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719(8) (Tex.Civ.App.) Where a judgment
does not conform to the verdict, it presents
fundamental error, which the appellate court
will review without assignment.-Holmes v.
Long, 207 S. W. 201.

other evidence (following Kane v. Railroad Co.,
251 Mo. 13, 157 S. W. 644).-Davidson v. St.
Louis & S. F. Ry. Co., 207 S. W. 277.

843(1) (Ky.) An appellate court will not
decide a question raised by the parties, but
tum.-Citizens' State Bank of Greenup v. John-
not presented by the evidence, for its decision
on such a moot question would be only die-
son County, 207 S. W. 8.

843(3) (Tex.Civ.App.) Assignments urging
that evidence is insufficient to sustain that
part of decree canceling instruments need not
be considered in view of the holding that such
portion of decree must be set aside for want
of jurisdiction.-Griner v. Trevino, 207 S. W.
947.

724(2) (Tex. Civ.App.) An assignment of er-854(6) (Mo.App.) An order granting a new
ror which, with proposition under it, fails to
indicate any error of which complaint is made
presents a mere abstraction, instead of funda-
mental error.-Falfurrias Mercantile Co. v. Citi-
zens' State Bank, 207 S. W. 568.

736 (Tex.Civ.App.) An assignment of error
complaining of the court's refusal to submit
certain different issues was multifarious, and
for that reason should be disregarded.-Grundy
v. Greene, 207 S. W. 964.

742(1) (Tex. Civ.App.) A statement under a
proposition, which is confined to a statement of
the pleadings and the issues sought to be
raised, and does not undertake to set out the
substance of the evidence bearing on the prop-
osition, is insufficient.-Thomas v. Derrick, 207
S. W. 140.

trial, though on an improper ground, will be
affirmed if new trial should have been granted
on another ground of the motion.-P. R. Sin-
clair Coal Co. v. Missouri-Hydraulic Mining
Co., 207 S. W. 266.

854(6) (Mo.App.) If there is error, although
not assigned as a ground for new trial, the
granting of a new trial, though for erroneous
reasons, must nevertheless be upheld.-David-
son v. St. Louis & S. F. Ry. Co., 207 S. W. 277.
(C) Parties Entitled to Allege Error.

878(1) (Mo.App.) The objection that a judg-
ment should also have included interest is not
available to a respondent not appealing.-Cen-
tral Nat. Bank v. Pryor, 207 S. W. 298.

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
tions in the record not being sufficient.-Falfur-
rias Mercantile Co. v. Citizens' State Bank, 207
S. W. 568.

742(1) (Tex.Civ.App.) Assignment of error
will not be considered, statement following it
being foreign to it.-Lovelady v. Harding, 207
S. W. 933.

a

742(2) (Tex.Civ.App.) In an action on
life policy tried to the court, an assignment
of error presented as a proposition held not
sufficient, because including numerous errors
in one assignment, to call in question any of
the fact findings of the court, though sufficient
to raise the question of law whether the facts
found showed delivery of the policy and pay-
ment of the first premium which were required
to make it a binding obligation.-American Nat.
Ins. Co. v. Blysard, 207 S. W. 162.

XII. BRIEFS.

756 (Tex.Civ.App.) Appellant's brief, which
does not contain all that is necessary to en-
able Court of Civil Appeals to decide some
questions sought to be presented, has not been
prepared in accordance with the rules.-John-
son v. Johnson, 207 S. W. 202,

error

759 (Tex. Civ.App.) Assignments of
are insufficient where they consist of the mo-
tion for new trial, and the paragraphs thereof
are not copied in the brief as required by court
rule 29 (142 S. W. x), but are radically re-
vised or reconstructed.-Waco Oil & Refining
Co. v. Texas Refining Co., 207 S. W. 987.

773(4) (Tex.Civ.App.) On appellee's plea for
affirmance of judgment, Court of Civil Appeals
is required to search the record for fundamental
error, and a ruling sustaining exceptions to a
petition and dismissing action, which in effect
is a ruling that petition states no cause of ac-
tion, if error, is fundamental error.-Schulz v.
Davis, 207 S. W. 634.

XVI. REVIEW.

(E) Presumptions.

(Mo.App.) Every presumption will be
indulged in aid of the proceedings of the trial
court; it being a court of general jurisdiction.
-Val Reis Piano Co. v. Gordon, 207 S. W. 233.

907(4) (Ark.) The presumption, that the
finding of a chancellor is supported by the ev-
idence where the oral testimony is not pre-
served, does not apply on appeal from a ruling
clearly erroneous, regardless of what the oral
testimony might have been.-Frazier v. Fra-
zier, 207 S. W. 215.

910 (Tex.Civ.App.) Where there is no evi.
dence that defendant initial carrier required
connecting carrier to furnish an unloaded car,
as required by Vernon's Sayles' Ann. Civ. St.
1914, art. 6688, the court on appeal may, in
aid of judgment below, assume that defendant's
loaded car was delivered to connecting car-
rier pursuant to an agreement.-St. Louis
Southwestern Ry. Co. of Texas v. Morehead,
207 S. W. 336.

916(1) (Ky.) Where the issue as to wheth-
er a brake on one of defendant's cars was de-
fective was submitted, and the original petition
contained no allegations as to such defect,
but an amended petition was filed which did
not appear in the record on appeal, the appel-
late court will presume that the allegations of
the amendment were sufficient to authorize the
submission of the issue.-Cumberland R. Co. v.
Gibson, 207 S. W. 301.

930(1) (Mo.App.) In considering the suffi-
ciency of the evidence to support a verdict, the
reviewing court will not only consider the ev-
idence itself, but all legitimate and fair in-
ferences therefrom.-Davidson v. St. Louis &
S. F. Ry. Co., 207 S. W. 277.

930(1) (Tex.Civ.App.) In reviewing an as-
signment that the evidence was not sufficient
to sustain a finding of fact, strongest probative
effect must be given to the evidence tending to
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
jury disobeyed an instruction.-Shock v. Price,
207 S. W. 834.

(A) Scope and Extent in General,
837 (11) (Mo.App.) In reviewing the suffi-
ciency of evidence, the appellate court will dis-930(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

930(2) (Tex.Civ.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.
1002 (Tex. Civ.App.) Jury's finding settled
conflict in the evidence.-Lancaster & Wight v.
Allen, 207 S. W. 984.

W. 382.

931(1) (Tex.Civ.App.) In deference to the
trial court, the testimony of the successful
party should be accepted as true by the appel-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,
139.
it is demonstrated beyond controversy that the
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
was not 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 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 v. Austin Nat. Bank, 207 S. that the chancellor has erred to the prejudice
of the substantial rights of the appellant.-
933(1) (Mo.App.) Where record recites that Jenkins v. Dawes, 207 S. W. 689.
plaintiff confesses defendant's motion for new 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 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
933(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 1010(1) (Tex.Civ.App.) The court's findings
absence of anything to the contrary, to have
been rendered prior to entry of final judgment
under presumption that it was regularly and
lawfully made.-Gulf, C. & S. F. Ry. Co. v.
Muse, 207 S. W. 897.

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934(1) (Tex. Civ.App.) Where trial was had
by the court without a jury, and no findings of
fact were filed by the trial judge, every rea-
sonable presumption must be indulged in sup
port of the judgment rendered.-Diltz v. Dod-
son, 207 S. W. 356.

(F) Discretion of Lower Court.

968 (Tex.Civ.App.) Complaint of action of
trial court in compelling plaintiffs, after they
had exhausted their peremptory challenges, to
accept a juror, shown to be a customer of de-
fendant bank for many years, will not be sus-
tained; it not appearing that trial judge abus-
ed his discretion.-Washington v. Austin Nat.

Bank. 207 S. W. 382.

of fact, not being entirely unsupported by or
contrary to the evidence, will not be disturbed
on appeal.-Williams v. Ogerly, 207 S. W. 572.

1013 (Tex.Civ.App.) The determination of
the amount of damages in personal injury cases,
is committed to the jury in a very large meas-
ure, and its decision will not be reversed, though
damages are greater than appellate court would
have given.-Burnett v. Anderson, 207 S. W.
540.

1022(2) (Mo.App.) The findings of fact of
the referee, approved by the trial court, are
conclusive on appeal, if supported by substan-
tial evidence.-Ogle v. W. M. Sutherland
Building & Contracting Co., 207 S. W. 848.

(H) Harmless Error.

1026 (Tex.Civ.App.) To authorize the appel-
late court to reverse a judgment for error, it
must appear that the error was reasonably cal-
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 defendant1031(4) (Tex. Civ.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
jury will not be revised where it does not clear- tion of action or defense under such circum-
ously excluded evidence constituting founda-
ly appear that the rights of the parties have stances that it cannot reasonably be expected
been disregarded.-El Paso Electric Ry. Co. that it can be supplied by other evidence.-
v. Gonzales, 207 S. W. 162.
Morris County Nat. Bank v. Parrish, 207 S.

981 (Tex.Civ.App.) Motions for new trial
for newly discovered evidence are addressed
to the sound discretion of the trial judge, and
where denied appellate court will not reverse,
except for clear abuse.-Sherrill v. Union Lum
ber Co., 207 S. W. 149.

(G) Questions of Fact, Verdicts, and Find-

ings.

W. 939.

improper in-
1033(5) (Tex.Civ.App.) An
struction, more calculated to help than to harm
appellant, cannot be complained of by him.-
St. Louis Southwestern Ry. Co. of Texas v.
Barrett, 207 S. W. 557.

1039(9) (Mo.App.) Where two counts of a
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
1001 (1) (Tex.Civ.App.) Where findings of Reversible Hinge & Cabinet Co. v. Metallic
jury as to all material issues necessary to sup- Specialty Mfg. Co., 207 S. W. 273.
port judgment are based upon sufficient evidence, 1040(10) (Tex.Civ.App.) Improper
the judgment will be affirmed.-MacDonald v.
Ayers, 207 S. W. 686.

overrul-

ing of demurrer to petition, which did not show
breach of guardianship bond, is not ground for
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 assert exemption from 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 v. Harris, 1041(4) (Tex.Civ.App.) Where the one object
207 S. W. 293.

1002 (Tex.Civ.App.) Court of Civil Appeals
cannot disturb verdict of the jury rendered on

of a trial amendment in a conversion suit was
to serve as a basis for proof of its allegations
that the conversion was committed by lessor's

agent, error in sustaining an exception to such
amendment held harmless, where proof under
the amendment was admitted without objection.
-Henderson v. Beggs, 207 S. W. 565.

exceeding speed limit, permitting a witness to
testify that chauffeur had stated shortly after
accident that he was driving a little fast, and
that the passenger had stated that she had re-
quested chauffeur not to drive so fast, was with-
out prejudice to defendant.-Burnett v. Ander-
son, 207 S. W. 540.

1048(5) (Ark.) In action involving damage
to rice crop, testimony of witness as to crop
produced on other land was not objectionable
because question did not take into account par-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 testified to method of cultivation. the carrier introduced in evidence the daily mar-
-Prange v. Young, 207 S. W. 445.
ket report of sales on that date, plaintiff's evi-
dence, if inadmissible to show that his cattle
would have been the best in their class on the
market of that day but for carrier's delay was
harmless where there was other sufficient evi-
dence of value.-Kansas City, M. & O. Ry. Co.
of Texas v. Bomar, 207 S. W. 570.

In action involving damage to rice crop, cross-
examination of defendant as to good crops made
on similar lands similarly cultivated was not
prejudicial, where defendant's answer was "the
conditions would vary it."-Id.

In action for breach of contract to furnish
water for rice crop, cross-examination of wit-1054(2) (Ky.) Admission of incompetent evi-
ness for defendants as to similar contracts in
which witness and one of the defendants were
partners, was not prejudicial, where answer did
not show witness had any interest in the sub-
ject-matter of the litigation.-Id.

1048(5) (Mo.App.) In an action by a step-
daughter and husband for services rendered de-
ceased, where plaintiffs offered evidence that
they rendered all the services deceased receiv-
ed, and, after asking witness if neighbors ren-
dered services, as well as if sisters did, an ob-
jection thereto was overruled, but the question
was not answered, and an objection was sus-
tained to a subsequent question whether any
one else assisted "in the smallest way," held
that no reversible error was committed.-Shock
v. Price, 207 S. W. 834.

1050(1) (Ark.) The admission of parol evi-
dence to explain meaning of words in contract
was not prejudicial, where testimony merely
gave such words their legal meaning.-Harris &
White v. Stone, 207 S. W. 443.

1050(1) (Mo App.) Any error in allowing
question, "What search did you make for the
murderer?" was harmless; the question, "You
did not look for the assassin?" having previ-
ously, without objection, been asked and an-
swered in the negative.-Schmidt v. Supreme
Council of Royal Arcanum, 207 S. W. 874.
~1050(1) (Tex.Civ.App.) In an action for in-
juries to pedestrian due to automobile accident,
that a witness was asked the whereabouts of
some X-ray pictures of plaintiff's foot, and re-
plied, "I gave them to the insurance man," held
not to have had any appreciable influence in en-
larging the verdict or in arousing any degree
of prejudice.-Burnett v. Anderson, 207 S. W.
540.

1050(1) (Tex.Civ.App.) Admission of testi-
mony with reference to offer of defendant rail-
way company to make settlement for damages
due to fire started by its engine was prejudicial
error.-Quanah, A. & P. Ry. Co. v. Lancaster,
207 S. W. 606.

1050(1) (Tex. Civ.App.) Where evidence as
to whether defendant's agent made statements
defamatory to plaintiff was sharply conflicting,
and plaintiff's witness' testimony as to state-
ments was inconsistent with testimony given in
former deposition, the admission of evidence of
declarations of such witness to corroborate his
testimony that statements were made, was re-
versible error.-Providence-Washington Ins. Co.
v. Owens, 207 S. W. 666.

1050(1) (Tex.Civ.App.) Where similar tes-
timony was admitted without objection, an as-
signment complaining of the admission of tes-
timony must be overruled.-Manton v. City of
San Antonio, 207 S. W. 951.

dence on equitable issue being considered by
jury was not prejudicial; verdict of jury on
such issue being merely advisory.-Early v.
Early, 207 S. W. 466.

1056(1) (Tex.Civ.App.) In action involving
ownership of attached property, exclusion of
opinion of claimant as to his ownership of
property was not reversible error, where it did
not appear that creditors had sustained injury
by reason thereof.-Frost v. Smith, 207 S. W.
392.

1056(1) (Tex.Civ.App.) In trespass to try ti-
tle, where defendants claimed under an alleged
forged deed executed by an attorney in fact, ex-
clusion of a record of affidavits as to genuine-
ness of attorney's signature, if error, did not
warrant a reversal, where it would not have
affected the result.-Lancaster v. Snider, 207
S. W. 560.

1056 (1) (Tex.Civ.App.) Exclusion of evi-
dence as to the existence of a judgment held
harmless if erroneous, where the judgment
had become dormant.-Burlington State Bank
v. Marlin Nat. Bank, 207 S. W. 954.

1056(3) (Tex.Civ.App.) Exclusion of evi-
dence which has no probative force is immaterial
and harmless.-Western Union Telegraph Co. v.
Armstrong, 207 S. W. 592.

1058(1) (Tex.Civ.App.) Where all facts
which might have been elicited by question
calling for conjectural conclusion, if in proper
form, were testified to without objection, there
was no injury to appellant because of exclu-
sion of question and probable answer.-Frick
v. International & G. N. Ry. Co., 207 S. W.
198.

1058(3) (Mo.App.) It was harmless er-
ror to exclude evidence as to a matter testi-
fied to by other witnesses.-William Wurdack
Electric Mfg. Co. v. Elliott & Barry Engi-
neering Co., 207 S. W. 877.

1060(1) (Tex.Civ.App.) In an action by a
switchman for injuries, where the evidence of
negligence was close. improper remarks of plain-
tiff's counsel as to competency of engineer and
as to plaintiff having to live on half rations or
the charity of his friends if not awarded dam-
ages must be held to have improperly influenced
the jury.-Southern Pac. Co. v. Miller, 207 S.
W. 554.

1060 (4) (Tex.Civ.App.) In action against
corporation employer for death of employé.
plaintiff's counsel's reference to employer as
a "heartless and soulless corporation," and
his reference to plaintiff, employé's wife, as a
"wounded dove," and his statement of amount
of property of corporation, did not improperly
influence jury, where verdict did not indicate
either passion or prejudice. San Antonio
Portland Cement Co. v. Gschwender, 207 S.

1050 (2) (Mo.App.) In an action for an
amount due on a contract of sale for an in- W. 967.

terest in a crop, admission of immaterial evi-1062(1) (Tex.Civ.App.) In an action by a
dence that plaintiff had gone on the farm for
the sole purpose of being registered as a farm-
er, in order to avoid military service, was
prejudicial. Sexton v. Lockwood. 207 S. W.
856.

1051(1) (Tex.Civ.App.) Where it was plain
from the evidence that defendant's chauffeur was

railroad fireman for injuries, held, that instruc-
tions, though erroneous in submitting to the
jury facts conclusively established, etc.. were
harmless.-Lancaster v. Mays, 207 S. W. 676.

1062(2) (Tex.Civ.App.) It is not error of
which appellant can complain to refuse to sub-
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
testimony before the jury.-Lancaster v. Snider,
207 S. W. 560.

1064(1) (Mo.) Instructions for a respondent
which are inconsistent entitle appellant, who
has served an exception to them, to a reversal
of the case if his interest had been prejudiced
had the jury followed the one rather than the
other. In re Sixth Street, 207 S. W. 503.

1064 (1) (Mo.App.) Where the jury were
required to find facts which, if true, constitut-
ed negligence on the part of the master, held,
that an instruction was not prejudicial, though
characterizing as negligent a direction given
by the vice principal to the deceased servant.
-Medley v. Parker-Russel Min. & Mfg. Co.,
207 S. W. 887.

1064 (1) (Tex.Com.App.) In an action for
negligent burning of grass in a pasture, er-
roneously instructing that plaintiff was enti-
tled to recover the cost of feed for his cattle
and the expense necessary in feeding them
was reversible error.-Chicago, R. I. & G. Ry.
Co. v. Word, 207 S. W. 902.

1064(1) (Tex.Com.App.) Where there is
a sharp conflict in the testimony as to liability,
the giving of a charge which imposes upon
plaintiff a greater burden than is required by
law is calculated to prejudice plaintiff and
cause the jury to render an improper verdict.
-Weisner v. Missouri, K. & T. Ry. Co. of
Texas, 207 S. W. 904.

1064(2) (Tex.Civ.App.) In an action for
damages occasioned by frightening of team by
a locomotive, it was harmless error to instruct
that persons driving teams "easily frightened"
should exercise care for their own safety, where
it appeared without dispute that the team was
"skittish and would run away sometimes."-St.
Louis Southwestern Ry. Co. of Texas v. Bar-
rett, 207 S. W. 557.

verdict is excessive.-Duke v. Hatcher, 207 S.
W. 575.

1071(6) (Tex.Civ.App.) In shipper's action
involving issues as to whether two railroads
were negligent in handling shipment of live
stock, whether shipper was damaged thereby
and amount of any damage, where the evidence
was conflicting and the court, sitting without a
jury, dismissed one defendant and found for the
other, its failure to file its findings of fact and
conclusions of law, after due request, under
Rev. St. 1911, art. 2075, prevented appellant
from fairly presenting the appeal, and was
ground for reversal.-Stewart & Threadgill v.
El Paso & S. W. Co., 207 S. W. 594.

(J) Decisions of Intermediate Courts.
1090 (2) (Tex.Com.App.) Where shipper
and judgment went for plaintiff as against ter-
sued initial, connecting, and terminal carrier,
minal carrier on theory of verbal contract
assign cross-assignments in Court of Civil Ap-
made with it, and shipper did not appeal or
further appeal by shipper from adverse judg
peals, though terminal carrier appealed, on
ment to Supreme Court shipper would be held
the other defendant.-Texas & P. Ry. Co. v.
to have abandoned his cause of action against
West Bros., 207 S. W. 918.

(K) Subsequent Appeals.

1097(1) (Ky.) An opinion on appeal is the
law of the case on a subsequent appeal.-Ram-
mage v. Kendall, 207 S. V. 690.

1099(3) (Ark.) Declaration on appeal in
contractor's suit for construction of reservoirs,
water district counterclaiming for breach, that
contractor could not escape liability though its
departure from contract resulted in work as
good as specified, etc., together with directions
given trial court on reversal merely to ascer-
tain cost of reconstructing work, held law of
case on second appeal, not to be departed from.
evi--Inland Const. Co. v. Rector, 207 S. W. 33.

1066 (Mo.App.) The appellate court can-
not say that instruction on damages authoriz-
ing consideration of whether injuries were
permanent, when there was no pleading or
dence thereof, but merely of future suffering,
did not "materially affect the merits."-Colby
v. Thompson, 207 S. W. 73.

an errone-

1066 (Tex.Com.App.) Giving
ous instruction on contributory negligence not
raised by the pleadings or the evidence was
reversible error.-Weisner v. Missouri, K. &
T. Ry. Co. of Texas, 207 S. W. 904.

a

1099 (3) (Tenn.) A former judgment
against an unincorporated religious associa
tion held on subsequent appeal conclusive as
to the authority of the association to incur
ley, 207 S. W. 730.
the indebtedness sued for.-Hunter v. Swad-

that a transaction was champertous is law of
1099(4) (Ky.) Holding on former appeal
erty, 207 S. W. 474.
case on subsequent appeal.-Anderson v. Daugh-

1067 (Mo.App.) Defendant was not preju
diced by refusal of instruction submitting ques-1099(S) (Mo.App.) In a suit on
tion of excessive speed of automobile as
a claim
predicate of liability, where plaintiff did not ceased, the decision on a former appeal sus-
against an estate for services rendered to de-
submit his case upon such assignment of neg-taining the refusal of defendant's peremptory
ligence.-Brooks v. Harris, 207 S. W. 293.
instruction was the law of the case on a second
trial, where additional testimony was introduced
by claimant.-Kleinberg v. Kinealy, 207 S. W.
237.

1067 (Tex. Civ.App.) In suit by employé to
recover for injuries sustained while riding upon
track in a motorcycle by invitation of another
employé after working hours, instruction that
plaintiff was a "trespasser," although quoted
term was not defined, held without injury to VII. DETERMINATION AND DISPO-
plaintiff.-Frick v. International & G. N. Ry.
Co., 207 S. W. 198.

1068(1) (Tex. Civ.App.) Instruction that
plaintiff was a trespasser on track, and that
defendant railroad owed him no duty until his
position of peril was discovered, although er-
roneous, and not in compliance with Vernon's
Sayles' Ann. Civ. St. 1914, art. 1984a, as to
definition of terms, cannot be said to have con-
tributed to result where jury found in answer
to only issue submitted that operators of train
did not discover plaintiff's peril in time to have
prevented injury.-Frick v. International & G.
N. Ry. Co., 207 S. W. 198.

1068(3) (Tex.Civ.App.) Where plaintiff made
out no case entitling him to recover, errors in
the instruction were immaterial.-Saenz
Hamilton Hotel Co., 207 S. W. 159.

V.

1068(5) (Tex.Civ.App.) Objection that refus-
al of instruction was prejudicial, thereby in-
creasing amount of verdict, cannot be sustained,
where appellant does not claim on appeal that

SITION OF CAUSE.

(A) Decision in General.

entitled to have other assignments consider-
1114 (Tex.) Where defendant in error is
ed by Court of Civil Appeals, which it con-
disposition of the case, the cause will be re-
cluded need not be considered under its former
manded to said court for its further action on
such assignments of error; its judgment being
207 S. W. 518.
reversed.-Bird v. Ft. Worth & R. G. Ry. Co.,

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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.
W. 906.

(C) Modification.

1151(2) (Tex.Civ.App.) Where a judg-
ment was excessive to the amount of $38, and
the error is plainly discernible, held that that
is not ground for reversal, as the judgment
might be reformed and affirmed.-Burlington
State Bank v. Marlin Nat. Bank, 207 S. W.

954.

(D) Reversal.

1170(1) (Tex.Com.App.) Supreme Court
Rule 62A (149 S. W. x) was not intended to
deprive the Supreme Court of the power to
determine for itself whether any erroneous
action of the trial court was of such charac-
ter as amounted "to such a denial of the rights
of the plaintiffs as was reasonably calculated
to cause and probably did cause the rendition
of an improper judgment."-Weisner v. Mis-
souri, K. & T. Ry. Co. of Texas, 207 S. W.
904.

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
to cause rendition of an improper judgment,
applies where the judge, after the jury had
failed to agree, stated to them the desirability
of bringing in a verdict; such statement not
being coercive or persuasive in favor of ei-
ther party.-Texas Midland R. R. v. Brown,
207 S. W. 340.

1170(9) (Tex.Civ.App.) In a suit for evic-
tion from a farm, refusal of instruction that it
was the tenant's duty to procure other land
to lessen the damages, or after having failed
to procure such land to seek other employment,
if error, held harmless, where no complaint is
made of excessive verdict in view of Court of
Appeals rule 62a (149 S. W. x).-Duke v.
Hatcher, 207 S. W. 575.

1171(2) (Tex.Civ.App.) A monetary judg-
ment for $160, otherwise proper, will not be
reversed because it was excessive in the
amount of $7.-Bryson v. Abney, 207 S. W.

945.

1177(9) (Mo.App.) In an action where
judgment was for defendant on plaintiff's pe-
tition and for plaintiff on defendant's counter-
claim, defendant having admitted owing plain-
tiff in his answer, on reversing, the appellate
court will not direct judgment for the plain-
tiff, where she conceded in her petition and
testimony that defendant should be credited
with certain taxes and other money paid for
her, the amount of such credits not appearing
in the record, but a new trial will be ordered.
-Algeo v. Algeo, 207 S. W. 842.

180(3) (Tex.Civ.App.) Adults who did not
answer, and against whom default judgment
was rendered, are not entitled to relief, though
the judgment, which was adverse to other par-
ties having the same title, was reversed on the
appeal of such parties.-Eckert v. Stewart, 207

S. W. 317.

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1195 (1) (Ky.) An opinion on appeal is the
law of the case on a subsequent trial.-Ram-
mage v. Kendall, 207 S. W. 690.

1212(2) (Tex.Com.App.) Where shipper
sued initial, connecting, and terminal carriers
for injuries to shipment of live stock, but all
causes of action were abandoned except as
against terminal carrier and judgment went
for plaintiff on theory of verbal contract with
terminal carrier, though acts of negligence
were also alleged, on reversal and remand for
invalidity of contract shipper could recover
on another trial on theory of negligence.-
Texas & P. Ry. Co. v. West Bros., 207 S. W.
918.

XVIII. LIABILITIES ON BONDS AND

UNDERTAKINGS.

1232 (Tex.) Where a judgment, as render-
is for a materially less amount than the judg
ed by the Supreme Court in plaintiff's favor,
ment decreed in the trial court, it is improper
to render any judgment against the surety on
Strange, 207
the appeal bond.-Home Inv. Co. v.

S. W. 307.

1172(2) (Ky.) That part of a judgment
which is sustained by the pleadings, and evi-
dence and admitted to be correct by appellant's
brief, will not be disturbed on appeal.-King1234(1) (Ark.) Where appellant, feeling that
v. King, 207 S. W. 1.
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
Kirby's Dig. § 1218, to supersede the entire
judgment, applied to court for appraisal and
gave bond under section 1222, they and their
unable to return stock, must account for value
sureties took the risk of stock dying, and, if
thereof.-Howell v. Walker, 207. S. W. 41.

carriers elected to recover from terminal car-

rier, which sought judgment over against con-
necting carriers, but under the Carmack
Amendment to the Hepburn Act (U. S. Comp.
St. §§ 8604a, 8604aa) and under the pleadings

APPEARANCE.

and evidence the terminal carrier could not
have recovery over, it was not necessary to
remand the cause as to connecting carrier on
reversal of judgment for plaintiff against ter-
minal carrier.-Texas & P. Ry. Co. v. West See Justices of the Peace, 161.
Bros., 207 S. W. 918.

1175(7) (Tex. Civ.App.) Judgment being
warranted only for fraud or upon some other
equitable ground, the court on appeal will not
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
fraud. Griner v. Trevino, 207 S. W. 947.

APPREHENSION.

See Telegraphs and Telephones, 68.

ARBITRATION AND AWARD.

See Insurance, 570, 574; Jury, 13; Mu-
nicipal Corporations, 62; Stipulations,
14.

II. ARBITRATORS AND PROCEED-

INGS.

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
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
cause remanded, instead of judgment being
rendered for defendant.-Richards v. Rule, 207
S. W. 912.

1177(7) (Tex.Com.App.) In an action in-
volving title to land and the foreclosure of ven-

the absence of parties or notice to them of the
time and place, cannot receive extrinsic evi-
dence calculated to have a material bearing up-
on the award.-R. E. Jones & Co. v. Northern
Assur. Co., Limited, of London, England, 207
S. W. 459.

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