See Appeal and Error, 185; Descent and
Distribution, 82; Drains, 66; Ex-
change of Property, 7; Judgment,
604; Levees, 2; Municipal Corporations,24 (Tex.) Where two phone companies, or-
566, 567, 972, 980; Schools and School
Districts, 34, 39, 100.

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

appear

II. REGULATION AND OPERATION. cotenant, and assertion of adverse claims, must
37(9) (Tex. Civ.App.) It did not
be more certain and unequivocal in character
from telegram reading, "Ruth is not expected than is necessary in ordinary cases where no
to live unless change in condition," or from privity of estate exists, and notice of the ad-
telegram reading, "Ruth very bad. Can't live
verse holding must be brought home to the
long," that either was sent for the benefit of cotenant either by information or by acts of
the sender.-Western Union Telegraph Co. v.
unequivocal notoriety.-Stiles v. Hawkins, 207
Barrett, 207 S. W. 976.
S. W. 89.

54(7) (Tex.Civ.App.) Those who deal with
telegraph corporations are entitled, if they in-
sist upon it, to have their messages transmit-

ted and delivered free from all conditions or

limitations, except those imposed by the law of
the land.-Western Union Telegraph Co. v.
Armstrong, 207 S. W, 592.

A rule of a telegraph company that tele-
grams should be written on certain forms, and
the stipulations on the back of such forms,
were not binding on the sender of a telegram,
having no knowledge thereof, who telephoned
a message, although the agent recorded the
message upon one of such blanks.-Id.

65(1) (Tex.Civ.App.) In action by plaintiff
for damages due to failure to promptly deliver
to her son telegram with reference to serious
condition of plaintiff's daughter, the fact that
the company had notice that the telegram was
sent for benefit of plaintiff sender held to
sufficiently appear from allegations of peti-7 (Tex.Civ.App.) A tender by the maker to
tion.-Western Union Telegraph Co. v. Bar- the payee of a note does not constitute a tender
rett, 207 S. W. 976.
as to the holder of the note, where the maker
knows that the payee no longer has any au-
thority in the matter.-Thomas v. Derrick, 207
S. W. 140.

66(4) (Tex.Civ.App.) In action by plaintiff
for damages due to failure to promptly deliver
to her son a telegram with reference to serious
condition of plaintiff's daughter, testimony
held sufficient to charge defendant with notice
that plaintiff sender had an interest in prompt
transmission and delivery. Western Union See Conspiracy,
Telegraph Co. v. Barrett, 207 S. W. 976.

68(1) (Tex.Civ.App.) Plaintiff could not re-

cover from telegraph company for mental an-

guish suffered by his wife, where, on learning See Criminal Law, 553, 655, 706; Homicide,
that his wife, away from home, among stran-
gers desired to bring on her mother's body, he
wired her funds, which she received in time
to take train she had intended, though there
was delay causing her apprehension; anguish
resulting from apprehension of a situation
which did not occur.-Western Union Tele-
graph Co. v. Deaver, 207 S. W. 972.

15(7, 8) (Tex.Com.App.) Acts relied on by a
tenant in common in showing an ouster of his See Turnpikes and Toll Roads.

plaintiff admitted that in 1913, less than a
TORTS.
year after her deed to defendant, she learned
See Action; Assault and Battery, 43; Con- that he was claiming the land, a suit in tres-
spiracy, 8-18; Fraud, 59; Libel and
pass to try title not filed until latter part of
Slander, 6-125; Municipal Corporations, February, 1916, justified a finding that the
724-851; Negligence, 7-138; Plead-right of possession had been lost.-Grundy v.
ing, 369; Principal and Agent, 159; Greene, 207 S. W. 964.
Trespass, 19-58; Trover and Conver-35 (2) (Tex.Civ.App.) Much latitude is al-

sion.

10 (Mo.App.) Picketing by members of la-
bor organizations for the sole purpose of peace-
ful persuasion, argument, or entreaty is not
unlawful or actionable.-Root v. Anderson, 207
S. W. 255.

TOWNS.

See Animals, 50; Assault and Battery,
92; Counties, 1; Criminal Law, 1170.
TRADE UNIONS.

lowed in suits to recover the title and posses-
sion of realty when plaintiff's petition is in
the ordinary form of an action of trespass to
try title and is only met by a plea of not
guilty.-Grundy v. Greene, 207 S. W. 964.

In trespass to try title met only by a plea
of not guilty, either party may offer evidence
by way of confession and avoidance, and, un-
der certain conditions, may prove that a deed
relied upon by his adversary is void because
procured by fraud, or as the result of mistake.

-Id.

41(1) (Tex.Civ.App.) In trespass to try
8, 18; Libel and Slander, title, where defendants claimed under a deed
by an alleged attorney in fact, and plaintiffs
10.
filed affidavit that the deed was forged, the
burden was on defendant to establish their
defense by a preponderance of the testimony:
plaintiffs having shown title to the land and
being entitled to recover, unless they had part-
ed with title.-Lancaster v. Snider, 207 S. W.
560.

TRAIN SHEET.

See Evidence, 370, 383.

TRESPASS.

See Damages, 55; Ejectment, 95; In-
junction, 128; Master and Servant,
89; Negligence, 39: Pleading. 52;
Quieting Title. 44; Vendor and Purchas-
er, 244; Trusts, 372.

II. ACTIONS.

(A) Right of Action and Defenses.
19(1) (Ky.) In an action for damages for
cutting and removing timber on land, title to
which plaintiffs claimed, plaintiffs can recover
only on the strength of their own title, and not
on the weakness of defendant's title.-H. F.
Davis & Co. v. Sizemore, 207 S. W. 16.

31 (Ky.) A "joint trespass" is where two
or more persons unite in committing it, or
where some actually commit the tort, the oth-
ers command, encourage, or direct it.-Ste-
phens v. Schadler, 207 S. W. 704.

(D) Damages.

58 (Ky.) Where defendant entered upon
plaintiff's land, dug four post holes, tore down
and hauled away some fencing, cut down one
tree, and injured another, which furnished
shade to plaintiff's lot, damages for the tres-
pass in the sum of $50 was not excessive.-Mc-
Mahon v. Robinett, 207 S. W. 301.

TRESPASS TO TRY TITLE.

See Adverse Possession, 115; Appeal and
Error, 1056; Arrest, 63; Evidence,

186, 317; Executors and Administrators,
129, 439; Husband and Wife, 132,
273; Judgment, 566; Public Lands,
174; Vendor and Purchaser, 236; Wit-
nesses, 149.

1. RIGHT OF ACTION AND DEFENSES.
4 (Tex. Civ.App.) Surviving wife and chil-
dren, suing in trespass to try title after de-
cedent's notes secured by a vendor's lien had
been barred by limitations, might satisfy the
debt or offer to pay it as a condition to can-
cellation of surviving wife's deed to defend-
ant, and so enable court to adjust their equi-
ties.-Grundy v. Greene, 207 S. W. 964.

6(1) (Tex.Civ.App.) The holder of a nak-
ed legal title may maintain an action of tres-
pass to try title.--Masterson v. Pullen, 207
S. W. 537.

47(1) (Tex.Civ.App.) In trespass to try
title, met only by a plea of not guilty, affirm-
ative relief to plaintiff, because the deed re-
lied upon by his adversary was void for fraud
or mistake, will be granted in response to ap-
propriate pleadings bringing himself within
the conditions that entitle him to a rescission.
-Grundy v. Greene, 207 S. W. 964.

III. DAMAGES, USE AND OCCUPA-
TION, IMPROVEMENTS,
AND TAXES.

53 (Tex.Com.App.) One who has never been
in possession of property, the subject of suit
for trespass to try title, and has never collected
or received any of the rents, is not personally
liable to plaintiff for rent.-Stiles v. Hawkins,
207 S. W. 89.

TRIAL.

See Boundaries, 40; Continuance; Costs;
New
Criminal Law, 641-884; Jury;
Trial; Reference; Stipulations, 14; Ven-

ue.

For trial of particular actions or proceedings,
see also the various specific topics.
For review of rulings at trial, see Appeal and
Error.

II. DOCKETS, LISTS, AND CALEN◄
DARS.

11(3) (Ky.) In surviving wife's action for
dower and distributable share of personalty,
involving question of whether ante-nuptial con-
tract relinquishing such rights had been pro-
cured by fraud, the chancellor properly trans-
ferred cause to common-law docket for trial
by jury on issue of fraud.-Early v. Early, 207
S. W. 466.

III. COURSE AND CONDUCT OF
TRIAL IN GENERAL.

25(1) (Tex.Civ.App.) In action involving
ownership of attached property claimed by
third party, where court ruled that burden of
proving title was upon claimant, claimant was
entitled to open and conclude without invoking
District and County Court Rule 31 (142 S. W.
xx).-Frost v. Smith, 207 S. W. 392.

29(2) (Ark.) In suit for labor performed,
with counterclaim for money paid on team
bought for plaintiffs, the exclusion of question
to seller of team with remark that it was a
question of law and with inquiry whether de-
fendant had not proven himself out of court
was objectionable as an expression of opinion

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

on weight of evidence.-Stallings v. Bradshaw, I released a defective brake, it was not error
207 S. W. 435,

139(1)(Tex.Com.App.) The jury are the
judges of the weight to be given the testimo-236(1) (Mo.App.) Provision of requested
ny.-Weisner v. Missouri, K. & T. Ry. Co., of instructions, that in determining credibility of
a witness his "general reputation for truth and
139(1) (Tex.Civ.App.) It is the province veracity, chastity, and morality as shown by
of jury to pass on credibility of witnesses and the evidence," may be considered, is unwar-
weight of their testimony.-Falfurrias Mer-ranted.-Beck v. Metropolitan Life Ins. Co.,
cantile Co. v. Citizens' State Bank, 207 S. W. 207 S. W. 248.

not simply announced abstract propositions of
law in his charge.-McNabb v. McNabb, 207 S.

W. 129.

(E) Requests or Prayers.

255(12) (Ark.) In real estate broker's
action for commission where only conflict of
252(1) (Tex.Civ.App.) A requested in- evidence was on question of whether broker
struction was properly refused, where there procured purchaser, court's charge was not
was no proof upon which to base it.-Missouri defective because of failure to submit ques-
Iron & Metal Co. v. Cartwright, 207 S. W. 397.
tion of whether in making sale owner acted in
252 (8) (Tex.Civ.App.) In action for inju- good faith, where specific instruction submit-
ries sustained by pedestrian when run down ting such issue was not requested.-Harris &
by an automobile, giving of a special request- White v. Stone, 207 S. W. 443.
ed charge on discovered peril held not errone-260(1) (Tex.Civ.App.) It is not error to
ous as against objection that there was no refuse an instruction on a matter sufficiently
evidence that chauffeur saw plaintiff.-Burnett covered in the court's main charge.-Missouri
v. Anderson, 207 S. W. 540.
Iron & Metal Co. v. Cartwright, 207 S. W.
397.

In action for injuries sustained by plaintiff
pedestrian when run down by an automobile, 260(1) (Tex.Civ.App.) Refusal to give in-
held, under the evidence, that court did not structions requested is not reversible error,
err in refusing to give special charge submit- where the substance thereof has been given
ting issue whether chauffeur was an employé in other instructions.-Lancaster v. Snider, 207
or servant of defendant.-Id.
S. W. 560.
in-260(5) (Mo.App.) Requested instruction, to
the effect that plaintiff administrator could re-
cover only if deceased's son was his mother's
agent when he made demand to repurchase
shares of stock, held correctly and fully cover-
ed by instruction given by the court.-Grass-
muck v. Ehrler, 207 S. W. 287.

252 (11) (Tex.Civ.App.) Refusal of
struction on contributory negligence of serv-
ant injured was not error where there was no
evidence of such negligence.-San Antonio
Portland Cement Co. v. Gschwender, 207 S.

W. 967.

252(12) (Mo.) In action on contractor's
surety bond, defendant's requested instruc-260 (8) (Tex.Civ.App.) It was not error to
tion on measure of damages, predicated on the refuse an instruction that defendant railroad
view that the evidence shows plaintiff's vio-
was not liable if plaintiff's horse was more
lation of a building contract so as to release readily frightened than an ordinary horse.
surety from injury to plaintiff by reason of where the issue of contributory negligence was
its overpayments to contractor, was properly sufficiently covered by an instruction given.-
refused, where the undisputed evidence show- Texas Midland R. R. v. Butler, 207 S. W. 344.
ed that plaintiff had not overpaid contractor. 260 (8) (Tex. Civ.App.) Where under the in-
-Southern Real Estate & Financial Co. v. structions the jury could find for plaintiff, a
Bankers' Surety Co.. 207 S. W. 506, 513.
railroad fireman, injured in a collision, only
if the engineer was negligent in failing to dis-
cover the open switch, etc., held, that the re-
fusal of further instructions that the engineer
was not negligent in doing no more than he
did to stop the train after discovering the
open switch, that negligence could not be
based on the fact the switch was open, etc.,
was proper.-Lancaster v. Mays, 207 S. W.
676.

252(20) (Mo.App.) Instruction should not
submit the question of permanency of plain-
tiff's injury, there being no evidence that it
would be or was permanent.-Colby v. Thomp-
son, 207 S. W. 73.

253 (3) (Mo.App.) An instruction directing
a verdict in action under Rev. St. 1909, § 3150.
against a railroad for flooding from insufficient
drains and opening, ignoring the question of it 261 (Tex. Civ.App.) Requested charge that
being from an unprecedented rain, is errore-
acts or quarrels, the result of sudden outbursts
ous.-Riffe v. Wabash Ry. Co., 207 S. W. 78. of temper, are not grounds for divorce, where
253(3) (Mo.App.) A defense in action not correct in its entirety, was properly re-
against railroad for flooding land from embank- fused, but sufficiently called court's attention to
ment sliding into creek being unprecedented omission.-McNabb v. McNabb, 207 S. W. 129.
rainfall, of which there was evidence, instruc- 261 (Tex.Civ.App.) Where instructions are
tion covering entire case and directing verdict requested as a whole, some of which are in-
ignoring that question is erroneous.-Bailey v. consistent with each other and others obvious-
Wabash Ry. Co., 207 S. W. 82.
ly improper, the court need not separate the
good from the bad and is justified in refusing
them all.-St. Paul Fire & Marine Ins. Co. v.
Pipkin, 207 S. W. 360.

253(5) (Mo.App.) In an action on a note
which defendants claimed had been discharged,
where it appeared that the holder had sent
the same to a bank for collection and received
from it the amount due, and it further appear-
ed that the note passed into the possession of
a stranger thereto, who transferred it to
plaintiff, an instruction that if the holder sent
it to a bank for collection and the amount
thereof was paid to the bank and remitted to
the holder, plaintiff could not recover, held er-
roneous, disregarding the question whether a
third person acquired the note.-Stark

Scherf, 207 S. W. 863.

(G) Construction and Operation.

295 (6) (Mo.App.) It cannot be said that,
taking the instructions as a whole, there was
no error where one instruction in and of it-
self authorized a verdict against a railroad for
overflow from insufficient opening, without re-
gard to whether the flood was unprecedented,
though another instruction submitted that ques-
Vtion.-Riffe v. Wabash Ry. Co., 207 S. W. 78.

253(8) (Mo.App.) Instruction that there
could be no recovery if deceased's son, when
and if he made a demand on defendant to re-
purchase stock, was not the agent of deceas-
ed was properly refused, since plaintiff admin-
istrator could have recovered if jury believed
that deceased herself made such demand.-
Grassmuck v. Ehrler, 207 S. W. 287.

296(3) (Ky.) In servant's action for in-
juries, error in instruction defining employ-
er's duty to be to keep elevator in reasonably
safe condition held cured by limiting right to
recover to negligent breach of duty, with_prop-
er definition of negligence.-Lexington Roller
Mills Co. v. Fields, 207 S. W. 477.

In servant's action for injuries, instruction
was not erroneous as failing properly to quali-
fy right of recovery, where such qualifications
were correctly set out in other instructions,
and criticized instruction closed with state-
ment requiring finding under such other in-
structions.-Id.

253 (10) (Mo.App.) In replevin to recover
materials and tools furnished under a contract
for the manufacture of metal cabinets, an in-
struction requiring the jury to find facts enti-
tling plaintiff to possession of the property un-
der the contract was not insufficient as ignor-296(3) (Tex.Civ.App.) Contention that from
ing performance of the contract on plaintiff's
part. Ideal Reversible Hinge & Cabinet Co.
v. Metallic Specialty Mfg. Co., 207 S. W. 273.

special instruction given jury might have be-
lieved that railroad company owed plaintiff
employé no duty even after discovering his per-