same.-Batesel v. Ameri-
can Zine, Lead & Smelting Co., 207 S. W. 742.
153(4) (Mo.) The very fact that a danger is
such that the work can be done safely only
after experience and training must be taken
into consideration in determining a master's neg-
ligence in directing or permitting an inexperi-
enced servant to engage in extrahazardous oc-
cupation without proper warning and instruc
tion.-Batesel v. American Zinc, Lead & Smelt-
ing Co., 207 S. W. 742.

157 (Mo.) Where there are abnormal and
extraordinary risks, it is not generally sufficient
that the master merely inform the servant that
there is danger, or the source from which the
110 (Tex.Civ.App.) Act Cong. Feb. 17, 1911 danger comes; but there must be such instruc-
(U. S. Comp. St. §§ 8630-8639), providing for tion as will enable the servant to avoid the in-
official inspection of locomotives engaged in in-jury.-Batesel v. American Zinc, Lead & Smelt-
terstate commerce under rules of Interstate ing Co., 207 S. W. 742.
Commerce Commission, did not change rail-
road's legal duty to exercise ordinary care to

(E) Fellow Servants.

him to perform work which required him to
stand on tracks between electrically operated
trucks, it became the nondelegable duty of the
master to keep the place safe, so the master is
liable where the servant whose orders plaintiff
was bound to obey started the trucks without
warning.-Morin v. Rainey, 207 S. W. 858.
fail-189(3) (Mo.App.) Though plaintiff and the
servant who controlled the movement of electri-
cally operated trucks which were joined together
and ran on a narrow gauge track worked under
a common foreman, if plaintiff was required to
obey the directions of the operator as to moving
pots on the trucks, such operator was a vice
principal as to such directions.-Morin v. Rain-
ey, 207 S. W. 858.

keep its machinery in reasonably safe condi-185(23) (Mo.App.) Where a servant whose
tion, so that the fact that an appliance is not directions plaintiff was bound to obey ordered
condemned upon inspection is not conclusive on
question of whether it is a safe appliance.-
Lancaster & Wight v. Allen, 207 S. W. 984.
125(8) (Tex.Civ.App.) Without proof of
master's actual knowledge of the existence of
a defect in appliances, etc., such defect must
have existed for such length of time as to
raise the presumption of negligence in
ing to discover it by reasonable inspection.-
Houston E. & W. T. Ry. Co. v. Hickman, 207
S. W. 550.

(C) Methods of Work, Rules, and Orders.
133 (Mo.App.) Where defendant, though it
had leased tracks, kept the same in repair, and
plaintiff, one of its employés, engaged in re-
pairing the tracks, was required to stand near
a cable used to move cars on the tracks, held,
that defendant's foreman was not entitled to
wholly rely on the employés of the lessee to
give warning when it was intended to move the
cable.-Bequette v. Pittsburgh Plate Glass Co.,
207 S. W. 852.

135 (Tex.Civ.App.) In a railway repair
man's action for injury, due to being struck
by an engine while at work near a track in a
train shed, where there was evidence that it
was customary to signal or give warning of
the approach of locomotives, defendant owed
plaintiff the duty of giving such warning.
Texas & P. Ry. Co. v. McGraw, 207 S. W.

559.

139 (Tex.Civ.App.) Defendant's mine fore-
man, even if he negligently directed a coal min-
er to work on right side of his room, could not
have reasonably contemplated that miner would
mine coal almost across the face of his room,
leaving a projection, and thereafter undertake
to mine under it, causing it to fall. Haney V.
Texas & Pacific Coal Co., 207 S. W. 375.
139 (Tex.Civ.App.) In an action by a rail-
road fireman injured in a collision when the
engine on which he was working passed through
an open switch, and the sole basis for lia-
bility was the negligence of the engineer in
not discovering that the switch was open, it is
immaterial that switch was changed by an un-
authorized person.-Lancaster v. Mays, 207 S.
W. 676.

149(2) (Tex. Civ.App.) Employer knowing
that duty of turning on electric switch was dan-
gerous, and that employé was ignorant of such
danger, was negligent in ordering employé to
turn on switch.-San Antonio Portland Cement
Co. v. Gschwender, 207 S. W. 967.

(D) Warning and Instructing Servant.
153(1) (Mo.) Only thing which excuses mas-
ter from duty to warn and instruct an inexperi-
enced servant, as to hazards and dangers usual-
ly not comprehended by the inexperienced, is that
in applying for the employment the servant holds

189(7) (Tex.Civ.App.) Foreman who had
control over men working under him, and whose
recommendations for employment and discharge
of employés in his department were invariably
made effective by the company, was a vice prin-
cipal.-San Antonio Portland Cement Co. v.
Gschwender, 207 S. W. 967.

190(19) (Tex. Civ. App.) Where emplover
knew that certain duty was dangerous, and that
employé was ignorant of such danger, it was
liable for death of employé incurred in the dis-
charge of the duty, after being ordered to dis-
charge duty by foreman, the negligence being
that of the employer.-San Antonio Portland
Cement Co. v. Gschwender, 207 S. W. 967.

201(10) (Mo.App.) Where a servant, who
controlled the movements of electrically operat-
ed trucks and whose orders plaintiff was bound
to obey, directed plaintiff to perform work which
required him to stand on the track between
trucks, and while plaintiff was in that posi-
tion the operator started the trucks, held, though
vice principal as to directions and fellow serv-
the operator occupied a dual capacity, being a
ant as to operating the trucks, plaintiff's in-
juries did not solely result from the negligent
act of the operator in his capacity as a fellow
servant.-Morin v. Rainey, 207 S. W. 858.

(F) Risks Assumed by Servant.
204(1) (Tex.Civ.App.) The federal Employ-
ers' Liability Act (U. S. Comp. St. 1916, §§
8657-8665) leaves the application of assumed
risk as it was at common law, as recognized
and construed by the federal courts.-Southern
Pac. Co. v. Berkshire, 207 S. W. 323.

204(1) (Tex.Civ.App.) Federal Employers'
Liability Act has not abrogated the defense
of assumed risk under the common law.-Schaff
v. Hendrich. 207 S. W. 543.

204(1) (Tex. Civ.App.) While the defense of
assumed risk is eliminated by the federal Em-
ployers' Liability Act (U. S. Comp. St. §§
8657-8665) in cases of interstate commerce,
where the violation by the carrier of the stat
ute enacted for the safety of employés con-

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
tributed to the injury in all other cases it is | ~265(7) (Mo.App.) The doctrine of res ipsa
a complete bar.-Southern Pac. Co. v. Miller, loquitur appnes in an action by a servant for
207 S. W. 554.
injuries occasioned by the falling of a hoist or
bucket in which he was descending into a mine,
where the servant had no control, management,
or opportunity to know and be informed con-
cerning the hoist.-Daugherty v. Neosho Gran-
by Mining Co., 207 S. W. 253.

217(10) (Tex.Civ.App.) Railroad employé
engaged in interstate commerce, knowing that
machinery is defective, the place of work un-
necessarily dangerous, or that proper rules
are not enforced, assumes risk thereof, unless
he informs employer, who promises to correct
conditions.-Schaff v. Hendrich, 207 S. W. 543.
218(3) (Mo.) No employé can be held to as-
sume risks which are unknown to him, or dan-
gers which, by reason of his inexperience, he
does not comprehend.-Batesel v. American Zinc,
Lead & Smelting Co., 207 S. W. 742.

223 (Ky.) The second miller in a roller
mill, under duty, in the absence of the head
miller, to operate the regular mill machinery,
and keep it going, but not to take care of ele-
vator machinery, did not assume risk of in-
jury from defective condition of such elevator
machinery.-Lexington Roller Mills Co. V.
Fields, 207 S. W. 477.

226(1) (Tex.Civ.App.) Railroad employé
engaged in interstate commerce assumes all
ordinary risks incident to employment, but
not those arising from railroad's negligence.-
Schaff v. Hendrich, 207 S. W. 543.

(G) Contributory Negligence of Servant.
230(6) (Mo.) Whether or not a servant was
guilty of contributory negligence in undertaking
to use dynamite in breaking boulders, in view of
his knowing his own inexperience and the dan-
ger of so doing, depends on whether the danger
was so obvious and glaring that a reasonably
prudent man would not, under the same cir-
cumstances, undertake to do so.-Batesel v.
American Zinc, Lead & Smelting Co., 207 S.
W. 742.

234(1) (Tex. Civ.App.) An employé could not
be negligent in performance of dangerous duty
where he had no knowledge of the danger.-San
Antonio Portland Cement Co. v. Gschwender,
207 S. W. 967.

270(10) (Ark.) In action by servant for in-
juries claimed to have been caused by toppling
over of piled lumber, thus forcing plaintiff
against bull wheel, it was error to admit evi-
dence that floor was cupped up and uneven;
there being no evidence that plaintiff stumbled
or fell by reason of condition of floor.-A. J.
Neimeyer Lumber Co. v. Brame, 207 S. W. 35.

270(15) (Mo.App.) In an action by a track
repairer, injured, where it appeared that the
foreman in charge of the crew did not warn him
of the danger, evidence of a previous custom to
warn held admissible.-Bequette v. Pittsburgh
Plate Glass Co., 207 S. W. 852.

273 (Mo.) In an action by an inexperienced
shoveler for personal injuries sustained while
breaking boulders with dynamite, court should
have admitted, on the question of assumption of
risk, evidence that in mining as generally car-
ried on in such district the work of breaking
boulders was not intrusted to common laborers
such as shovelers.-Batesel v. American Zinc,
Lead & Smelting Co., 207 S. W. 742.

274(4) (Tex.Civ.App.) In action for death of
employé involving question of whether employé
realized dangerous character of work, foreman's
testimony, "Wages were never raised because
Mr. B. thought he did not have enough experi-
ence to justify it," held relevant and material.
-San Antonio Portland Cement Co. v. Gschwen-
der, 207 S. W. 967.

276(3) (Tex.Civ.App.) In coal miner's suit
for injury from negligence in failing to remove
débris after fall of earth and coal in mine
chamber, evidence held to sustain trial court's
finding that negligence was not proximate cause
of injury.-Haney v. Texas & Pacific Coal Co.,
207 S. W. 375.

246(2) (Ky.) That employé, when elevator
stopped and began to jerk, did not clearly and 276(6) (Tex.Civ.App.) In employé's suit
at once apprehend just what had happened, against railroad for injury in operating lever
or what might happen to him, and jumped, to controlling interlocking plant at junction of
his injury, does not alter employer's liability tracks, evidence held sufficient to sustain jury's
if its negligence actually or in reasonable ap- finding that failure of the lever to work was
pearance had placed him suddenly in peril, proximate cause of injury.-Houston E. & W.
though employé, if he had remained in elevat- T. Ry. Co. v. Hickman, 207 S. W. 550.
or, could have stopped it without injury.278(7) (Tex.Civ.App.) In employé's
Lexington Roller Mills Co. v. Fields, 207 S.
W. 477.

(H) Actions.

255(30) (Tex.Com.App.) Railroad employé
operating signal board by means of lever in pro-
jecting bay window of station was not as a
matter of law required to look to see if track
was clear before giving signal that operator had
no orders for engineer.-Southern Kansas Ry.
Co. v. Shinn, 207 S. W. 87.

suit

against railroad for injury in operating lever
controlling interlocking plant at junction of
tracks, evidence held to sustain jury's finding
that failure of lever to work was due to rail-
road's negligence in constructing plant defec-
tively, and in thereafter maintaining it in its
defective condition.-Houston E. & W. T. Ry.
Co. v. Hickman, 207 S. W. 550.

278(12) (Ky.) In action for injuries to sec-
ond miller of a roller mills company from a
defective elevator, evidence of the unsafe con-
dition of the elevator held to sustain verdict
for plaintiff.-Lexington Roller Mills Co. v.
Fields, 207 S. W. 477.

258(19) (Tex. Civ.App.) A petition alleging
that plaintiff, while a minor, 17 years old, was
employed by defendant, that he was required
to perform services in a cotton gin owned by de-278(18) (Mo.App.) In a railroad employé's
fendant, that the machinery was negligently left action for injuries sustained while lifting a cas-
exposed, that plaintiff was ignorant of the dan-ket into a baggage car, evidence held to show
ger, that he was not warned, and that as a re- negligence on the part of plaintiff's fellow work-
sult he sustained injuries, held, as against gen- ers in failing to lift the front end of the cas-
eral demurrer, sufficient to state a cause of ac- ket clear of the doorsill.-Davidson v. St. Louis
tion.-Pelipchyk v. Borden, 207 S. W. 177. & S. F. Ry. Co., 207 S. W. 277.
263 (Tex.Civ.App.) Employé, suing for in-
show
juries and seeking to avoid employer's defense
of assumed risk by employer's promise to
remedy conditions, must specially plead such
promise.-Schaff v. Hendrich, 207 S. W. 543.

279(5) (Mo.App.) Evidence held to
that an employé, who directed deceased as to
his place of work, occupied a dual position, be-
ing a vice principal with respect to his authority
over deceased, and other haulers, and his duty
264(4) (Mo.App.) In an action for the death to take precautions for their safety, and an
of a servant who fell into a vat of boiling wa-ordinary laborer with respect to manual duties
ter, held, under the pleadings, that testimony he performed.-Medley v. Parker-Russel Min. &
that there was no railing around the vat, and Mfg. Co., 207 S. W. 887.
that such railing could have been supplied with-
out interfering with the work, was admissible.
Probst v. St. Louis Basket & Box Co., 207 S.
W. 891.

280 (Tex.Civ.App.) Evidence held to show
that railroad employé, injured while working
in roundhouse pit by reason of slippery con-
dition of pit bottom, knew of such condition

and realized risk of slipping and falling by, ignorance thereof, employer's negligence was,
reason thereof in performance of his duties. under the evidence, for the jury. San Antonio
-Schaff v. Hendrich, 207 S. W. 543.
Portland Cement Co. v. Gschwender, 207 S. W.

by a

967.

280 (Tex.Civ.App.) In an action
switchman for alleged injury from being jerk-286(40) (Mo.) Whether a master, who em-
ed from a car by sudden application of brakes, ployed a servant as a shoveler, was guilty of
evidence held to show that plaintiff had as-
negligence in not warning and instructing the
sumed the risk.-Southern Pac. Co. v. Miller, servant, injured by going up to stick of dyna-
207 S. W. 554.
mite thinking it was not lighted, as to the
proper manner of breaking boulders too heavy
to handle with dynamite, held for the jury.-
Batesel v. American Zinc, Lead & Smelting Co.,
207 S. W. 742.

281(10) (Tex.Civ.App.) In action for death
of employé incurred in turning on electric
switch, in compliance with order, evidence held
insufficient to sustain finding that employé
realized the danger.-San Antonio Portland Ce-
ment Co. v. Gschwender, 207 S. W. 967.

286(10) (Ark.) In an action by a servant
for injuries occasioned by catching hand be-
tween cable and bull wheel, whether master was
negligent in the piling of lumber in the vicinity
held for the jury.-A. J. Neimeyer Lumber Co.
v. Brame, 207 S. W. 35.

288 (2) (Tex. Civ.App.) In an action by a
railroad engineer engaged in interstate com-
merce for injuries occasioned by being struck
by a mail crane while leaning out of his cab,
whether plaintiff assumed the risk held for the
jury.-Southern Pac. Co. v. Berkshire, 207 S.
W. 323.

288(11) (Ark.) In an action by boy of 16 for
personal injuries, whether plaintiff assumed
286(14) (Tex.Civ.App.) In action for death risk in attempting to follow foreman between
of locomotive fireman from derailment of en- bull wheel and insecurely stacked pile of lum-
gine engaged in interstate commerce, evidence ber, thereby catching his hand between bull
that switch point was in a condition to cause wheel and cable, held for the jury.-A. J. Nei-
wheel to climb on top of rail and cause de- meyer Lumber Co. v. Brame, 207 S. W. 35.
railment was sufficient to warrant the submis-288(14) (Tex.Civ.App.) In railroad em-
sion to jury of whether switch point was defec- ployé's action for injuries sustained while en-
tive.-Lancaster & Wight v. Allen, 207 S. W. gaged in interstate commerce, defended on
ground of assumption of risk, foreman's state-
ment, "Well, I will see," was insufficient as
matter of law to sustain finding of a promise to
repair defective condition.-Schaff v. Hendrich,
207 S. W. 543.

984.

286(15) (Tex. Civ.App.) Whether railroad
was negligent in maintaining a mail crane near
its track, according to postal regulations,
against which the engineer struck his head
while looking out of his cab, held for the jury.
-Southern Pac. Co. v. Berkshire, 207 S. W.

323.

288(30) (Tex.) Question whether conduc-
tor's negligence was the proximate cause of
death of locomotive engineer, being under the
evidence for the jury, it cannot be held as a
conclusion of law that engineer assumed the
risk.-Pope v. Kansas City, M. & O. Ry. Co.
of Texas, 207 S. W. 514.

286(19) (Mo.App.) In an action for the
death of plaintiff's husband, who was killed by
a slide from a clay pile near which he was
shoveling clay into a wagon, evidence held suffi-
cient to carry the case to the jury on the ques-289(4) (Tex.Civ.App.) A railway repair
tion of the negligence of the master's vice prin- man, who was injured by a locomotive while
cipal.-Medley v. Parker-Russel Min. & Mfg. engaged at his regular work near a track, in
Co.. 207 S. W. 887.
a train shed, was not guilty of contributory
286(22) (Mo.App.) In an action for the negligence, as a matter of law, where he could
death of a servant who was scalded in a tank assume that a custom of giving warning of the
of boiling water which was not protected by a approach of engines would be observed.-Tex-
railing held, under the evidence, that the ques- as & P. Ry. Co. v. McGraw, 207 S. W. 559.
tion of the master's negligence was for the jury.289(11) (Mo.) An inexperienced servant ap-
-Probst v. St. Louis Basket & Box Co., 207 proaching a stick of dynamite without knowing
S. W. 891.
that the fuse was on fire, having no knowledge
of evidence showing that fact, could not be
correctly held guilty of negligence as a matter
of law.-Batesel v. American Zinc, Lead &
Smelting Co., 207 S. W. 742.

286(27) (Mo.App.) In a servant's action, the
question of the negligence of a vice principal,
under whose orders plaintiff went between elec-
trically operated trucks, held for the jury.-
Morin v. Rainey, 207 S. W. 858.

289(37) (Mo.App.) Whether plaintiff, a track
repairer, was negligent in placing himself, in
obedience to orders, in a position where he was
likely to be, and in fact was, injured by the
sudden tightening of a cable used to move cars,
held for the jury.-Bequette v. Pittsburgh Plate
Glass Co., 207 S. W. 852.

286(30) (Tex.Com.App.) In brakeman's ac-
tion for injuries from sagging telephone wires
while on top of box car, evidence held insuffi-
cient to justify submission to jury of question
whether operator of signal board who had given
engineer signal to proceed had duty of looking
to see if track was clear before giving signal.-289(37) (Mo.App.) Whether plaintiff's hus-
Southern Kansas Ry. Co. v. Shinn, 207 S. W.
87.

286(31) (Mo.App.) In action by a track re-
pairer, injured when a cable used to move cars
on the tracks was suddenly tightened, whether
the foreman exercised ordinary care in respect
to warnings, etc., held for the jury.-Bequette
v. Pittsburgh Plate Glass Co., 207 S. W. 852.

286(34) (Tex.Civ.App.) In an action for
injuries to railroad fireman in collision based
on negligence of engineer in running into open
switch, where the evidence showed that green
light and green target meant clear main track
and red light and red target meant open
switch, it was a question for jury whether en-
gineer was negligent in passing a green light
and red target.-Lancaster v. Mays, 207 S. W.
676.

286(39) (Tex.Civ.App.) In action for death
of employé incurred in turning on electric
switch, alleged to have been caused by employ-
er's negligence in ordering employé to turn on
switch with knowledge of danger, and employe's

band, who was killed by a fall of clay from a
pile near which he was shoveling loose clay into
a wagon, was guilty of contributory negligence
in taking the position, which was one directed
by his immediate superior, held, under the evi-
dence, for the jury-Medley v. Parker-Russel
Min. & Mfg. Co., 207 S. W. 887.

289(37) (Tex.Civ.App.) Testimony held suf-
ficient to require submission to jury of whether
employé killed in turning on electric switch, as
ordered by his foreman, had knowledge of the
dånger incident to turning, of switch.-San
Antonio Portland Cement Co. v. Gschwender,
207 S. W. 967.

293(5) (Ark.) An instruction that if plain-
tiff, a 16 year old boy, was injured by being
"led into a place of unsafety" by his foreman.
where there was a defective condition "in close
proximity" to a bull wheel over which passed a
cable, then plaintiff would be entitled to re-
cover, was defective in not submitting the issue
of negligence.-A. J. Neimeyer Lumber Co. v.
Brame, 207 S. W. 35.

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

MILITARY SERVICE.

MINES AND MINERALS.

293(18) (Mo.App.) Where negligence of a
vice principal, who controlled the movement of
electrically operated trucks, which were start- See Army and Navy, 34.
ed, injuring plaintiff, was relied on, an instruc-
tion requiring the jury to find such vice prin-
cipal could have discovered the trucks were
about to be moved of which there was no evi-
dence, held not prejudicial to the master, where
the evidence showed that plaintiff immediately
obeyed the vice principal's order, and the trucks
were immediately started.-Morin v. Rainey,
207 S. W. 858.

293(20) (Mo.App.) An instruction on the lia-
bility of the master for the negligence of its
vice principal, who directed deceased as to his
place of work, held not erroneous, under the evi-
dence, in submitting whether the vice principal
directed deceased when and how to perform his
duties, etc.-Medley v. Parker-Russel Min. &
Mfg. Co., 207 S. W. 887.

294(6) (Mo.App.) In a servant's action
where the negligence of the vice principal was
relied on, the instruction as to the right of the
vice principal to direct plaintiff, etc., held not
erroneous as being broader than the evidence.-
Morin v. Rainey, 207 S. W. 858.

296(14) (Mo.App.) An instruction that for
a servant to obey the direction of his vice prin-
cipal was not contributory negligence, unless
the danger was so imminent and glaring that no
reasonably careful man would have obeyed the
instruction, held not erroneous in use of the
words "imminent" and "glaring."-Medley v.
Parker-Russel Min. & Mfg. Co., 207 S. W. 887.
IV. LIABILITIES FOR INJURIES TO
THIRD PERSONS.

(A) Acts or Omissions of Servant.

313 (Mo.App.) Where the negligence of the
master combined with that of a fellow servant
produces an injury the negligence of neither be-
ing the sole efficient cause, both the master and
fellow servant are liable, and the injured serv-
ant may sue either or both.-Morin v. Rainey,

207 S. W. 858.

MECHANICS' LIENS.

See Subrogation, 31.

See Master and Servant, 139, 265, 273, 276.
II. TITLE, CONVEYANCES, AND
CONTRACTS.

(C) Leases, Licenses, and Contracts.
78(1) (Ky.) Under lease providing that les-
sor should have royalty of one-eighth of all oil
produced and that lessee should begin a well
within one year or pay 25 cents an acre for
each additional year such beginning was de-
layed, the main consideration was the royalty
and development of the property, and lessee
could not refuse to begin development for an
unreasonable length of time, and extend lease
by payment of nominal rent.-Warren Oil &
Gas Co. v. Gilliam, 207 S. W. 698.
78 (2) (Ky.) Under oil lease providing that
lessee was to begin a well within one year or
pay 25 cents an acre for each additional year,
where such beginning was delayed, the tender
of the rental for the second year before the end
of that year was sufficient to avoid forfeiture
for failure to pay rent.-Warren Oil & Gas Co.
v. Gilliam, 207 S. W. 698.

78 (3) (Ky.) While agreed royalty of one-
eighth of oil produced and development of prop-
erty was main consideration for lease, lessor
could not forfeit lease for nondevelopment
without notifying lessee that he would no longer
accept annual rentals provided for each year
after first that development was delayed.-War-
ren Oil & Gas Co. v. Gilliam, 207 S. W. 698.
who had actual and constructive notice of plain-
81 (Ky.) Defendants, subsequent lessees,
tiff's valid lease which was in force, acquired
properly adjudged that plaintiff had right to
no rights as against plaintiff, and chancellor
have them enjoined from interfering with his
have title quieted as against defendants and to
right to enter on land and remove the oil.-
Warren Oil & Gas Co. v. Gilliam, 207 S. W.
698.

V. ASSIGNMENT OF LIEN OR CLAIM. See Infants.

204 (Tex. Civ. App.) An assignment of
builders' lien without an assignment of the

MINORS.

MONEY LENT.

debt would be without meaning or use, and See Insurance, 129, 138, 179.
the lien follows the debt.-Miller v. Guaranty
Trust & Banking Co., 207 S. W. 642.

VII. ENFORCEMENT.

MONEY RECEIVED.

See Judgment, ~590; Trusts, 359.
MORTALITY TABLES.

~263(1) (Tex.Com.App.) Original contractor,
payee of notes and beneficiary of mechanic's and
builder's lien, who subsequently purchased prop- See Evidence, 12.
erty, as part consideration assuming payment of
notes, was not necessary party to proceedings
to foreclose lien in sense that failure to make
him party rendered foreclosure void.-Hartfield
v. Greber, 207 S. W. 85.

264(1) (Tex.Com. App.) Purchaser of prop-
erty subject to mechanics' lien, in suit by in-
dorsee of notes upon them and to enforce lien,
had right on timely application to make party
original contractor, who subsequently purchas-
ed property from original owner, who gave
notes and lien, but waived right by proceeding
to trial without making application.-Hartfield
v. Greber, 207 S. W. 85.

MORTGAGES.

See Appeal and Error, 359; Chattel Mort-
gages; Exchange of Property, 7; Hus-
band and Wife, 171; Liens, 7; Logs
and Logging, 5; Receivers, 117, 118,
128; Street. Railroads, 55; Subrogation,
23; Trusts, 114.

I. REQUISITES AND VALIDITY.
(A) Nature and Essentials of Conveyances
as Security.

25 (1) (Mo.) A conveyance of real estate by
mortgage or deed of trust can only be effective
as such when made to secure a pre-existing,
then created, or after arising obligation, or the
performance of some duty entailing a pecuniary
liability.-Finnerty v. John S. Blake & Bro.
Realty Co., 207 S. W. 772.

281(5) (Mo.App.) In an action by a subcon-
tractor for a general judgment against the con-
tractor and to enforce a mechanic's lien on the
building, evidence held to show that the work
was done as a continuous job, and that the lien
account was filed in time.-Ogle v. W. M. Suth-
erland Building & Contracting Co., 207 S. W.28 (Tex. Civ.App.) Where purchase-money
848.

MILITARY NECESSITY.

See Intoxicating Liquors, 17.

notes recited that they were secured by deed
of trust lien on land, one who took notes be-
lieving they were in fact so secured is entitled
to equitable lien on the land, notwithstanding

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