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.
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.
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,
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.
(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.
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.
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.
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.
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-
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.
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.
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.
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.
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.,
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.
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.
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.
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
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
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.
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
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-
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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