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Ross v. St. Louis, I. M. & S. Ry. Co., 179 S. W. 353.

(C) Interest, Costs, and Expenses of Litigation.

ce: 69 (Tex.Civ.App.) In an action in tort, interest is a part of the damages.—San Antonio & A. P. Ry. Co. v. Schaeffer, 179 S. W. 540.

IV. LIQUIDATED DAMAGES AND PENALTIES.

&=78 (Tex.Civ.App.) A provision of a building contract that $5 should be forfeited for each day's delay, held to be a stipulation for liquidated damages rather than for a penalty.—Gillespie v. Williams, 179 S. W. 1101.

VI. MEASURE OF DAMAGES. (B) Injuries to Property.

3>108 (Ark.) The measure of damages for injury to the pool supplying plaintiff's cotton gin with water held the cost of restoration and the value of the lost use, not the depreciation in market value.-Ross & Ross v. St. Louis, I. M. & S. Ry. Co., 179 S. W. 353.

&= | 13 (Ky.) In an action for injuries to an automobile, an instruction that the measure of damages was the difference in value before and after the injury held erroneous as not being based on the market value.—Cincinnati, N. O. & T. P. Ry. Co. v. Sweeney, 179 S. W. 214.

VII. INADEQUATE AND EXCESSIVE DAMAGE

&: 130 (Mo..App.) In a truck driver's action against a city for personal injuries, verdict for $2,000 held not excessive.—Morrill v. Kansas City, 179 S. W. 759.

Q-> 131 (Ky.) An award of $2,000 in favor of &

an employé in a coal mine held excessive for injuries caused by shock of a low-voltage wire.— #erial Jellico Coal Co. v. Neff, 179 S. W. Q: 132 (Ky.) Verdict of $10,000 for injuries to boy between two and three years old crippling him and totally destroying and disfiguring one hand and arm held not excessive.— Gnau v. Ackerman, 179 S. W. 217. Q-> 132 (INy.) Personal injuries held to warrant verdict of $7,250.—Beall v. Louisville Home Telephone Co., 179 S. W. 251.

&= 132 (Ky.) An award of $9,500 in favor of a brakeman 22 years of age, who earned $10.5 per month, for injuries destroying use of his leg, held not excessive.—Cincinnati, N. O. & T. P Ry. Co. v. Nolan, 179 S. W. 1046.

VIII. PLEADING, EVIDENCE, AND ASSESSMENT.

(A) Plea sling.

&= 159 (Mo..App.) Under petition in action for personal injury, alleging loss from inability to perform duties of his “employment,” plaintiff could show the receipts from his practice of dentistry.—Clark v. Dunham, 179 S. W. 795.

(B) Evidence.

<> 175 (Mo..App.) In action for damages for breach of contract concerning the assets and management of a corporation, entitling plaintiff to purchase defendant's share, evidence as to the probability of finding a purchaser, etc., held admissible on the question of damages.—Powell v. Batchelor, 179 S.W. 751.

&= 176 (Tex.Civ.App.) In action for breach of contract to furnish electric current for plaintiff’s theater building, plaintiff, in testifying to his loss of profits, was not bound to estimate his loss for each night separately.—City of Brownsville v. Tumlinson, 179 S. W. 1107.

&= 188 (Ky.) In an action for injuries to an automobile at a railroad crossing, it was not error to fix the maximum amount which might be recovered at the greatest, which any evidence conduced to show was the difference between the market value of the machine immediately before and immediately after the injury.—Cincinnati, N. O. & T. P. Ry. Co. v. Sweeney, 179 S.W. 214.

(C) Proceedings for Assessment.

6:5208 (Tex.) In an action by a city fireman against a railway company for injuries due to an explosion, the issue of damages for lost time held properly submitted to the jury under conflicting evidence.—Houston Belt & Terminal Ry. Co. v. Johansen, 179 S. W. 853.

DEATH.

See Courts, 3:27; Executors and Administrators, 3:11; Limitation of Actions, @:124; #utes, C:231; Trial, @:256; Wills, @:

I. EVIDENCE OF DEATH AND OF SURVIVOIRSHIP.

Q: 5 (Tex.Civ.App.) Where a husband and wife, making mutual wills, were frozen to death in the same snowstorm, with no evidence as to which died first, there was no presumption as to survivorship or simultaneous death.—Fitzgerald v. Ayres, 179 S. W. 289.

II. ACTIONS FOR CAUSING DEATH. (A) Right of Action and Defenses.

Q=8 (Tenn.) A right of action for wrongful death is governed by the laws of the state where the injury occurred.—Sharp v. Cincinnati, N. O. T. P. Ry. Co., 179 S. W. 375. &= 10 (Tenn.) The right of action for wrongful death given by Shannon's Code, § 4025 et seq., is that which the deceased would have had, and the recovery is in right of the deceased.— Sharp v. Cincinnati, N. O. & T. P. Ry. Co., 179 S. W. 375. G>31 (Ky.) Under Ky. St. § 4, giving widow and minor child of person killed by malicious use of firearms, etc., an action for damages, the widow's remarriage pending the suit did not affect her right of recovery, or that of the children.-Archer v. Bowling, 179 S. W. 15.

(C) Parties and Process.

$=43 (Ky.) Under Const. § 241, and Ky. St. § 6, an action may be brought jointly against both the employer and his servant whose negligence caused the death of deceased servant.— Gärt', Coal Co. v. Prichard's Adm’r, 179 S. &=44 (Ky.) Under Ky. St. § 4, infant children of one killed by malicious use of firearms, etc., held entitled to join as parties plaintiff in a suit originally brought by the widow alone.— Archer v. Bowling, 179 S. W. 15.

(E) Damages, Forfeiture, or Fine.

6->91 (Ky.) Under civil action for damages for malicious killing brought under Ky. St. § 4, the widow’s remarriage pending suit did not diminish the damages which she and her minor children, as joint plaintiffs, might recover.—Archer v. Bowling 179 S. W. 15. &=95 (Ky.) Under Ky. St. § 6, measure of damages for killing by malicious use of firearms, etc., held a sum reasonably compensating the widow and children for loss of deceased’s earning power, together with punitive damages, divided one half to the widow and the other half # the children.—Archer v. Bowling, 179 S. W. 15.

<>99 (Mo..App.) In action for death of plaintiff’s two year old daughter, verdict, exclusive

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(E) Conditions and Restrictions.

C: 145 (Tex.Civ.App.) An agreement in a deed whereby vendees were to raise sugar cane and sell it to the vendor held a condition, and not al &#t-Imperial Sugar Co. v. Cabell, 179 S. W. S3.

&: 147 (Tex.Civ.App.) A deed providing that title should pass to the vendee only upon condition of full performance of the contract is not ineffectual because partly based upon a sale of personal property.—Imperial Sugar Co. v. Cabell, 179 S.W. 83. &= 165 (Tex.Civ.App.) Where a deed retained a lien and declared it did not become absolute until full performance by vendee, the vendor held entitled to possession under unimpaired title, where the vendees repudiated the conditions.— Imperial Sugar Co. v. Cabell, 179 S. W. 83.

IV. PLEADING AND EVIDENCE.

<> 194 (Ark.) Plaintiff, in an action to set aside a deed to a railroad, had the burden of showing that it had been wrongfully delivered; delivery to an agent and the recording of the deed raising a presumption of delivery.—Vaugh#5" Chicago, R. I. & P. Ry. Co., 179 S. W. C> 196 (Ky.) Where a conveyance is voluntary and without consideration or upon an inadequate consideration, and where there is a relation of trust and confidence between the parties, the burden is upon the grantee to prove that the grantor acted freely and understandingly.—Meece v. Colyer, 179 S. W. 579.

The mere fact that the grantor and the grantee were uncle and nephew does not establish such a confidential relation as would give rise to the presumption of fraud.—Id. C=208 (Ark.) Evidence held to sustain a finding that a deed had been delivered, and that the title had vested in the grantee.—Vaughan V. Chicago, R. I. & P. Ry. Co., 179 S. W. 165. Q:21 1 (Ky.) In a proceeding to set aside a deed, etc., based on a conspiracy between a real estate agent and vendee, held, that there was sufficient evidence, outside of the acts and declarations of the vendee, to sustain a judgment in favor of the vendor.—Cole v. Collins, 179 S. W. 607.

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C:9 (Tex.Cr.App.) Married woman living with her husband, who herself leased the premises and paid the rent, might be convicted of unlawfully keeping the house for prostitution.—Jackson v. State, 179 S. W. 711. C: 12 (Tex.Cr.App.) That information for unlawfully keeping a house for prostitution alleged defendant to be a tenant, and not a lessee, - was no ground for quashing, since “tenant” was synonymous with “lessee.”—Jackson v. State, 179 S. W. 711. Q: 17 (Tex.Cr.App.) Evidence in a prosecution for unlawfully keeping and being concerned in keeping a bawdyhouse held sufficient to support a conviction.—Thompson v. State, 179 S.W. 98.

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&= 124 (Tex.Civ.App.) Evidence in wife's action for divorce and for the recovery of her separate property held to show that she had been a bona fide inhabitant of the state for one year, and a resident of the county for six months next preceding the filing of the petition, within the jurisdictional requirement of Vernon's Sayles’ Ann. Civ. St. 1914, art. 4632.—Fox v. Fox, 179 S. W. 883.

Q: 130 (Ky.) Evidence in a husband's action for divorce for the wife’s abandonment, with counterclaim for divorce on the ground of cruel and inhuman treatment, etc., and for alimony, held not to establish husband's cruel treatment so as to entitle wife to alimony.—Rice v. Rice,

179 S. W. 200

(F) Judgment or Decree.

&= 152 (Ky.) The entry of a divorce judgment on the order book of the court is indispensable to establish the fact that a divorce has been granted.—Robinson v. Robinson, 179 S. W. 436.

V. ALIMONY, ALLOWANCES, AND DISPOSITION OF PROPERTY.

G: 221 (Mo..App.) An order allowing or denying suit money to enable wife to prosecute an. appeal from an adverse judgment in a divorce suit is entirely independent from the issues in the divorce suit, and the right thereto is in no way dependent on the right to divorce.—Hall v. Hall, 179 S. W. 738. &=223 (Mo..App.) Where the lower court which denied a wife divorce awarded her temporary alimony pending appeal, that order showed that she was also entitled to suit money; it appearing that she was destitute, so the denial of suit money was an abuse of discretion.—Hall v. Hall, 179 S. W. 738. &=224 (Mo..App.) Where a wife is destitute, she is entitled to suit money to prosecute an appeal from judgment denying her divorce.Hall v. Hall, 179 S.W. 738. Q->236 (Mo..App.). Under Rev. St. 1909, § 2375, agreement of parties to commute arrears of alimony and to change amount of alimony, held enforceable, in absence of fraud or imposition.— Francis V. Francis, 179 S. W. 975. Q->240 (Ky.) A wife given a divorce on the ground of abandonment and cruel treatment and awarded the custody of small children held entitled, in addition to an allowance for their

See Drains.

support, to alimony in the sum of $150 per year.—Goff v. Goff, 179 S. W. 826. &=241 (Mo..App.) Under Rev. St. 1909, § 2376, whether an award of alimony to the wife shall be in gross or a periodical allowance depends on the husband's financial ability.—Wright v. Wright, 179 S. W. 950. An award of alimony in monthly installments of $100, instead of a gross sum of $7,500, held not an abuse of the discretion vested in the court by Rev. St. 1909, § 2376, where it appeared that the defendant husband was earning $340 per month.—ld. &=249 (Ky.) Notwithstanding Ky. St. $ 2121, and Civ. Code I’rac. § 425, did not authorize it, the court granting a divorce to the wife might order her to pay the amount expended by the husband in permanent improvements upon her £ers-sandusky V. Sandusky, 179 S. W. A husband who, under agreement, with his wife for repayment out of rents, expended money in permanent improvements upon her property, held entitled to recover in her suit for divorce the amount so spent.—Id. <>285 (Mo..App.) An appeal from an order denying suit money in a divorce case will be considered, though the bill of exceptions in the principal case was not in the record and the printed abstract had not been prepared, for that is the principal purpose for which suit #" is necessary.—Hall v. Hall, 179 S. W.

G:286 (Ky.) Where, in a wife's action for divorce, evidence on issue of money wrongfully withheld by husband is doubtful, the finding of chancellor will not be disturbed.—Hester V. Hester, 179 S. W. 451.

D0CKETS. See Trial, Ç:11.

DOCTORS.

See Physicians and Surgeons.

DOCUMENTARY EVIDENCE. See Criminal Law, 6-447.

DOMICILE.

See Divorce, @:62; Venue, @:22. DOUBLE TAXATION.

See Municipal Corporations, 3:407.

DOWER.

See Curtesy: Eminent Domain, <=157; Taxation, ©->866, 889.

DRAFTS. See Embezzlement, @:6.

DRAINS.

I. ESTABLISHMENT AND MAINTENANCE.

Q-> 14 (Ark.) Jurisdictional notice not conforming to map and report describing proposed drainage district, and not enabling owner to know whether his land was to be included, held to invalidate all subsequent proceedings.-Paschal v. Swepston, 179 S. W. 339.

II. ASSESSMENTS AND SPECIAL TAXE

Q->82 (Ark.) On evidence in a proceeding for the amendment of former orders relating to assessments, held, that court could not say that the trial court erred in refusing to treat it as establishing with sufficient certainty the fact

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C: 17 (Ky.) A conveyance of a warehouse with appurtenances will not carry with it the right to use a private way over the grantor's land which at that time was not needed for plaintiff's full enjoyment of the premises.—Kentucky Distilleries & Warehouse Co. v. Warwick Co., 179 S. W. 611. Q: 18 (Ky.) Where, on conveyance of a warehouse surrounded on three sides by the grantor's land, a way over railroad tracks furnished access to the entire premises, plaintiff, having changed the construction of the premises, cannot claim as a way of necessity a passway to the rear portion of the warehouse.—Kentucky Distilleries & Warehouse Co. v. Warwick Co., 179 S. W. 611. Where plaintiff used way across railroad tracks, it cannot claim a way of necessity over defendant's land which surrounded its property on three sides on the ground that the way across the tracks might be revoked.—Id.

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that the orders had been made as claimed by I See Pleading, 2-369; Wills, 3-792.

ELECTIONS.

See Municipal Corporations, @:918.

VI. NOMINATIONS AND PRIMARY ELECTIONS.

&: 146 (Ky.) Under the Primary Act, a nominee may create a vacancy by withdrawal even though he agrees to accept the nomination.— Elswick v. Ratliff, 179 S. W. 11.

A nominee, held not entitled to withdraw his resignation delivered to the county clerk after it was accepted by the party authorities and another selected.—Id. &= 156 (Ky.) Under Ky. St. 1915, § 1550, subsec. 26, nomination certificate of Republican candidate for representative filed with secretary of state October 4th held filed too late; the election being November 2d.—Dobbs v. Crecelius, 179 S. W. 12.

Ky. St. 1915, § 1550, subsec. 26, is mandatory in character, and noncompliance deprives a nominee of the right to have his name printed on the official ballot.—Id.

IX. COUNT OF VOTES. RETURNS, AND CANVASS.

&=260 (Ky.) Election commissioners cannot canvass questioned ballots unaccompanied by statement of whether and how counted, as required by Ky. St. § 1482.—Graham V. Treadway, 179 S. W. 1029.

X, CONTESTS.

&=269 (Tenn.) The Chancery Court has no jurisdiction of a bill brought to contest the election of the one receiving the highest number of votes, on the ground of his ineligibility, or to declare the election, void.—Hogan v. Hamilton County, 179 S.W. 128. 3+280 (Ky.) Under Primary Election Law, § 28, and Civ. Code Prac. § 625, failure to give notice of contest until nine days after the award of certificate of nomination held a jurisdictional defect, so that the contest would be dismissed.–Edge v. Allen, 179 S. W. 212. &=299 (Ky.) Questioned ballots unaccompanied by statement of whether and how counted, required by Ky. St. § 1482, will be counted by the court in election contest.-Graham V. Treadway, 179 S. W. 1029.

ELECTRICITY.

See Contribution, ©:25; Municipal Corporations, @->682.

Q+4 (Ky.) A void ordinance granting to an electric light and power company a franchise held to give the company a license to use the streets, and a reasonable time within which to remove its pronerty.—City of Princeton V. #. Electric Light & Power Co., 179 S.

A city need not allow the use of its streets by a public service corporation without a franchise, merely because it has entered into obligations with citizens which it cannot perform without a franchise.—Id. <= i I (Ky.) One furnishing to a city electric light and power under a franchise void under Const. § 164, may not enforce collection thereor.—City of Princeton v. Princeton Electric Light & Power Co., 179 S. W. 1074. A city, paying for light furnished by an electric light company operating under a void franchise held not entitled to recover the sums paid.

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<=6 (Mo.) Under Rev. St. 1909, §§ 4550, 4551, a draft is not subject to embezzlement prior to delivery.—State v. Wilcox, 179 S. W. 482, 483.

&=9 (Ky.) Certification to sheriff for collection of franchise tax due county from corporation held necessary condition precedent to his embezzlement thereof.—Commonwealth v. Brand, 179 S. W. 844.

&= | 1 (Mo.) Conversion is any using or dealing with the property of another which impliedly or by its terms excludes the owner's dominion; the word “imply” meaning it is “virtually involved or included; involved in substance; inferential, tacitly conceded—the correlative of ex£ or expressed.”—State v. Wilcox, 179 S.W.

4 $7.

©:23 (Mo.) In a prosecution for embezzlement by a bank cashier, an instruction that the fact that the proceeds of the check whereby the embezzlement was consummated went to another did not constitute a defense was not erroneous.State v. Wilcox, 179 S. W. 479. G->28 (Ky.) An indictment held to charge conversion not of a note, or horse, but of money, the proceeds of sale of a horse, giving in a descriptive way its source.—Commonwealth v. Holliday, 179 S. W. 235.

Q:38 (Ky.) In a prosecution of a sheriff for embezzling a county tax, testimony of the clerk of the county court during defendants term of office that the latter had failed to report collections as required by Ky. St. § 4147, was admissible.—Commonwealth v. Brand, 179 S. W. 844. Testimony as to a receipt given the sheriff by his deputy, as to the handwriting of the receipt, who had given it, and ill feeling between the deputy and the defendant growing out of the receipt, was inadmissible.—Id. Pleadings of the sheriff's sureties’ suit to recover sums they were required to pay for his defalcations in office were irrelevant.—Id. The prosecution may prove that a demand has been made by the proper person for the payment by defendant of the money he is accused of embezzling.—Id. Evidence that defendant had arranged with his deputy to take the former sheriff's books a'ollect unpaid taxes, etc., held inadmissible. Q:39 (Ky.) In prosecution of sheriff for embezzlement, defendant's testimony that upon demand by the county for the tax he was accused of embezzling, but which he did not know he had not accounted for, he was financially unable to turn it over, held admissible.—Commonwealth v. Brand, 179 S.W. 844. In prosecution of sheriff for embezzlement of a tax which he claimed he had no memory of receiving, evidence that at the time of the receipt defendant suffered from his nerves and could not look after his office was admissible. &=>39 (Mo.) In a prosecution for embezzlement by a bank cashier evidence of shortages in the bank’s assets other than those resulting from the transaction counted on was admissible upon the question of fraudulent intent.—State v. Wilcox, 179 S. W. 479.

EMBLEMENTS.

See Life Estates, 3:25.

EMINENT DOMAIN.

See Railroads, 3:113.

II. COMPENSATION. (A) Necessity and Sufficiency in General. &=75 (Ark.). Const. art. 12, § 9, prohibiting appropriation of property until full compensation is made in money or secured, held not to apply to exercise of power of eminent domain by the

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