« EelmineJätka »
by plaintiff, and could not present fundamental other evidence (following Kane v. Railroad Co.,
error calling for reversal after judgment.-Cel- 251 Mo. 13, 157 S. W. 644).-Davidson v. St.
li v. Sanderson, 207 S. W. 179.
Louis & S. F. Ry. Co., 207 S. W. 277.
843(1) (Ky.) An appellate court will not
XI. ASSIGNMENT OF ERRORS. | decide a question raised by the parties, but
719(1) (Tex.Civ.App.) A fundamental ques-
not presented by the evidence, for its decision
tion is to be considered on appeal, regardless
on such a moot question would be only die-
of the sufficiency of the assignment of error.-
tum.--Citizens' State Bank of Greenup v. John-
McCoy v. Wichita Falls Motor Co., 207 S. W.
son County, 207 S. W. 8.
Com843(3) (Tex.Civ.App.) Assignments urging
Om719(8) (Tex.Civ.App.) Where a judgment
that evidence is insufficient to sustain that
part of decree canceling instruments need not
does not conform to the verdict, it presents
be considered in view of the holding that such
fundamental error, which the appellate court
will review without assignment.--Holmes v.
portion of decree must be set aside for want
Long, 207 S. W. 201.
of jurisdiction.-Griner v. Trevino, 207 S. W.
724(2) Tex.Civ.App.) An assignment of er-
Com 854(6) (Mo.App.) An order granting a nem
ror which, with proposition under it, fails to
trial, though on an improper ground, will be
indicate any error of which complaint is made
affirmed if new trial should have been granted
presents a mere abstraction, instead of funda-
mental error.-Falfurrias Mercantile Co. v. Citi-
Citi. on another ground of the motion.-P. R. Sid-
zens' State Bank, 207 S. W. 568.
clair Coal Co. v. Missouri-Hydraulic Mining
736 Tex.Civ.App.) An assignment of error
Co.. 207 S. W. 206.
complaining of the court's refusal to submit
Om 854(6) (Mo.App.) If there is error, although
I not assigned as a ground for new trial, the
certain different issues was multifarious, and
for that reason should be disregarded.--Grundy
granting of a new trial, though for erroneous
v. Greene, 207 S. W. 964.
reasons, must nevertheless be upheld.-David-
Om742(1) (Tex.Civ. App.) A statement under a
son v. St. Louis & S. F. Ry. Co., 207 S. W. 277.
proposition, which is confined to a statement of
(C) Parties Entitled to Allege Error.
the pleadings and the issues sought to be
raised, and does not undertake to set out the 0 878(1) (Mo.App.) The objection that a judg.
substance of the evidence bearing on the prop- ment should also have included interest is not
osition, is insufficient.-Thomas v. Derrick, 207 available to a respondent not appealing.-Cen
S. W. 140.•
tral Nat. Bank v. Pryor, 207 S. W. 295.
742(1) (Tex.Civ.App.) An assignment of er-
ror, not followed by a statement, will not be
considered; mere reference to a bill of excep 900 (Mo.App.) Every presumption will be
tions in the record not being sufficient.-Falfur-
indulged in aid of the proceedings of the trial
rias Mercantile Co. v. Citizens' State Bank, 207
court; it being a court of general jurisdiction.
S. W. 568.
-Val Reis Piano Co. v. Gordon, 207 S. W. 2:33.
742(1) (Tex.Civ.App.) Assignment of error C 907(1) (Ark.) The presumption, that the
will not be considered, statement following it finding of a chancellor is supported by the er.
being foreign to it.-Lovelady v. Harding, 207idence where the oral testimony is no
S. W. 933.
served, does not apply on appeal from a ruling
742(2) (Tex.Civ.App.) In an action on a clearly erroneous, regardless of what the oral
life policy tried to the court, an assignment testimony might have been.-Frazier v. Fra.
of error presented as a proposition held not | zier, 207 S. W. 215.
sufficient, because including numerous errors 910 (Tex.Civ.App.) Where there is no evi.
in one assignment, to call in question any of Idence that defendant initial carrier re
the fact findings of the court, though sufficient | connecting carrier to furnish an unloaded car,
to raise the question of law whether the facts as required by Vernon's Sayles' Ann. Civ. St
found showed delivery of the policy and pay- | 1914, art. 6688, the court on appeal may, in
ment of the first premium which were required aid of judgment below, assume that defendant's
to make it a binding obligation.--American Nat. I loaded car was delivered to connecting car.
Ins. Co. v. Blysard, 207 S. W. 162.
rier pursuant to an agreement.-St. Louis
Southwestern Ry. Co. of Texas v. Morehead,
207 S. W. 336.
Om756 (Tex.Civ.App.) Appellant's brief, which om 916(1) (Ky.) Where the issue as to wheth-
does not contain all that is necessary to en-er a brake on one of defendant's cars was de.
able Court of Civil Appeals to deciče some fective was submitted, and the original petition
questions sought to be presented, has not bren contained no allegations as to such defect.
prepared in accordance with the rules.-John-
but an amended petition was filed which did
son v. Johnson, 207 S. W. 202.
I not appear in the record on appeal, the appel-
ww759 (Tex.Civ.App.) Assignments of error late court will presume that the allegations of
are insufficient where they consist of the mo the amendment were sufficient to authorize the
tion for new trial, and the paragraphs thereot submission of the issue.--Cumberland R. Co. .
are not copied in the brief as required by court Gibson, 207 S. W. 301.
rule 29 (142 S. W. x), but are radically re- | 930(1) (Mo. App.) In considering the suffi-
vised or reconstructed.-Waco Oil & Refining ciency of the evidence to support a verdict, the
Co. v. Texas Refining Co., 207 S. W. 987. reviewing court will not only consider the ere
773(4) (Tex.Civ.App.) On appellee's plea for idence itself, but all legitimate and fair in-
affirmance of judgment, Court of Civil Appeals ferences therefrom.-Davidson v. St. Louis &
is required to search the record for fundamental / S. F. Ry. Co., 207 S. W. 277.
error, and a ruling sustaining exceptions to a 930(1) Tex.Civ.App.) In reviewing an as.
petition and dismissing action, which in effect signment that the evidence was not sufficient
is a ruling that petition states no cause of ac- to sustain a finding of fact, strongest probative
tion, if error, is fundamental error.--Schulz v. effect must be given to the evidence tending to
Davis, 207 S. W. 634.
establish such fact.-Hollis Cotton Oil, Light
& Ice Co. v. Marrs & Lake, 207 S. W. 367.
930(2) (Mo.App.) It will not be presumed.
in the absence of evidence thereof, that the
(A) Scope and Extent in General.
jury disobeyed an instruction.-Shock v. Price,
cm 837 (11) (Mo.App.) In reviewing the suffi- | 207 S. W. 834.
ciency of evidence, the appellate court will dis Cm930(2) (Tex.Com. App.) The court on ap-
regard the statement of a conclusion by a wit- peal must presume that the jury in determining
ness, though not objected to, and only consider the facts and reaching a verdict gave proper
whether the conclusion itself, as a fact neces- attention to the charge.-Weisner v. Missouri
sary to support the verdict, is supported by K. & T. Ry. Co. of Texas, 207 S. W. 904.
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
Ow930(2) (Tex.Cir.App.) It must be assumed conflicting testimony.-Falfurrias Mercantile Co.
that the jury regarded the instructions given.- v. Citizens' State Bank, 207 S. W. 568.
Lancaster v. Mays, 207 S. W. 676.
om 1002 (Tex.Civ,App.) Jury's finding settled
Om 931(1) (Tex.Civ.App.) In deference to the conflict in the evidence.-Lancaster & Wight v.
trial court, the testimony of the successful | Allen, 207 S. W. 984.
party should be accepted as true by the appel. Om 1003 (Ark.) Where by applying to undisput-
late court.-Richardson v. Harless, 207 S. W. ed facts the laws of nature or the physical facts,
it is demonstrated beyond controversy that the
Om 931(4) (Tex.Civ.App.) Where defendant in- verdict based on them cannot be true, the Su.
terposed plea of contributory negligence which preme Court will declare as matter of law the
submitted, the statute relating to testimony is legally insufficient.-St. Louis-San
special issues would require the court on ap- Francisco Ry, Co. v. Stewart, 207 S. W. 440.
peal to presume that trial court found that w 1009(3) (Ky.) The court will not disturb
plaintiffs were guilty of contributory negligence the findings of a chancellor where the evidence
if it were necessary to an affirmance of judg- is conflicting and the court is not convinced
ment.-Washington y. Austin Nat. Bank, 207 S. that the chancellor has erred to the prejudice
of the substantial rights of the appellant.
Om933(1) Mo.App.) Where record recites that Jenkins v. Dawes, 207 S. W. 689.
plaintiff confesses defendant's motion for new na 1009(4) (Ky.) Court on appeal will not dis-
trial and that court, in conformity with such turb chancellor's finding of fact unless against
confession, does modify its former judgment the weight of the evidence.-Price v. Meade,
as to value, etc., it will be presumed that | 207 S. W. 695.
plaintiff confessed value of property, and, as om 1010(1) (Tex.Civ.App.) There being no error
no exceptions appear, it will be conclusively in the judgment if a corner of survey owned by
presumed that plaintiff, if he did not acquiesce defendant was at point shown by plat in the
in, did not except to, action of trial court.- record sent to court on appeal, and there being
Val Reis Piano Co. v. Gordon, 207 S. W. 233. evidence authorizing a finding that the corner
Om933(1) (Tex.) An order vacating an order was at such point, judgment will be affirmed.-
granting new trial, dated same day that final Erwin v. Morgan, 207 S. W. 556.
judgment was entered, will be presumed, in C 1010(1) (Tex.Civ. App.) The court's findings
absence of anything to the contrary, to have of fact, not being entirely unsupported by or
been rendered prior to entry of final judgment contrary to the evidence, will not be disturbed
under presumption that it was regularly and on appeal.--Williams v. Ogerly, 207 S. W. 572.
lawfully made.--Gulf, C. & S. F. Ry. Co. v. Om 1013 (Tex.Civ.App.) The determination of
Muse, 207 S. W. 897.
the amount of damages in personal injury cases,
Cm 934(1) (Tex.Civ.App.) Where trial was had is committed to the jury in a very large meas-
by the court without a jury, and no findings of ure, and its decision will not be reversed, though
fact were filed by the trial judge, every rea- damages are greater than appellate court would
sonable presumption must be induiged in sup have given.-Burnett V. Anderson, 207 S. W.
port of the judgment rendered.-Diltz v. Dod- 540.
son, 207 S. W. 356.
Om 1022(2) (Mo. App.) The findings of fact of
the referee, approved by the trial court, are
(F) Discretion of Lower Court.
conclusive on appeal, if supported by substan-
w968 (Tex.Civ.App.) Complaint of action of
action of tial evidence.- Ogle v. W. M. Sutherland
trial court in compelling plaintiffs, after they
Building & Contracting Co., 207 S. W. 818.
had exhausted their peremptory challenges, to
accept a juror, shown to be a customer of de-
(H) Harmless Error.
fendant bank for many years, will not be sus- 1026 (Tex.Civ.App.) To authorize the appel-
tained; it not appearing that trial judge abus-
late court to reverse a judgment for error, it
ed his discretion.- Washington v. Austin Nat.
Bank, 207 S. W. 382.
must appear that the error was reasonably cal-
Cm 978(3) (Tex.Civ.App.) The question whether
culated to, and probably did, injure the appel-
lart.-Lancaster v. Mays, 207 S. W. 676.
jurors were prejudiced against the defendant
Como 1031(4) (Tex.Ciy.App.) Despite Rule 62a
and concealed that fact is primarily within the
for Courts of Civil Appeals (149 S. W. x), in-
sound discretion of the trial court, and its ac-
jury will be presumed when trial court errone-
tion in denying new trial for misconduct of
ously excluded evidence constituting founda-
jury will not be revised where it does not clear-
tion of action or defense under such circum-
ly appear that the rights of the parties have
been disregarded.-El Paso Electric Ry. Co.
stances that it cannot reasonably be expected
v. Gonzales, 207 S. W. 162.
that it can be supplied by other evidence.-
981 (Tex.Civ.App.) Motions for new trial
Morris Courty Nat. Bank v. Parrish, 207 S.
| W. 939.
for newly discovered evidence are addressed
to the sound discretion of the trial judge, and
Ono 1033(5) (Tex.Civ.App.) An improper in-
where denied appellate court will not reverse,
struction, more calculated to help than to harm
appellant. cannot be complained of by him.-
except for clear abuse.-Sherrill v. Union Lum-
ber Co., 207 S. W. 149.
St. Louis Southwestern Ry. Co. of Texas V.
Barrett, 207 S. W. 557.
Cm 1039(9) (Mo.App.) Where two counts of a
(G) Questions of Fact, Verdicts, and Find-
complaint are alleged to be inconsistent and
motion to compel election is denied, dismissal
1001(1) (Ark.) The Supreme Court must up- of one count by plaintiff, after a favorable ver-
hold the verdict on appeal, if there is any sub-dict on both counts, is an election to stand alone
stantial evidence to support it.-St. Louis-San on the verdict on the remaining count, and
Francisco Ry. Co. v. Stewart, 207 S. W. 440. eliminates the question of inconsistency.-Ideal
Om 1001(1) (Tex.Civ.App.) Where findings of Reversible Hinge & Cabinet Co. y. Metallic
jury as to all material issues necessary to sup- | Specialty Mfg. Co., 207 S. W. 273.
port judgment are based upon sufficient evidence, Om 1040(10) (Tex.Civ.App.) Improper overrul-
the judgment will be affirmed.-MacDonald v. ing of demurrer to petition, which did not show
Ayers, 207 S. W. 686.
breach of guardianship bond, is not ground for
Em 1002 (Mo.App.) Question of contributory reversal, where special defenses set up by appel-
negligence being a close one, a jury finding for lant's answer and undisputed evidence show that
plaintiff, supported by substantial evidence, they do not claim to have paid appellee's de-
concludes court on appeal, where it cannot say mand, but as
m liability on
that plaintiff was guilty of contributory negli- other grounds.--Davis v. White, 207 S. W. 679.
gence as a matter of law.-Brooks y. Harris, Cum 1041(4) (Tex.Civ.App.) Where the one object
207 S. W. 293.
of a trial amendment in a conversion suit was
m1002 (Tex.Civ.App.) Court of Civil Appeals to serve as a basis for proof of its allegations
cannot disturb verdict of the jury rendered on that the conversion was committed by lessor's
agent, error in sustaining an exception to such exceeding speed limit, permitting a witness to
amendment held harmless, where proof under testify that chauffeur had stated shortly after
the amendment was admitted without objection. accident that he was driving a little fast, and
-Henderson v. Beggs, 207 S. W. 565. . that the passenger had stated that she had rp
104815) (Ark.) In action involving damage quested chauffeur not to drive so fas
auffeur not to drive so fast, was with-
to rice crop, testimony of witness as to crop out prejudice to defendant.-Burnett v. Ander-
produced on other land was not objectionable son, 207 S. W. 540.
because question did not take into account par- m 1051(1) (Tex.Civ.App.) Where plaintiff was
ticular season or method of farming, where first qualified to testify as an expert upon cattle
question, asked witness referred to year, and values, and accompanied his own to market, and
where witness testifiect to method of cultivation. the carrier introduced in evidence the daily mar-
-Prange v. Young, 207 S. W. 415.
ket report of sales on that date, plaintiff's eri.
In action involving damage to rice crop, cross-dence, if inadmissible to show that his cattle
examination of defendant as to good crops made would have been the best in their class on the
on similar lands similarly cultivated was not market of that day but for carrier's delay was
prejudicial, where defendant's answer was "the harmless where there was other sufficient evi.
conditions would vary it."-Id.
Idence of value.-Kansas City, M. & 0. Ry. Co.
In action for breach of contract to furnish of Texas v, Bomar, 207 S. W, 570.
water for rice crop, cross-examination of wit. Om 1054(2) (Ky.) Admission of incompetent evi-
ness for defendants as to similar contracts in dence on equitable issue being considered by
which witness and one of the defendants were jury was not prejudicial; verdict of jury on
partners, was not prejudicial, where answer did such issue being merely advisorr-
not show witness had any interest in the sub-| Early. 207 S. W. 406.
ject-matter of the litigation.-Id.
C 1056(1) (Tex.Civ.App.) In action involving
Om 104815) (Mo. App.) In an action by a step ownership of attached property, exclusion of
daughter and husband for services rendered de opinion of claimant as to his ownersbip oi
ceased, where plaintiffs offered evidence that property was not reversible error, where it did
they rendered all the services deceased receive not appear that creditors had sustained injurs
ed, and, after asking witness if neighbors ren- | by reason thereof.-Frost v. Smith, 207 S. W.
dered services, as well as if sisters did, an ob- | 392.
jection thereto was overruled, but the question Cw1056(1) (Tex.Civ.App.) In trespass to try ti-
was not answered, and an objection was sus- tle, where defendants claimed under an alleged
tained to a subsequent question whether any forged deed executed by an attorney in fact, er-
one else assisted "in the smallest way," held | clusion of a record of affidavits as to genuine
that no reversible error was committed.--Shock | ness of attorney's signature, if error, did not
v. Price, 207 S. W. 834.
warrant a reversal, where it would not have
na 1050(1) (Ark.) The admission of parol evi- affected the result.-Lancaster v. Snider, 207
cerce to explain meaning of words in contract S. W. 560.
was not prejudicial, where testimony merely 1056 (1) (Tex.Civ.App.) Exclusion of evi.
gave such words their legal meaning.--Harris & dence as to the existence of a judgment held
White v. Stone, 207 S. W. 143.
| harmless if erroneous, where the judgment
1050(1) Mó. App.) Any error in allowing had become dormant.--Burlington State Bank
question, "What search did you make for the v. Marlin Nat. Bank, 207 S. W. 954.
murderer?" was harmless; the question, “You C 1056(3) (Tex.Civ.App.) Exclusion of evi-
did not look for the assassin?" having previdence which has no probative force is immaterial
ously, without objection, been asked and an- and harmless.--Western Union Telegraph Co. r.
swered in the negative.--Schmidt v. Supreme | Armstrong, 207 S. W. 592.
Council of Royal Arcanum, 207 S. W. 874. mw 1058(1) (Tex.Civ.App.) Where all facts
Com 1050(1) (Tex.Civ.App.) In an action for in- | which might have been elicited by question
juries to pedestrian due to automobile accident, calling for conjectural conclusion, if in proper
that a witness was asked the whereabouts of form, were testified to without objection, there
some X-ray pictures of plaintiff's foot, and re- / was no injury to appellant because of exclu.
plied. “I gave them to the insurance man," held sion of question and probable answer.-Frick
not to have had any appreciable influence in en-v. International & G. N. Ry. Co., 207 S. W.
larging the verdict or in arousing any degree | 198.
of prejudice.--Burnett v. Anderson, 207 S. W. Cos 1058 (3) (Mo.App.) It was harmless er-
ror to exclude evidence as to a matter testi-
Om 1050(1) (Tex.Civ.Apr.) Admission of testi- | fied to by other witnesses.-William Wurdack
mony with reference to offer of defendant rail- | Electric Mfg. Co. v. Elliott & Barry Engi-
way company to make settlement for damages neering Co., 207 S. W. 877.
due to fire started by its engine was prejudicial em 1060(1) (Tex.Civ.App.) In an action by a
error.-Quanah, A. & P. Ry, Co. v. Lancaster, switchman for injuries, where the evidence of
207 S. W. 606.
negligence was close. improper remarks of plain-
Om 1050(1) (Tex.Civ.App.) Where evidence as tiff's counsel as to competency of engineer and
to whether defendant's agent made statements as to plaintiff having to live on half rations or
defamatory to plaintiff was sharply conflicting, the charity of his friends if not awarded dam-
and plaintiff's witness' testimony as to state ages must be held to have improperly influenced
ments was inconsistent with testimony given in the jury.--Southern Pac. Co. v. Miller, 207 S.
former deposition, the admission of evidence of W. 5.4.
declarations of such witness to corroborate his Com 106014) (Tex.Civ.App.) In action against
testimony that statements were made, was re- corporation employer for death of employé.
versible error.--Providence-Washington Ins. Co. plaintiff's counsel's reference to employer as
v. Owens, 207 S. W. 666.
a "heartless and soulless corporation," and
Om 1050(1) (Tex.Civ. App.) Where similar teg. his reference to plaintiff, employé's wife, as a
timony was adınitted without objection, an as 1 "wounded dove," and his statement of amount
signinent complaining of the admission of tes- of property of corporation, did not improperis
timony must be overruled.--.Manton v. City of influence jury, where verdict did not indicate
San Antonio, 207 S. W. 951.
either passion or prejudice.-San Antonio
1050 (2) (Mo.Apr.) In an action for an Portland Cement Co. v. Gschwender, 207 S.
amount due on a contract of sale for an in- W. 967.
terest in a crop, adinission of immaterial evi-1 1062(1) (Tex.Civ. App.) In an action by a
dence that plaintiff had gone on the farm for railroad fireman for injuries, held, that instruc
the sole purpose of being registered as a farm- tions, though erroneous in submitting to the
er, in order to avoid military service, was jury facts conclusively established, etc., were
prejudicial.-Serton v. Lockwood. 207 S. W. harmless.-Lancaster V. Mays, 207 S. W. 676.
Cm 1062(2) Tex.Civ.App.) It is not error of
Om 1051(1) (Tex.Civ.App.) Where it was plain which apnellant can complain to refuse to sub.
from the evidence that defendant's chauffeur was ' mit a special issue to the jury, where an affirma-
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
tive reply thereto would not be warranted by / verdict is excessive.-Duke v. Hatcher, 207 S.
testimony before the jury.-Lancaster v. Snider, W. 575.
207 S, W. 560.
w 1071(6) (Tex.Civ.App.) In shipper's action
Om 1064(1) (Mo.) Instructions for a respondent involving issues as to whether two railroads
which are inconsistent entitle appellant, who were negligent in handling shipment of live
has served an exception to them, to a reversal stock, whether shipper was damaged thereby
of the case if his interest had been prejudiced and amount of any damage, where the evidence
had the jury followed the one rather than the was conflicting and the court, sitting without a
other.--In re Sixth Street, 207 S. W. 503. jury, dismissed one defendant and found for the
C 1064(1) (Mo.App.) Where the jury were other, its failure to file its findings of fact and
required to find facts which, if true, constitut- conclusions of law, after due request, under
ed negligence on the part of the master, held, Rev. St. 1911, art. 2075, prevented appellant
that an instruction was not prejudicial, though from fairly presenting the appeal, and was
characterizing as negligent a direction given | ground for reversal.-Stewart & Threadgill v.
by the vice principal to the deceased servant. El Paso & S. W. Co., 207 S. W. 594.
--Medley v. Parker-Russel Min. & Mfg. Co.,
207 S. W. 887.
(J) Decisions of Intermediate Courts.
1064(1) (Tex.Com.App.) In an action for
Om 1090(2) (Tex.Com.App.) Where shipper
negligent burning of grass in a pasture, er
sued initial, connecting, and terminal carrier,
roneously instructing that plaintiff was enti-
and judgment went for plaintiff as against ter-
tled to recover' the cost of feed for his cattle
minal carrier on theory of verbal contract
and the expense necessary in feeding them
made with it, and shipper did not appeal or
was reversible error.–Chicago, R. I. & G. Ry.
assign cross-assignments in Court of Civil Ap-
Co. v. Word, 207 S. W. 902.
peals, though terminal carrier appealed. on
1064(1)(Tex.Com.App.) Where there is
further appeal by shipper from adverse jud;-
a sharp conflict in the testimony as to liability,
ment to Supreme Court shipper would be held
the giving of a charge which imposes upon
to have abandoned his cause of action against
plaintiff a greater burden than is required by the other defendant.--Texas & P. Ry, Co. v.
law is calculated to prejudice plaintiff and West Bi
| West Bros., 207 S. W. 918.
cause the jury to render an improper verdict.
-Weisner v. Missouri. K. & T. Ry. Co. of
(K) Subsequent Appeals.
Texas, 207 S. W. 904.
cm 1064(2) Tex.Civ. App.) In an action for On 1097(1) (Ky.) An opinion on appeal is the
by | law of the case on a subsequent appeal.-Ram-
a locomotive, it was harmless error to instruct
| mage v. Kendall, 207 S. . 690.
that persons driving teams "easily frightened"
Om 1099(3) (Ark.) Declaration on appeal in
should exercise care for their own safety, where contractor's suit for construction of reservoirs,
it appeared without dispute that the team was water district counterclaiming for breach, that
"skittish and would run away sometimes.”—St. contractor .could not escape liability though its
Louis Southwestern Ry. Co. of Texas V. Bar departure from contract resulted in work as
rett, 207 S. W. 557.
good as specified, etc., together with directions
Om 1066 (Mo.App.) The appellate court can-
given trial court on reversal merely to ascer-
not say that instruction on damages authoriz-
tain cost of reconstructing work, held law of
ing consideration of whether injuries were
case on second appeal, not to be departed from.
permanent, when there was no pleading or evi-
|--Inland Const. Co. v. Rector, 207 S. W. 33.
dence thereof, but merely of future suffering,
Ono 1099 (3) (Tenn.) A former judgment
did not “materially affect the merits." - Colbv | against an unincorporated religious associa-
v. Thompson, 207 S. W. 73.
tion held on subsequent appeal conclusive as
cm 1066 (Tex.Com. App.) Giving an errone.
to the authority of the association to incur
ous instruction on contributory negligence not
the indebtedness sued for.-Hunter V. Swad-
raised by the pleadings or the evidence was
ley, 207 S. W. 730.
reversible error.--Weisner v. Missouri, K. &
Om 1099(4) (Ky.) IIolding on former appeal
that a transaction was champertous is law of
T. Ry. Co. of Texas, 207 S. W. 904.
Om 1067 (Mo.App.) Defendant was not preju-
case on subsequent appeal.-Anderson v. Daugh-
w erty, 207 S. W. 474.
diced by refusal of instruction submitting ques- 1099(8) Mo. App.) In a suit on a claim
tion of excessive speed of automobile as a
predicate of liability, where plaintiff did not
against an estate for services rendered to de-
submit his case upon such assignment of neg- taining the refusal of defendant's peremptory
not ceased, the decision on a former appeal sus-
ligence.-Brooks v. Harris, 207 S. W. 293.
instrnction was the law of the case on a second
Om 1067 (Tex.Civ.App.) In suit by employé to trial, where additional testimony was introduced
recover for injuries sustained while riding upon by claimant.--Kleinberg y. Kinealy, 207 S. W.
track in a motorcycle by invitation of another 237.
employé after working hours, instruction that
plaintiff was a "trespasser," although quoted XVII. DETERMINATION AND DISPO.
term was not defined, held without injury to
plaintiff.-Frick v. International & G. N. Ry.
SITION OF CAUSE.
Co., 207 S. W. 198.
(A) Decision in General.
1068(1) (Tex.Civ.App.) Instruction that lol114 (Tex.) Where defendant in error is
plaintiff was a trespasser on track, and that entitled to have other assignments consider-
defendant railroad owed him no duty until his led by Court of Civil Appeals, which it con-
position of peril was discovered, although er- i
ough er cluded need not be considered under its former
roneous, and not in compliance with Vernon's
disposition of the case, the cause will be re-
Sayles' Ann. Civ. St. 1914, art. 1984a, as to manded to said court for its further action on
definition of terms, cannot be said to have con- such assignments of
have con such assignments of error; its judgment being
tributed to result where jury found in answer
reversed.-Bird v. Ft. Worth & R. G. Ry. Co.,
to only issue submitted that operators of train | 207 S. W. 518.
did not discover plaintiff's peril in time to have
prevented injury.-Frick v. International & G.
N. Ry. ('o., 207 S. W. 198.
Cos I 127 (Mo.App.) Respondent is too late in
a 1068(3) Tex.Civ.App.) Where plaintiff made seeking the penalty of affirmance for failure to
out no case entitling him to recover, errors in file, in the appellate court, as required by Rev.
the instruction were immaterial.--Saenz V. ( St. 1909, $ 2018, copy of judgment appealed from
Hamilton Hotel Co., 207 S. W. 159.
with order granting the appeal, 15 days before
1068(5) (Tex.Civ.App.) Objection that refus. term to which the cause is returnable, where,
al of instruction was prejudicial, thereby in- though knowing the facts, he makes no motion
creasing amount of verdict, cannot be sustained, till after appellant has prepared abstract and
where appellant does not claim on appeal that 'brief.-Swartz v. Hiler, 207 S. W. 258.
1133 (Tex.Civ.App.) There being no state- , dor's lien notes, where evidence was insufficient
ment of facts, bill of exception, or assignment to support a recovery, but on another trial ad.
of error in the record, judgment will be affirm- ditional evidence might be offered, held, that
ed, where no fundamental error is disclosed. | judgment would be reversed and cause re-
Ogg v. Loyd, 207 S. W. 553.
manded.-Raley v. D. Sullivan & Co., 207 S.
Om 1177(9) (Mo.App.) In an action where
Om 1151 (2) (Tex.Civ.App.) Where a judg- judgment was for defendant on plaintiff's pe-
ment was excessive to the amount of $38, and tition and for plaintiff on defendant's counter.
the error is plainly discernible, held that that claim, defendant having admitted owing plain.
is not ground for reversal, as the judgment tiff in his answer, on reversing, the appellate
might be reformed and affirmed.-Burlington court will not direct judgment for the plain-
State Bank v. Marlin Nat. Bank, 207 S. W. tiff, where she conceded in her petition and
testimony that defendant should be credited
with certain taxes and other money paid for
m 1 170(1) (Tex.Com.App.) Supreme Court
her, the amount of such credits not appearing
in the record, but a new trial will be ordered.
Rule 62A (149 S. W. x) was not intended to
--Algeo v. Algeo, 207 S. W. 842.
deprive the Supreme Court of the power to
Om 1180(3) (Tex.Civ.App.) Adults who did not
determine for itself whether any erroneous
answer, and against whom default judgment
action of the trial court was of such charac-
was rendered, are not entitled to relief, thougb
ter as amounted "to such a denial of the rights
the judgment, which was adverse to other par.
of the plaintiffs as was reasonably calculated
ties having the same title, was reversed on the
to cause and probably did cause the rendition
of an improper judgment."-Weisner v. Mis-
appeal of such parties.-Eckert v. Stewart, 207
| S. W. 317.
souri, K. & T. Ry. Co. of Texas, 207 S. W.
(F) Mandate and Proceedings in Lower
Om 1170(6) (Tex.Civ.App.) Court of Civil Ap-
peals Rule No. 62a, prohibiting reversals for
errors of law by the trial court not calculated
calculated ano 1195(1) (Ky.) An opinion on appeal is the
to cause rendition of an improper judgment, law of the case on a subsequent trial.-Ram.
applies where the judge, after the jury had mige v. Kendall, 207 S. W. 690.
failed to agree, stated to them the desirability Cw1212 (2) (Tex.Com.App.) Where shipper
of bringing in a verdict; such statement not sued initial, connecting, and terminal carriers
being coercive or persuasive in favor of ei- for injuries to shipment of live stock, but all
ther party.-Texas Midland R. R. v. Brown, / causes of action were abandoned except as
207 S. W. 340.
against terminal carrier and judgment went
Om 1170(9) (Tex.Civ.App.) In a suit for evic for plaintiff on theory of verbal contract with
tion from a farm, refusal of instruction that it terminal carrier, though acts of negligence
was the tenant's duty to procure other land were also alleged, on reversal and remand for
to lessen the damages, or after having failed invalidity of contract shipper could recover
to procure such land to seek other employment, on another trial on theory of negligence.-
if error, held harmless, where no complaint is Texas & P. Ry. Co. y. West Bros., 207 S. W.
made of excessive verdict in view of Court of 918.
Appeals rule 62a (149 S. W. X).--Duke v.
Hatcher, 207 S. W. 575.
XVIII. LIABILITIES ON BONDS AND
1171(2) (Tex.Civ.App.) A monetary judg-
ment for $160, otherwise proper, will not be
Com 1232 (Tex.) Where a judgment, as render-
reversed because it was excessive in the
amount of $7.--Bryson V. Abney, 207 S. W'.
ed by the Supreme Court in plaintiff's favor,
is for a materially less amount than the judg
em 1172(2) (Ky.) That part of a judgment
ment decreed in the trial court, it is improper
which is sustained by the pleadings, and evi-
to render any judgment against the surety on
dence and admitted to be correct by appellant's
the appeal bond.-Home Inv. Co. v. Strange, 207
brief, will not be disturbed on appeal.-King
S. W. 307.
v. King. 207 S. W. 1.
1234(1) (Ark.) Where appellant, feeling that
Cu 1173(1) (Tex. Com. App.) Where shipper
live stock on which the court had declared a
of cattle suing initial, connecting, and terminal
lien was insufficient to warrant a bond under
carriers elected to recover from terminal car-
Kirby's Dig. $ 1218, to supersede the entire
rier, which sought judgment over against con-
judgment, applied to court for appraisal and
necting carriers, but under the Carmack
gave bond under section 1222, they and their
Amendment to the Hepburn Act (U. S. Comp.
sureties took the risk of stock dying, and, if
St. 88 8601a, 8601aa) and under the pleadings
unable to return stock, must account for value
and evidence the terminal carrier could not
thereof. Howell v. Walker, 207, S. W. 41.
have recovery over, it was not necessary to
remand the calise as to connecting carrier on
reversal of judgment for plaintiff against ter-
mipal carrier.- Texas & P. Ry. Co. y. West See Justices of the Peace, 161.
Bros., 207 S. W. 918.
C I 175(7) (Tex.Civ.App.) Judgment being
warranted only for fraud or upon some other
equitable ground, the court on appeal will not See Telegraphs and Telephones, cm 68.
render judgment, but will reverse and remand,
where it is unable to determine whether court
based judgment upon finding that power of at-
torney was insufficient or upon a finding of See Insurance. 570. 574: Jury, 13: Mu.
fraud.--Griner v. Trevino, 207 S. W. 947.
nicipal Corporations, C62; Stipulations,
C 1177 (6) (Tex.Com.App.) Where plaintiff
claimed under a sheriff's deed, but the issue of
the sheriff's authority to execute the deed was
not fully developed, notwithstanding two prior
II. ARBITRATORS AND PROCEED-
trials, held. under circumstances, that a judg-
ment for plaintiff. who did not show the sher- 31 (Ky.) As a general rule, arbitrators, in
iff's authority, should be reversed, and the the absence of parties or notice to them of the
cause remanded, instead of judgment being time and place, cannot receive extrinsic eri-
rendered for defendant.-Richards v. Rule, 207 dence calculated to have a material bearing up-
S. W. 912.
on the award.-R. E. Jones & Co. v. Northern
Om 1177(7) (Tex.Com. App.) In an action in Assur. Co., Limited, of London, England, 207
volving title to land and the foreclosure of ven-'S. W. 459.