For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
See Divorce; Husband and Wife; Seduction, 52, 54; Wills, 183.
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.
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.
(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,
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
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.
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.
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.
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.
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.
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.
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
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,
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
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.
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.
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.
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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